Gauhati High Court
Page No.# 1/26 vs The Union Of India And 6 Ors on 24 October, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/26
GAHC010120752025
2025:GAU-AS:14153-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No: WP(C)/3099/2025
SANIDUL SHEIKH
S/O ABDUL SHEIKH
R/O.- CHATIBARGAON
P.S. KAJALGAON
DISTRICT- CHIRANG
ASSAM
PIN-783385.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY
MINISTRY OF EXTERNAL AFFAIRS
GOVERNMENT OF INDIA
SOUTH BLOCK
NEW DELHI-110011.
2:THE COMMISSIONER AND SECRETARY
HOME DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006.
3:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-08.
4:THE DISTRICT COMMISSIONER
CHIRANG
ASSAM
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5:THE SUPERINTENDENT OF OF POLICE
CHIRANG.
6:THE SUPERINTENDENT OF POLICE CHIRANG
(BORDERS).
7:THE OFFICER-IN-CHARGE
KAJOLGAON POLICE STATION
DIST. CHIRANG
ASSAM
------------
Advocate for : MR. M DUTTA
Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 6 ORS
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 24.10.2025
(K.R. Surana, J)
Heard Mr. M. Dutta, learned counsel for the petitioner. Also
heard Ms. J. Sarma, learned CGC for respondent no.1; Mr. J. Payeng, learned
standing counsel for the FT and Border matters, representing respondent nos.
2, 3, 5, 6 and 7; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate,
representing respondent no.4.
2) The petitioner in this case is Sanidul Sheikh and his case is that
his father, namely, Abdul Sheikh, is a declared foreign national vide opinion
dated 13.06.2018, passed by the learned Member, Foreigners Tribunal, Chirang,
Kajalgaon, in F.T. Case No. BNGN/FT/CHR/ 220/2007, arising out of
Superintendent of Police, Chirang Ref. No. 220/2006. There is total absence of
any statement in the writ petition that the said declared foreign national had
assailed the said opinion dated 13.06.2018. Therefore, it is presumed that the
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said opinion dated 13.06.2018, had attained finality. The case of the petitioner is
that his father, i.e. the declared foreign national was taken into custody on
30.04.2019 and after completion of more than two years of detention, he was
released on 30.04.2021.
3) In the said connection, in this writ petition, the petitioner has
made reference to (i) the directions contained in the order dated 10.05.2019,
passed by the Supreme Court of India in W.P.(C) 1045/2019 - Supreme Court
Legal Services Committee v. Union of India , (ii) two notifications dated
29.07.2019 and 26.08.2019, issued by the Govt. of Assam, Political (B)
Department, thereby facilitating the release of those detenues who had
completed more than three years of detention; and order dated 15.04.2020,
passed by this Court in W.P.(C) (Suo Motu) 1/2020 - In Re: The Union of India
& Ors.
4) It is projected that in terms of the conditions imposed for
release of detained foreign nationals, the petitioner was appearing before the
Kajalgaon Police Station every week and that his last presence was recorded in
the said Police Station on 21.05.2025. However, on 25.05.2025, the said
declared foreign national was taken into custody at about 11.30 pm on
25.05.2025 by the police personnel from Kajalgaon P.S. The learned counsel for
the petitioner has 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. Accordingly, the petitioner had sent his FIR to the Superintendent of
Police, Chirang and to the Superintendent of Police (Border), Chirang through
registered post on 30.05.2025.
5) Accordingly, by filing this habeas corpus petition under Article
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226 of the Constitution of India, the petitioner has prayed for (i) a direction for
production of Abdul Sheikh before the Court having jurisdiction and conduct his
medical check-up and to submit a report before this Court; (ii) to direct the
respondents to release the said declared foreign national; and (iii) directing the
respondents not to resort to deportation without following due process and
maintaining transparency.
6) This writ petition was filed on 03.06.2025, and being a habeas
corpus petition, the matter was taken up with all promptitude on 04.06.2025.
Pursuant to directions issued vide order dated 04.06.2025, passed in this writ
petition, when the matter was next listed on 09.06.2025, the learned standing
counsel for the FT and Border matters had disclosed that the said declared
foreign national has been lodged at the Holding Centre, under 7 th Assam Police
Battalion, Charaikhola, in the district of Kokrajhar. Accordingly, by order dated
09.06.2025, the Court had directed the In-Charge of the said Holding Centre
that on production of a certified copy of the order, the writ petitioner and two
family members be allowed to meet the detained foreign national and to allow
them to obtain his signature in the vakalatnama, to be authenticated by the said
authority.
7) On the next date of listing, i.e. on 20.06.2025, the learned
counsel for the petitioner had submitted that the petitioner had met his father
and obtained his vakalatnama. In the meanwhile, the petitioner had filed an
additional affidavit on 10.06.2025, to bring on record additional documents
regarding deportation of foreigners.
8) The respondent no.2 had filed an affidavit-in-opposition in
connection with W.P.(C) 3101/2025, wherein, it has been explained the reasons
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for taking declared foreign national into custody. By order dated 16.07.2025, the
Court had recorded the prayer made by the learned standing counsel for the FT
and Border matters, craving leave of this Court to rely on the said affidavit. In
the said affidavit-in-opposition, the respondent no.2 had stated, inter alia, that
though the declared foreign national was released, but the deportation was not
prohibited. Therefore, the said 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.
9) The learned standing counsel for the petitioner, the learned CGC
and the learned standing counsel for the FT and Border matters have advanced
their respective oral submissions.
10) Considered the submissions and perused the materials available
on record.
11) This is perhaps an appropriate moment to refer to a historical
background of the foreigners' issue plaguing the State of Assam, which, as per
media reports, is altering the demography of the State. This led to a long-drawn
students' agitation. The statement to that effect has been elaborately referred
to in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC
665, which was decided by the Full Bench of the Supreme Court of India. Some
portions of the said judgment are quoted below: -
"2. ... It is further averred that in view of the problem of illegal migration of
foreigners into Assam and their continued presence therein, a State- wise protest
movement of students was organized which continued for a long period. As a
result of the students' movement and ensuing negotiations, a memorandum of
settlement dated 15-8-1985 was entered into between All Assam Students' Union
and the Union of India and the State of Assam, which is commonly known as
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"Assam Accord". The terms of the Accord specifically provided that steps would be
taken to detect and deport illegal migrants from Assam and it also contained a
clause that "the Government will give due consideration to certain difficulties
expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants
(Determination by Tribunals) Act, 1983." The Accord further provided that
foreigners who have entered into India after 25-3-1971 will continue to be
detected, their names deleted from the electoral rolls and they will be deported
from India. In pursuance of this provision, the Citizenship Act, 1955 was amended
by Act 65 of 1985 and Section 6-A was inserted with the heading "Special
Provisions as to Citizenship of Persons covered by the Assam Accord." It provides
that the term "detected to be a foreigner" shall mean so detected under the
Foreigners Act and the Foreigners (Tribunals) Order, 1964 framed thereunder.
Under the said provision a person of Indian origin as defined u/s 6-A(3) who
entered into Assam prior to 1-1-1966 and has been resident in Assam since then is
deemed to be a citizen of India. However, if such a person entered into Assam
between 1-1-1966 and before 25-3-1971 and has been detected to be a foreigner
under the Foreigners Act then he is not entitled to be included in the electoral list
for a period of 10 years from the date of detection. This amendment of the
Citizenship Act makes it clear that the question of determination or detection of a
foreigner is to be governed by the provisions of the existing Central legislation, viz.
the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.
* * *
4. ... A true copy of the latest status report filed by the Government in Writ
Petition No. 125 of 1998, which has been filed seeking deportation of all
Bangladeshi nationals from India, has been filed as Annexure R-1 to the Counter
Affidavit and paragraphs 3 to 7 of the said status report are being reproduced
below:
"3. Continuing influx of Bangladeshi nationals into India has been on account
of a variety of reasons including religious and economic. There is a
combination of factors on both sides which are responsible for continuing
influx of illegal immigration from Bangladesh. The important "Push Factors"
on the Bangladesh side include: -
a) steep and continuous increase in population;
b) sharp deterioration in land-man ratio;
c) low rates of economic growth particularly poor performance in
agriculture;
The "Pull Factors" on the Indian side include: -
a) ethnic proximity and kinship enabling easy shelter to the immigrants;
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b) porous and easily negotiable border with Bangladesh;
c) better economic opportunities;
d) interested religious and political elements encouraging immigration;
4. It is difficult to make a realistic estimate of the number of illegal
immigrants from Bangladesh because they enter surreptitiously and are able
to mingle easily with the local population due to ethnic and linguistic
similarities. The demographic composition in the districts bordering
Bangladesh has altered with the illegal immigration from Bangladesh. The
districts of Assam and West Bengal bordering Bangladesh have recorded
growth of population higher than the national average. The States of
Meghalaya, Mizoram and Tripura have also recorded high rates of population
growth. Illegal immigrants from Bangladesh have also been using West
Bengal as a corridor to migrate to other parts of the country.
5. The large-scale influx of illegal Bangladesh immigrants has led to large
tracts of sensitive international borders being occupied by foreigners. This
has serious implications for internal security.
6. The types of illegal migrants are as follows: -
a) those who came with valid visa/documents and overstayed;
b) those who came with forged visa/documents; and
c) those who entered surreptitiously.
7. During talks between the Prime Ministers of India and Bangladesh in
February, 1972, the Prime Minister of Bangladesh had assured the return of
all Bangladesh nationals who had taken shelter in India since 25-3-1971.
Accordingly, a circular was issued by the Government of India on 30.9.1972,
setting out guidelines for action to be taken in respect of persons who had
come to India from Bangladesh. According to this circular, those Bangladesh
nationals who had come to India before 25-3-1971 were not to be sent back
and those who entered India in or after the said date were to be
repatriated."
* * *
17. A copy of the report dated 8-11-1998 sent by Governor of Assam, Lt.
Gen. S.K. Sinha (Retired), former Deputy Chief of Army Staff, has also been filed
along with this application. The report is a long and comprehensive one which was
prepared after thorough inspection of border areas and districts, discussion with
Indian Ambassador in Bangladesh and talks with political leaders. Some portions of
the report are being reproduced below: -
"1. The unabated influx of illegal migrants from Bangladesh into Assam and
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the consequent perceptible change in the demographic pattern of the State
has been a matter of grave concern. It threatens to reduce the Assamese
people to a minority in their own State, as happened in Tripura and Sikkim.
2. Illegal migration into Assam was the core issue behind the Assam
student movement. It was also the prime contributory factor behind the
outbreak of insurgency in the State. Yet we have not made much tangible
progress in dealing with this all important issue.
3. There is a tendency to view illegal migration into Assam as a regional
matter affecting only the people of Assam. It's more dangerous dimensions
of greatly undermining our national security, is ignored. The long cherished
design of Greater East Pakistan/Bangladesh, making in-roads into strategic
land link of Assam with the rest of the country, can lead to severing the
entire land mass of the North-East, with all its rich resources from the rest of
the country. They will have disastrous strategic and economic consequences.
* * *
MIGRATION INTO ASSAM
HISTORICAL BACKGROUND
7. Failure to get Assam included in East Pakistan in 1947 remained a
source of abiding resentment in that country. Zulfikar Ali Bhutto in his book
"Myths of Independence" wrote - "It would be wrong that Kashmir is the only
dispute that divides India and Pakistan, though undoubtedly the most
significant. One at least is nearly as important as the Kashmir dispute, that of
Assam and some districts of India adjacent to East Pakistan. To these
Pakistan has very good claims". Even a pro-India leader like Sheikh Mujibur
Rahman in his book "Eastern Pakistan; its population & economics" observed,
"Because Eastern Pakistan must have sufficient land for its expansion and
because Assam has abundant forests and mineral resources, coal, petroleum
etc., Eastern Pakistan must include Assam to be financially and economically
strong. (emphasis by us)
* * *
CONTRIBUTORY FACTORS
10. Besides the above considerations, there are other contributory factors
facilitating infiltration from Bangladesh. Ethnic, linguistic and religious
commonality between the illegal migrants and many people on our side of
the border enables them to find shelter. It makes their detection difficult.
Some political parties have been encouraging and even helping illegal
migration with a view to building vote banks. These immigrants are
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hardworking and are prepared to work as cheap labour and domestic help for
lower remuneration than the local people. This makes them acceptable.
Moreover, with corruption being all pervasive, corrupt officials are bribed to
provide help. Recently, a racket has been busted in Lakhimpur. Four
individuals were found to have been providing forged citizenship certificates
and other documents to illegal migrants for the last 14 years.
* * *
ILLEGAL MIGRANTS
15. ...Mr. Mulan described this as invasion using military terminology which in
present geostrategically context, underscores the strategic aspect of the
problem. It is unfortunate that to this day, after half a century of
independence, we have chosen to remain virtually oblivious to the grave
danger to our national security arising from this unabated influx of illegal
migrants. Third, the prophecy that except the Sibsagar district, the Assamese
people will not find themselves at home in Assam, is well on its way to
becoming true as reflected by the present demographic pattern of Assam.
16. Mr. Inderjit Gupta, the then Home Minister of India stated in the
Parliament on May 6, 1997 that there were 10 million illegal migrants residing
in India. Quoting Home Ministry/Intelligence Bureau sources, the 10-8-1998
issue of India Today has given the breakdown of these illegal migrants by
States: -
West Bengal - 5.4 million
Assam - 4 million
Tripura - 0.8 million
Bihar - 0.5 million
Maharashtra - 0.5 million
Rajasthan - 0.5 million
Delhi - 0.3 million
Making a total of- 10.83 millions
Communitywise growth
Assam India
Hindus Muslims Hindus Muslims
(1) 1951-1961 33.71 38.35 20.29 25.61
(2) 1961-1971 37.17 30.99 23.72 30.85
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(3) 1971-1991 41.89 77.42 48.38 55.04
EXPLANATORY NOTE
... In the case of Muslims, the Assam growth rate was much higher than the
All India rate. This suggests continued large scale Muslim illegal migration
into Assam.
* * *
(d) Muslim population in Assam has shown a rise of 77.42 per cent in 1991
from what it was in 1971. Hindu population has risen by nearly 41.89 per
cent in this period.
(e) Muslim population in Assam has risen from 24.68 per cent in 1951 to
28.42 per cent in 1991. As per 1991 census four districts (Dhubri, Goalpara,
Barpeta and Hailakandi) have become Muslim majority districts. Two more
districts (Nagaon and Karimganj) should have become so by 1998 and one
district Morigaon is fast approaching this position.
* * *
20. The growth of Muslim population has been emphasized in the previous
paragraph to indicate the extent of illegal migration from Bangladesh to
Assam because as stated earlier, the illegal migrants coming into India after
1971 have been almost exclusively Muslims.
21. Pakistan's ISI has been active in Bangladesh supporting militant
movement in Assam. Muslim militant organization have mushroomed in
Assam and there are reports of some 50 Assamese Muslim youths having
gone for training to Afghanistan and Kashmir.
CONSEQUENCES
22. The dangerous consequences of large scale illegal migration from
Bangladesh, both for the people of Assam and more for the Nation as a
whole, need to be emphatically stressed. No misconceived and mistaken
notions of secularism should be allowed to come in the way of doing so.
23. As a result of population movement from Bangladesh, the specter looms
large of the indigenous people of Assam being reduced to a minority in their
home State. Their cultural survival will be in jeopardy, their political control
will be a weakened and their employment opportunities will be undermined.
24. The silent and invidious demographic invasion of Assam may result in
the loss of the geostrategically vital districts of lower Assam. The influx of
these illegal migrants is turning these districts into a Muslim majority region.
It will then only be a matter of time when a demand for their merger with
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Bangladesh may be made. The rapid growth of international Islamic
fundamentalism may provide for driving force for this demand. In this
context, it is pertinent that Bangladesh has long discarded secularism and
has chosen to become an Islamic State. Loss of lower Assam will severe the
entire land mass of the North East, from the rest of India and the rich natural
resources of that region will be lost to the Nation.
18. Since extensive reference has been made in the affidavits to the Assam
Accord, it is necessary to notice the main provisions thereof. It is a Memorandum
of Settlement which was signed on 15-8-1985 by the President and General
Secretary of All Assam Students' Union and Convenor of All Assam Gana Parishad
on the one hand and Home Secretary, Government of India and the Chief
Secretary, Government of Assam on the other, in the presence of Shri Rajiv
Gandhi, the then Prime Minister of India. The main clauses of the settlement which
have a bearing on the case are being reproduced below:
"Memorandum of Settlement
The Government have all along been most anxious to find a satisfactory
solution to the problem of foreigners in Assam. The All Assam Students'
Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) have also
expressed their keenness to find such a solution.
2. The AASU through their Memorandum dated 2-2-1980 presented to the
late Prime Minister Smt Indira Gandhi, conveyed their profound sense of
apprehensions regarding the continuing influx of foreign nationals into Assam
and the fear about adverse effects upon the political, social, cultural and
economic life of the State.
3. Being fully alive to the genuine apprehensions of the people of Assam,
the then Prime Minister initiated the dialogue with the AASU/AAGSP.
Subsequently, talks were held at the Prime Minister's and Home Minister's
levels during the period 1980-83. Several rounds of informal talks were held
during 1984. Formal discussions were resumed in March 1985.
4. Keeping all aspects of the problem including constitutional and legal
provisions, international agreements, national commitments and
humanitarian considerations, it has been decided to proceed as follows:
Foreigners Issue
5.1 For purposes of detection and deletion of foreigners, 1-1-1966 shall be
the base date and year.
5.2 All persons who came to Assam prior to 1-1-1966, including those
amongst them whose names appeared on the electoral rolls used in 1967
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elections, shall be regularised.
5.3 Foreigners who came to Assam after 1-1-1966 (inclusive) and up to 24-
3-1971 shall be detected in accordance with the provisions of the Foreigners
Act, 1946 and the Foreigners (Tribunals) Order, 1964.
5.4 Names of foreigners so detected will be deleted from the electoral rolls
in force. Such persons will be required to register themselves before the
Registration Office of the respective districts in accordance with the
provisions of the Registration of Foreigners Act, 1939 and the Registration of
Foreigners Rules, 1939.
5.5 For this purpose, the Government of India will undertake suitable
strengthening of the governmental machinery.
5.6 On the expiry of a period of ten years following the date of detection,
the names of all such persons which have been deleted from the electoral
rolls shall be restored.
5.7 All persons who were expelled earlier, but have since re-entered illegally
into Assam, shall be expelled. (emphasis supplied by us)
5.8 Foreigners who came to Assam on or after 25-3-1971 shall continue to
be detected, deleted and expelled in accordance with law. Immediate and
practical steps shall be taken to expel such foreigners. (emphasis supplied by
us)
5.9 The Government will give due consideration to certain difficulties
expressed by the AASU/AAGSP regarding the implementation of the Illegal
Migrants (Determination by Tribunals) Act, 1983."
Subsequent thereto the Citizenship Act, 1955 was amended and Section 6-A
was introduced w.e.f. 7-12-1985. The relevant provisions of Section 6-A are
being reproduced below:
"6-A. Special provisions as to citizenship of persons covered by the Assam
Accord.--(1) For the purposes of this section--
(a) 'Assam' means the territories included in the State of Assam
immediately before the commencement of the Citizenship (Amendment)
Act, 1985;
(b) 'detected to be a foreigner' means detected to be a foreigner in
accordance with the provisions of the Foreigners Act, 1946 (31 of 1946)
and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted
under the said Order;
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(c) 'specified territory' means the territories included in Bangladesh
immediately before the commencement of the Citizenship (Amendment)
Act, 1985;
(d) a person shall be deemed to be of Indian origin, if he, or either of his
parents or any of his grandparents was born in undivided India;
(e) a person shall be deemed to have been detected to be a foreigner on
the date on which a Tribunal constituted under the Foreigners
(Tribunals) Order, 1964 submits its opinion to the effect that he is a
foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7), all persons of
Indian origin who came before the 1st day of January, 1966 to Assam from
the specified territory (including such of those whose names were included in
the electoral rolls used for the purposes of the General Election to the House
of the People held in 1967) and who have been ordinarily resident in Assam
since the dates of their entry into Assam shall be deemed to be citizens of
India as from the 1st day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of
Indian origin who--
(a) came to Assam on or after the 1st day of January, 1966 but before the
25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in
Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made by the Central
Government in this behalf under Section 18 with such authority (hereafter in
this sub-section referred to as the registering authority) as may be specified
in such rules and if his name is included in any electoral roll for any assembly
or parliamentary constituency in force on the date of such detection, his
name shall be deleted therefrom.
Explanation.--In the case of every person seeking registration under this
sub-section, the opinion of the Tribunal constituted under the Foreigners
(Tribunals) Order, 1964 holding such person to be a foreigner, shall be
deemed to be sufficient proof of the requirement under clause (c) of this sub-
section and if any question arises as to whether such person complies with
any other requirement under this sub-section, the registering authority shall,
--
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(i) if such opinion contains a finding with respect to such other
requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other
requirement, refer the question to a Tribunal constituted under the said
Order having jurisdiction in accordance with such rules as the Central
Government may make in this behalf under Section 18 and decide the
question in conformity with the opinion received on such reference.
(4) A person registered under sub-section (3) shall have, as from the date
on which he has been detected to be a foreigner and till the expiry of a
period of ten years from that date, the same rights and obligations as a
citizen of India [including the right to obtain a passport under the Passports
Act, 1967 (15 of 1967) and the obligations connected therewith], but shall
not be entitled to have his name included in any electoral roll for any
assembly or parliamentary constituency at any time before the expiry of the
said period of ten years.
(5) A person registered under sub-section (3) shall be deemed to be a
citizen of India for all purposes as from the date of expiry of a period of ten
years from the date on which he has been detected to be a foreigner.
(6) (Omitted as not relevant.)
(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person--
(a) who, immediately before the commencement of the Citizenship
(Amendment) Act, 1985, is a citizen of India;
(b) who was expelled from India before the commencement of the
Citizenship (Amendment) Act, 1985, under the Foreigners Act, 1946 (31
of 1946).
(8) Save as otherwise expressly provided in this section, the provisions of
this section shall have effect notwithstanding anything contained in any other
law for the time being in force."
12) In the said decision of Sarbananda Sonowal (supra), 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
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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. Be that as it may, we may refer to the to
the observations made by the Supreme Court of India in paragraph nos. 21 to
26, 32, 34, 46, 56, 59, 63 and 82 of the case of Sarbananda Sonowal (supra),
which have not reiterated and/or replicated in this order to maintain brevity.
13) Thus, with the said factual back-ground and law laid down by
the Supreme Court of India, the Government has a duty to preserve the unity
and integrity of the Country and as unabated influx from the specified territory
of Bangladesh has been equated to an act of aggression, it may be stated that 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.
14) In the aforesaid context, when the father 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. In this regard, reference may be made to the decision by
the Supreme Court of India in the case of Hans Muller of Nurenburg v.
Superintendent, Presidency Jail, Calcutta & Ors., (1955) 1 SCC 167. The said
case was one under Section 3(1)(b) of the Preventive Detention Act, 1950. In
that case, a German National was taken into preventive detention in order to
make arrangement of his expulsion from India, which required satisfaction to be
recorded by the competent authority under Section 3(1)(b) of the said Act.
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While deciding the issue, reference was made to the provisions of the
Foreigners Act, 1946, but it was not the subject matter of adjudication. It would
be appropriate to quote paragraphs 34 to 37, 40 and 41 thereof hereinbelow: -
34. Article 19 of the Constitution confers certain fundamental rights of
freedom on the citizens of India, among them, the right "to move freely
throughout the territory of India" and "to reside and settle in any part of India"
subject only to laws that impose reasonable restrictions on the exercise of those
rights in the interests of the general public or for the protection of the interests of
any Scheduled Tribe. 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. This is conferred by Art. 21 which is in the following terms:-
"No person shall be deprived of his life or personal liberty except according to
procedure established by law."
35. Entries 9, 10, 17, 18, and 19 in the Union List confer wide powers on the
Centre to make laws about, among other things, admission into and expulsion
from India, about extradition and aliens and about preventive detention connected
with foreign affairs. Therefore, the right to make laws about the extradition of
aliens and about their expulsion from the land is expressly conferred; also, it is to
be observed that extradition and expulsion are contained in separate entries
indicating that though they may overlap in certain aspects, they are different and
distinct subjects. And that brings us to the Foreigners Act which deals, among
other things, with expulsion and the Extradition Act which regulates extradition.
36. The Foreigners Act confers the point to expel foreigners from India. It
would the Central Government with absolute and unfettered discretion and, as
there is no provision fettering this discretion in the Constitution, an unrestricted
right to expel remains.
37. The law of extradition is quite different. Because of treaty obligations it
confers a right on certain countries (not all) to ask that persons who are alleged to
have committed certain specified offences on the territory or who have already
been convicted of those offences by their courts, he handed over to them in
custody for prosecution or punishment. But despite that the Government of India
is not bound to comply with the request and has an absolute and unfettered
discretion to refuse.
* * *
39. The Extradition Act is really a special branch of the law of Criminal
Procedure. It deals with criminals and those accused of certain crimes. The
Foreigners Act is not directly concerned with criminals or crime though the fact
that a foreigner has committed offences, or is suspected of that, may be a good
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ground for regarding him as undesirable. Therefore, under the Extradition Act
warrants or summons must be issued; there must be a magisterial enquiry and
when there is an arrest it is penal in character; and- and this is the most important
distinction of all - when the person to be extradited leaves India he does not leave
the country a free man. The police in India hand him over to the police of the
requisitioning State and he remains in custody throughout.
40. In the case of expulsion, no idea of punishment is involved, at any rate,
in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and
when he pleases. But the right is not his. Under the Indian law, the matter is left
to the unfettered discretion at the Union Government and that Government can
prescribe the route and the port or place of departure and can place him on a
particular ship or plane. [See Ss. 3(2)(b) and 6, Foreigners Act]. Whether the
Captain of a foreign ship or plane can be compelled to take a passenger he does
not want or to follow a particular route is a matter that does not arise and we
express no opinion on it. But assuming that he is willing to do so, the right of the
Government to make the order vis-à-vis the man expelled is absolute.
41. This may not be the law in all countries. Oppenheim, for example, says
that in England, until December 1919, the British Government had
"no power to expel even the most dangerous alien without the
recommendation of a court, or without an Act of Parliament making provision
for such expulsion, except during war or on an occasion of imminent national
danger or great emergency" (Openheim's International Law, Vol. I, 7 thedition,
page 631).
But that is immaterial, for the law in each country is different and we are
concerned with the law as it obtains in our land. Here the matter of expulsion has
to be viewed from three points of view: (1) does the Constitution permit the
making of such a law? (2) does it place any limits on such laws? and (3) is there in
fact any law on this topic in India and if so, what does it enact? We have already
examined the law making power in this behalf and its scope, and as to the third
question the law on this matter in India is embodied in the Foreigners Act which
gives an unfettered right to the Union Government to expel. But there is this
distinction. If the order is one of expulsion, as opposed to extradition, then the
person expelled leaves India a free man.
It is true he may be apprehended the moment he leaves, by some other
power and consequently, in some cases, this would be small consolation to him,
but in most cases the distinction is substantial, for the right of a foreign power to
arrest except in its own territory and on its own boats is not unlimited. But
however that may be, so far as India is concerned, there must be an order of
release if he is in preventive custody and though he may be conducted to the
frontier under detention he must be permitted to leave a free man and cannot be
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handed over under arrest.
15) Thus, the said decision of Hans Muller of Nurenburg (supra),
decided by the Constitution Bench of the Supreme Court of India, confirms and
reaffirms the absolute and unfettered power of the Government to order
expulsion of a foreigner. In this case, the father of the petitioner, namely, Abdul
Sheikh, is a "declared foreign national".
16) It may be stated 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.
17) In light of the observations made in the case of Sarbananda
Sonowal (supra) that Assam is facing external aggression and reference being
made to the excerpts of "Eastern Pakistan; its population & economics", the
book by a pro-India leader Sheikh Mujibur Rahman, where it is observed,
"Because Eastern Pakistan must have sufficient land for its expansion and
because Assam has abundant forests and mineral resources, coal, petroleum
etc., Eastern Pakistan must include Assam to be financially and economically
strong.", the question would arise as to how can the Country expel a "declared
foreign national", who has entered into Assam illegally after 25.03.1971, if the
specified territory, i.e. the present Republic of Bangladesh refuses to
acknowledge and/or admit that the proceedee as their subject and deny to take
those persons into their Country. In the considered opinion of the Court, the
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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. Accordingly, 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 and/or
Bharatiya Nagarik Suraksha Sanhita, which confers certain procedural
safeguards for citizens of India, who are arrested in connection with some
criminal offence.
18) In this case, the father 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 in this case in hand, as
"deportation" is carried out in respect of a person, whose entry into the Country
was lawful, but his 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 immigrants (Expulsion from
Assam) Act, 1950 regarding the concept of "expulsion".
19) It appears that just because the declared foreign national has
been able to stay in this Country for a long time even after reference was made
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by the Superintendent of Police (Border) in the year 2007, he cannot be said to
have any right that a citizen of this Country may have, against arbitrary arrest.
20) It would be relevant to quote hereinbelow paragraph nos. 74 to
79 of the case of Sarbananda Sonowal (supra):
74. We consider it necessary here to briefly notice the law regarding deportation
of aliens as there appears to be some misconception about it and it has been
argued with some vehemence that aliens also possess several rights and the
procedure for their identification and deportation should be detailed and elaborate
in order to ensure fairness to them.
75. In Introduction to International Law by J.G. Starke (1st Indian re-print 1994)
in Chapter 12 (page 348), the law on the points has been stated thus: -
"Most states claim in legal theory to exclude all aliens at will, affirming that
such unqualified right is an essential attribute of sovereign government. The
courts of Great Britain and the United States have laid it down that the right
to exclude aliens at will is an incident of territorial sovereignty. Unless bound
by an international treaty to the contrary, states are not subject to a duty
under international law to admit aliens or any duty thereunder not to expel
them. Nor does international law impose any duty as to the period of stay of
an admitted alien."
Like the power to refuse admission this is regarded as an incident of the State's
territorial sovereignty. International law does not prohibit the expulsion encase of
aliens. [Ed: In Introduction to International Law by J.G. Starke (1st Indian re-print
1994 (page 351)]. Reference has also been made to Article 13 of the International
Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully
in the territory of a State party to the Covenant may be expelled only pursuant to
a decision reached by law, and except where compelling reasons of national
security otherwise require, is to be allowed to submit the reasons against his
expulsion and to have his case reviewed by and to be represented for the purpose
before the competent authority. It is important to note that this Covenant of 1966
would apply provided an alien is lawfully in India, namely, with valid passport, visa
etc. and not to those who have entered illegally or unlawfully. Similar view has
been expressed in Oppenheim's International Law (Ninth Edn. 1992 - in
paragraphs 400, 401 and 413). The author has said that the reception of aliens is
a matter of discretion, and every State is by reason of its territorial supremacy,
competent to exclude aliens from the whole or any part of its territory. In
paragraph 413 it is said that the right of States to expel aliens is generally
recognized. It matters not whether the alien is only on a temporary visit, or has
Page No.# 21/26
settled down for professional business or any other purposes on its territory,
having established his domicile there. A belligerent may consider it convenient to
expel all hostile nationals residing or temporarily staying within its territory;
although such a measure may be very harsh on individual aliens, it is generally
accepted that such expulsion is justifiable. Having regard to Article 13 of the
International Covenant on Civil and Political Rights, 1966, an alien lawfully in a
State's territory may be expelled only in pursuance of a decision reached in
accordance with law.
76. In R. v. Bottrill, (1947) 1 K.B. 41: [1946] 2 All E.R. 434, it was said that the
King under the Constitution of United Kingdom is under no obligation to admit into
the country or to retain there when admitted, any alien. Every alien in the United
Kingdom is there only because his presence has been licensed by the King. It
follows that at common law the King can at will withdraw his license and cause the
Executive to expel the alien, whether enemy or friend. For holding so reliance was
placed on Attorney-General for Canada v. Cain, [1906] AC 542, where Lord
Atkinson said: -
"One of the rights possessed by the Supreme power in every state is the
right to refuse to permit an alien to enter that state, to annex what
conditions it pleases to the permission to enter it, and to expel or deport
from the state, at pleasure, even a friendly alien, especially if it considers his
presence in the state opposed to its peace, order, and good government, or
to its social or material interests."
In Chae Chan Ping v. United States, 1930 U.S. 581, the United States Supreme
Court held:
"The power of exclusion of foreigners being an incident of sovereignty
belonging to the Government of the United States, as a part of those
sovereign powers delegated by the Constitution, the right to its exercise at
any time when, in the judgment of the Government, the interests of the
country require it, cannot be granted away or restrained on behalf of anyone.
The powers of Government are delegated in trust to the United States, and
are incapable of transfer to any other parties. They cannot be abandoned or
surrendered. Nor can their exercise be hampered, when needed for the
public good, by any considerations of private interest. The exercise of these
public trusts is not the subject of barter or contract."
This principle was reiterated in Fong Yue Ting v. United States, 149 U.S. 698,
where the court ruled: -
"The government of each state has always the right to compel foreigners
who are found within its territory to go away, by having them taken to the
frontier. This right is based on the fact that, the foreigner not making part of
the nation, his individual reception into the territory is matter of pure
Page No.# 22/26
permission, of simple tolerance, and creates no obligation. The exercise of
this right may be subjected, doubtless, to certain forms by the domestic laws
of each country; but the right exists none the less, universally recognized and
put in force. The order of deportation is not a punishment for crime. It is not
a banishment, in the sense in which that word is often applied to the
expulsion of a citizen from his country by way of punishment. It is but a
method of enforcing the return to his own country of an alien who has not
complied with the conditions upon the performance of which the government
of the nation, acting within its constitutional authority and through the proper
departments, has determined that his continuing to reside here shall depend.
He has not, therefore, been deprived of life, liberty or property, without due
process of law; and the provisions of the Constitution, securing the right of
trial by jury, and prohibiting unreasonable searches and seizures, and cruel
and unusual punishments, have no application."
77. In Nishimura Ekiu v. United States, 142 US 652, it was adjudged that,
although Congress might, if it saw fit, authorize the courts to investigate and
ascertain the facts upon which the alien's right to land was made by the statutes
to depend, yet Congress might entrust the final determination of those facts to an
executive officer, and that, if it did so, his order was due process of law and no
other tribunal, unless expressly authorized by law to do so, was at liberty to re-
examine the evidence on which he acted, or to controvert its sufficiency. Thus
according to United States Supreme Court the determination of rights of an alien
even by Executive will be in compliance of due process of law.
78. In Louis De Raedt v. Union of India, (1991) 2 SCC 554, the two foreign
nationals engaged in missionary work had come to India in 1937 and 1948
respectively with proper documents like passport and visa etc. and were
continuously living here but by the order dated 8th July, 1987 their prayer for
further extension of the period of stay was rejected and they were asked to leave
the country by 31-7-1987. They then challenged the order by filing a writ petition.
This Court held that the power of the Government of India to expel foreigners is
absolute and unlimited and there is no provision in the Constitution fettering its
discretion and the executive government has unrestricted right to expel a
foreigner. So far as right to be heard is concerned, there cannot be any hard and
fast rule about the manner in which a person concerned has to be given an
opportunity to place his case.
79. In State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615,
following Louis De Raedt, (1991) 3 SCC 554, it was held that the fundamental right
of a foreigner is confined to Article 21 for life and liberty and does not include the
right to reside and stay in this country, as mentioned in Article 19(1)(e), which is
applicable only to the citizens of the country. After referring to some well-known
Page No.# 23/26
and authoritative books on international law it was observed that the persons who
reside in the territories of countries of which they are not nationals, possess a
special status under international law. States reserve the right to expel them from
their territory and to refuse to grant them certain rights which are enjoyed by their
own nationals like right to vote, hold public office or to engage in political
activities. Aliens may be debarred from joining the civil services or certain
profession or from owning some properties and the State may place them under
restrictions in the interest of national security or public order. Nevertheless,
once lawfully admitted to a territory, they are entitled to certain immediate rights
necessary to the enjoyment of ordinary private life. Thus, the Bangladeshi
nationals who have illegally crossed the border and have trespassed into Assam or
are living in other parts of the country have no legal right of any kind to remain in
India and they are liable to be deported. (emphasis supplied by us)
21) 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 father of the petitioner.
22) Even the United States of America, 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.
The point is that the petitioner has knowledge that his father is a declared
foreign national, yet the petitioner has not pleaded in the writ petition that why
and for what purpose, he 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.
23) Therefore, the mere projection that the said declared foreign
Page No.# 24/26
national, namely, Abdul Sheikh has not flouted any bail condition, would not be
a sufficient cause for preventing the State to take appropriate action against the
said declared foreign national and to take steps for his expulsion from the
Country.
24) The Court is unable to accept that any legal and fundamental
right of the said Abdul Sheikh, a declared foreign national, purportedly under
Article 14, 16, 18, 21, 22 of the Constitution of India, has been violated. As laid
down in the case of Sarbananda Sonowal (supra), Abdul Sheikh, the said
declared foreign national is not found to have any fundamental right in India to
move freely or to reside at any place of his choice or to carry out any vocation,
trade or calling. What is guaranteed under the Constitution of India, which
would be available even to a declared foreign national, is the right to life,
without any right to any right as to move freely within the Country, or to reside
at any particular place of choice, or to carry out any vocation, trade or calling as
the declared foreign national may so desire.
25) The petitioner was granted bail, if be so, to tide over the difficult
situation of Covid-19 pandemic. The intention of the orders passed by the
Supreme Court of India and various High Courts in the Country, as evident in
the orders placed before the Court, was to prevent overcrowding of jails and
detention centres. The pandemic situation is no longer prevailing in the State of
Assam. Moreover, by none of the orders passed for granting bail to declared
foreign nationals, there is a prohibition to the State Government and
Government of India to resume expulsion of foreign nationals, so declared by
Foreigners Tribunals in exercise of power under the Foreigners (Tribunals) Order,
1964 [now substituted by the Immigration and Foreigners Order, 2025], after
references are made by the competent authority in respect of those persons
Page No.# 25/26
who are suspected to have illegally entered into India (Assam) from the
specified territory after the cut-off date of 25.03.1971.
26) The learned counsel for the petitioner has failed to show any
provision under any law in force that a person declared to be a foreign national
by Foreigners Tribunals, after being apprehended, must mandatorily be
produced before the Magistrate. The learned counsel for the petitioner is
perhaps under some misconception of law because the declaration of foreigner
under the Foreigners (Tribunal) Orders, 1964 has civil consequences. Such
detection and declaration, in the considered opinion of the Court, is not under
any criminal law in force in the Country. In this regard, the observations of the
Supreme Court of India in paragraph 39 of the case of Hans Muller of
Nurenburg (supra), quoted hereinbefore, declares it so. Paragraph 4 of the
Foreigners (Tribunals) Order, 1964 is as under:
4. Powers of Foreigners Tribunals.- The Foreigners Tribunals shall have the
powers of a Civil Court while trying a suit under the Code of Civil Procedure,
1908 (5 of 1908), and the powers of Judicial Magistrate first class under the
Code of Criminal Procedure, 1973 (2 of 1974) in respect of the following
matters, namely, -
(a) summoning and enforcing the attendance of any person and
examining him or her on oath;
(b) requiring the discovery and production of any document,
(c) issuing commissions for the examination of any witness;
(d) directing the proceedee to appear before it in person;
(e) issuing a warrant of arrest against the proceedee if he or she fails
to appear before it.
27) The learned counsel for the petitioner has not been able to show
that the procedure as prescribed under the erstwhile Criminal Procedure Code
and/or under the Bharatiya Nagarik Suraksha Sanhita, 2023 is required to be
followed by the Border Branch of Assam Police while dealing with the declared
Page No.# 26/26
foreign national. 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. Similarly, the submissions made with regard to
rights protected under Article 22 of the Constitution, in the opinion of the Court
is totally unacceptable because it cannot be believed that the declared foreign
national, so declared by the Foreigners Tribunal is not aware of the reason of
being taken into custody. 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 of
India and/or under Section 50 Cr.P.C., as declaration of an illegal foreigner under
the Foreigners (Tribunals) Order, 1964 does not have any criminal
consequences.
28) Therefore, on all counts, this writ petition fails and is thus,
dismissed. Resultantly, there shall be no bar for the State to take steps for
expulsion of the declared foreign national, namely, Abdul Sheikh from the
Country.
29) Under the circumstances, there shall be no order as to cost.
JUDGE JUDGE
Comparing Assistant
