Gauhati High Court Orders ₹2 Lakh Interim Compensation After Two Women Declared Foreigners Were Sent to Bangladesh Without Opportunity to Challenge Tribunal Orders
Gist of the Article
The Gauhati High Court has directed the Government of Assam to pay ₹2 lakh each as interim compensation to the family members of Mumtaz Begum and Jahanara Begum, two women who had been declared foreigners by Foreigners Tribunals in Nagaon and were subsequently expelled to Bangladesh.
In two separate orders passed on September 3, 2026, a Division Bench comprising Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund found serious procedural concerns in the manner in which the women were taken into custody and removed from Assam. The Court held that they were not afforded a meaningful opportunity to challenge the fresh opinions of the Foreigners Tribunals before being expelled from India.
The Court also directed that the Ministry of External Affairs (MEA) be impleaded so that efforts could be made to locate the women in Bangladesh and facilitate their return to India, enabling them to avail themselves of the legal remedy contemplated under the State’s Standard Operating Procedure.
Facts of the Cases
Mumtaz Begum:
Mumtaz Begum was the subject of proceedings before the Foreigners Tribunal No. 4, Nagaon at Juria in F.T. Case No. 354/2015. The Tribunal had earlier declared her a foreigner by an opinion dated June 6, 2019.
She challenged that opinion before the Gauhati High Court. On April 20, 2026, the High Court set aside the earlier opinion on the ground that the Tribunal had not properly considered the evidence on record and remanded the matter for fresh consideration. Pursuant to the High Court’s directions, Mumtaz appeared before the Tribunal on May 30, 2026, along with her counsel. According to the case placed before the High Court, she was subsequently taken into custody by the police and moved through various holding and detention facilities. Her husband, Mujammel Hoque, claimed that he was not informed about her detention or whereabouts in a manner that enabled him to promptly approach the High Court.
The Court record shows that Mumtaz was ultimately handed over to the BSF and sent back to Bangladesh during the intervening night of June 13–14, 2026.
Jahanara Begum
A similar issue arose in the case of Jahanara Begum, whose son Md. Mujahidul Islam approached the Gauhati High Court. Jahanara had earlier been declared a foreigner by the Foreigners Tribunal, 4th Nagaon at Juria. Her earlier opinion had also been challenged before the High Court and set aside, with the matter being remanded for fresh consideration. She appeared before the Tribunal on May 29, 2026, pursuant to the High Court’s direction. She was thereafter taken into custody and ultimately sent to Bangladesh on June 14, 2026.
The High Court found that neither Jahanara nor her adult family members had been shown to have been properly informed of the fresh Tribunal opinion or of the decision to remove her from the district and expel her from India.
What the Gauhati High Court Held:
The central issue before the Court was not simply whether a person declared a foreigner can ultimately be expelled from India. The Court focused on whether the authorities could remove such a person without first ensuring that the person had a meaningful opportunity to challenge the Foreigners Tribunal’s opinion.
The Court examined the Assam Government’s Executive Order dated October 29, 2025, which contains the Standard Operating Procedure governing removal and expulsion under the Immigrants (Expulsion from Assam) Act, 1950. Importantly, the SOP contemplates that a declared foreign national may have already exhausted remedies before the High Court and, in some cases, the Supreme Court. The Court therefore found that the State could not treat the declaration by the Foreigners Tribunal as automatically extinguishing the person’s opportunity to approach the High Court.
Article 21 Protection Extends to Non-Citizens
One of the significant legal principles emphasized by the Court was that Article 21 of the Constitution is not confined to Indian citizens.
Relying upon the Supreme Court’s decision in Roy V.D. v. State of Kerala, as well as subsequent Supreme Court decisions, the High Court reiterated that the protection of life and personal liberty under Article 21 extends to aliens as well.
The Court consequently treated the right to procedural safeguards and access to legal remedies as an important constitutional consideration even in the case of persons declared to be foreigners.
Article 22 and the Right to Know the Tribunal’s Opinion
The Court also connected the issue with the constitutional safeguards contained in Article 22. The purpose of furnishing the grounds of arrest or detention, the Court noted, is not merely procedural. It enables a person to understand why they have been deprived of liberty and to obtain legal assistance and challenge the action taken against them. Applying these principles to the cases before it, the Court held that a person declared a foreign national should not be taken into custody in circumstances where they are effectively deprived of the opportunity to obtain and challenge the Tribunal’s opinion. The Court specifically held that the authorities should provide a free copy of the Foreigners Tribunal’s opinion before taking the declared foreign national into custody, particularly where the custody takes place on the same day on which the Tribunal renders its opinion.
Court Finds “Malice in Law” in Tribunal’s Handling of the Matter
A particularly significant observation concerned the manner in which the certified copy of the Tribunal’s opinion was dealt with.
In the Mumtaz Begum case, the High Court found that the certified copy was not made available immediately despite the need for the detenue to challenge the fresh opinion. The Court observed that the sequence of events had effectively resulted in the woman being moved from Juria to Nagaon, then to Matia in Goalpara and thereafter to Sribhumi, while the family was attempting to obtain the relevant order and pursue a legal remedy. The Court went further and held that the circumstances disclosed a case of “malice in law” on the part of the concerned Foreigners Tribunal. It found that the office of the Tribunal had deliberately and wilfully delayed issuance of the certified copy in circumstances that enabled the detenue to be removed from the jurisdiction before she could approach the High Court.
This observation is among the strongest aspects of the September 3 order.
The Court rejected the argument that earlier judicial decisions concerning the detention and deportation of declared foreigners authorised the authorities to take such persons into custody without informing them of their right to challenge the Tribunal’s opinion.
The Court held that the precedents relied upon by the State did not lay down any rule permitting the authorities to prevent a declared foreign national from obtaining the Tribunal’s opinion and approaching the High Court.
In the case of Mumtaz Begum, the Court concluded that the State machinery had, in effect, prevented her from exhausting the remedy available to her under the applicable SOP.
A similar finding was recorded in the case of Jahanara Begum.
Interim Compensation:
Considering the circumstances, the Gauhati High Court directed the Government of Assam to pay ₹2 lakh as interim compensation to the respective petitioner in each case. In Mumtaz Begum’s case, the amount was directed to be paid to her husband, Mujammel Hoque. The Court clarified that the interim compensation would be in addition to, and not in derogation of, the petitioner’s right to seek further compensation before a civil court. The payment is to be made within 60 days from receipt of the certified copy of the order.
Ministry of External Affairs Impleaded:
The Court also directed that the Ministry of External Affairs, Government of India, be impleaded as a respondent. The purpose is significant: the Court wants the MEA to make efforts to locate the women in Bangladesh and facilitate their return to India, so that they can have an opportunity to pursue the legal remedy available to them against the Foreigners Tribunal opinions. The Court did not treat repatriation merely as a humanitarian request; it linked the proposed return to the women’s opportunity to exhaust their legal remedy before the High Court.
New Safeguards Directed for Declared Foreign Nationals:
The Gauhati High Court issued important interim directions applicable across Assam.
The Court directed that the jurisdictional Senior Superintendent of Police (Border) / Superintendent of Police (Border) must ensure that:
- Before taking a declared foreign national into custody, the person is informed about the Foreigners Tribunal’s opinion against them.
- The person is provided a free copy of the Tribunal’s opinion.
- Before shifting the person outside the jurisdiction of the concerned district, an adult family member must be informed that the detenue is being removed from the jurisdiction.
- Compliance with these requirements must be reported to the District Magistrate of the concerned district.
These directions are significant because they seek to ensure that the declaration of a person as a foreigner does not operate as a mechanism to prevent access to judicial review.
Enquiry Into Preparation of Tribunal Opinion:
The Court also directed the Home and Political Department, Government of Assam, to conduct an enquiry into the date and time when the Tribunal’s opinion dated May 30, 2026, was prepared. The Court further observed that, if necessary, the computer used for preparing the opinion could be seized and sent for forensic examination to determine when the opinion was actually finalised. A report is to be produced before the Court, if possible, on the next date of listing.
Legal Significance of the Orders
The September 3 orders have significance beyond the individual cases.
The Gauhati High Court has effectively emphasised that declaration as a foreigner does not eliminate the person’s constitutional protection of life and personal liberty or the opportunity to seek judicial review.
The Court’s reasoning places particular importance on three connected safeguards:
First, the person must know that the Foreigners Tribunal has passed an adverse opinion.
Second, the person must have access to the opinion so that appropriate legal advice can be obtained.
Third, the State should not remove the person from the jurisdiction in a manner that makes access to the High Court practically impossible.
The Court’s reliance on Articles 21 and 22 of the Constitution, together with the Assam Government’s own SOP, makes the orders particularly relevant to the procedural safeguards governing detention and expulsion of declared foreign nationals.
Next Hearing
Both matters have been directed to be listed on September 24, 2026. The interim compensation remains subject to further orders of the Court.
