Abdul Sheikh Citizenship Case: Gauhati High Court issues notice, continues protection against deportation Court examines circumstances behind 2018 ex-parte FT opinion as petitioner cites poverty, absence of legal aid, detention, and restricted access to explain delayed challenge
12, May 2026 | CJP Team
The Gauhati High Court on May 11, 2026, issued notice in the writ petition filed by Abdul Sheikh @ Abdul Gafar challenging an ex parte Foreigners Tribunal opinion passed in 2018, while continuing interim protection against deportation. The matter came up before a Division Bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das. Although the hearing was largely procedural, the exchanges in court centred on significant questions relating to the ex-parte nature of the Tribunal opinion, the absence of legal aid, the reasons behind the delayed challenge, and the State’s position regarding the petitioner’s alleged “pushback.”
Citizens for Justice and Peace is providing legal aid in this case.
Details of the proceedings
Court examines how the Tribunal opinion became ex-parte: At the outset, counsel appearing for the Foreigners Tribunal authorities prayed for time to file an affidavit in the matter. The Bench then asked what the case concerned. Appearing for the petitioner, Senior Advocate Mrinmoy Dutta submitted that the writ petition challenges an ex parte opinion passed by the Foreigners Tribunal in 2018.
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Seeking clarification, the Bench asked what exactly was meant by the opinion being “ex-parte.”
Senior Advocate Mrinmoy Dutta explained that the petitioner had initially appeared before the Tribunal but was unable to continue contesting the proceedings because he could not afford the advocate’s fees. As a result, although appearance had been entered before the Tribunal, the matter eventually proceeded ex-parte.
The Bench then specifically asked whether legal aid had been provided at any stage. In response, Senior Advocate Mrinmoy Dutta also submitted that no legal aid had been extended to the petitioner despite his financial condition. He further informed the Court that the absence of legal aid constitutes one of the central grounds in the present writ petition. According to him, legal aid could have been made available, but there was no effort on the part of the authorities or the system to ensure representation after it became clear that the petitioner was unable to sustain private legal counsel.
The Court then asked till what stage the petitioner had participated in the Tribunal proceedings. Senior Advocate Mrinmoy Dutta clarified that although appearance had been entered before the Tribunal, no written statement had ultimately been filed.
State introduces allegation of “pushback” during hearing: The Bench then turned to counsel appearing for the Foreigners Tribunal authorities and asked whether the State’s case was that the petitioner had simply neglected to file the written statement.
In response, counsel for the Tribunal authorities stated before the Court that it was “not a case of neglect,” and further alleged that the petitioner had been “pushed back” and had thereafter “again entered India.”
The statement appeared to take the petitioner’s side by surprise. Senior Advocate Mrinmoy Dutta immediately responded that this was entirely new information to him and had never previously surfaced in the proceedings or records available to the petitioner. The Bench remarked to him that he was “a veteran in the field.”
Senior Advocate Mrinmoy Dutta clarified that no allegation regarding any pushback had ever been disclosed earlier and that this was the first time such a statement had been made in court. He submitted that nothing on record available to him suggested that the petitioner had been pushed back and had subsequently re-entered India.
Following this exchange, counsel for the Tribunal authorities reiterated the request for time to place the State’s stand on affidavit.
Court questions why notice had not been issued earlier: The Bench then asked whether notice had formally been issued in the writ petition. Senior Advocate Mrinmoy Dutta explained that notice had not yet been issued because, during the earlier hearing, the State had sought time to address the question of delay by filing an affidavit. In the meantime, however, interim protection against deportation had already been granted by the Court.
The Bench also enquired whether the petitioner continued to remain in detention. Senior Advocate Mrinmoy Dutta informed the Court that, to his knowledge, the petitioner remained lodged in the detention camp. When asked since when, he submitted that the petitioner had been in custody since May 25, 2025, on the basis of the 2018 Foreigners Tribunal opinion. He further reminded the Court that the present writ petition had been filed pursuant to liberty granted by the Supreme Court to challenge the Tribunal’s opinion.
Notice issued; Court observes fresh hearing may be considered
After hearing the parties, the Bench observed that notice ought now to be formally issued so that the State would be required to place its stand on affidavit.
The Court accordingly issued notice in the matter, making it returnable by June 15, 2026. The Bench also directed that the interim protection against deportation shall continue.
Significantly, while dictating the order, the Court observed that if the petitioner succeeds in making out a case for remanding the matter to the Foreigners Tribunal for a fresh hearing, such a course should be considered immediately.
The observation assumes significance in light of the petitioner’s argument that the Tribunal proceedings culminated in an ex parte opinion after he became unable to afford legal representation and despite no legal aid being provided.
Background of the Case
The writ petition challenges the ex-parte opinion dated June 13, 2018, passed by the Foreigners Tribunal, Chirang, declaring Abdul Sheikh @ Abdul Gafar to be a foreigner who had allegedly entered India after March 25, 1971.
According to the petition, the petitioner had initially contested the proceedings through counsel but could not continue because of severe financial constraints. The petition states that the ex-parte nature of the opinion was therefore not the result of deliberate non-participation, but the petitioner’s inability to continue private legal representation.
The petition further records that the petitioner was detained in 2019 and released in 2021 pursuant to prevailing directions governing prolonged detention of declared foreigners. It states that he was again taken into custody on May 25, 2025.
The present challenge before the High Court has been filed after the Supreme Court, while disposing of earlier proceedings in December 2025, clarified that the petitioner would remain at liberty to challenge the Foreigners Tribunal opinion.
The petition attributes the delay in filing the present challenge to prolonged detention, financial hardship, lack of legal aid, restricted access while in custody, and the practical difficulty of preparing legal proceedings without direct communication with the detenue.
The matter will next be heard on June 15, 2026.
Details of the previous proceedings may be read here.
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