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TMI Blog2019 (5) TMI 1856X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Rules. The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. Pertinently, the Rules framed under the Citizenship Act are subordinate legislation. The expression Competent Authority used in sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act - On receipt of such reference, the Tribunal has to submit its opinion/decision, which opinion/decision in terms of Explanation to Section 6A of the Citizenship Act is final and binding. Decisions of the Tribunal have been given primacy. Thus, the Competent Authority referred to in sub-para (2) to paragraph 3 of the Schedule would be, without a doubt, the Tribunal constituted under the Foreigners Act i.e. the 1964 Order. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuance as citizens subject to the provisions of any law that may be made by the Parliament. Article 11 of the Constitution, expressly confers power on the Parliament to make laws with respect to acquisition and termination of citizenship and all matters relating to citizenship. To achieve and with this objective, the Parliament has enacted the Citizenship Act, 1955 (the Citizenship Act for short) which provides for acquisition of citizenship after the commencement of the Constitution by birth, registration, naturalisation and incorporation of territory. 4. Section 14A of the Citizenship Act states that the Central Government may compulsorily register every citizen of India and issue national identity card to him/her. The Central Government may maintain a National Register of Indian Citizens and can establish a National Registration Authority for this purpose. Procedure to be followed for compulsory registration of citizens shall be such as may be prescribed. 5. Section 6A of the Citizenship Act incorporates special provisions as to the citizenship of persons covered by the Assam Accord. For the purpose of the present order, we would like to reproduce Sub-section (3) to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or Parliamentary constituency, the same shall be deleted therefrom. Explanation to Section 6A(3) states that the opinion of the Tribunal under the Foreigners (Tribunal) Order, 1964 (the 1964 Order for short) that the person was a foreigner shall be deemed sufficient for the requirement of Sub-section (3). The opinion of the Tribunal is also binding with respect to any other requirement of sub-Section (3) to Section 6A of the Citizenship Act. The Registering Authority is required to refer the matter to the Tribunal constituted under the said Order if the earlier opinion of the Tribunal on other requirements is silent. Thereupon, the question is decided by the Registering Authority in conformity with the opinion received from the Tribunal. 6. Before we advert to the 1964 Order, we would like to refer to Rule 4A and the Schedule to the 2003 Rules which was inserted by G.S. R. 803 (E) dated 9th November, 2009, as a special provision relating to National Register of Indian Citizens in the State of Assam. Rule 4A of the 2003 Rules reads as under: 4A. Special provisions as to National Register of Indian Citizens in the State of Assam--(1) Nothing in Rule 4 shall, on and after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Local Registrar of Citizen Registration, after the receipt of the application under sub-paragraph (2) shall scrutinize the applications and after its verification, prepare a consolidated list thereof which shall contain the names of the following persons, namely: persons whose names appear in any of the electoral rolls upto the midnight of the 24th day of March, 1971 or in the National Register of Citizens, 1951; descendants of the persons mentioned in Clause (a) above. This sub-para states that the Local Registrar, after receipt of the application from citizens in terms of sub-para (2), has to scrutinize them and after verification prepare a consolidated list including the names of the persons whose names had appeared in any of the electoral rolls upto the midnight of 24th March, 1971 or in the National Register of Citizens, 1951 and the descendants of such persons. 9. Paragraph 3 of the Schedule to the 2003 Rules reads as under: 3. Scrutiny of applications-- (1) The scrutiny of applications received under sub-paragraph (3) of paragraph 2 shall be made by comparing the information stated in the application form with the official records and the persons, of who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the individual or his family. Sub-para (5) to paragraph 3 deals with investigation to be made by the Local Registrar in respect of persons who are residing in a place other than the State of Assam upto the midnight of the 24th day of March, 1971 or has shifted from one district to another within the State of Assam upto the midnight of the 24th day of March, 1971. Sub-para (2) to paragraph 3 of the Schedule deals with a separate class or cases of persons who have been declared as illegal migrants or foreigners by the Competent Authority. Sub-para (2) mandates that the illegal migrants or foreigners so declared by the Competent Authority shall not be included in the consolidated list. Proviso applies to persons who had come to the State of Assam after 1966 but before 25th March, 1971 and had registered themselves with the Foreigner Registration Regional Office and had not been declared as illegal migrants or foreigners by the Competent Authority. They are eligible to be included in the consolidated list. 10. It is obvious to us that the persons covered by sub-para (2) to paragraph 3 of the Schedule i.e. persons who have been declared to be illegal migrants or foreigners by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r within a period of sixty days and on disposal of appeal by the Tribunal, such persons can accordingly be included or deleted from the National Register of Indian Citizens in the State of Assam. Paragraph 8, therefore, makes the Foreigners Tribunal under the 1964 Order as the appellate forum to decide claims and objections under paragraph 7 of the Schedule. 13. The 1964 Order has been issued in exercise of power Under Section 3 of the Foreigners Act, 1946 (the Foreigners Act for short). The Tribunals under the 1964 Order have the power to decide whether the person is a foreigner or not within the meaning of the Foreigners Act. The 1964 Order before its amendment in 2012 was examined by this Court in Sarbananda Sonowal v. Union of India and Anr. (2005) 5 SCC 665 (Sarbananda Sonowal (I) for short), wherein it was held that the procedure prescribed for the Tribunals constituted under the 1964 Order was just, fair and reasonable. This reasoning formed the basis to strike down provisions of the Illegal Migrants (Determination of Tribunals Act, 1983) (the IMDT Act for short) as ultra vires the Constitution of India, primarily on the ground that the offending Act did not contain any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and deportation of illegal migrants having entered into India on or after 25th March, 1971 had designedly failed in its purpose. 14. Subsequently, this Court in Sarbananda Sonowal (II) v. Union of India (2007) 1 SCC 174 (Sarbananda Sonowal (II) for short) had struck down the Foreigners (Tribunals) Amendment Order 2006 inter alia for several reasons including those mentioned and which had found favour in Sarbananda Sonowal (I). The amendment Order in distinction to the 1964 Order had required the Tribunal to first consider whether there were sufficient grounds for proceeding and only on the Tribunal being satisfied that the basic facts are prima facie established that the notice could be issued to a person suspected of being an illegal migrant. The Division Bench in Sarbananda Sonowal (II) was pleased to observe in paragraphs 64 and 65 as under: 64. In the face of the clear directions issued in Sonowal I, it was for the authority concerned to strengthen the Tribunals under the 1964 Order and to make them work. Instead of doing so, the 2006 Order has been promulgated. It is not as if the Respondents have found the 1964 Order unworkable in the State of Assam; they have simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This notice should be served as expeditiously as possible and in any case, not later than ten days of the receipt of the reference of such question by the Central Government of any competent authority. (2) The Tribunal shall give him or her a reasonable opportunity to show cause by filing a representation. Ordinarily, not more than ten days' time from the date of service of the notice as aforesaid should be given to file such a representation. (3) The Tribunal shall give him or her a reasonable opportunity to produce evidence in support of his or her case. Ordinarily, not more than ten days' time should be given to produce such evidence. (4) A prayer for examination of witnesses in Court or a Commission for production of documents shall be refused if, in the opinion of the Tribunal, such prayer is made for the purpose of vexation or delay or similar purpose. (5) The Tribunal shall take such evidence as may be produced by the Superintendent of Police concerned. (6) The Tribunal shall hear such persons as, in its opinion, are required to be heard. (7) A party to the proceeding may be allowed to appear before the Tribunal either in person or through a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules framed under the Citizenship Act are subordinate legislation. The expression Competent Authority used in sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act. Indeed, the learned Counsel for the Appellants did not make any attempt to point out and highlight that there could be any other authority covered by the expression 'Competent Authority' or which would qualify and can be treated as a Competent Authority referred to in sub-para (2) to Paragraph 3 of the Schedule to the 2003 Rules. Paragraph 3 of the amended 1964 Order uses the expression 'Competent Authority' as is also used in sub-para (2) to paragraph 3 of the Schedule, albeit in a different context as a competent authority that makes reference to the Tribunal in terms of Paragraph 3. On receipt of such reference, the Tribunal has to submit its opinion/decision, which opinion/decision in terms of Explanation to Section 6A of the Citizenship Act is final and binding. Decisions of the Tribunal have been given primacy. Thus, the Competent Authority referred to in sub-para (2) to paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties but also when the decision prejudicially affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi-judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules. 20. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of a writ petition wherein the High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of error in the decision-making process, etc. This serves as a necessary check to correct and rectify an 'error' in the orders passed by the Tribunal. 23. It was highlighted that there could be contradicting decisions/opinions of Foreigners Tribunal even in cases of near family members, albeit contradictions can be avoided when 'family tree hearing' are held as is now being undertaken. In the absence of joint decisions, conflict is possible as the principle of res judicata would not apply to separate proceedings even if against two closely related but different persons, as each case has to be strictly decided on the facts and evidence on record. Secondly, there is a possibility that some/one of the near family members may have migrated to India prior to midnight of March 24, 1977 and, therefore, fall in a different category. Any such conflict, however, would not compel us to take a different view, in terms of the clear statutory provisions. In a given case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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