Foreigners tribunals powerless to review its orders: SC

The Supreme Court has ruled that a foreigners tribunal, established for determining illegal immigrants, is “powerless” to review its own orders since the law does not permit it to act as an appellate authority over its own judgments. The decision, delivered by a bench of justices Abhay S Oka and Ujjal Bhuyan, came while setting aside an Assam foreigners tribunal order that reversed its own finding in a case concerning a woman declared to be an Indian citizen.

The ruling holds broader implications for cases adjudicated by foreigners tribunals (FTs), ensuring that once an individual has been declared an Indian citizen through due process, the state or the Centre cannot pursue repetitive litigation against them in the absence of fresh and valid grounds for review through an appropriate appellate mechanism. The decision serves as a significant safeguard against whimsical proceedings that could subject individuals to prolonged legal uncertainty over their citizenship status.

The court’s ruling stemmed from the case of Rejia Khatun, a resident of Tezpur, who faced two proceedings before different benches of the foreigners tribunal at the behest of the state. The first was initiated in 2012, and the second in 2016. One of these proceedings concluded in February 2018, when the tribunal declared Khatun an Indian citizen after evaluating both oral and documentary evidence. However, despite this clear finding, the tribunal in December 2019 entertained the state’s second reference, scrutinised the same documents, and decided to continue the proceedings against her.

Khatun challenged this second order but the Gauhati high court in June 2023 upheld the tribunal’s decision to reassess the case, compelling her to approach the top court.

In its February 11 judgment, released on Wednesday, the Supreme Court found the approach of both the tribunal and the high court legally untenable, as it quashed the ruling.

Senior advocate Pijush Kanti Roy, representing Khatun in the apex court, argued that the tribunal had already conclusively determined her citizenship status and that reopening the case violated the principle of res judicata, which prevents the same matter from being litigated repeatedly.

Accepting Roy’s submissions, the bench emphasised that the foreigners tribunal is not empowered to review or sit in appeal over its own final orders. The court noted that in February 2018, the state was represented before the tribunal, had presented its case, and failed to challenge the order through the appropriate legal channels such as a high court appeal. Instead, the state attempted to reopen the case through another reference, effectively circumventing legal procedures and undermining the finality of the tribunal’s earlier order, the judgment lamented.

“In the second order dated December 24, 2019, the tribunal goes to the extent of holding that it is not divested with the power to scrutinize the documents and even findings in the earlier proceedings. The order indicates that the Tribunal wants to sit over in an appeal against its own concluded judgment and order. Such power can never be exercised by the Tribunal. The remedy of the state government or for that matter the central government was to challenge the order dated February 15, 2018,” held the bench.

The Supreme Court also pointed out that the high court erred in allowing the tribunal to review its own decision. “The high court has missed the real issue. The real issue was whether the Tribunal could have reopened the case by recording a finding that it can scrutinize the findings recorded by the same tribunal in earlier judgment which had become final,” the bench noted.

Consequently, the Supreme Court set aside both the tribunal’s December 2019 order and the high court’s ruling that had upheld it. Simultaneously, the court clarified that this judgment does not give the state a fresh liberty to challenge the 2018 order, declaring Khatun an Indian national.

“This observation made today in February 2025 does not mean that now it is open for the State or Union of India to challenge the first order dated February 15, 2018,” held the bench, aiming to put an end to Khatun’s legal troubles.

The 1985 Assam Accord mandates March 24, 1971 (when Bangladesh gained independence) as the cut-off date for Indian citizenship. As per an affidavit submitted by the Union government in the Supreme Court in November 2023, there are 100 FTs with more than 97,000 cases pending as of October 31 that year. 8,461 appeals against the tribunal orders were also pending before the Gauhati high court.

In a written reply on the floor of the House, Assam chief minister Himanta Biswa Sarma said in August last year that over 47,900 foreigners have been detected in the state from 1971 to 2014. Of these, 27,309 were Muslims, 20,613 Hindus and six belonged to other religions, he added.

The operations of these tribunals are closely linked with the National Register of Citizens (NRC) in Assam. The final NRC, published in August 2019, aimed to document all legal citizens residing in the state. This list excluded more than 19 lakh of the 3.29 crore applicants in Assam, including seven lakh Muslims and more than five lakh Hindus. To be sure, the Citizenship (Amendment) Act, (CAA) allows non-Muslim refugees who came to India on or before December 31, 2014, because of religious persecution in Pakistan, Bangladesh, and Afghanistan, to apply for Indian citizenship.