Declared foreign national who re-entered India after being pushed back not entitled to bail despite prolonged detention, Gauhati High Court rules

The petitioner was declared a foreign national by an ex parte opinion dated 01.09.2009 of Foreigners’ Tribunal No. 1, Goalpara, holding that he had entered Assam from the specified territory after 25.03.1971.

His challenge to that opinion in WP(C)/4903/2009 was dismissed on 08.01.2010, thereby attaining finality.

The Tribunal’s order sheet recorded that the petitioner had been pushed back to Bangladesh on 09.04.2010.

He was subsequently apprehended in India on 02.11.2016, convicted under Section 6(a) of the Passport (Entry into India) Rules, 1950 and Section 14(c) of the Foreigners Act, 1946, and sentenced to concurrent terms of imprisonment by the Judicial Magistrate First Class, Goalpara, on 25.09.2017.

The petitioner thereafter remained detained in the Matia Holding Centre and sought release on bail on the ground of prolonged detention, exemption from expulsion under the Immigration and Foreigners (Exemption) Order, 2025, eligibility under the Citizenship (Amendment) Act, 2019, and protection of his right to family life.

He also relied upon a 1952 Refugee Registration Certificate relating to his grandmother.

1. Whether the petitioner, a declared foreign national who had allegedly been expelled and thereafter illegally re-entered India, was entitled to release on bail because of prolonged detention.

2. Whether the petitioner could claim exemption from expulsion under the Immigration and Foreigners (Exemption) Order, 2025.

3. Whether the petitioner was entitled to seek registration or citizenship under Section 6-A of the Citizenship Act, 1955 or the Citizenship (Amendment) Act, 2019.

4. Whether the State’s failure to complete deportation/expulsion entitled the petitioner to release.

5. Whether the petitioner’s right to family life required his release from the designated holding centre.

The Court applied Section 4 of the Foreigners Act, 1946 and paragraph 12 of the Immigration and Foreigners Order, 2025, which empower the authorities to restrict the movement and detain a declared foreign national pending expulsion.

It relied on Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367, holding that the Union possesses an absolute and unfettered power to expel foreigners, subject to lawful procedure.

The Court also relied on the Assam Accord, particularly Clauses 5.7 and 5.8, requiring the expulsion of persons who had earlier been expelled but illegally re-entered Assam, and of foreigners entering Assam on or after 25.03.1971.

Section 6-A of the Citizenship Act governs the limited citizenship and registration regime for persons of Indian origin who entered Assam between 01.01.1966 and 24.03.1971; it does not benefit persons who entered after 25.03.1971 or persons excluded by the statutory conditions.

Following In Re: Section 6-A of the Citizenship Act, 1955, 2024 INSC 789, the Court held that persons detected as foreigners who failed to register within the prescribed period could no longer claim the benefit of citizenship under Section 6-A.

The Court also distinguished deportation from expulsion, observing that illegal entrants are liable to expulsion, whereas persons who lawfully entered but overstayed may be deported.

The petitioner’s foreigner status had already been conclusively determined and the opinion had attained finality after dismissal of his earlier writ petition.

The record further indicated that he had been pushed back to Bangladesh in 2010 and had subsequently re-entered India illegally, resulting in his criminal conviction.

In these circumstances, prolonged detention did not create an entitlement to bail because detention in a designated holding centre was legally connected with the pending expulsion process under Section 4 of the Foreigners Act and paragraph 12 of the 2025 Order.

The Court declined to examine the petitioner’s proposed exemption claim because the 1952 Refugee Registration Certificate had not been relied upon in the earlier proceedings or in the criminal judgment, and its legal effect could not be determined in the present writ petition.

The petitioner also could not invoke Section 6-A because the final finding against him was that he entered India after the 25.03.1971 cut-off date.

The Court further rejected the submission that the relevant observation in In Re: Section 6-A was merely a minority view, holding that the Supreme Court had conclusively decided the issue.

Finally, the asserted family-life considerations could not override the statutory power to detain a declared foreign national pending expulsion.

His claim for exemption under the 2025 Order was left unexamined, without prejudice to his right to raise the issue on the basis of the 1952 Refugee Registration Certificate if he was otherwise legally entitled to do so.

The writ petition was dismissed at the motion stage, without issuance of notice to the respondents and without costs.