Women Deported Without Judicial Review: How Gauhati HC Drew the Line in Assam

Mumtaz Begum and Jahanara Begum appeared before Foreigners Tribunal No 4 in Nagaon after the Gauhati High Court had set aside earlier opinions declaring them foreigners. (Image for representation)

(Image: Aroop Mishra/The Quint)

Mumtaz Begum and Jahanara Begum had each been declared a "foreigner" by a tribunal in Assam's Nagaon district in 2019. Both challenged those decisions in the Gauhati High Court.

In April 2026, the High Court set those decisions aside on the ground that the tribunal had failed to consider important evidence. It sent both cases back to the tribunal for fresh decisions. Jahanara appeared before the tribunal again on 29 May; and Mumtaz appeared the next day.

But the tribunal again declared them foreigners.

The two women were then taken into custody by the police, however they weren't given copies of the new decisions. Their families applied for certified copies on 2 June and received them three days later.

The families now had the decisions, but they needed to speak with the women and arrange lawyers. Both women had been moved from Nagaon to the Matia holding centre in Goalpara.

When a relative went there to obtain Jahanara’s signature on papers authorising a lawyer to act, she had already been moved to Sribhumi, more than 400 km away. Mumtaz’s husband also went to Matia to arrange legal papers and was told that she had been moved. Then, during the night of 13-14 June, the authorities sent both women into Bangladesh.

Their families brought proceedings in the High Court while trying to establish where the women had been taken. Through those proceedings, they learnt that the expulsions had already happened.

Now, months later, the Gauhati High Court has ordered Assam to pay Rs 2 lakh each in interim compensation to Mumtaz’s husband and Jahanara’s son. On 3 September, the Court found that the authorities’ actions had prevented the women from challenging the new tribunal decisions in time. It also brought the Ministry of External Affairs into the cases so that efforts to locate the women and bring them back could be considered.

The Court has not decided their citizenship claims. The orders instead bring into focus the time between a tribunal decision and expulsion: a person may be entitled to ask the High Court to review the decision, yet lose the chance to do so before being sent away. Due process, in other words, has a clock.

Judicial Review Cannot Exist Only on Paper

The statutory framework governing Foreigners Tribunals does not provide an ordinary appeal. But their opinions remain subject to judicial review under Article 226. The absence of an appeal does not make a tribunal infallible or immune from constitutional scrutiny.

Both women had previously used judicial review successfully. An effective challenge to the fresh opinions required that they receive the decisions, communicate with their families and lawyers, and have a realistic opportunity to approach the High Court before removal.

The High Court found that the “State machinery, acting in tandem” had prevented them from exhausting this opportunity. That finding identifies a constitutional injury distinct from the ultimate question of citizenship. The Court has not declared either woman an Indian citizen or finally decided whether the fresh opinions are sustainable. It has recognised that they were deprived of an opportunity to have those opinions examined while they were still in India.

If an opinion is withheld, the person is placed in custody, her family is left searching for her, and the State completes the expulsion before a petition can be prepared, judicial review survives only as an abstraction. The executive cannot manufacture finality through speed.

The failure to provide copies was, therefore, not an inconsequential irregularity. A person cannot challenge a decision she has not received; once in custody, her access to court may depend upon information reaching her family.

The State argued that declared foreigners sometimes disappear. But neither woman had absconded: both pursued legal remedies and appeared before the tribunal. Their participation secured their presence; it should not have become the means of depriving them of legal protection.

Drawing upon the Supreme Court’s arrest jurisprudence, including Prabir Purkayastha v State (NCT of Delhi) and Mihir Rajesh Shah v State of Maharashtra, the Court applied a broader constitutional principle: information concerning a deprivation of liberty must be communicated effectively enough to permit access to counsel and legal remedies. Those cases arose in criminal-law settings; the Court drew upon their underlying logic in the context of detention following a Foreigners Tribunal opinion.

The State’s argument that a declared foreign national does not enjoy all rights available to citizens does not answer this. Some rights are citizen-specific, but Article 21 protects every “person”. As the Supreme Court held in Roy VD v State of Kerala, the protection of life and personal liberty extends to aliens as well as citizens.

A foreigner may not possess a fundamental right to remain permanently in India. But the State acquires no corresponding right to remove her arbitrarily. Otherwise, the allegation itself would suspend the safeguards through which it could be contested.

When Procedure Becomes a Paper Fiction

The purported directions giving the women 24 hours to remove themselves from India reveal a deeper contradiction. They were already in State custody. They could not return home, independently arrange departure, consult lawyers freely or approach the High Court.

The Court accordingly described the self-removal directions as “farcical” and the proposition behind them as “totally absurd”.

Official paperwork can preserve the appearance of legality while eliminating the opportunity it claims to provide. The tribunal, police, District Commissioner, holding centres and Border Security Force (BSF) might each describe its role as one limited step. Constitutional scrutiny, however, must examine their combined effect: the women were moved towards the border while their families were still trying to obtain the decisions against them.

The final SOP dated 29 October 2025, reproduced in the orders, was understood by the Court to contemplate removal after available remedies had been exhausted. The Court found clear non-compliance. Neither the SOP nor the Immigrants (Expulsion from Assam) Act, 1950 can be administered to make constitutional review impossible.

What Findings Against the Tribunal Signify

The Court’s observations concerning the tribunal are exceptionally serious. At this interim stage, it found “malice in law” apparent from the record and concluded that the tribunal’s office had “deliberately and wilfully” delayed the certified opinions so that the women could be removed from Nagaon. It also found force in the allegation of a personal grudge after the earlier opinions were set aside.

These observations are not the outcome of a completed disciplinary inquiry. Their institutional implications, nevertheless, cannot be minimised.

A Foreigners Tribunal exists to adjudicate independently; it cannot appear to function as an extension of the machinery responsible for detention and expulsion.

The Court directed an inquiry into when the fresh opinions were prepared and, if necessary, directed that the tribunal’s computer be sent for forensic examination. If uncertainty exists over whether an adjudicatory opinion was ready when a person was detained, the concern reaches beyond the quality of its reasoning to the integrity of the adjudicatory process itself.

Does ‘Foreigner’ Automatically Mean ‘Bangladeshi’?

The cases also leave a fundamental question for the government. A finding that someone has failed to prove Indian citizenship does not, by itself, establish that she is a citizen of Bangladesh. Failure to establish one nationality cannot automatically create another.

Before an international removal, authorities must possess a defensible basis for identifying the receiving country. The orders record the BSF’s statement that the women were “sent back” to Bangladesh, but do not disclose how their Bangladeshi nationality was verified, whether Bangladesh formally accepted them or what procedure governed their transfer.

This does not establish that verification never occurred. It makes disclosure necessary, particularly because these were long-term residents with families in Assam, not persons intercepted at the border. The State must explain how “not proved Indian” became “liable to be sent to Bangladesh”.

Deportation and pushback are therefore not interchangeable. Deportation ordinarily describes legally supervised removal to a State that recognises or accepts the person; a pushback may cross a territorial boundary without resolving nationality or legal status.

Compensation Recognises the Loss, It's Not a Remedy

The Rs 2 lakh directed in each case is expressly “interim palliative” compensation, subject to further orders and without prejudice to civil damages. It cannot be understood as the monetary value of the women’s liberty, separation or displacement.

Its constitutional importance lies elsewhere. Indian courts have recognised public-law compensation where State action violates life or liberty and an ordinary declaration would be inadequate. As the Supreme Court explained in Nilabati Behera v State of Orissa, this constitutional remedy is distinct from a private claim for damages.

Properly understood, the injury here was not confined to custody. It included the destruction of a meaningful opportunity to obtain judicial protection before expulsion.

The statewide directions reinforce this understanding. Before taking a declared foreign national into custody, the border police must inform the person of the tribunal opinion and provide a free copy. Before moving the person outside the district, an adult family member must be informed. Compliance must be reported to the District Magistrate.

That these elementary safeguards had to be judicially imposed in 2026 is itself troubling.

A Remedy Must Remain Available Before Expulsion

The orders point towards a protection that should now be institutionalised. Except in legally defined situations requiring immediate border action, there must be a meaningful interval between an adverse Foreigners Tribunal opinion and physical expulsion. During this period, the person must receive the opinion, communicate with family, obtain legal assistance and have a realistic opportunity to seek judicial review.

This does not create an endless right to delay removal or prevent action against persons who evade the law. It ensures that executive action does not outrun constitutional supervision.

The women appeared before the same tribunal on successive days, were moved through substantially the same official route and were sent across the same border point during the same night. The State coordinated several institutions to complete their removal; a constitutional administration must show equal capacity to preserve access to justice.

The Court did not finally resolve their citizenship. Its lasting intervention was to treat the loss of a meaningful opportunity to challenge the State as a constitutional injury in itself.

Judicial review cannot begin only after a person has disappeared from her home, family, lawyers and the immediate protection of the court. At that stage, even a successful petition may struggle to repair what administrative action has already done.

The Constitution does not merely require that a remedy exist. It requires that the person be allowed to reach it in time.

(Sahil Hussain Choudhury is an advocate and Constitutional law researcher from Assam. Sayed Salim Ahmed is an advocate practising before the Gauhati High Court.)