The court was hearing a plea by a man from Assam’s Dhubri district challenging the legality of the arrest and expulsion of his wife to Bangladesh in May last year

Guwahati: The Gauhati high court has held that a declared foreigner in custody pending expulsion cannot invoke the rights and safeguards available to Indian citizens under the erstwhile CrPC and Bharatiya Nagarik Suraksha Sanhita or Article 22 of the Constitution to challenge such custody as illegal on the ground of non-service of arrest documents.A bench of Justice Kalyan Rai Surana and Justice Shamima Jahan, in an order dated Jan 6, said arresting a “declared foreign national” and/or “illegal migrant”, as declared by a Foreigners Tribunal, cannot be equated to arrest as understood under the Criminal Procedure Code, 1973 and/or the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides procedural safeguards for citizens arrested in connection with a criminal offence.On Article 22, the court said the right of protection under Article 22 was “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.”The bench underlined that once a declared foreign national is taken into custody pending expulsion, he or she cannot claim such custody is illegal for non-service of arrest grounds under Article 22 or Section 50 CrPC, since a declaration under the Foreigners (Tribunals) Order, 1964 does not have any criminal consequences.Section 50 of the CrPC requires that anyone arrested without a warrant be promptly informed of the reasons, while Article 22 safeguards against arbitrary arrest and detention by ensuring the right to know the grounds, consult a lawyer, and be produced before a magistrate within 24 hours.The court was hearing a plea by a man from Assam’s Dhubri district challenging the legality of the arrest and expulsion of his wife to Bangladesh in May last year.It held that no legal or fundamental right of Doyjan Bibi, a declared foreign national, had been violated under Articles 14, 16, 18, 21 or 22 of the Constitution, as alleged by the petitioner.Doyjan Bibi was declared an illegal migrant by the Foreigners’ Tribunal in 2017, which held that she illegally entered India (Assam) after March 25, 1971, the citizenship cut-off date for Assam under the Assam Accord of 1985.Her husband, Abdul Rejjak, sought directions to the govt to produce the nationality verification report, the handing-over and taking-over report by Bangladeshi authorities, and to show that due process was followed, alleging violations of Article 21, 22 and 39A. He also sought that his wife be traced and returned, with the MEA and MHA, if necessary, engaging with Bangladeshi counterparts. He further requested accountability for the alleged illegal pushback and legal proceedings against officials found responsible.The court said Doyjan Bibi, a declared foreign national, “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.”When the petitioner’s counsel questioned whether due process had been followed in expelling his wife, the court observed that if Bangladesh refuses to acknowledge or admit an illegal migrant declared by the Foreigners Tribunal to have entered Assam after March 25, 1971, “In the considered opinion of the court, the state has unfettered power to cause expulsion of a declared foreign national, who has not entered into India with lawful documents.”The bench said that if expulsion is not possible for policy or practical reasons, the state may restrict such persons’ rights—such as employment, property ownership, or marriage to Indian citizens — or detain them in designated holding areas under appropriate policy.On the argument that the woman was on bail, the court said bail had been granted during the Covid-19 pandemic only to ease overcrowding in jails and detention centres, as directed by the Supreme Court and various high courts. With the pandemic no longer prevailing in Assam, the court said those temporary orders cannot prevent the state or central govt from resuming action against declared foreign nationals. It added that no bail order bars authorities from exercising powers under the Foreigners (Tribunals) Order, 1964 to expel persons found to have entered Assam illegally after the March 25, 1971, cut-off as per Assam Accord.In May 2021, she secured bail under a Supreme Court directive aimed at easing overcrowding during Covid-19, but was again detained by Assam Police on May 24 last year and placed in a holding area for declared foreigners until her expulsion.The court also drew a distinction between deportation and expulsion, stating that deportation applies to foreigners who entered India lawfully with a valid passport and visa but overstayed after expiry, while expulsion concerns those who entered illegally.It observed that continuous influx from the specified territory has caused demographic changes in Assam, leading to civil discontent, even if the rest of the country remains less affected, and said constitutional safeguards meant for citizens cannot be extended to a declared foreign national like the petitioner’s wife.The court held that since authorities were duty-bound to act on the ex parte opinion of the Foreigners Tribunal, there was no basis to allege irresponsibility, illegality, or recklessness by central or state officials in sending the petitioner’s wife back to Bangladesh, and said no inquiry against them was warranted.