‘Muslim Population Has Increased In Assam, This Abrupt Growth Has Come From Other Side’: Centre To Gauhati High Court In Declared Foreigners' Case

The Gauhati High Court is hearing a significant matter in which it is examining the rights available to a declared foreigner or illegal migrant in India before their deportation.

In the last hearing held on April 28 before the division bench of Justice A.M. Bujor Barua and Justice Robin Phukan, the Deputy Solicitor General R.K.D. Choudhury submitted that there has been an increase in the Muslim population in Assam after 1951, as per the census. This is a "ploy to take away this part" of the country to another, he said.

“This abrupt growth of population is not simply multiplying the people here, it has come over from the other side and as I have submitted ... at first, they first took refuge in the reserves ... ," Choudhury said.

Continuing, he said: “In 1905, when there was a division of Bengal on the basis of religion… the Britishers have settled these people along the rivers and there was a line called inner line. They were settled there but they did not have any legal backing because only on paper it was there… ”

In response to a query from court that what rights a person who is declared foreigner is entitled to when deportation does not take place, Choudhury said the person will only be entitled to the right to life under Article 21 of the Constitution.

When another counsel assisting court on the question contended that they will also be entitled to the right to equality under Article 14,  Justice Barua asked the counsel to clearly make submissions on how the person declared a foreigner is entitled to Article 14.

“Straightaway saying that Article 14 will be available to them on the basis articles published on the internet cannot be relied upon. We cannot base our views only on articles available on the internet,” Justice Barua said, adding Article 14 is "not right to equality" but "equality before law and equal protection of law"

“Equal protection means the right to equal treatment in similar circumstances and if the circumstance is different, the treatment may be different,” the judge said.

DSG Choudhury further argued that as far as rights on land are concerned, if the person is declared a foreigner, then every transaction they have entered into will be ineffective. The land will revert back to the State and not the seller, he said.

The court said Section 3(2)(e) of the Foreigners Act requires that the central government may have to frame an order to specify where the declared foreigner will reside  since they can't have property.

"Giving a place to reside and giving ownership are two different aspects. Some kind of order has to be framed then," it said, adding if the property is taken away by the state from them, there is a corresponding requirement by the law that the State will have to provide them with a place of residence.

On question of education, the court said it can be given to these category of people and "if they are good asset to country, use them also".

The court questioned how such persons can be "arrested" when the process of deportation has "actively" not been initiated. 

“If they are to remain in the country for any period of time, they should be given basic human treatment ... that should not be taken away, but in the guise of human treatment that doesn’t mean you will encroach upon rights that you were otherwise also not entitled,” said the court.

DSG Choudhury said once declared foreigner, they would not be entitled to welfare schemes meant for the citizens. "These schemes relate to the citizens only...," he said.

The court adjourned the case to May 02 and said that matter will be heard day-to-day.

Background

In February, the High Court, while hearing a plea challenging the detention order of a person who was declared a foreigner by the Foreign Tribunal, said that, “as the issue for decision may have its implication in many other matters of similar nature pending before the Court, we have also requested Mr. HRA Choudhury, learned senior counsel who also appears for the litigants of this nature in many other cases and also Ms. D Ghosh, learned counsel, who is also similarly situated to also advance their arguments on this issue as to what are the rights available to a declared foreigner, who is an illegal migrant that he is entitled under the law and what are the acclaimed rights he would not be entitled under the law”.

Case in Brief

In 2016, the Superintendent of Police, Morigaon, submitted a reference report which was later sent to the Foreigners Tribunal, and the petitioner was declared a foreigner because of a discrepancy in the name of his father in the relevant documents.

Thereafter, he approached the High Court to challenge the Tribunal's order by filing a writ petition in 2016, stating that he is a citizen of India and his perspective was not taken into consideration. The petition was dismissed with a direction to the Superintendent of Police, Morigaon, for necessary follow-up.

In 2022, a notice was issued by the Foreigners Tribunal asking the petitioner to appear in another foreigner case, and on the day of appearance, the petitioner was detained, declaring him a foreigner.

The present writ petition was filed challenging the order of the Foreign Tribunal on the ground that the Tribunal is barred by res judicata since the High Court has already given direction to the Superintendent of Police for necessary follow-up; hence, he cannot be detained in the second case.