Page No.# 1/8 GAHC010188082025 2025:GAU-AS:14999-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4968/2025 TEJIRAN NESSA D/O JAYNAL MIYA @ JAYNAL ABDIN, W/O MANIK ALI, R/O VILL- MOURIGAON, P.O. AND P.S.- BAGHBOR, DIST- BARPETA, ASSAM, PIN- 781308 VERSUS THE UNION OF INDIA AND 4 ORS. REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPARTMENT DISPUR GUWAHATI-6 3:THE MINISTRY OF EXTERNAL AFFAIRS GOVT. OF INDIA REPRESENTED BY ITS SECRETARY SHASTRI BHAWAN NEW DELHI PIN-110001 4:THE DISTRICT COMMISSIONER OF BARPETA AT BARPETA ASSAM PIN-783101 5:THE SUPERINTENDENT OF POLICE (B) BARPETA Page No.# 2/8 ASSAM PIN-78130 Advocate for the Petitioner : MR. M A SHEIKH, MR. W A SHEIKH,MS F INTAZ Advocate for the Respondent : DY.S.G.I., GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 07.11.2025 (K.R. Surana, J) Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. U.K. Goswami, learned CGC; Mr. G. Sarma, learned standing counsel for FT, Border matters and NRC; Ms. S. Katakey, learned standing counsel for ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State. 2) The petitioner, namely, Tejiran Nessa, is a declared foreign national vide opinion dated 06.04.2019, passed by the learned Member, Foreigners Tribunal No.6, Barpeta, in Case No. F.T.426/2015 [arising out of Ref. FT/IM(D)T Case No. 7984/98]. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction upon the respondents to decide the Country to which the petitioner belongs and to direct the respondents to deport the petitioner to the decided Country to which the petitioner belongs after obtaining written acceptance issued by the decided Country to which the petitioner belongs and to supply the copy of the written acceptance to the petitioner at the time of deportation. As an interim measure, it has been prayed that the petitioner be released on bail from the Matia Detention Camp, Goalpara. Page No.# 3/8 3) The learned counsel for the petitioner has submitted that the opinion was challenged by the petitioner by filing a writ petition, which was dismissed by order dated 09.09.2019, passed by this Court in W.P.(C) 4855/2019. The said order of this Court was unsuccessfully assailed before the Supreme Court of India, but the Special Leave Petition (Civil) Diary No(s). 7146/2025 was dismissed by order dated 09.05.2025. 4) The learned counsel for the petitioner had made his submissions in the context of deportation. It was submitted that in the opinion, the nationality of the petitioner was not determined and therefore, she cannot be deported to Bangladesh or to any other Country in the world. It is further submitted that the petitioner was taken into custody on 19.12.2024 and therefore, she has suffered detention for 319 days as on 03.11.2025 and therefore, till the Country of origin of the petitioner is decided, she should be released on bail. 5) Therefore, as in course of the submissions made by the learned counsel for the petitioner, reference has been made to the order dated 09.09.2019, passed by this Court in W.P.(C) 4855/2019, the said records has been called for perusal. 6) It is noticed that the statements made in paragraph nos. 1 to 11 of the present writ petition are somewhat similar to the statements made in paragraph nos. 1 to 11 of the earlier writ petition, i.e. W.P.(C) 4855/2019. Moreover, the prayer nos. 1 and 2 of this writ petition are also similar to the prayer nos. 1 and 2 of the said earlier writ petition. For the sake of convenience, the prayer nos. 1 and 2 in the previous writ petition are quoted below:- 1. To set aside and quash the impugned opinion and order dated 06.04.2019, passed in F.T. Case No. 426/2015 by the learned Member, Foreigners Tribunal Page No.# 4/8 No.6, Barpeta, Assam. 2. To remand back the matter to the learned Foreigners Tribunal No.6, Barpeta for fresh decision after taking further evidences, if so required, and also considering the entire evidences and/or documents submitted by the petitioner in favour of her citizenship of India for the interest of justice. 7) Therefore, the issue that the petitioner is a foreigner/ illegal migrant after 25.03.1971, has attained finality in light of the opinion dated 06.04.2019, dismissal of writ petition by order dated 09.09.2019, and dismissal of Special Leave Petition by the Supreme Court of India vide order dated 09.05.2025, and therefore, cannot be gone into and/or reopened in any manner or form. 8) The learned Tribunal, in its opinion dated 06.04.2019, had framed the points of determination as follows:- “3. Now the point of determination is as to whether the proceedee, Tajiran Nessa, W/o- Manik, Vill. Mowrigaon, P.S. Baghbar, Dist. Barpeta, is a “citizen” of India or a “foreigner” within the meaning of the expression ‘foreigner’ as defined U/S 2(1)(a) of the Foreigners’ Act, 1946, who has entered India illegally from Bangladesh after 25th March, 1971.” 9) Therefore, when the reference made by the Border Police has been answered in the affirmative and in favour of the State, it would mean that the petitioner is a foreigner who has illegally entered into India (Assam) from the specified territory, which would mean East Pakistan, as it was, prior to 25.03.1971 and Bangladesh, which has come into existence on and from 25.03.1971. 10) Therefore, in the considered opinion of the Court, no further determination is required by the State or by the Foreigners Tribunal to answer as to which Country the petitioner belongs to. 11) The allegation about illegality committed by the State in the Page No.# 5/8 manner the declared foreign national was taken into custody and kept in the Holding Centre including propriety of State to take into custody the declared foreign national, who is on bail are issues that has extensively been dealt by this Court in the case of Malek Ostar v. Union of India & Ors., W.P.(Crl.) 37/2025, decided on 21.08.2025. 12) Therefore, in light of the decision of this Court in the case of Malek Ostar (supra), the Court is of the considered opinion that there is no cause for preventing the State from taking an appropriate action against the petitioner, Tajiran Nessa, who is a “declared foreign national” and to take steps for her expulsion from the Country. 13) By referring and extensively quoting from the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors., (1955) 1 SCC 167, and Pankaj Kumar Chakrabarty & Ors. v. State of W.B. & Ors., AIR 1970 SC 97: (1969) 0 Supreme (SC) 225, this Court, in the case of Malek Ostar (supra), had held that the State had unfettered right to expel a foreign national, so declared by the Foreigners Tribunal by its opinion and the keeping of such declared foreign national in Holding Centre has been held to be justified. The said order is found to apply under the facts and circumstances of this case. In the case of Sarbananda Sonowal (supra), the influx from Bangladesh has been compared to external aggression. Moreover, reference had been made to the excerpts of a book titled, "Eastern Pakistan; its Population & Economics", by a pro-India leader Sheikh Mujibur Rahman, where it is observed as follows: "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong.” Page No.# 6/8 14) In the case of Malek Ostar (supra), the Court had also observed that a question would arise as to how can the Country deport a “declared foreign national”, who has entered into Assam illegally after 25.03.1971, if the specified territory, i.e. the present Republic of Bangladesh refuses to acknowledge and/or admit that the proceedee as their subject and deny to take those persons into their Country. In the considered opinion of the Court, the State has unfettered power to cause expulsion of a declared foreign national. Therefore, in the event a “declared foreign national” cannot be expelled due to any reason whatsoever, including the policy in force, then the only way open to the State would be to prevent a declared foreign national from getting employment, purchase land, marry Indian national, etc., perhaps by framing appropriate policy and/or by detaining such “declared foreign national” in the holding areas ear-marked for the purpose. Accordingly, the act of the appropriate Government to keep in holding camps, a “declared foreign national” and/or “foreigner” as declared by a Foreigners Tribunal, cannot be faulted with or equated to arrest as is understood under Criminal Procedure Code and/or Bharatiya Nagarik Suraksha Sanhita, which confers certain procedural safeguards for citizens of India, who are arrested in connection with some criminal offence. 15) In this case, the petitioner cannot be held to be facing deportation. Rather, the petitioner, being a declared foreign national, 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 in this case in hand, as “deportation” is carried out in respect of a person, whose entry into the Country Page No.# 7/8 was lawful, but 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. 16) In light of the decision of this Court in the case of Malek Ostar (supra), the Court is unable to accept that any legal and fundamental right of the petitioner, a “declared foreign national”, under Articles 14, 16, 18, 21, 22 of the Constitution of India has purportedly been violated. In this regard, one may refer to the decision of the Supreme Court of India in the case of Sarbananda Sonowal (supra), the said “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. What is guaranteed under the Constitution of India, which would be available even to a declared foreign national, is the right to life, without any right to move freely within the Country, or to reside at any particular place of choice, or to carry out any vocation, trade or calling as the declared foreign national may so desire. The Court is also constrained to hold that the petitioner is lawfully being held by the State in the Transit Camp, Matia, Goalpara, pursuant to declaration given vide opinion dated 06.04.2019, passed by the learned Member, Foreigners Tribunal No.6, Barpeta, in F.T. 426/2015, holding the petitioner as a foreign national who had entered into India after 25.03.1971. The detention of the petitioner has successfully been justified by the State as the petitioner has been declared to be a foreign national, who cannot have unfettered right to travel throughout India or to reside at a place of her choice or to carry out any trade, vocation or calling of her choice. 17) Earlier, during the Covid-19 Pandemic situation, many detained foreign nationals were released on bail on certain conditions. However, similar Page No.# 8/8 situation does not prevail in the Country. 18) Therefore, on all counts, in light of the discussions made in the decision of this Court in the case of Malek Ostar (supra), this writ petition fails. 19) The detained declared foreign national, namely, Tejiran Nessa is not found entitled to be released. It is also held that after being declared to be an illegal foreign national, pending her expulsion from the Country, the petitioner is not entitled to any right of further hearing for determination of her citizenship status. The petitioner’s position that she is an illegal migrant is evident from the point of determination contained in paragraph 3 of the opinion dated 06.04.2019. Accordingly, all the prayers made in this writ petition are rejected. 20) The writ petition is misconceived and is dismissed at the motion stage without issuing notice upon the respondents. 21) Under the circumstances, there shall be no order as to cost. 22) The Registry shall transmit a copy of this order by e-mail to the learned Member, Foreigners Tribunal No.6, Barpeta, to be made a part of record of Case No. F.T. 426/2015 [arising out of Ref: FT/IM(D)T Case No. 7984/98], disposed of by opinion dated 06.04.2019. 23) The record of WP(C) 4855/2019 shall be detached and returned. JUDGE JUDGE Comparing Assistant