Court directs Assam government to pay Rs. 2 lakh interim compensation for violation of Articles 21 and 22 of the Constitution, mandates procedural safeguards before arrest and expulsion of declared foreigners.
In a significant judgment delivered on September 3, 2026, the Gauhati High Court (Division Bench) reaffirmed the fundamental constitutional protections guaranteed under Articles 21 and 22 of the Indian Constitution to aliens declared as foreigners by Foreigners Tribunals in Assam. The judgment arose from the case of Mujammel Hoque vs. State of Assam and others, concerning the illegal expulsion of his wife, Mumtaz Begum, who had been declared a foreigner by the Foreigners Tribunal.
The petitioner's wife, Mumtaz Begum, was declared a foreigner by the Foreigners Tribunal in Nagaon through an opinion dated May 30, 2026. Despite the pending challenge to the Tribunal's earlier declaration in 2019, which was set aside by the High Court in April 2026, Mumtaz appeared before the Tribunal as directed. However, on the very day of her appearance, police personnel arrested her without providing a copy of the Tribunal's opinion or informing her or her family members of the grounds for arrest or detention.
She was then taken into custody, moved across various police stations and detention centers, and ultimately expelled to Bangladesh on June 14, 2026. The petitioner was neither allowed to accompany his wife during this process nor informed of her whereabouts until he filed the writ petition. Attempts to obtain a certified copy of the Tribunal's opinion were delayed, and the petitioner's efforts to secure legal recourse were effectively thwarted.
The Court noted that the procedural safeguards laid down under the Constitution, particularly Article 22(1), which mandates that every arrested person must be informed of the grounds of arrest in writing and allowed to consult a legal practitioner, were blatantly violated. The Court also emphasized that the protections under Article 21 (Right to Life and Personal Liberty) extend to aliens and that the right to legal remedies before expulsion is sacrosanct.
Relying on precedents from the Supreme Court, including Roy V.D. v. State of Kerala and Prabir Purkayastha v. State (NCT of Delhi), the Gauhati High Court held that failure to inform the detenue and her family of the grounds of arrest and detention rendered the arrest and subsequent expulsion illegal and unconstitutional. The Court further observed that the Standard Operating Procedure (SOP) under the Immigrants (Expulsion from Assam) Act, 1950, requires providing a free copy of the Tribunal's opinion to the detainee, which was not complied with in this case.
The Court was critical of the learned Member of the Foreigners Tribunal, 4th Nagaon, Juria, observing that the deliberate delay in issuing a certified copy of the opinion appeared to be motivated by malice and served to deprive the detenue of her right to challenge the decision before expulsion.
As an interim relief, the Court directed the Government of Assam to pay Rs. 2,00,000 (two lakh rupees) as compensation to the petitioner for the violation of fundamental rights and the procedural lapses involved in the detention and expulsion process.
Additionally, the Court issued interim directions to ensure compliance with Article 22 safeguards in future expulsions of declared foreign nationals (DFNs):
1. The Senior Superintendent of Police (Border) and Superintendent of Police (Border) of every district in Assam must inform the detainee of the Foreigners Tribunal's opinion and provide a free copy before taking them into custody.
2. Adult family members of the detainee must be informed before the detainee is shifted outside the jurisdiction of the concerned police station.
3. Compliance with these directions must be reported to the District Magistrate.
The Court also impleaded the Ministry of External Affairs as a respondent, directing it to make efforts to locate the detenue in Bangladesh and facilitate her return to India, thereby allowing her to exhaust legal remedies to challenge the Foreigners Tribunal's opinion.
This judgment underscores the constitutional imperative that even non-citizens are entitled to fundamental rights relating to arrest, detention, and expulsion, and that procedural safeguards cannot be circumvented in the name of administrative expediency. The ruling is expected to have wide-reaching implications on the procedures followed by Assam authorities in handling declared foreign nationals and aims to prevent future violations of constitutional rights in similar cases.
Bottom Line:
Protection under Articles 21 and 22 of the Constitution of India extends to aliens, ensuring their right to be informed of the grounds of arrest or detention and the opportunity to exhaust legal remedies before expulsion.
Statutory provision(s):
Articles 21, 22 of the Constitution of India, Foreigners Act, 1946, Foreigners (Tribunals) Order, 1946, Immigrants (Expulsion from Assam) Act, 1950, Section 2 of the Immigrants (Expulsion from Assam) Act, 1950, Section 50A Cr.P.C. (now Section 47 of Bharatiya Nyaya Sanhita, 2023)
Mujammel Hoque v. State of Assam, (Gauhati)(DB) : Law Finder Doc Id # 2974591
