Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Gau) 15320

GAUHATI HIGH COURT
Kalyan Rai Surana, Shamima Jahan, JJ
Farid Ali – Appellant
Versus
State Of Assam – Respondent
W.P.(Crl.)/81/2025

Advocates:
For the Appellants/Petitioners: A M Ahmed, S Rahana, B Das, P Ghosh
For the Respondents: GA, Assam, M R Adhikar, A Verma, S S Roy, P Sarmah

The Government of India possesses absolute and unfettered power under the Foreigners Act, 1946 to expel declared foreign nationals, and such individuals are not entitled to the procedural protections or fundamental rights afforded to citizens under the Constitution of India.

Headnote:(A) Foreigners Act, 1946 - Section 4 - Constitution of India - Articles 14, 21, 22 - Deportation of declared foreign national - Petitioner seeks writ of mandamus to produce his father, who was declared a foreign national by the Foreigners Tribunal - The court held that the executive possesses absolute and unfettered power to expel a declared foreign national, regardless of the existence of an extradition treaty - Declared foreign nationals are not entitled to criminal procedural safeguards provided to citizens - The court emphasized the state's duty to preserve unity and integrity against illegal influx. (Paras 10, 18, 20, 21, 22)

Facts of the case:
The petitioner filed a writ petition seeking the production of his father, Md. Mahib Ali, alleging he was taken into custody by police without notice. It was later revealed that the father had been declared a foreign national via an ex-parte opinion in 2012 and was subsequently deported to Bangladesh in May 2025.

Findings of Court:
The court ruled that the declaration of the father as a foreign national had attained finality. The state exercised its sovereign power to deport the individual. The court concluded that no fundamental rights under Article 21 or 22 were violated as such procedural safeguards are specific to citizens, not declared foreigners.

Issues: Whether the deportation of a declared foreign national without an extradition treaty violates fundamental rights and whether criminal procedural safeguards apply to the detention/expulsion process.

Ratio Decidendi: The Indian state holds absolute discretion to expel declared foreign nationals under the Foreigners Act, 1946; such administrative actions do not constitute criminal arrest under current procedural codes, and foreign nationals cannot claim the same constitutional protections as citizens regarding movement or residence.

Result: Petition dismissed.

Table of Content
1. factual background regarding the detention and deportation of an declared foreign national. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. state's sovereign power to expel foreign nationals and non-applicability of criminal procedure for such administrative acts. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19)
3. non-availability of fundamental rights related to movement and residence for declared foreign nationals. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28)

ORDER

(K.R Surana, J)

Heard, Mr. A.M. Ahmed, learned Counsel for the petitioner. Also heard, Mr. S.S. Roy, learned CGC appearing for respondent no.8, Ms. A. Verma, learned Standing Counsel for the FT and Border matters appearing for respondent no. 1,2,3, 5, 6 and 7 and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.4. are present.

2. By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus directing the respondents to produce Md. Mahib Ali, the projected father of the petitioner, namely, Farid Ali. By an ex parte opinion dated 22.06.2012, passed by the learned Member, Foreigner’s Tribunal, Golaghat, in Case No. FTG. 519/07, corresponding to IM(D)T Police Case No.67/04, Md. Mahib Ali was declared to be foreigner of post 25.03.1971 stream.

3. The case projected by the petitioner is that his father Mahib Ali was illegally taken into custody and detained since 24.05.2025 by the police personnel from Golaghat from his residence without communicating to the petitioner the grounds of arrest and without service of any notice and since then the hereabouts of the father of the petitioner is not known. It is projected that the family members of the petitioner approached the concerned respondent authorities’ nos. 5 and 7, filed in the Superintendent of Police, Golaghat and the Officer in Charge of Golaghat, Police Station to know about the whereabouts of the detained person but no reply was given. Accordingly, appending that something wrong has happened to the detained person and is not safe the present writ petition to the nature of grievous corpus has been filed of production of said detained person.

4. It is also projected that after the father of the petitioner was taken into custody, the petitioner and his family members came to know that an ex-parte opinion dated 22.06.2012 was passed by the learned member, Foreigner’s Tribunal, Golaghat in case no. 519/07, corresponding to IM(D)T Police Case No. 67/04.

5. This writ petition was filed on 15.09.2025 owing to certain defects the reporting could only be done 02.12.2025 and thereafter, the matter was listed on 03.12.2025 and the learned Counsel for the petitioner was required to serve copies of the writ petition to the learned Counsel for the F.T. and Border matters and accordingly, when the matter was listed on 05.12.2025, the Court requested the learned Standing Counsel for the F.T. matters to inquire about the whereabouts of the father of the petitioner and to inform the Court. When the matter was listed on 10.12.2025, the learned Standing Counsel for the F.T. and Border matters produced a copy of the written instructions dated 09.12.2025 informing that the detained foreign national namely Md. Mahib Ali against whom opinion dated 22.06.2012 was passed and handed over to the Border Security Force, Sector Headquarter, Panbari on 26.05.2025. Accordingly, we had requested the learned CGC to obtain instructions on 15.12.2025, when the matter was listed, the learned CGC has informed the Court that pursuant to the said opinion, the said declared foreign national was sent back to Bangladesh. Accordingly, the matter was adjourned to the Hon’ble learned Counsel for the petitioner to obtain instructions. On 28.01.2026, when the matter was listed, the learned CGC has prayed for two weeks time to obtain instructions, in the meantime, pursuant to order dated 17.02.2026 passed in I.A.(Civil)/438/2026, the funeral of India

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2026 Supreme(Online)(Gau) 15320

GAUHATI HIGH COURTKalyan Rai Surana, Shamima Jahan, JJFarid Ali – AppellantVersusState Of Assam – RespondentW.P.(Crl.)/81/2025

The Government of India possesses absolute and unfettered power under the Foreigners Act, 1946 to expel declared foreign nationals, and such individuals are not entitled to the procedural protections or fundamental rights afforded to citizens under the Constitution of India.

Cases Referred (1)

GAUHATI HIGH COURT
Kalyan Rai Surana, Shamima Jahan, JJ
Farid Ali – Appellant
Versus
State Of Assam – Respondent
W.P.(Crl.)/81/2025