Declared Foreigners Can't Claim Rights of Citizens: Gauhati Hgh Court

The Gauhati High Court has ruled that once declared a foreign national by the Foreigners’ Tribunal, in custody and pending expulsion, an individual cannot invoke the rights and procedural safeguards available to Indian citizens under the erstwhile Criminal Procedure Code (CrPC), the Bharatiya Nagarik Suraksha Sanhita, 2023, or Article 22 of the Constitution to challenge such custody on the grounds of non-service of arrest documents.

A bench comprising Justice Kalyan Rai Surana and Justice Shamima Jahan, in an order on January 6, clarified that arresting a “declared foreign national” or “illegal migrant,” as determined by a Foreigners Tribunal, cannot be equated to an arrest under the CrPC or the 2023 Bharatiya Nagarik Suraksha Sanhita, which provide procedural safeguards for citizens accused of criminal offences, reported TOI.

Regarding Article 22, the court observed that “the right of protection under Article 22… 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.” The bench emphasized that custody pending expulsion cannot be challenged as illegal under Article 22 or Section 50 CrPC, since a declaration under the Foreigners (Tribunals) Order, 1964, carries no criminal consequences.

Case In Hand

The court was hearing a plea filed by Abdul Rejjak from Dhubri district, Assam, challenging the legality of the arrest and expulsion of his wife, Doyjan Bibi, to Bangladesh in May last year. Bibi had been declared an illegal migrant by the Foreigners' Tribunal in 2017 for entering India (Assam) after March 25, 1971, the citizenship cut-off date under the Assam Accord of 1985.

The petitioner sought directions to the government to produce Bibi’s nationality verification report, the handing-over and taking-over report from Bangladeshi authorities, and proof that due process was followed, alleging violations of Articles 21, 22, and 39A. He also sought her return and accountability for the alleged “illegal pushback.”

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The court rejected these claims, holding that Bibi “is not found to have any fundamental right in India to move freely or to reside at any place of her choice or to carry out any vocation, trade or calling of her choice.” On the question of due process, the bench stated that if Bangladesh refuses to admit a foreigner declared illegal by the Foreigners Tribunal, “the state has unfettered power to cause expulsion of a declared foreign national, who has not entered into India with lawful documents.”

The court also clarified that temporary bail granted to Bibi during the Covid-19 pandemic, in May 2021, to ease overcrowding in detention centres, does not prevent authorities from resuming action against declared foreign nationals. Bibi was again detained by Assam Police on May 24 last year and placed in a holding area pending expulsion.

Drawing a distinction between deportation and expulsion, the court noted that deportation applies to foreigners who entered India lawfully but overstayed, while expulsion concerns those who entered illegally. The bench observed that continuous influx from specified territories has caused demographic changes in Assam, leading to civil discontent, and that constitutional safeguards for citizens cannot be extended to declared foreign nationals.

The court concluded that authorities acted in accordance with the ex parte opinion of the Foreigners Tribunal, and there was no basis to allege “irresponsibility, illegality, or recklessness” by state or central officials in sending Bibi back to Bangladesh. It ruled that no inquiry against officials was warranted.

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