[Cites 42, Cited by 0]
Gauhati High Court
Page No.# 1/35 vs The Union Of India And 8 Ors on 25 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/35
GAHC010059922026
2026:GAU-AS:4430-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1716/2026
SUKTARA BEGUM
DAUGHTER OF ABUL KARIM, RESIDENT OF- VILLAGE- SIMLAI PATHAR,
P.O. AND P.S. LANKA,, DISTRICT- HOJAI, ASSAM, PIN- 782446, (ON
BEHALLF OF HER FATHER ABUL @ ABDUL KARIM S/O- LT. HAFIZ ALI,
AGED ABOUT 52 YEARS, R/O- VILL- JUTHANG BASTI (NOW SHIFTED TO
SIMLAI PATHAR), P.S. LANKA, DISTRICT- HOJAI, ASSAM, WHO HAS BEEN
DECLARED A FOREIGNER AND EXPELLED VIDE THE IMPUGNED
ORDERS)
VERSUS
THE UNION OF INDIA AND 8 ORS
TO BE REPRESENTED BY SECRETARY TO THE GOVT. OF INDIA, HOME
DEPARTMENT, NORTH BLOCK, NEW DELHI
2:THE STATE OF ASSAM
TO BE REPRESENTED BY COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
BHANGAGARH
GHY-5
4:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY CHIEF ELECTORAL OFFICER
ASHOKA ROAD
NEW DELHI- 110001
Page No.# 2/35
5:THE ADDITIONAL DIRECTOR GENERAL OF POLICE
ASSAM (BORDER)
BHANGAGARH
GUWAHATI-5
6:THE SUPERINTENDENT OF POLICE (BORDER)
HOJAI DISTRICT
ASSAM
7:THE DEPUTY COMMISSIONER
HOJAI DISTRICT
ASSAM
8:THE SUPERINTENDENT OF POLICE
HOJAI DISTRICT
ASSAM
9:THE ELECTION OFFICER
HOJAI
ASSA
Advocate for the Petitioner : MR. T A CHOUDHURY, MR. R SARMA,J NABI
Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 25.03.2026
(K.R. Surana, J)
Heard Mr. R. Sarma, learned counsel for the petitioner. Also
heard Mr. J. Sarma, learned CGC for respondent no.1; Ms. A. Verma, learned
standing counsel for the respondent nos. 2, 3, 5, 6 and 8; Mr. N. Kalita, learned
counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for
respondent no.4; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for
respondent nos. 7 and 8.
Page No.# 3/35
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Suktara Begum, has assailed the impugned ex
parte opinion dated 12.12.2012, passed by the learned Member, Foreigners
Tribunal, Hojai, Sankardev Nagar, in Case No. FT/H/1006/2007- State v. Abdul
Karim, by which Abdul Karim, the petitioner's father was declared to be a
foreigner who has entered into India after 25.03.1971.
3. This writ petition was filed on 19.03.2026, to assail the ex parte
opinion dated 12.12.2012, i.e. after an extraordinary delay of 13 years, 3
months, 7 days (or 4845 days). Hence, all sides were heard on delay and laches
on part of the petitioner to assail the impugned ex parte opinion.
4. The learned counsel had submitted that in paragraph 4 of the
writ petition, the petitioner has admitted that her father had received the notice
of the proceeding, but it was further stated that the petitioner's father, due to
ignorance, illiteracy and lack of legal knowledge, could not file his written
statement. However, the learned Tribunal, without appreciating any evidence,
and without giving a reasonable opportunity to the petitioner's father, declared
him to be a foreigner. It was submitted that the investigation was not proper
and the Border Police did not ask the father of the petitioner to produce any
document to establish that he was an Indian citizen. The alleged statement of
the father of the petitioner, recorded during investigation, was also signed by
him. Thus, in the process, as the investigation was not fair, the petitioner was
denied a fair trial. Moreover, it was also submitted that there was lack of
communication from the learned advocate engaged by the petitioner's father
and he was not aware that written statement was not filed by his engaged
advocate and that an ex parte opinion was passed. It was submitted that the
State had not produced any concrete evidence to show that her father was a
Page No.# 4/35
citizen of Bangladesh by producing his passport, entry documents, proof of
address, etc.
5. It was also submitted that in the meantime, the father of the
petitioner was taken into custody and initially detained in a detention camp and
the petitioner has also come to know that after passing an expulsion order
dated 26.12.2025, issued under the provisions of Section 2 of the Immigration
(Expulsion from Assam) Act, 1950, the father of the petitioner was expelled
without being given any opportunity of being heard. Thus, it was submitted that
the fundamental rights of the petitioner, including her father, as guaranteed
under Articles 14, 16 and 21 have been infringed by expelling petitioner's father,
illegally and arbitrarily. It is submitted that unless an interim order is granted,
the authorities would either prevent the petitioner's father from returning to
India or expel him again.
6. It was also submitted that in the entire family, no proceeding
was initiated against anyone else, which is sufficient to show that the father of
the petitioner was not a foreigner, but an Indian like other family members. It
was also submitted that as the father of the petitioner was born in India, he was
an Indian citizen as per the provisions of Section 3 of the Citizenship Act, 1955.
7. Per contra, the learned standing counsel for the FT, Border
matters and NRC had submitted that the explanation given for not contesting
the proceeding and for delay in assailing the ex parte opinion is absolutely
vague, and not supported by any documents or any other cogent and reliable
materials.
8. The learned CGC and the learned Addl. Senior Govt. Advocate
for the other appearing respondents have adopted the submissions made by the
Page No.# 5/35
learned standing counsel for the FT, Border matters and NRC.
9. As per the contents of the impugned ex parte opinion dated
12.12.2012, upon receipt of notice, the proceedee, namely, Abdul Karim, he had
appeared and took time to file written statement, but subsequently, without
filing the written statement, he had defaulted in appearing and thus, remained
absent all throughout. Thus, ex parte opinion dated 12.12.2012, was passed
against Abdul Karim, the father of the petitioner.
10. Thus, from the submissions made by the learned counsel for the
petitioner, four following points of determination arise in this case:-
i. Whether the explanation for delay is sufficient to
condone the delay of 13 years, 3 months, 7 days (or 4845 days) in
assailing the ex parte opinion dated 12.12.2012?
ii. Whether after passing of the said ex parte opinion dated
12.12.2012, is the father of the petitioner was required to be heard
again before apprehending and expelling him from the Country?
iii. On expulsion of Abdul Karim, pursuant to expulsion
order dated 26.12.2025, any fundamental right of the petitioner or of
Abdul Karim has been infringed?
iv. Whether the petitioner is entitled to any relief including interim
relief?
On point of determination no. (i):
11. The submissions made by the learned counsel for the petitioner,
as mentioned in paragraph nos. 4 to 6 above, by no stretch of imagination can
be said to have sufficiently explained the enormous delay of 13 years, 3 months,
7 days (or 4845 days) taken to assail the said ex parte opinion dated
Page No.# 6/35
12.12.2012, by filing this writ petition on 19.03.2026. In this case, the default
and delay is in three stages.
a. First phase of delay is on account of failure of the father of the
petitioner to file written statement after his initial appearance. Then
Abdul Karim chose not to appear and contest the proceeding. It is not
the case of the petitioner that from his initial appearance till the ex
parte opinion was passed and after the date of ex parte opinion till the
father of the petitioner was apprehended, he was paying fees regularly
to his engaged learned counsel. Thus, the default in not filing the
written statement and evidence and thus, not contesting the
proceeding has not been explained at all.
b. Second phase of the delay is in applying for certified copy of the
impugned ex parte opinion and other relevant copies of the Tribunal's
record. The application for copies was made on 02.05.2016, which
were promptly supplied on 02.05.2016 itself. Thus, there is an
unexplained delay of 3 years, 4 months, 20 days for the father of the
petitioner to apply for and obtain the certified copy of the ex parte
opinion and other documents. Thus, though the certified copy of the
opinion dated 12.12.2012 was obtained on 02.05.2016, the father of
the petitioner, had not assailed the said ex parte opinion dated
12.12.2012 till the expulsion order was passed on 26.12.2025 and
acted upon by taking him into custody. The date when the petitioner's
father was taken into custody has not been pleaded or stated by the
learned counsel for the petitioner.
c. Thirdly, the ex parte opinion was passed on 12.12.2012, but this writ
petition was filed on 19.03.2026, i.e. after 13 years, 3 months, 7 days.
Page No.# 7/35
Except for vaguely stating that the advocate did not inform about the
ex parte opinion; the petitioner is illiterate and does not know legal
procedure, no verifiable statement has been made by the petitioner.
12. It may be mentioned that as per the affidavit dated 19.03.2026,
filed in support of the writ petition, the petitioner is aged 25 years and
therefore, born sometime in the year 2001. Thus, on 12.12.2012, when the
impugned ex parte opinion was passed, the petitioner would be about 11 years
of age, which is not the age when it can be presumed that the petitioner would
have the knowledge that the advocate engaged by her father did not give
information about the ex parte opinion or not and at that age, the petitioner
cannot say whether or not her father did not know legal procedures. That
presumption is also not available because, the father of the petitioner had
obtained the certified copy of the opinion on 02.05.2016. However, by not
assailing the said opinion, the father of the petitioner is deemed to have waived
his right to assail the impugned ex parte opinion dated 12.12.2012.
13. Thus, the explanation for delay, as submitted by the learned
counsel for the petitioner, is vague and insufficient for the Court to overlook the
enormous and extraordinary delay and laches of 13 years, 3 months, 7 days, to
assail the said ex parte opinion.
14. It may be stated that no period limitation is prescribed for filing a
writ petition. However, unless the petitioner demonstrates good and cogent
reason, delay and laches would disentitle the petitioner to equitable relief, on
the principle that delay defeats equity. If one needs any authority on the point,
the decision of the Supreme Court of India in the case of Mrinmoy Maity v.
Chhanda Koley, 2024 INSC 314: (2024) 0 Supreme(SC) 351 , and
Chairman/Managing Director, U.P. Power Corporation Ltd. V. Ram Gopal, (2020)
Page No.# 8/35
13 SCC 225: (2020) 0 Supreme(SC) 93 (Full Bench) . In the later case, while
approving the decision of the Supreme Court of India in the case of P.S.
Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 and S.S. Balu v. State
of Kerala, (2009) 2 SCC 479 , it was held to the effect that limitation does not
strictly apply to a proceeding under Articles 32 and 226 of the Constitution of
India, nevertheless, such rights cannot be enforced after an unreasonable lapse
of time and the High Courts were cautioned by observing that prolonged delay
of many years ought not to have been overlooked or condoned. Paragraph 16
thereof [as extracted from (2020) 0 Supreme(SC) 93 ] is quoted below:-
16. Whilst it is true that limitation does not strictly apply to proceedings under
Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of time. Consideration of unexplained delays
and inordinate laches would always be relevant in writ actions, and writ courts
naturally ought to be reluctant in exercising their discretionary jurisdiction to
protect those who have slept over wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and cry for their rights at their
convenience, and vigilant citizens ought not to be treated alike with mere
opportunists. On multiple occasions, it has been restated that there are implicit
limitations of time within which writ remedies can be enforced. In S.S. Balu vs.
State of Kerala, (2009) 2 SCC 479 this Court observed thus:
"17. It is also well-settled principle of law that "delay defeats equity".
...It is now a trite law that where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be denied to them on the
ground of delay and laches irrespective of the fact that they are similarly
situated to the other candidates who obtain the benefit of the judgment ."
15. It may also be mentioned that the Supreme Court of India, in
paragraph 46 of the case of Urban Improvement Trust v. Vidhya Devi, 2024
INSC 980: (2024) 0 Supreme(SC) 1189 , has reiterated the law that undue delay
in approaching the Court can be a ground for refusing relief and it has been
expressed that only in exceptional cases, delay can be condoned. The said
paragraph 46 is quoted below:-
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"46. As regards the appellant's challenge to the inordinate delay of 21 years in
filing of the writ petitions by the respondents, we are of the view that the same
needs to be considered in the facts and circumstances of the case. While it is true
that the courts have consistently held that undue delay in approaching the court
can be a ground for refusing relief, the courts have also recognized that in
exceptional cases, where the impugned action is patently illegal or affects
fundamental rights, the delay must be condoned ."
16. In respect of the legal proposition that delay and laches is fatal to
belated challenge to the opinion of the Foreigners Tribunals, it may be relevant
to refer to the decision of this Court in the case of Jonali Das v. Union of India,
2018 (5) GLT 492: (2018) 0 Supreme (Gau) 1186. Paragraph 9 thereof is as
follows:-
"9. In Azmat Ali @ Amzad Ali Vs. Union of India [W.P.(C) No.4971/2018, disposed
of on 01.08.2018], this Court had observed as follows:-
"It is more than three decades that the issue of influx of foreign nationals has
been in public domain in the State of Assam and has engaged the attention
of the people. Interest of the State is of paramount importance in that
unabated influx has the potential to affect the integrity and sovereignty of
the country. Citizenship of a person, no doubt, is a very valuable right and
should be zealously guarded. There is no gainsaying the fact that a person
who is alleged to be a foreigner must be given due and reasonable
opportunity to establish that he is a citizen of India. However, if a person
does not take steps for safeguarding his interest, he does so at his own risk
and peril as grant of opportunity cannot be an endless exercise. Right to a
fair hearing or principles of natural justice cannot be permitted to lead to a
farcical situation and to be an engine for defeating the very object of
identification and deportation of foreigners."
17. The Supreme Court of India, in the case of Shivamma (Dead) by
LRs v. Karnataka Housing Board & Ors., 2025 INSC 1104: 2025 Supreme(SC)
1679, while dealing with the provision of Section 5 of the Limitation Act, 1963
has laid down certain guidelines. Though Section 5 of the Limitation Act, 1963
does not apply to a writ petition, but in the considered opinion of the Court,
Page No.# 10/35
when a writ petition is filed to assail the opinion of the Foreigners Tribunals,
under certiorari jurisdiction, the same principles should apply, requiring the
petitioner to provide at least some cogent and acceptable explanation for the
inordinate delay in assailing the opinion.
18. Moreover, this Court, in the case of Ajbahar Ali v. Union of India,
(2025) 0 Supreme (Gau) 763, had held to the effect that the plea of compliance
with the principles of natural justice cannot be permitted to lead to a farcical
situation and to be an engine for defeating the very object of identification and
deportation of foreigners. A similar opinion has also been expressed by this
Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813.
19. Thus, in the light of the discussions above, the Court is inclined
to hold that delay is not properly explained so as to condone the delay and
laches of 13 years, 3 months, 7 days (or 4845 days) in assailing the ex parte
opinion dated 12.12.2012. The point of determination no. 1 is accordingly,
answered in the negative and against the petitioner.
On point of determination no. (ii):
20. The point of determination no. 2 is whether after passing of the
said ex parte opinion dated 12.12.2012, was the father of the petitioner was
required to be heard again before apprehending and expelling him from the
Country.
21. The provisions of Sections 2 to 4 of the Immigrants (Expulsion
From Assam) Act, 1950, are extracted below:-
"Section. 2 : Power to order expulsion of certain immigrants
If the Central Government is of opinion that any person or class of persons,
having been ordinarily resident in any place outside India, has or have, whether
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before or after the commencement of this Act, come into Assam and that the stay
of such person or class of persons in Assam is detrimental to the interests of the
general public of India or of any section thereof or of any Scheduled Tribe in
Assam, the Central Government may by order-
(a) Direct such person or class of persons to remove himself or
themselves from India or Assam within such time and by such route as
may be specified in the order; and
(b) Give such further directions in regard to his or their removal from
India or Assam as it may consider necessary or expedient:
PROVIDED that nothing in this section shall apply to any person who on
account of civil disturbances or the fear of such disturbances in any area now
forming part of Pakistan has been displaced from or has left his place of residence
in such area and who has been subsequently residing in Assam.
Section. 3 : Delegation of power
The Central Government may, by notification1in the Official Gazette, direct that
the powers and duties conferred or imposed on it by Section 2 shall, subject to
such conditions, if any, as may be specified in the notification, be exercised or
discharged also by-
(a) Any officer subordinate to the Central Government;
(b) The [Government of Assam, Meghalaya] or any officer subordinate to
that Government.
Section. 4 : Power to give effect to orders, etc.
Any authority empowered by or in pursuance of the provisions of this Act to
exercise any power may, in addition to any other action expressly provided for in
this Act, take or cause to be taken such steps, and use or cause to be used such
force, as may in its opinion be reasonably necessary for the effective exercise of
such power."
22. Having regard to the said provisions of Sections 2 to 4 of the
Immigrants (Expulsion From Assam) Act, 1950, the Court is of the unhesitant
opinion that after being declared as an illegal foreigner/ migrant, who has
entered into India after 25.03.1971, vide ex parte opinion dated 12.12.2012,
passed by the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar, in
Case No. FT/H/1006/2007- State v. Abdul Karim, the father of the petitioner,
Page No.# 12/35
namely, Abdul Karim had no right to be heard either before or after the
expulsion order was issued by the District Commissioner, Hojai, Sankardev
Nagar under eCF No. 165918/62 dated 26.12.2025. No compliance with the
principles of natural justice is further required to be followed after a proceedee
before the Foreigners Tribunal is declared to be a foreigner. Correspondingly, no
statutory or legal duty was cast upon the District Magistrate, Hojai, Sankardev
Nagar, who has not even been arrayed as a respondent in this writ petition, to
give any opportunity of hearing to Abdul Karim, a declared foreign national.
23. In other words, by giving an opportunity to the declared foreign
national of being heard, would amount to allowing a collateral challenge to the
opinion rendered by a Foreigners Tribunal.
24. It must be taken note of the fact that the Supreme Court of
India, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665,
in paragraph 73, has held to the effect that the procedure under the Foreigners
Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable
and does not offend any constitutional provision. In paragraph 63, the Supreme
Court of India had observed that there can be no manner of doubt that the
State of Assam is facing external aggression and internal disturbance on
account of large-scale illegal migration of Bangladeshi nationals and that it,
therefore, becomes the duty of the Union of India to take all measures for
protection of the State of Assam from such external aggression and internal
disturbance as enjoined in Article 355 of the Constitution of India. In paragraph
70, it was observed that the influx of Bangladeshi nationals who have illegally
migrated into Assam pose a threat to the integrity and security of the North
Eastern region and that their presence has changed the demographic character
of that region and the local people of Assam have been reduced to a status of
Page No.# 13/35
minority in certain districts.
25. Accordingly, the point of determination no. (ii) is answered in the
negative by holding that after the passing of the impugned ex parte opinion
dated 12.12.2012, Abdul Karim, the projected father of the petitioner was not
required to be given any opportunity of being heard before apprehending and
expelling him from the Country and/or before or after passing of the expulsion
order dated 26.12.2025, referred to above.
On the point of determination no. (iii):
26. In respect of the said point, it is not disputed that Abdul Karim,
the projected father of the petitioner was declared to be a foreigner of post
25.03.1971 stream.
27. This is perhaps an appropriate moment to refer to the 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
student 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
"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
Page No.# 14/35
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;
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
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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
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
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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
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
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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
(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
Page No.# 18/35
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
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.
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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
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
Page No.# 20/35
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;
(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,
Page No.# 21/35
--
(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."
28. 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 also 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-cadastrally mapped
Page No.# 22/35
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
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 been reiterated and/or replicated in this order to maintain brevity.
29. Thus, with the said factual background 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 of media report projecting that
religious persecution is going on in the State of Assam, which appears to be an
example of misinformation warfare being carried out against the Country in
general and the State of Assam in particular.
30. 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 any fundamental rights, including
Articles 14, 16, 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 Nuremburg 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 arrangements of his expulsion from India,
which required satisfaction to be recorded by the competent authority under
Section 3(1)(b) of the said Act. While deciding the issue, reference was made to
Page No.# 23/35
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
ground for regarding him as undesirable. Therefore, under the Extradition Act
warrants or summons must be issued; there must be a magisterial enquiry and
Page No.# 24/35
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
handed over under arrest.
31. Thus, the said decision of Hans Muller of Nuremburg (supra) ,
decided by the Constitution Bench of the Supreme Court of India, confirms and
Page No.# 25/35
reaffirms the absolute and unfettered power of the Government to order
expulsion of a foreigner. In this case, Abdul Karim, the father of the petitioner is
a "declared foreign national" and such declaration was made by the Foreigners
Tribunal having jurisdiction.
32. 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.
33. 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 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 deport 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 denies taking
those persons into their Country. 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
Page No.# 26/35
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 earmarked 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, 2023, which confers certain procedural
safeguards for citizens of India, who are arrested in connection with some
criminal offence.
34. In this case, the father of the petitioner cannot be said to be
facing deportation. Rather, the said declared foreign national is facing 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, as "deportation" is carried out for 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.
35. It appears that just because Abdul Karim, the declared foreign
national has been able to stay in this Country for a long time even after
reference was registered in the year 2007 and ex parte opinion was passed on
12.12.2012, he cannot be said to have any right that a citizen of this Country
may have, against arbitrary arrest and expulsion from the Country.
Page No.# 27/35
36. 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
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
Page No.# 28/35
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
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.
Page No.# 29/35
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
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)
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37. When the issue of unabated influx from the specified territory i.e.
Bangladesh, is leading to demographic changes in the State of Assam, 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 that are available for the "citizens" of
the Country to be extended to a "declared foreign national" like the father of the
petitioner.
38. 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 the public domain, on which the Court does not
comment. The point is that the petitioner has knowledge from certified copy of
ex parte opinion dated 12.12.2012, obtained on 02.05.2016, that her father is a
declared foreign national, yet the petitioner has not pleaded in the writ petition
why and for what purpose, she expects the constitutional rights and safeguards,
reserved for citizens of the Country to be extended to a "declared foreign
national", against whom expulsion order dated 26.12.2025, from the Country,
has been passed. If any such rights are ordered or reserved, in the opinion of
the Court, it would amount to giving special premium and protection to a
declared foreign national, which is not envisaged in the Constitution of India, or
laws framed thereunder, i.e. Foreigners Act, 1946 and Immigration (Expulsion
from Assam) Act, 1950.
39. Therefore, even if the father of the petitioner is again found in
the Country, even after being expelled, nothing would prevent the State to take
appropriate action against the said declared foreign national; to take fresh steps
for his expulsion from the Country; and to keep him in special camps till he is
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expelled to prevent him from roaming freely in the Country.
40. The Court is unable to accept that any legal and fundamental
right of the petitioner or Abdul Karim, a declared foreign national, purportedly
under Articles 14, 16, 18, 21, 22 of the Constitution of India, has been violated.
As laid down in the case of Sarbananda Sonowal (supra), Abdul Karim, 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 and would
be available even to a declared foreign national, is the right to life, without any
right 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.
41. Thus, in light of the discussions above, the Court is inclined to
hold that on expulsion of Abdul Karim, pursuant to the ex parte opinion dated
12.12.2012, and the expulsion order dated 26.12.2025, no fundamental right of
the petitioner or of Abdul Karim has been infringed. The point of determination
no. (iii), is accordingly, answered in the negative and against the petitioner.
Point of determination no. 4:
42. In considering the point as to whether or not the petitioner is
entitled to any relief including interim relief, the Court is of the considered
opinion that no fundamental right of the petitioner, namely, Suktara Begum is
found to have been infringed. Moreover, as the father of the petitioner, namely,
Abdul Karim, has been declared as a foreigner (i.e. illegal migrant), vide the
impugned ex parte opinion dated 12.12.2012, against which he had slept over
till his expulsion, any right that he might have to assail the ex parte opinion
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dated 12.12.2012, is lost due to delay and laches of 13 years 3 months, 7 days.
43. Thus, neither the petitioner, Suktara Begum, nor her father,
namely, Abdul Karim, is entitled to any relief. In light of the impugned ex parte
opinion dated 12.12.2012, Abdul Karim, having been admittedly expelled from
the Country, he is not found entitled to any relief whatsoever.
44. As the extraordinary delay of 13 years 3 months, 7 days, from
the date of ex parte opinion i.e. 12.12.2012, till 19.03.2026, the date when this
writ petition is filed, has not been properly explained, on the ground of delay
and laches alone, this writ petition is held to be not maintainable. Thus, the
challenge fails.
45. The declared foreign national, Abdul Karim, had obtained the
certified copy of the impugned opinion on 02.05.2016, is deemed to have
waived his right to assail the said ex parte opinion dated 12.12.2012, having full
knowledge that he was declared to be a foreigner.
46. Moreover, after having been admittedly expelled, the ex parte
opinion dated 12.12.2012, has been executed. Thus, after it has been acted
upon and executed by expulsion of Abdul Karim, the present writ petition has to
fail.
47. It may be mentioned that the learned counsel for the petitioner
had made an attempt to refer to certain documents annexed to this writ petition
to show that the proceedee, Abdul Karim was not a foreigner. It was submitted
that the petitioner has all the documents to prove that he is an Indian citizen. In
the said context, this Court is reminded of the fact that this Court is exercising
certiorari jurisdiction and thus, cannot act as a Court of original jurisdiction so as
to convert itself into a Foreigners Tribunals and start examining and appreciating
Page No.# 33/35
the documents annexed to the writ petition, which were hitherto not presented
before the learned Foreigners Tribunal. This Court is not exercising appellate
jurisdiction. The petitioner has failed to show that the impugned opinion is
vitiated by any error apparent on the face of the record. Accordingly, the Court
is of the considered opinion that in exercise of certiorari jurisdiction under Article
226 of the Constitution of India, the High Court ought not to substitute its view
over the opinion of the learned Foreigners Tribunal, which is not found to be
vitiated by any error whatsoever. If one needs any authority on the point, the
decision of the Supreme Court of India, in the case of Central Council for
Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0
Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted below:-
77. The purpose of certiorari, as we understand, is only to confine the
inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or
the non-exercise or the illegal assumption of it and not to correct errors of finding
of fact or interpretation of law committed by them in the exercise of powers vested
in them under the statute. The accepted rule is that where a Court has jurisdiction
it has a right to decide every question which crops up in the case and whether its
decision is correct or otherwise, it is bound to stand until reversed by a competent
Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd.
Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on the face of the
record, and such act, omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it seems to us that it is
not so wide or large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision impugned
and decide what is the proper view to be taken or the order to be made ."
48. In this case, the stand of the petitioner is that her father was
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taken into custody after the expulsion order was passed on 26.05.2025. The
learned counsel for the petitioner could not show as to which fundamental right
of the petitioner would be violated if the ex parte opinion is not set aside.
Rather, it is the interest of the Country which would suffer if Abdul Karim, the
father of the petitioner, who has been declared as illegal migrant, is allowed to
defeat the process of expulsion of detected illegal foreigners/ migrants, by
allowing such illegal migrants endless time to assail the ex parte opinion passed
by the learned Tribunals.
49. By showering sympathy in this particular case, this Court would
be encouraging unscrupulous practice of not appearing before Courts and
Tribunals, despite notice being duly served on the proceedee.
50. The Court is of the considered opinion that if such belated
petitions are entertained after 13 years, 3 months, 7 days, all delays,
irrespective of the number of days, will have to be condoned at the drop of the
hat. It would also render the provisions of Order 3(8) and Order 3(14) of the
Foreigners (Tribunals) Order, 1964, otiose, redundant or meaningless. In the
process, external aggression, as held in the case of Sarbananda Sonowal
(supra), would be encouraged.
51. Thus, the challenge to the impugned ex parte opinion dated
12.12.2012, passed by the learned Member, Foreigners Tribunal, Hojai,
Sankardev Nagar, in Case No. FT/H/1006/2007- State v. Abdul Karim, by which
Abdul Karim, the petitioner's father was declared to be a foreigner who has
entered into India illegally from Bangladesh after 25.03.1971, fails. The
consequences of the said opinion shall follow.
52. The point of determination no. (iv) is accordingly, answered in
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the negative and against the petitioner by holding that she and her father,
namely, Abdul Karim, a declared foreigner national, are both not entitled to any
relief.
53. Consequently, this writ petition is dismissed at the "motion
stage" without issuing notice upon the respondents.
54. There shall be no order as to cost.
55. The learned standing counsel for the FT, Border matters and
NRC shall communicate a downloaded copy of this order to the Home and
Political (B) Department, so as to send a copy of this order to be made a part of
the record of the learned Foreigners Tribunal for future reference.
JUDGE JUDGE
Comparing Assistant
