In a significant ruling, the Gauhati High Court has clarified that individuals declared as foreigners by a tribunal and held in custody awaiting expulsion cannot invoke the legal protections meant for Indian citizens to challenge their detention. The court emphasized that such custody is distinct from a criminal arrest.
Court Distinguishes Between Criminal Arrest and Immigration Custody
A bench comprising Justice Kalyan Rai Surana and Justice Shamima Jahan delivered the order on January 6. The judges stated that arresting a declared foreign national or illegal migrant is not equivalent to an arrest under the Criminal Procedure Code (CrPC), 1973, or the new Bharatiya Nagarik Suraksha Sanhita, 2023. These laws provide procedural safeguards exclusively for citizens arrested for criminal offences.
The court specifically addressed the applicability of Article 22 of the Constitution, which protects against arbitrary arrest. It found the argument "totally unacceptable," reasoning that a person declared a foreigner by a tribunal would already be aware of the reason for being taken into custody. The bench underlined that a declaration under the Foreigners (Tribunals) Order, 1964, carries no criminal consequences, thus negating claims of illegal custody due to non-service of arrest documents under Article 22 or Section 50 of the CrPC.
Case Background: Challenge Against Wife's Expulsion to Bangladesh
The court was hearing a petition filed by Abdul Rejjak from Assam's Dhubri district. He challenged the legality of the arrest and subsequent expulsion of his wife, Doyjan Bibi, to Bangladesh in May of last year. Rejjak sought various reports from the government and demanded his wife's return, alleging violations of constitutional rights.
The case details revealed that Doyjan Bibi was declared an illegal migrant by a Foreigners' Tribunal in 2017. The tribunal found she had entered India (Assam) illegally after the critical cutoff date of March 25, 1971, as stipulated by the Assam Accord of 1985.
Broader Implications and State Powers
The court's order has wide-ranging implications. It held that a declared foreign national has no fundamental right in India to move freely, choose a residence, or pursue a vocation. The bench asserted that if a country like Bangladesh refuses to admit an illegal migrant, the Indian state possesses "unfettered power" to expel such individuals who entered without lawful documents.
Furthermore, the ruling distinguished between deportation and expulsion. Deportation applies to foreigners who entered legally but overstayed, while expulsion concerns those who entered illegally. The court acknowledged the demographic impact of continuous illegal influx into Assam, leading to civil discontent, and stated that constitutional safeguards for citizens cannot be extended to declared foreigners.
Addressing the petitioner's point about his wife being on bail, the court clarified that bail was granted during the COVID-19 pandemic solely to ease overcrowding, as per Supreme Court directives. With the pandemic over in Assam, those temporary orders do not prevent authorities from resuming action. Doyjan Bibi was granted bail in May 2021 under such directives but was detained again on May 24 last year and placed in a holding area until her expulsion.
Finally, the court found no basis for allegations of irresponsibility or illegality against central or state officials, stating they were duty-bound to act on the tribunal's opinion. It concluded that no inquiry against the officials was warranted.
