Will decision of Foreigners’ Tribunal prevail over NRC in Assam?

[dropcap]T[/dropcap]HE Supreme Court has commenced hearing a petition to examine whether a judicial determination of a person being a foreigner, would stand superseded if the name of that person was included in the draft/final National Register of Citizens (NRC) in Assam.

The hearing commenced yesterday, March 26, 2019.

The State of Assam and the Government of India have contended that the decision of the Foreigners' Tribunal – declaring a person a foreigner, would always prevail over the NRC and such illegal migrants could not be included in the NRC in Assam.

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"As per the provisions of paragraph 3(2) of the Schedule of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the judicial verdict would prevail and endure notwithstanding the executive exercise of preparing NRC list," the State of Assam and the Government of India submitted to the Supreme Court.

"A right of appeal if not provided under the statute"

A three-judge bench comprising CJI Ranjan Gogoi, Justices Deepak Gupta and Sanjiv Khanna will also examine whether a person who has been declared a foreigner by a judicial tribunal has the right to appeal their exclusion from the NRC.

Senior Advocate Kapil Sibal appearing for the petitioners, argued that if the name of a person included in the NRC is deleted on the ground that they were foreigners or illegal migrants, they would have a right of appeal against their exclusion from the NRC.

Senior Advocate Kapil Sibal appearing for the petitioners, has argued that if the name of a person included in the NRC is deleted on the ground that they were foreigners or illegal migrants, they would have a right of appeal against their exclusion from the NRC.

Sibal also argued that though the statute may not have provided a remedy of appeal, it could be carved out by the Supreme Court under Article 142 of the Constitution, which gives the court the power to pass an order or decree in the interest of complete justice.

To CJI Gogo's query whether that right under Article 142 would cover the remedy of appeal, Sibal sought more time from the court.

The matter is now list for March 28, 2019.

Powers under Article 142​​

Article 142 of the Constitution says the Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Article 142 of the Constitution reads as:

Art. 142: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc–

(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make an order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

In Supreme Court Bar Association v. Union of India and another, (1998) 4 SCC 409, the court held that Article 142 could not be used to supplant the existing law, but only to supplement the law. A five-judge bench held that "the Supreme Court is not a court of restricted jurisdiction of only dispute-settling. The Supreme Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by the Supreme Court".

The State of Assam and the Government of India have contended that the decision of the Foreigners' Tribunal – declaring a person a foreigner, would always prevail over the NRC and such illegal migrants could not be included in the NRC in Assam.

The power to do complete justice under Article 142 is in the nature of a corrective measure whereby equity is given preference over the law to ensure that no injustice is caused (Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors, AIR 2006 SC 1806)

One of the constructive applications of Article 142 by the Supreme Court was in the Union Carbide case (1991) 4 SCC 584 – relating to the victims of the Bhopal gas tragedy – where the Court felt a need to deviate from existing law to bring relief to the thousands of persons affected by the gas leak. The Court went to the extent of saying that to do complete justice, it could even override the laws made by Parliament and held that "prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142".

Read the Order.

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2019/03/27051601/NRC-Order_26-Mar-2019.pdf[/pdfviewer]