On February 25, 2025, Khatun, assisted by the legal aid organisation Citizens for Justice and Peace (CJP), intervened in the ongoing case of Rajubala Das v. Union of India, seeking her impleadment as a party petitioner and additional directions regarding the constitutional and human rights violations arising from her detention. This intervention follows the February 4, 2025 hearing of the Rajubala case in the Supreme Court, which instructed Assam to commence deportation proceedings against individuals declared foreigners, including Khatun, despite the absence of concrete proof of their foreign nationality and addresses.
During the hearing of February 25, the case of Ajabha Khatun was mentioned before the court, with senior advocate Aparna Bhat stating that the challenge against the Foreigner Tribunal’s order declaring Khatun to be foreigner remains pending in the Gauhati High Court. She emphasised that since the High Court has yet to consider her case, any final order of deportation against her would be legally untenable. The counsel further argued that without the exhaustion of legal remedies, deportation would amount to a grave miscarriage of justice, particularly given the procedural and evidentiary flaws in the Tribunal’s decision.
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The Supreme Court bench comprising Justices Abhay Oka and Ujjal Bhuyan acknowledged that Khatun’s case is still under judicial consideration at the High Court level. Given this, while the Supreme Court declined to pass any interim relief at this stage, the case has been kept pending. Moreover, the SC and asked the counsel for Khatun to seek the appropriate orders from the High Court itself. Consequently, no formal notice was issued in her case. However, the order serves as an important legal nudge, as it can now be used to urge the Gauhati High Court to expedite hearing of her appeal from the order of the Foreigner’s Tribunal. The interim relief sought is stay her deportation until her case is fully heard. This is critical because a wrongful deportation, even before judicial review is complete, would violate fundamental rights, including the right to life and protection from arbitrary state action.
The court stated in its order that “The learned senior counsel appearing for the applicant pointed out that the name of the applicant figures at serial no.18 on the list submitted by the Government of Assam of the foreigners who are to be deported. She states that the applicant has challenged the order of the Tribunal declaring her as a foreign national by filing a writ petition before the High Court. If that be so, it is for the applicant to seek appropriate interim relief from the High Court in that behalf. Therefore, at this stage, we are not passing any order on this Application.”
In the original Rajubala Das v. Union of India case, the Supreme Court directed the Assam government to submit a comprehensive list of individuals facing deportation by March 17, 2025. This directive underscores the need for transparency in the process and ensures that the state accounts for each detainee’s status before proceeding with any deportation.
SG Tushar Mehta had, during the hearing, requested for some time to provide the Court with the decision of the executive in regards to the issue of deportation. The case is now scheduled for a further hearing on March 21, 2025, where the fate of many, including Ajabha Khatun, will be closely examined.
In the order, the Bench stated “Shri Tushar Mehta, learned Solicitor General, on instructions, states that the issue of deportation of the foreigners which arises in this Petition is being dealt with at the highest executive level and if time is granted, he will place on record the decision taken by the appropriate authority. We grant him time till 21st March, 2025.”
The order of February 25, 2025 may be read here.
Senior counsel Aparna Bhat argued the matter in the Supreme Court assisted by advocates Srishti Agnihotri and Sanjana Thomas. Advocate Mrinmoy Dutta leads the CJP’s team in Assam and is arguing the matter in the Gauhati High Court.
Why was this impleadment essential?
The case of Ajabha Khatun exposes the deep flaws in Assam’s citizenship determination process, where individuals are arbitrarily declared foreigners and detained without substantive proof. Khatun, a resident of Assam, has been held at the Matia Detention Camp despite a lack of evidence linking her to any foreign country. She is among the 63 detainees the Assam government claims are foreigners and must be deported—a claim that has been challenged for its lack of legal and evidentiary basis.
The state’s affidavit, submitted in court, asserts that 270 persons, including 63 from Bangladesh, are currently detained at Matia. In past hearings, including one on January 22, 2025, Assam has repeatedly argued that none of these detainees are Indian and that deportation is warranted. However, when directly questioned by the Supreme Court on February 4, 2025 about the country of origin of these detainees, the Assam government’s counsel erroneously insisted that all were declared foreigners—a claim that lacks evidence and legal credibility.
Khatun’s case is part of the broader legal challenge against arbitrary detentions of individuals declared foreigners by Foreigners Tribunals in Assam. The original petitioner, Rajubala Das, had sought directives preventing Assam authorities from detaining individuals without demonstrating a realistic possibility of deportation. Ajabha Khatun, detained in Matia Detention Camp, has filed both an Impleadment Application and an Application for Directions to challenge the order facilitating her deportation. She argues that she is an Indian citizen and that the Tribunal’s decision was marred by procedural and evidentiary irregularities.
Denial of fundamental rights in Ajabha Khatun’s case
Ajabha Khatun’s case, once again, highlights the systematic denial of fundamental rights to individuals declared foreigners by Assam’s Foreigners Tribunals (FTs). In her case, her denial of rights began in 1997, when the Electoral Registration Officer (ERO) for Barpeta Assembly Constituency doubted her citizenship and forwarded her case to SP Barpeta (Competent Authority) under the Illegal Migrants (Determination by Tribunals Act, 1983/The Foreigners Act, 1946 and Rules made thereunder. The Foreigners Tribunal, Barpeta district passed its order declaring her non-Indian on February 8, 2019. She was arrested, however, only in September 2024 after which CJP has assisted her in filing an appeal before the Gauhati High Court. It was only after the state filed an affidavit in the original Rajubala case, providing a list of 63 detainees on February 3, 2025, through which the government erroneously informed the Court were foreigners that the CJP team found Ajabha to figure on the list (serial number 18).
Since her citizenship had been doubted and the question of whether the said Ajabha Khatun was a citizen of India or not remained unanswered, her right to cast a vote has been put in abeyance. Notably, while her constitutional rights to vote were snatched away, the ERO inquiry report which does not record any reasons for the arbitrary action in striking her name of the electoral rolls raised more questions than it answers.
From the moment a notice was issued against her, in 2017, she was deprived of procedural fairness—a core component of natural justice. During the FT proceedings despite the proffering of witness testimony and crucial documentary evidence, a misplaced application of burden of proof was applied, her father’s evidence deposing that she was his daughter was disregarded and she was declared non-Indian.
Additionally, it is essential to highlight that an investigation report was submitted by Local Verification Officer Dipankar Baruah to the Election Registration Officer (ERO), 43 No. Barpeta LAC. This report, marked as Annexure-A, formed the basis for the reference made against the Opposing Party. However, points 15 and 16 of Annexure-A expose glaring inconsistencies:
- Point 15 explicitly asks whether the Opposing Party (Ajabha Khatun) migrated to Assam (Yes/No), yet the LVO fails to provide any response.
- Point 16 further inquires that, if the Opposing Party did migrate—about the place of origin (State or Country) and the time frame of migration (before January 1, 1966, between January 1, 1966 and March 24, 1971, or after March 25, 1971). Both these critical fields are left entirely blank in the investigation report.
This omission makes it undeniably clear that the LVO had no basis in fact to substantiate the allegation of migration against the Opposing Party. If the investigating officer himself did not raise any doubts, on what basis did the ERO and Superintendent of Police (SP) initiate this reference?
With no substantive claim or evidence against the Opposing Party, the reference is arbitrary, baseless, and legally unsustainable. Ajabha’s challenge against the order of the Tribunal remains is now pending before the Gauhati High Court.
Beyond these substantive and procedural violations, Khatun’s detention at Matia Detention Camp amounts to an infringement of her right to life and personal liberty under Article 21 of the Constitution. Arrested in September 2024, she has been confined for an indefinite period without a criminal charge, in conditions the Supreme Court itself has recognised as deplorable. Furthermore, her right to equality under Article 14 has been denied, as citizenship determination processes disproportionately target marginalised communities, particularly Bengali-speaking Muslims. The denial of her right to reside and settle in India (Article 19) further compounds this injustice, as she faces the possibility of deportation despite having lived in Assam her entire life.
Besides, since 1997, her access to receive the benefit of government schemes has been limited, due to non-issuance of Aadhar cards. Since her unique identity card has not been issued by the government, basic welfare facilities, such as ration, has been out of bounds for her.
This case is further crucial because it exemplifies the larger crisis of wrongful citizenship determinations in Assam. If Khatun were to have been deported despite the absence of substantive evidence, it would have set a dangerous precedent where individuals, particularly the poor and marginalised, can be stripped of their citizenship arbitrarily. The state’s approach in this case—ignoring due process, misrepresenting facts before the Supreme Court, and failing to establish any real connection between detainees and a foreign country—exposes the structural failures of the FT system. Ensuring that Khatun’s rights are upheld is not just about her case; it is about holding the state accountable for its unconstitutional and inhumane treatment of individuals declared foreigners.
More broadly, the case underscores why every person under the threat of deportation must be allowed to exhaust all legal remedies before any steps are undertaken. Deportation is an irreversible action with life-altering consequences, often resulting in statelessness, separation from families, and denial of basic human rights. Ensuring access to legal recourse safeguards against wrongful expulsions and upholds the rule of law. Given the well-documented flaws in the FT process, the judiciary must act as a check on executive overreach, ensuring that no individual is deprived of their rights without rigorous scrutiny.
Key issues in the case
- Arbitrary declaration as a foreigner: The applicant was declared a foreigner without substantive proof.
- Violation of procedural fairness: The Foreigners Tribunal failed to provide a reasonable opportunity for her to prove her citizenship.
- Lack of material linking the applicant to another country: The State has failed to establish any connection between the applicant and a foreign country.
- Impact of wrongful deportation: Deportation could lead to statelessness and irreversible human rights violations.
Legal grounds for impleadment and directions
The applicant’s legal claims are twofold:
- Impleadment as a necessary party: Given the direct impact of the Supreme Court’s deportation order, Ajabha Khatun must be impleaded to protect her fundamental rights as her case remains pending in the Gauhati High Court and her legal remedies have not been exhausted.
- Application for Directions to stay the deportation order: The applicant seeks judicial intervention to halt her deportation, arguing that the Tribunal’s decision was unlawful. Since there had been no grant to interim relief by the Gauhati High Court, the applicant urged the Supreme Court to ensure that no action is taken against her till she is heard and her proofs of citizenship are appreciated.
Violation of Fundamental Rights:
- Article 14 (Right to Equality): Discriminatory treatment in citizenship determination processes disproportionately affects marginalised communities.
- Article 19 (Right to Reside and Settle in India): Deportation without due process violates her constitutional right to reside in India.
- Article 21 (Right to Life and Personal Liberty): Arbitrary detention and wrongful deportation violate her right to live with dignity.
Lack of evidence for proving foreign nationality:
- The Foreigners Tribunal’s declaration was based on procedural flaws and lacked substantive evidence. The Tribunal did not appreciate the voter rolls presented as evidence, containing her father’s name, her husband’s name as well as her own name.
- The FT ignored her father’s testimony which flies in the face of the primary rules of Evidence under the Evidence Act.
- The State’s assertion that her nationality is “known” –in one set of documents –while keeping that category “blank” in another —contradicts both the facts and the Tribunal’s failure to identify any foreign connection. While her name figured in the name of the 63 deemed worthy of deportation by the state, her legal remedies have yet to be exhausted and she only has a FT order against her.
Pending legal challenge before Gauhati High Court:
- The applicant’s challenge before the Gauhati High Court (WP(C) 6626/2024) is at the motion stage.
- Proceeding with deportation while the case is sub judice violates principles of judicial fairness.
Analysis of the Foreigners Tribunal proceedings
The Foreigners Tribunal 1st Barpeta, Assam, in its order dated February 8, 2019, declared Ajabha Khatun a post-1971 foreigner based on alleged failure to prove Indian citizenship. However, it is the argument of the applicant that the order reveals severe procedural and evidentiary flaws:
- No independent investigation appears to have been conducted to verify her citizenship before the notice was served to her and her name struck off the electoral rolls
- Documentary evidence was disregarded without justification.
- The burden of proof was misapplied under Section 9 of the Foreigners Act, 1946.
It is essential to note that the following evidence had been submitted by Ajabha Khatun to prove her citizenship:
- Voter lists from 1966, 1970, 1989, and 1997 showing her grandfather, father, and herself as registered voters.
- Gaonburah certificates confirming familial relationships.
- Affidavits and cross-examinations corroborating her Indian lineage.
As per the applicant, the Tribunal rejected this evidence based on hyper-technical objections, without addressing the substantive proof of her citizenship. Further issues with the decision of the FT are:
- The inquiry report forming the basis of the allegations was not served on the applicant.
- The report merely stated a “suspicion” of foreign nationality without any concrete evidence.
- The ERO’s report striking her off the electoral rolls has also been from the documents available been the result of a conclusion reached without any investigation or inquiry.
- The Tribunal’s approach was inconsistent with established judicial principles requiring prima facie material before declaring a person a foreigner.
As per the applicant, the Tribunal’s decision stands in direct violation of established precedents, as it fails to establish a prima facie case. In legal proceedings, the necessity of demonstrating an initial case with sufficient evidence is fundamental to ensuring due process. By neglecting this requirement, the Tribunal undermines the legitimacy of its decision-making process. Furthermore, the absence of substantive evidence renders the declaration legally untenable. Without concrete proof to support its conclusions, the decision lacks a firm legal foundation and is susceptible to challenge. Such a deficiency not only weakens the authority of the ruling but also raises concerns about its adherence to principles of justice and fairness. The IA provides the following judicial percent’s that were violated by the FT while declaring its order:
- Lal Babu Hussein v. Electoral Registration Officer [(1995) 3 SCC 100] – Due process requires disclosure of reasons before removing a person from voter rolls.
- State of Assam v. Moslem Mondal (2013 SCC OnLine Gau 1) – Tribunals must ensure prima facie material exists before issuing notices.
- Haidar Ali v. Union of India (2021 SCC OnLine Gau 683) – Recognised the perfunctory and arbitrary manner of Foreigners Tribunal proceedings.
- Md. Rahim Ali v. State of Assam (2024 SCC OnLine SC 1695) – Authorities must have substantive grounds for suspecting foreign nationality.
Conclusion and prayer
The case of Ajabha Khatun exemplifies the systemic failures in citizenship determination in Assam. If the Supreme Court proceeds to direct deportation of those “”declared to be foreigners”, without acknowledging that at least 20 of the 63 inmates have cases pending at various Constitutional Courts, and without considering Ajabha Khatun’s case, it will result in violation of constitutional and international human rights norms. The applicant, through her interventions, had requested the Supreme Court to:
- Implead her as Party Petitioner No. 2 in Writ Petition (Crl.) No. 234 of 2020.
- Stay the deportation order until her case before the Gauhati High Court is resolved.
- Scrutinise Foreigners Tribunal procedures to prevent arbitrary declarations of foreign nationality.
This case underscores the urgent need for procedural safeguards and judicial oversight in citizenship determination to prevent wrongful deprivation of fundamental rights.
Related:
Relentless Pursuit of Justice: CJP’s Advocacy for Citizenship Rights in Assam
CJP triumphs in securing bail for Assam’s Sahid Ali: A step towards restoring citizenship
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Assam citizenship crisis: Aadhaar unlocked, lives shackled