Declared Foreigner Who Re-Entered After Expulsion Cannot Claim Bail on Prolonged Detention Alone, Rules Gauhati HC

A Division Bench dismissed a writ petition by a declared foreign national held at Matia Holding Centre, refusing bail and rejecting claims under the Citizenship Amendment Act and Immigration and Foreigners Order 2025.

The Gauhati High Court on 3 August 2026 dismissed at the motion stage a writ petition filed by Uttam Das, a resident of Chappra Colony, Goalpara district, who was declared a foreign national by Foreigners’ Tribunal No. 1, Goalpara in 2009. Das had been held at the Matia Holding Centre since his apprehension on 2 November 2016 following an illegal re-entry into India after having been pushed back to Bangladesh in April 2010. He sought bail, a stay on deportation, and permission to apply for citizenship under the Citizenship (Amendment) Act, 2019. A Division Bench led by Justice Kalyan Rai Surana, with Justice Susmita Phukan Khaund, found no merit in any of the grounds and declined to issue notice to the respondents.

How the Petitioner Came Before the Court

The Foreigners’ Tribunal No. 1, Goalpara passed an ex-parte opinion on 1 September 2009 in FT Case No. 1039/G/06, declaring Uttam Das an illegal migrant who had entered Assam after the cut-off date of 25 March 1971. Das challenged that opinion under Article 226 of the Constitution of India in WP(C) 4903/2009, but this Court dismissed that writ petition on 8 January 2010. The tribunal opinion and the dismissal order both attained finality.

Records placed before the tribunal showed that the petitioner was pushed back to Bangladesh on 9 April 2010. He nevertheless re-entered Indian territory and was apprehended on 2 November 2016 at Molaundubi Tiniali. A complaint was registered as CR-PPE 1/16 under Section 6(a) of the Passport (Entry into India) Rules, 1950 read with Section 14(c) of the Foreigners’ Act, 1946. After the case was transferred to the Judicial Magistrate First Class, Goalpara, Das was convicted on 25 September 2017 and sentenced to two years’ rigorous imprisonment for each offence, the sentences to run concurrently.

In WP(C) 3385/2026, filed under Article 226, Das sought his release from the Holding Centre on bail, a stay of deportation proceedings, and a direction allowing him to apply for citizenship. He was represented by Mr D.K. Agarwala, who argued the petition before the Division Bench. Respondents were represented by Mr S.K. Deka as CGC, Ms A. Verma for FT and Border matters, Mr A.I. Ali for the Election Commission of India, and Mr P. Sarmah as Additional Senior Government Advocate.

Four Arguments Advanced by the Petitioner

Counsel for Das pressed four distinct grounds. First, that the petitioner had been in custody continuously since 2 November 2016 and was entitled to bail in line with the Supreme Court’s order dated 10 May 2019 in WP (Civil) No. 1045/2018 (Supreme Court Legal Services Committee v. Union of India & Anr.), which addressed detention of declared foreign nationals.

Second, that the State had taken no steps for deportation despite years of detention, which itself entitled Das to bail.

Third, that the petitioner was entitled to exemption from expulsion under the Immigration and Foreigners (Exemption) Order, 2025, being a Hindu belonging to a minority community in Bangladesh. In support, counsel referred to a Refugee Registration Certificate dated 14 October 1952 certifying that one Sri Giribala Mali and family — claimed to be the petitioner’s grandmother — were displaced persons from East Bengal registered at the SDO’s office in Barpeta.

Fourth, that Das was entitled to the benefit of the Citizenship (Amendment) Act, 2019, which those provisions ought to be read together with the Foreigners (Amendment) Order, 2015 and the Passport (Entry into India) Amendment Rules, 2015. It was also submitted that his wife Basana Das had applied for registration under Section 6A of the Citizenship Act, 1955, and that he had a fundamental right to family life having a spouse and three sons.

How the Bench Reasoned Through Each Ground

Re-entry after expulsion and prolonged detention. The bench noted that there was no material on record countering the Tribunal’s own order sheet of 26 July 2010, which recorded that the petitioner was pushed back on 9 April 2010. The conviction judgment of 25 September 2017 separately recorded that the petitioner was a declared foreigner who had been pushed back and had thereafter re-entered illegally. Against this backdrop, the bench held that detention of a declared foreign national in a designated holding area — pending expulsion — was authorised both under Section 4 of the Foreigners’ Act, 1946 and, now, under paragraph 12 of the Immigration and Foreigners’ Order, 2025, which empowers the State to impose restrictions on movement pending expulsion. The bench observed that where expulsion cannot be carried out for any reason, detention in a holding area is the only available mechanism, and prolonged detention alone did not entitle the petitioner to bail.

On the State’s failure to deport, the bench referred to Clause 5.7 of the Assam Accord — a Memorandum of Settlement signed on 15 August 1985 between the Government of India, the Government of Assam, and the All Assam Students’ Union — which expressly provides that “all persons who were expelled earlier, but have since re-entered illegally into Assam, shall be expelled.” The bench noted it did not intend to pass any order adverse to the petitioner on this aspect and made no further observation.

Refugee Registration Certificate and exemption under the 2025 Order. The bench acknowledged that the 1952 certificate — of the kind usually issued under the proviso to Section 2 of the Immigrants (Expulsion from Assam) Act, 1950 — appeared to carry some value on its face. However, neither this Court’s order of 8 January 2010 in WP(C) 4903/2009 nor the conviction judgment of 25 September 2017 had relied upon or even referred to it. Since the document had not featured in either of those proceedings which had attained finality, the bench declined to act on it at this stage. It was accordingly not possible to examine the exemption claim under the Immigration and Foreigners Order, 2025 in the present proceeding. The bench clarified, however, that nothing in its order would prevent Das from agitating his grievance based on that certificate if he were lawfully found entitled to do so.

Citizenship (Amendment) Act, 2019. The bench turned to the Constitution Bench decision of the Supreme Court in In Re: Section 6A of the Citizenship Act, 1955, 2024 INSC 789. Paragraph 218(d) of that decision holds that immigrants who migrated between 1 January 1966 and 24 March 1971 and were detected as foreigners but did not register with the registering authority within the prescribed time under the Citizenship Rules, 2009 are no longer eligible for citizenship. Counsel for Das argued that paragraph 218(d) represented only a minority view within that bench and should not bind the Court. The Division Bench rejected that argument. It reasoned that where a single judge in a Constitution Bench concurs with the majority decision, the portion authored by that judge cannot be treated as a minority view simply because the majority opinion did not separately address the same point. The Court held that the finality of the foreigners’ tribunal opinion against Das, dated 1 September 2009, left no room for any judicial direction allowing him to register under Section 6A of the Citizenship Act, 1955.

Family life. The bench declined to treat the petitioner’s right to family life as a ground for bail. It reiterated that Section 4 of the Foreigners’ Act, 1946 and paragraph 12 of the Immigration and Foreigners’ Order, 2025 give the State ample power to keep the petitioner in a designated place pending expulsion. The bench also noted, referring to its own earlier decision in Abdul Rejjak v. Union of India & 9 Ors. (WP(Crl.) 60/2025, decided 6 January 2026), the distinction between deportation and expulsion: a person who enters lawfully but overstays is deported, while a person whose entry itself is illegal must be expelled.

The Court’s Use of Hans Muller and Sarbananda Sonowal

The bench drew on two authoritative precedents to frame its analysis. From the Constitution Bench decision in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors., AIR 1955 SC 367, the bench quoted the principle that the Foreigners’ Act confers on the Central Government an absolute and unfettered discretion to expel foreigners, with no corresponding constitutional right of residence available to non-citizens beyond the protection of Article 21.

From Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, the bench drew attention to the Supreme Court’s characterisation of large-scale illegal migration from Bangladesh as amounting to external aggression against the State of Assam. That decision had also set out the historical context of the Assam Accord and the significance of the 25 March 1971 cut-off. In this case, where it was undisputed that the petitioner had entered after that date, been declared a foreigner, been pushed back, and had then re-entered illegally, the bench found the mandate of Clause 5.7 of the Assam Accord directly applicable.

Order

The Division Bench found no merit in the writ petition and dismissed it at the motion stage without issuing notice to the respondents. Parties were directed to bear their own costs. The bench clarified that the dismissal would not prejudice any right Uttam Das may have to separately agitate his claim based on the Refugee Registration Certificate dated 14 October 1952, if he is found lawfully entitled to do so.