Gauhati HC Orders Release of Woman First Declared as 'Indian,' Then 'Foreigner'

Hasina Bhanu, a resident of Darrang, was lodged in a detention camp in October after being declared a foreigner.

An Assam resident, who was declared as Indian in 2016 and then as a foreigner in 2021 by the Foreigners Tribunal (FT), will walk out of detention on Thursday, 16 December, after intervention by the Gauhati High Court.

Fifty-five-year-old Hasina Bhanu, a resident of Darrang, was lodged in the Tezpur detention camp in October after being declared a foreigner.

Bhanu had then submitted a plea in the court, observing that the FT had in 2016 declared that she was not a foreigner or an illegal immigrant, as per an NDTV report.

After she was declared Indian by the FT in 2016, a second case had been registered against Bhanu in the same FT after a referral from the Assam Border Police in 2017, on the suspicion of her being a Bangladeshi national, as per The Indian Express. The FT in 2021 had declared that she was a foreigner from the 1971 stream.

"The petitioner despite being an Indian citizen had to face detention in a camp and will now be released," the high court said on Monday, NDTV reported.

The court noted that the tribunal was aware that Bhanu had previously been declared an Indian, and so the second order of the FT cannot be upheld.

Supreme Court Ruling From 2019 Says Same Person's Case Can't be Re-Litigated Before FT

Key to the high court's decision was the Supreme Court's ruling in 2019 in the Abdul Kuddus case. In this judgment, the apex court had held that the legal principle of res judicata applied to decisions of the FT.

The principle of res judicata means that once a judicial decision has been made on a particular issue, the same issue can't be brought as a fresh case again. The Supreme Court held that the principle applies to decisions of quasi-judicial bodies like tribunals as well, including those of the FT.

This means that once a person is declared a 'foreigner' by a Foreigners Tribunal, they do not have a right to appeal to the Foreigners Tribunal to have themselves declared an Indian.

Similarly, once a Foreigners Tribunal has declared someone an Indian, this same person can't be declared a foreigner by a subsequent Foreigners Tribunal decision.

The FT had held in Bhanu's case that the old decision didn't prevent it from declaring Bhanu a foreigner since decisions of an FT are not binding on another FT.

However, that is the case when it comes to different people. If the FT is considering the status of the same person, the principle of res judicata will apply and they will have no choice but to accept the previous decision.

There is one exception to this principle: a person declared a foreigner can appeal the FT's decision if the FT has declared that a relative of theirs, who is part of the same family tree under the NRC process, is an Indian.

(With inputs from NDTV and The Indian Express.)