Woman first declared 'Indian' and then 'foreigner' released in Assam on HC order

A 55-year old woman, declared an 'Indian' and then a foreigner by a Foreigners Tribunal in Assam within a span of less than five years, walked out of Tezpur Central Jail on Thursday following a directive of the Gauhati High Court.

Hasina Bhanu alias Hasna Bhanu was declared 'Indian' in 2016 and a 'foreigner of 25:3:1971 stream' in 2021 by the Darrang Foreigners Tribunal (FT), after which she was arrested and lodged in a detention camp in Tezpur jail in October 2021.

The Gauhati High Court, however, overturned the tribunal's order earlier this week, invoking the doctrine of 'res judicata' which relates to matters finally decided on merit by a court having competent jurisdiction and not subject to further litigation by the same parties. "The proceedings against her cannot be sustained," the bench ruled.

The FT had upheld Bhanu's Indian citizenship in August 2016, but declared her a foreigner after the Assam police said she was a suspected Bangladeshi, and referred the matter back to the tribunal.

A division bench of Justices Kotiswar Singh and Malasri Nandy ruled on Monday that the identity of the petitioner in the earlier proceeding and the impugned second proceeding is the same and there is no finding by the tribunal that the present petitioner is different from the earlier person, and as such the second opinion in respect of the same person was not sustainable.

The Supreme Court's decision that the principle of 'res judicata' will be applicable even in a proceeding before the foreigners tribunal also makes the FT's opinion not sustainable and that issue has already been settled, the judges observed.

"In view of the decision of the Supreme Court, the Tribunal could not have proceeded with the matter, and as such, it would be illegal being violative of the mandate of law under Article 141 of the Constitution of India, binding on every Court and Tribunal," the bench said in the order.

Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

The judges pointed out that the court, in a number of earlier decisions, had already applied the "aforesaid decision and interfered with the subsequent proceeding initiated by the Foreigners Tribunal against the same proceedee".

Following the HC order, Darrang Superintendent of Police Sushanta Biswa Sarma approved her release order on Wednesday and a team of Darrang police reached Tezpur Central Jail, about 100 kms from her home town, this evening.

Bhanu was handed over to the police team after completion of necessary paperwork, jail authorities said.

She was, however, not allowed to speak to the media waiting outside the jail.

Bhanu's relatives in Darrang told reporters that they are relieved that she has been released and will be home.

"This is a case of sheer harassment as she was already declared an Indian in 2016 but another case alleging that she was foreigner was slapped against her. We had to spend a lot of money to prove her citizenship. We will always remain grateful to the high court for ordering her release," one of them said.

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