Guwahati, October 24 A tense silence hung inside Courtroom No. 3 of the Gauhati High Court on Friday morning as a Division Bench comprising Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund delivered its order in the habeas corpus plea filed by Rejiya Khatun. She had alleged that her husband, Majibar Rahman already declared a “foreign national”-was unlawfully taken into custody. But after a long and occasionally sharply worded analysis, the Bench refused to accept her claims and dismissed the petition outright.
“The State has the unfettered power to expel a declared foreign national,” the Bench observed, in one of its most direct remarks during the proceedings.
Background
According to the petition, Rahman declared a foreigner by the Foreigners Tribunal in 2019 had been released from detention in 2021 under pandemic-related relaxation measures and was complying with weekly police reporting requirements. His family claimed he last signed at Kajalgaon Police Station on May 21, 2025. Four days later, police allegedly detained him at night without explaining grounds of arrest or issuing any memo.
Over the following days, Rejiya sent written complaints to senior police officials, insisting that her husband had “simply vanished.” Her counsel, visibly frustrated in court, argued that basic procedural safeguards had been ignored. But the State’s affidavit countered that deportation—or rather expulsion was pending, and verification procedures required Rahman’s custody at Kokrajhar Holding Centre.
Court's Observations
The Bench took a firm stance, drawing heavily on landmark decisions, including Sarbananda Sonowal v. Union of India and the Constitution Bench ruling in Hans Muller of Nurenburg. It spent a good portion of the hearing recounting the historical and legal background of large-scale illegal migration into Assam something unusual for a habeas corpus hearing but clearly deliberate.
At one point, Justice Surana read aloud a passage from the Sonowal judgment describing illegal influx as "external aggression." He remarked,
"The Court cannot pretend ignorance of demographic shifts that alter the local landscape."
The Bench sharply rejected the argument that Articles 21 or 22 had been violated, stating that constitutional rights applicable to citizens cannot automatically stretch to foreigners who have entered India illegally. “A declared foreign national has no fundamental right to reside, move freely, or take up occupation under Article 19,” the order records.
The judges drew distinctions between expulsion and deportation, explaining that deportation applies when someone entered legally but overstayed, whereas expulsion is used for illegal entrants.
“The terms cannot be interchanged loosely,” the Bench said, reminding counsel that Assam’s framework flows from a separate legal history.
The Court also pushed back against the expectation that such detainees must be produced before a magistrate like criminal arrestees.
"This is not a CrPC arrest. A declaration of a foreigner has civil consequences," the order states.
Interestingly, the Bench referred to misinformation in “certain media reports," remarking that portraying the State’s expulsion efforts as religious persecution was "a distortion of facts."
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Decision
After nearly an hour of arguments and detailed reading of statutory extracts, the Bench returned to the core issue: whether the custody of a declared foreign national awaiting expulsion is illegal. The answer was unambiguous.
The petition was dismissed in full.
In its closing lines, the Court stated:
"There shall be no bar for the State to take steps for expulsion of the declared foreign national, namely, Majibar Rahman @ Majibar Sheikh from the Country."
And with that, the matter ended without costs, without relief leaving the petitioner visibly shaken, and the courtroom quietly absorbing the weight of a judgment rooted deeply in Assam’s decades-old anxieties over illegal migration.
Case Title: Rejiya Khatun vs. Union of India & Ors.
Case Number: WP(C)/3101/2025
Date of Order: 24 October 2025
Petitioner’s Counsel:
- Mr. M. Dutta, assisted by L. Deka
Respondents’ Counsel:
- Ms. J. Sarma (Central Govt Counsel)
- Mr. J. Payeng (Standing Counsel for Foreigners Tribunal & Border Matters)
- Mr. P. Sarmah (Addl. Senior Government Advocate)
