The Gauhati High Court on March 23, 2026, heard a writ petition filed by Abdul Gafar @ Abdul Sheikh challenging an ex parte opinion of the Foreigners Tribunal, Chirang (2018), and continued interim protection against deportation, while permitting the State to file an affidavit raising preliminary objections on maintainability.
The bench of Justices Kalyan Rai Surana and Justice Susmita Phukan Khaund has now listed the matter for April 24, 2026. While the hearing itself was limited to procedural aspects, the petition raises substantive challenges to the Foreigners Tribunal process, the delay in approaching the Court, and the legal consequences of an ex-parte declaration of foreigner status. The legal aid in this case is being provided by Citizens for Justice and Peace.
Details of the previous case proceedings in GHC, challenging their detention, may be accessed here, here and here.
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Proceedings before the High Court
At the outset, counsel for the petitioner, Advocate Mrinmoy Dutta, submitted that the writ petition is maintainable and deserves consideration on merits for two primary reasons.
First, it was argued that the delay in filing the petition has been sufficiently explained, and is not attributable to any deliberate inaction on the part of the petitioner.
Second, it was emphasised that the present petition has been filed pursuant to liberty granted by the Supreme Court, which had expressly permitted the petitioner to challenge the Foreigners Tribunal opinion.
Advocate Dutta also sought that the Court may call for the records of the Foreigners Tribunal, particularly in light of the contention that the proceedings were initiated without disclosure of the grounds of suspicion.
The State, at this stage, did not address the merits of the challenge. Instead, it sought time to file an affidavit raising preliminary objections, specifically on the issue of maintainability of the writ petition.
The Bench allowed the request and passed the following directions:
- The State is permitted to file an affidavit on preliminary objection,
- The interim protection against deportation is extended, and
- The matter is listed on April 24, 2026, with a direction that a copy of the order be furnished to the petitioner.
At this stage, the Court has not adjudicated on maintainability or merits, but has kept the petition alive and ensured that no coercive action is taken in the meantime.
Background: Tribunal opinion and subsequent proceedings
The petition challenges the ex parte opinion dated June 13, 2018 passed by the Foreigners Tribunal, Chirang, in FT Case No. BNGN FT/CHR/220/07, declaring the petitioner to be a foreigner who had allegedly entered India after March 25, 1971.
According to the petition:
- The petitioner had appeared before the Tribunal through an advocate,
- However, due to financial constraints, he was unable to continue legal representation or file a written statement,
- As a result, the proceedings culminated in an ex parte opinion.
Following the declaration:
- The petitioner was detained on April 30, 2019,
- Subsequently released on April 30, 2021 due to Covid based relaxations,
- Thereafter, he was required to report regularly to the police station, which he is stated to have complied with.
The petition further states that:
- On May 25, 2025, he was taken into custody again, allegedly without issuance of an arrest memo or any formal order cancelling his release conditions.
This sequence of events forms the immediate background to the present writ petition.
Supreme Court proceedings and grant of liberty
An important stage in the litigation is the petitioner’s approach to the Supreme Court. After earlier proceedings before the High Court, the petitioner filed an SLP, which came to be disposed of on December 12, 2025.
While dismissing the SLP, the Supreme Court clarified that the dismissal would not preclude the petitioner from challenging the Foreigners Tribunal opinion. This clarification is central to the present proceedings.
The petition asserts that:
- The current writ petition is being filed in exercise of the liberty granted by the Supreme Court, and
- Therefore, objections based on delay or prior proceedings must be considered in that context.
Explanation for delay in filing the petition
The petition sets out a detailed explanation for the delay in challenging the 2018 Tribunal opinion.
1. Financial constraints- It is stated that the petitioner:
- Was unable to pay legal fees before the Tribunal,
- Could not pursue remedies thereafter due to continued financial hardship,
- Faced severe economic difficulty, particularly during the COVID period.2. Periods of detention- The petitioner’s ability to pursue legal remedies was affected by:
- His detention from 2019 to 2021, and
- His subsequent detention beginning May 25, 2025.3. Lack of access to the petitioner- The petition records that:
- Family members were not permitted to meet him freely,
- Efforts to obtain a fresh vakalatnama were unsuccessful,
- At certain points, even information regarding his whereabouts was not clearly disclosed.4. Absence of legal aid- It is specifically pleaded that:
- The petitioner was not provided legal aid, despite being eligible,
- The present petition has been filed only after assistance was arranged through an external organisation.5. Practical difficulties in preparing the petition- The petition had to be prepared:
- Without direct access to the petitioner,
- By reconstructing documents and facts from available records.
Legal submission on delay- On the basis of the above, it is argued that:
- The delay is neither intentional nor negligent,
- The matter involves citizenship and personal liberty, and
- The High Court, in exercise of writ jurisdiction, ought to consider the petition on merits despite delay.
Challenge to the tribunal proceedings
The petition raises multiple grounds challenging the validity of the Tribunal proceedings.
- Absence of “Main Grounds” in Notice- It is contended that:
- The notice issued to the petitioner was a standard printed format,
- It did not disclose any specific grounds or material forming the basis of suspicion.
The petition argues that such a notice is insufficient in law and affects the jurisdiction of the Tribunal.
2. Validity of the reference- The reference made by the police is challenged on the ground that:
- It was not based on disclosed material,
- There is no indication that there was application of mind before initiating proceedings.
- 3. Ex Parte opinion- The ex parte opinion is explained as a consequence of:
- The petitioner’s inability to sustain legal representation,
- Rather than any deliberate failure to participate.
- 4. Opportunity to contest- It is argued that:
- The petitioner was not provided access to materials relied upon,
- Nor given an effective opportunity to present his case.
Documentary basis of citizenship claim
The petitioner relies on several documents to establish his claim to Indian citizenship, including:
- Entries in the NRC 1951 relating to his family,
- Inclusion of his and his family’s names in voter lists of 1965 and 1970,
- Land records showing inheritance from his father.
These documents are relied upon to demonstrate longstanding presence and linkage within India.
Legal argument on burden of proof
The petition addresses the operation of Section 9 of the Foreigners Act by submitting that:
- While the law places an onus on the proceedee,
- This arises only after the State establishes basic facts justifying the reference.
In the present case:
- It is contended that no such foundational material was disclosed,
- Therefore, the burden could not have been validly shifted to the petitioner.
Reliefs sought
The petition seeks:
- Quashing of the Tribunal opinion dated June 13, 2018,
- Setting aside of the reference and notice,
- Directions restraining the authorities from acting on the declaration, including deportation.