The Supreme Court (SC) has admitted a petition to consider whether a person who is once declared to be a citizen or illegal migrant by a Foreigners Tribunal in Assam has to prove citizenship every time the state has doubts. The question hits the core of a person's right not to be tried twice for the same offence, known in common parlance as double jeopardy.
Issuing notice on a petition filed by Swapan Dutta, a bench headed by Chief Justice of India (CJI) Ranjan Gogoi has sought the response from Assam and Centre on this issue. On one hand is the right of the suspected illegal migrant against double jeopardy and on the other hand is the state's power to curb illegal migration with an iron fist.
Dutta's petition challenges the HC verdict. The HC in national interest said that a decision of Tribunal is merely an opinion and not judgment, hence, it will not be binding on the state/police to keep making fresh reference as and when a doubt arises over a person's citizenship.
Senior advocate Colin Gonsalves appearing for the petitioner in SC pointed out that the principle of res judicata contained in Section 11 of Civil Procedure Code allows a judgment or decree to be binding on all courts. He shared the plight faced by the poor migrants who have no money to hire a lawyer or arrange evidence to thwart the challenge against their citizenship.
The HC relied on the fact that since Assam is facing "external aggression" and illegal migrants from Assam pose threat to nation's security and integrity, principles of res judicata would not apply to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order. It further stated, "Detection of illegal migrants or foreigners is of paramount importance having overriding national interest. All other public interest or public policy would have to give way to the overarching public policy of detection of illegal foreign nationals residing in the State of Assam."
Stating that an order by Foreigners Tribunal is not a judgment, the HC in its final analysis stated, "Though the principle of res judicata is based on public policy, the same will stand subsumed under the overarching public policy governing a sovereign nation while dealing with illegal foreigners under the Foreigners Act."
CITIZENSHIP WOES
- Over 32 million people submitted documents to the NRC to prove they were citizens of Assam, but 4 million have been excluded from the published list
- The lead petition heard by the HC was of one Amina Khatun. On April 29, 2014, the Tribunal held her to be a citizen of India.
- Two years later, on September 28, 2015, another Tribunal at Dhekiajuli declared her to be a foreigner who entered India as an illegal migrant.
- On one side is the right of the suspected illegal migrant against double jeopardy and on the other hand is the state's power to curb illegal migration with an iron fist.
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