Sanchayita Lahkar

The Gauhati High Court, Division Bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund dismissed a habeas corpus petition filed by the wife of a declared foreign national detained in a holding centre. The Court observed that the continuous influx of illegal migrants from Bangladesh is altering the demographic composition of Assam and causing social unrest in the State. It held that the government possesses absolute authority to expel any declared foreign national and, where expulsion is not feasible, may lawfully restrict such individuals from employment, land ownership, or marriage with Indian citizens, through suitable policy measures or by housing them in designated holding centres. The Bench concluded that no constitutional rights of the detainee had been violated and upheld the State’s action.

The petition was filed by the wife of a declared foreign national seeking a writ of habeas corpus challenging his custody after he was taken from his residence by police personnel on 25.05.2025. The petitioner asserted that her husband had been declared a foreign national by the Foreigners Tribunal, Chirang, through an opinion dated 15.07.2019 and had earlier completed over two years of detention before being released on 15.11.2021. She stated that he continued to comply with all conditions, including weekly appearances before the local police station, and that his last appearance was on 21.05.2025. She alleged that after his late-night custody, no arrest memo or information regarding his whereabouts was provided. She further submitted that she mailed FIRs to the Superintendent of Police and the Superintendent of Police (Border) on 30.05.2025.

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The petitioner sought his production before the Court, medical examination, and release, along with a restraint against deportation without due process. After the matter was taken up, the State informed the Court that the detainee had been lodged at the Holding Centre under the 7th Assam Police Battalion, Charaikhola. The Court permitted the petitioner and two family members to meet him and obtain his signature on the vakalatnama.

The State, through an affidavit filed on 16.07.2025, stated that his release from the detention centre did not bar the authorities from proceeding with expulsion and that he had been taken into custody for factual and documentary verification pending his handing over to the Central Government for further action. The judgment recounts various statutory provisions regarding foreigners, including references to the Foreigners Act, the Foreigners (Tribunals) Order, international law excerpts, and past Supreme Court decisions dealing with illegal migration and expulsion. The petitioner contended violation of constitutional protections, while the State argued that no rights beyond basic life protection were available to a declared foreign national awaiting expulsion.

The Court recorded that the husband of the petitioner was a declared foreign national and that the opinion of the Foreigners Tribunal had attained finality. It observed that “the declared foreign national has been taken into custody and held at the Holding Centre… for some factual and documentary verification and once the verification is completed, he will be handed over to the Central Government agency for necessary action to send him back.” The Court discussed the historical context of illegal migration into Assam and referred to extensive passages from earlier decisions, stating that the issue had caused demographic changes and civil discontent.

The Bench noted that under the Constitution, “No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land.” Citing the Constitution Bench judgement in Hans Muller of Nurenburg, it quoted that the Foreigners Act provides the Government “absolute and unfettered” power to expel a foreigner, and that no constitutional provision limits such authority. It recited from the judgment that “the right to make laws about the extradition of aliens and about their expulsion from the land is expressly conferred” and that the Government retains “an unrestricted right to expel.”

The Court further stated that a declared foreign national in Assam, unlike foreigners in other parts of the country, is subject to the Foreigners Tribunal process and thereafter to expulsion. It recorded: “In the considered opinion of the Court, the State has unfettered power to cause expulsion of a declared foreign national.” It examined provisions concerning deportation and expulsion, stating that the two terms are not interchangeable, noting that “deportation is carried out” for persons whose entry was lawful, while expulsion applies to illegal entrants.

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The Court also observed that a foreign national cannot assert rights under Articles 14, 16, 18, 21, or 22 to resist custody pending expulsion, stating that the petitioner had not shown “any provision under any law in force that a person declared to be a foreign national… must mandatorily be produced before the Magistrate.” It noted that detention in a holding centre cannot be equated with arrest under criminal law and that constitutional protections specific to citizens do not apply. It concluded that “the mere projection” that the detainee had not violated bail conditions does not bar the State from proceeding with expulsion.

The Court dismissed the writ petition, recording: “Therefore, on all counts, this writ petition fails and is thus dismissed. There shall be no bar for the State to take steps for expulsion of the declared foreign national… from the Country. There shall be no order as to cost.”

Advocates Representing The Parties

For the Petitioner: Mr. M. Dutta, L. Deka
For the Respondents: Ms. J. Sarma (CGC); Mr. J. Payeng (Standing Counsel, FT & Border); Mr. P. Sarmah (Addl. Senior Govt. Advocate)

Case Title: Rejiya Khatun vs. Union of India & Others
Neutral Citation: 2025: GAU-AS:14152-DB
Case Number: WP(C)/3101/2025
Bench: Justice Kalyan Rai Surana, Justice Susmita Phukan Khaund