Unabated Influx From Bangladesh Leading To Demographic Changes & Civil Discontent: Gauhati High Court

The Gauhati High Court has remarked that unabated influx from the specified territory of Bangladesh is leading to demographic changes and widespread civil discontent in the State of Assam.

The Court remarked thus in a Writ Petition preferred by a woman seeking release of her husband who was declared a foreign national by the Foreigners Tribunal.

A Division Bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund observed, “When the issue of unabated influx from the specified territory is leading to demographic changes in the State, which may not be seriously impacting or affecting the rest of the Country, but is leading to widespread civil discontent in the State of Assam, it would not be permissible for constitutional safeguards available for the “citizens” of the Country to be extended to a “declared foreign national” like the husband of the petitioner.”

The Bench said that even the United States of America (USA), one of the developed Countries, is starting to feel the pinch of illegal immigrants and the nature of steps taken by it are in public domain, on which the Court does not comment.

Advocate M. Dutta appeared on behalf of the Petitioner, while Additional Senior Government Advocate P. Sarmah, CGC J. Sarma, and Standing Counsel J. Payeng appeared on behalf of the Respondents.

Case Background

The Petitioner namely Rejiya Khatun’s case was that her husband namely Majibar Rahman was a declared foreign national vide opinion passed by the Member, Foreigners Tribunal, Chirang, Kajalgaon. According to her, her husband was taken into custody and after competition of more than two years of detention, he was released in November 2021. In the said connection, the Petitioner made reference to the directions contained in the Supreme Court’s decision in the case of Supreme Court Legal Services Committee v. Union of India (W.P.(C) 1045/2019) and two notifications of the Assam Government.

In terms of the conditions imposed for release of detained foreign nationals, the Petitioner was appearing before the police station every week, however, her husband was taken into custody in May 2025. The counsel submitted that the police had not served any arrest memo or grounds of arrest to the said declared and detained foreign national and his whereabouts was also not informed to the Petitioner or any other family member. Hence, the Habeas Corpus Petition was filed before the High Court, seeking a direction for production of the Petitioner’s husband before the Court, to conduct his medical check-up, to release him, and to direct the authorities not to resort to deportation without following due process.

Reasoning

The High Court in the above context of the case, noted, “… the Supreme Court of India has also equated the influx of illegal migrants into Assam as an external aggression. The correctness of the said observation is not in dispute. This can be seen if one cares to visit the length and breadth of the State. Due to reasons, which can be answered by competent authorities, the illegal immigrants are seen to have been allowed to settle in non-cadestally mapped areas, alluvial soil (called char area in Assam), Govt. land, forest land, etc. Thus, there are no land records available regarding when the settlements of illegal migrants came into existence.”

The Court added that the Government has a duty to preserve the unit and integrity of the country and as unabated influx from the specified territory of Bangladesh has been equated to an act of aggression, it is perhaps a wrong perception in a section media report projecting that a religious persecution is going on in the State of Assam, which appears to be an example of misinformation warfare being carried out by some persons, perhaps, having some vested interest against the country in general and the State of Assam in particular.

“In the aforesaid context, when the husband of the petitioner is a declared foreign national, the Court is unable to hold that the said declared foreign national has suffered violation of Articles 21, 22 and 39A of the Constitution of India”, it remarked.

The Court observed that in the rest of the Country, except the State of Assam, it is the Executive, who can order expulsion of a foreigner, however, in respect of persons who have entered into the territory of India (Assam) from the specified territory (which includes erstwhile East Pakistan before 25.03.1971 and Bangladesh, after 25.03.1971), are subjected to proceeding before the jurisdictional Foreigners Tribunal and thereafter, they are subjected to deportation and/or expulsion.

“In the considered opinion of the Court, the State has unfettered power to cause expulsion of a declared foreign national. Therefore, in the event a “declared foreign national” cannot be expelled due to any reason whatsoever, including the policy in force, then the only way open to the State would be to prevent a declared foreign national from getting employment, purchase land, marry Indian national, etc., perhaps by framing appropriate policy and/or by detaining such “declared foreign national” in the holding areas ear-marked for the purpose”, it emphasised.

The Court held that the act of the appropriate Government to keep in holding camps, a “declared foreign national” and/or “foreigner” as declared by a Foreigners Tribunal, cannot be faulted with or equated to arrest as is understood under Criminal Procedure Code (CrPC) and/or Bharatiya Nagarik Suraksha Sanhita (BNSS), which confers certain procedural safeguards for citizens of India, who are arrested in connection with some criminal offence.

“In this case, the husband of the petitioner cannot be said to be facing deportation. Rather, the said declared foreign national is facing an expulsion as an illegal migrant i.e. as a declared foreign national, who has entered into India (Assam) from a specified territory after the cut-off date of 25.03.1971. The said two terms, i.e. “deportation” and “expulsion”, in the opinion of the Court, cannot be interchangeably used under the facts and circumstances of this case, as “deportation” is carried out in respect of a person, whose entry into the Country was lawful, but his/her subsequent stay in the Country is illegal or unlawful, but the word “expulsion” is generally used for expelling an illegal migrant and/or illegal foreigner. In this regard, one may also refer to the Immigration (Expulsion from Assam) Act, 1950 regarding the concept of “expulsion”, it further noted.

The Court said that just because the declared foreign national has been able to stay in this country for a long time even after reference was made by the Superintendent of Police (Border) in the year 2010, he cannot be said to have any right that a citizen of this country may have, against arbitrary arrest.

“The point is that the petitioner has knowledge that her husband is a declared foreign national, yet the petitioner has not pleaded in the writ petition that why and for what purpose, she expects the State to extend Constitutional rights and safeguards, reserved for citizens of the Country to a “declared foreign national”, awaiting his expulsion from the Country. If any such rights are ordered, it would amount to give special premium and protection to a declared foreign national, which is not envisaged in the Constitution of India”, it also remarked.

Conclusion

Furthermore, the Court was of the view that mere projection that the said declared foreign national has not flouted any bail condition, would not be a sufficient cause for preventing the State to take appropriate action against him and to take steps for his expulsion from the country.

“The Court is unable to accept that any legal and fundamental right of the said Majibar Rahman @ Majibar Sheikh, a declared foreign national, purportedly under Article 14, 16, 18, 21, 22 of the Constitution of India, has been violated. … The arrest and detention of a declared foreign national cannot be equated with rights of persons arrested as envisaged under Section 50 of the Code of Criminal Procedure”, it added.

The Court, therefore, concluded that once a declared foreign national is taken into custody awaiting expulsion from the country, it is not open to such declared foreign national, whose declaration is made by a Foreigners Tribunal in the State of Assam to maintain a claim that his/her custody is illegal and vitiated by non-service of grounds of arrest, as envisaged under Article 22 of the Constitution and/or under Section 50 CrPC, as declaration of an illegal foreigner under the Foreigners (Tribunals) Order, 1964 does not have any criminal consequences.

Accordingly, the High Court dismissed the Writ Petition.

Cause Title- Rejiya Khatun v. The Union of India and Ors. (Neutral Citation: 2025:GAU-AS:14152-DB)

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