Declared Foreign Nationals Have No Right to Reside in India: Gauhati High Court Upholds Expulsion of Bangladeshi Woman Without Requiring Deportation Protocols

“Expulsion is not Arrest and a Declared Foreigner Can Be Sent Back Without Production Before Magistrate,” Gauhati High Court (Bench of Justice Kalyan Rai Surana and Justice Shamima Jahan) delivered a significant judgment in Abdul Rejjak v. Union of India & Ors., rejecting a habeas corpus plea filed by a man challenging the expulsion of his wife, Doyjan Bibi—a declared foreign national—to Bangladesh. The Court emphatically ruled that declared foreigners do not enjoy the constitutional right to reside in India and that the State possesses absolute power to expel such persons even in the absence of formal diplomatic acceptance by the destination country.

“Only Article 21 Rights Apply to Foreigners; Article 22 and CrPC Protections Don’t Extend to Expulsions,” the Court Observed

In dismissing the petition, the High Court made it clear that the wife of the petitioner had long ceased to have any legal standing in India after being declared an "illegal migrant" by the Foreigners Tribunal, Dhubri, in an ex parte order dated 31.08.2017. Although the Court had earlier granted her an opportunity to contest the declaration by setting aside the Tribunal's opinion in a previous writ (W.P.(C) No. 2028/2020), she failed to appear within the stipulated time. As a result, the ex parte opinion stood revived, triggering the legal consequence of expulsion.

The petitioner’s argument—that his wife was taken into custody on 24.05.2025 and then allegedly “pushed back” into Bangladesh without following due process—was firmly rejected. “The procedure of arrest under the Code of Criminal Procedure and Article 22 of the Constitution does not apply in cases of expulsion of declared foreign nationals,” the Court held. Citing Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367, the bench reaffirmed the principle that a foreigner’s right under Indian law is limited to the right to life and liberty under Article 21.

“Expulsion does not involve any penal consequence,” the Court emphasized, “and it is not required to produce the expelled person before a Magistrate.” The Court further clarified: “The apprehension and subsequent return of a declared foreign national to their country of origin is not an act of arrest but an act of execution of a civil declaration under the Foreigners Act, 1946.”

Background: Tribunal Declaration, Bail, and Non-Appearance

The petitioner’s wife, Doyjan Bibi, was declared a foreigner on 31.08.2017 under F.T.4/71/GPR/2017. In 2021, the High Court set aside this declaration temporarily to allow her one opportunity to contest it. However, she did not appear before the Tribunal within the deadline of 27.10.2021, despite having access to the certified order since 29.09.2021.

Rejecting the petitioner’s claim of delayed receipt, the Court noted: “The application for certified copy was made on 29.09.2021 and it was ready on the same date. Her non-appearance is willful and deliberate.” Invoking Section 119(g) of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 114(g) of the Evidence Act), the Court observed, “evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The woman was earlier released from detention in 2021 pursuant to Supreme Court orders for COVID-era relief, but she was apprehended again in May 2025 and reportedly expelled on 27.05.2025. The petitioner challenged this action, seeking documents showing nationality verification and handover to Bangladeshi authorities.

"No Obligation to Prove Diplomatic Handover to Justify Expulsion of Declared Foreign National"

The Court decisively held that there was no requirement to produce handover documentation or confirmation of diplomatic acceptance by Bangladesh. “The law does not require the Central or State Government to demonstrate compliance with extradition protocols or produce handover documents,” the bench clarified. Relying again on Hans Muller, it observed that expulsion is within the absolute discretion of the State and does not require compliance with criminal procedure safeguards.

Reiterating the sovereign nature of the expulsion power, the Court remarked: “Under the Foreigners Act, the Government of India has an unfettered right to expel any foreign national who has illegally entered India, and such expulsion is not contingent on the diplomatic reception by another country.”

The bench rejected the suggestion that the wife had been “illegally pushed back” and emphasized that India is not obliged to ensure acceptance by Bangladesh. The Court stated, “If the Bangladesh authorities do not accept a declared foreign national as their own, it is permissible for the State to send back the declared foreign national in such manner as they may deem fit and appropriate.”

Assam's Illegal Migration Problem and National Security: Sarbananda Sonowal Revisited

The judgment heavily cited the Supreme Court’s landmark ruling in Sarbananda Sonowal v. Union of India (2005) 5 SCC 665 to contextualize Assam’s unique legal regime on illegal migration. The Court reaffirmed the view that the influx of illegal migrants from Bangladesh is a form of "external aggression" affecting the demographic, political, and security landscape of Assam. The Court observed:

“Unabated influx of illegal migrants from Bangladesh threatens to reduce the indigenous people of Assam to a minority in their own State... The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of Lower Assam.”

In support of this, the Court also invoked Section 6A of the Citizenship Act, 1955, and the Foreigners (Tribunals) Order, 1964, reiterating that post-25.03.1971 entrants from Bangladesh are subject to detection and expulsion.

No Fundamental Right to Reside or Seek Employment in India for Foreigners

The Court clarified that foreign nationals do not enjoy the protections under Article 19 of the Constitution and thus cannot claim the right to reside, move freely, or earn a livelihood in India. “The declared foreign national is not entitled to any relief under Article 14, 16, or 21 beyond basic protections of life and liberty,” the judgment stated.

The petitioner’s argument that his wife had complied with bail conditions and should not have been re-apprehended was dismissed as irrelevant. “The bail was granted during the COVID-19 pandemic to prevent overcrowding, and cannot preclude future action for expulsion,” the Court held.

Expulsion is a Civil Consequence, Not a Criminal Penalty

Addressing the core constitutional challenge, the Court concluded:

“The declaration by a Foreigners Tribunal under the Foreigners (Tribunals) Order, 1964 has civil consequences and is not governed by the Code of Criminal Procedure, nor does it amount to criminal detention requiring compliance with Sections 50 or 167 CrPC.”

Consequently, no constitutional or procedural violations were found in the re-apprehension and expulsion of the petitioner’s wife. The plea for producing documentation or initiating an inquiry against State or Central officials was found to be baseless.

“On all counts, this writ petition fails,” the Court declared, dismissing it without costs.

Date of Decision: January 6, 2026