Unabated Influx From Bangladesh Changing Assam's Demography, Causing Widespread Civil Discontent: Gauhati High Court

The Gauhati High Court has recently observed that the unabated influx of illegal immigrants from Bangladesh is changing the demography of Assam, leading to widespread civil discontent in the State.

The court also held that the State has unfettered power to expel a declared foreign national; in case they cannot be expelled due to any reason then the State can prevent a declared foreign national from getting employment, purchase land, marry Indian national, etc., "perhaps by framing appropriate policy" or by detaining such “declared foreign national” in the holding areas ear-marked for the purpose.

The court said that the Act of the Government to keep declared foreign nationals in holding camps cannot be faulted with or equated to the arrest of citizens.

A division bench of Justice Kalyan Surana and Justice Susmita Phukan Khaund referred to the Supreme Court's full bench decision in Sarbananda Sonowal v. Union of India & Ors. (2005) and observed that the apex court had 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 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-cadestally mapped 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," the bench said.

The court said that 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".

The bench said that it is perhaps a wrong perception in a section of media reports projecting that a "religious persecution is going on in the State of Assam, which appears to be an example of misinformation warfare being carried out by some persons, perhaps, having some vested interest against the Country in general and the State of Assam in particular".

It further said:

"When the issue of unabated influx from the specified territory is leading to demographic changes in the State, 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 available for the “citizens” of the Country to be extended to a “declared foreign national” like the husband of the petitioner".

Background

The high court was hearing a woman's habeas corpus plea against detention of her husband who had been declared a foreign national by the Foreigners Tribunal in 2019. The woman had not challenged the tribunal's decision. Her husband was earlier taken into custody and after completing 2 year detention he was released on 15.11.2021.

It was argued that as per terms of the conditions imposed for release, the husband was appearing before the Kajalgaon Police Station every week and that his last presence was recorded on 21.05.2025. However, on 25.05.2025 he was taken into custody by the police personnel, without serving any arrest memo or grounds of arrest. The petitioner moved the high court seeking release of her husband.

The Home Department submitted that that though the declared foreign national was released, but deportation was not prohibited. It was argued that the "declared foreign national" has been taken into custody and held at the Holding Centre for some factual and documentary verification and once the verification is completed, he will be handed over to the Central Government agency for necessary action to send him back.

Findings

The bench observed that the husband of the petitioner cannot be said to be facing deportation; rather, he is facing an 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 under the facts and circumstances of this case, as “deportation” is carried out in respect of a person, whose entry into the Country was lawful, but his/her subsequent stay in the Country is illegal or unlawful, but the word “expulsion” is generally used for expelling an illegal migrant and/or illegal foreigner. In this regard, one may also refer to the Immigration (Expulsion from Assam) Act, 1950 regarding the concept of “expulsion”," the bench said.

The court said that just because the petitioner's husband has been able to stay in this Country for a long time even after reference was made by the Superintendent of Police (Border) in 2010, he does not have any right that a citizen of the Country may have against arbitrary arrest.

The court said that even though the petitioner knew that her husband is a declared foreign national, yet she had not pleaded in the writ petition that why and for what purpose does she expect the State to extend Constitutional rights and safeguards which are reserved for citizens of the Country to a “declared foreign national”, awaiting his expulsion from the Country.

"If any such rights are ordered, it would amount to give special premium and protection to a declared foreign national, which is not envisaged in the Constitution of India," the bench added.

The court said that the petitioner's husband does not 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. However under the Constitution of India, he as a declared foreign national, is guaranteed the right to life.

The court said that the petitioner had been unable to show that the procedure under BNSS 2023 is required to be followed by the Border Branch of Assam Police while dealing with the declared foreign national.

"Once a declared foreign national is taken into custody awaiting expulsion from the Country, it is not open to such declared foreign national, whose declaration is made by a Foreigners Tribunal in the State of Assam to maintain a claim that his/her custody is illegal and vitiated by non service of grounds of arrest, as envisaged under Article 22 of the Constitution of India and/or under Section 50 Cr.P.C., as declaration of an illegal foreigner under the Foreigners (Tribunals) Order, 1964 does not have any criminal consequence," the bench said.

The habeas corpus was dismissed.

Case title: REJIYA KHATUN v/s THE UNION OF INDIA and OTHERS

WP(C)/3101/2025

Click Here To Read/Download Order