SUPREME COURT: SECOND FOREIGNERS TRIBUNAL CASE AFTER INDIAN CITIZENSHIP DECLARED IS ABUSE OF PROCESS:

 The Supreme Court has set aside an order of the Gauhati High Court which had refused to quash a case pending before the Foreigners Tribunal, holding that the subsequent proceeding against the appellant was barred by the principle of res judicata. The apex court emphasized that the appellant, who had already been declared not to be a foreigner in an earlier proceeding, could not be subjected to a second proceeding on the same issue. The appellant, Tarabhanu Khatoon @ Tarabhanu Bibi, was initially proceeded against in 2016 under the Foreigners Act, 1946, on allegations that she had illegally entered Assam after 25 March 1971—the cut-off date after which individuals entering Assam from Bangladesh (formerly East Pakistan) are deemed to be foreigners under Indian law.

The first proceeding took place before the Foreigners Tribunal, Nalbari at Mukalmua, and culminated in a final order dated 31 August 2016, wherein the Tribunal concluded that the appellant was not a foreigner. The Tribunal noted the absence of witnesses on behalf of the State and relied on both documentary and oral evidence produced by the appellant. This included records showing her parents were Indian citizens with their names appearing in the voter lists of 1966 and 1970, as well as her claim that she married Chanu Seikh in 1979 and had been casting her vote since 1985. The Tribunal found these documents and testimonies credible and concluded that the appellant had successfully discharged the burden of proof under Section 9 of the Foreigners Act, 1946. Despite this conclusive finding, a fresh notice was issued to her on 15 December 2018, initiating another proceeding on the same grounds and calling upon her to show cause as to why she should not be declared a foreigner. This led to the registration of a new case in 2018, which she challenged through a Writ Petition before the Gauhati High Court.

Although the High Court acknowledged that she had already been declared not to be a foreigner in the previous proceeding, it disposed of her writ petition by stating that she could raise all her contentions before the Tribunal in the new proceeding. Dissatisfied with this outcome, the appellant approached the Supreme Court. Her counsel, Senior Advocate PV Surendranath, argued that the earlier decision of the Tribunal had attained finality and therefore barred any further proceedings on the same issue. He placed reliance on the Supreme Court’s earlier decision in Abdul Kuddus v. Union of India, where it was held that findings of a Foreigners Tribunal are binding and attract the doctrine of res judicata.

In response, Advocate Debojit Borkakati, appearing for the State of Assam, contended that the earlier Tribunal order was vague and lacked a thorough analysis of evidence, and hence could not be treated as binding. The Supreme Court, however, rejected this argument, holding that the only legal recourse available to the State, if it disagreed with the earlier order, was to either challenge it before the High Court or seek its recall from the same Tribunal. The Court observed that no provision for review had been presented and as long as the earlier Tribunal order stood unchallenged, initiating a second proceeding on the same issue was not legally tenable.

The Supreme Court concluded that the 2018 proceedings constituted an abuse of the process of law and accordingly quashed the case. It allowed the appeal and set aside the Gauhati High Court’s order dated 31 May 2023 to the extent that it had declined to quash the second proceeding initiated against the appellant.