In a move that could fundamentally alter Assam’s citizenship determination process, the state Cabinet on Tuesday approved a Standard Operating Procedure (SOP) under the Immigrants (Expulsion from Assam) Act, 1950. According to the report of Indian Express, the SOP authorises District Commissioners (DCs) to declare individuals as “illegal immigrants” and issue expulsion orders within 10 days if they fail to establish Indian citizenship.
Chief Minister Himanta Biswa Sarma, announcing the decision, said the measure would empower civil administration and “to a large extent nullify the role of Foreigners’ Tribunals”.
What the SOP provides
- Notice and proof – On receiving information from the police or border authorities, the DC issues notice to a suspect, granting 10 days to produce documents proving citizenship.
- DC’s decision – If documents are unsatisfactory, the DC issues a written order of expulsion under Section 2(a) of the 1950 Act. The person must leave within 24 hours, using a route specified by the DC.
- Declared foreigners – Where the Foreigners’ Tribunal (FT) has already declared a person a foreigner, the DC will directly issue an expulsion order, bypassing further scrutiny.
- Police role – Before expulsion, the SSP records biometric and demographic details on the Foreigners Identification Portal.
- Detention and “pushback” – If a person refuses to leave, they may be placed in a holding centre or handed to the BSF. Individuals detected near the zero line or within 12 hours of entry will be pushed back immediately.
What did CM Sarma say during the Press Meet?
On September 9, 2025, the Assam Cabinet approved the framing of a standard operating procedure (SOP) for implementing the Immigrants (Expulsion from Assam) Act, 1950.
Addressing a late-night press conference, Chief Minister Himanta Biswa Sarma explained that under the new SOP:
- If a District Commissioner (DC) receives information from the police or any other source that a person is suspected to be an illegal immigrant, the DC will issue a notice directing the person to produce proof of Indian citizenship within 10 days.
- After hearing the individual, if the DC arrives at the conclusion that the person is a foreigner, an immediate order of expulsion (“push-back”) will be issued.
- If the DC cannot reach a firm conclusion, the case will be referred to a Foreigners Tribunal (FT) for adjudication.
Sarma emphasised that the cut-off date remains March 25, 1971, in line with the Assam Accord. Thus, anyone alleged to have entered Assam after 1971 may be brought before the DC under the new procedure. Pending cases before Foreigners Tribunals will continue, but new cases not already before an FT can now be initiated directly before the DC.
The Chief Minister described this as a “landmark decision,” arguing that while the Act of 1950 had never been actively enforced in this manner, the Supreme Court had “clearly indicated” that Assam is free to use it for detection and deportation of foreigners. He claimed the SOP would allow the government to act in the “letter and spirit” of the law, making it easier for the State to expel those determined to be foreigners.
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Earlier, on August 21, 2025, the Assam Cabinet also resolved that the State would stop issuing Aadhaar cards to adults, further tightening its documentation regime.
Historical and legal backdrop
The Immigrants (Expulsion from Assam) Act, 1950 was passed by the Union government in response to post-Partition migration from East Pakistan. It empowered the government to order the removal of any non-Indian whose stay was deemed “detrimental to the public interest” or to the interests of Scheduled Tribes in Assam.
But within a month, Prime Minister Jawaharlal Nehru instructed Assam’s Chief Minister Gopinath Bordoloi to suspend its use following the Liaquat–Nehru Pact (April 1950), which sought to protect minorities on both sides of the border. The Act then fell into disuse. However, the 1950 Act and its use has surfaced only recently, for the same is being used to detain and “push-out” people.
SOP leaves fundamental questions unanswered
Mrinmoy Dutta, Advocate (Gauhati High Court) and counsel for Citizens for Justice and Peace (CJP), said that the new SOP marks a clear attempt to shift the entire process of citizenship determination from the quasi-judicial Foreigners’ Tribunals to the executive authority of the Deputy Commissioner (DC).
He explained that India’s Citizenship Act does not clearly specify what documents are required to prove citizenship, particularly for those born in India. “There is no definitive legal framework that says what proof of citizenship by birth should look like. This makes the SOP deeply uncertain in its operation,” he noted.
Dutta stressed that there is no debate over the principle that foreigners who entered Assam after March 25, 1971 must be excluded in line with the Assam Accord. “The real question is: who is a foreigner, and how will they be identified? Earlier, this role was entrusted to Foreigners’ Tribunals, but now the SOP transfers that function to the DC, without clear legal safeguards.”
He further pointed out that the SOP does not clarify how it interacts with the National Register of Citizens (NRC). Under NRC rules, persons excluded from the final NRC list were supposed to receive rejection slips, enabling them to appeal. “Those rejection slips have not yet been issued. Now, if a DC serves a notice, it is unclear whether this process will be linked to the NRC or entirely independent of it. Can the SOP override NRC appeal provisions or bypass the Foreigners’ Tribunal framework? These are fundamental unanswered questions,” he said.
Another major concern, Dutta observed, is the absence of an appeal mechanism. “If someone receives a notice late or cannot produce documents within ten days, there is no statutory appeal provision in the SOP. The only remedy left is to approach the High Court under writ jurisdiction. This places a heavy burden on individuals, particularly the poor and marginalized.”
He concluded that judicial scrutiny and oversight are indispensable, because in its current form the SOP risks arbitrary expulsions without clear rules, adequate time, or meaningful remedies.
Critical concerns
- Bypassing judicial Tribunals
Traditionally, questions of citizenship and foreigner status in Assam are adjudicated by Foreigners’ Tribunals (FTs), quasi-judicial bodies created under the Foreigners (Tribunals) Order, 1964. The new SOP places this power in the hands of executive officers (DCs), raising concerns of bias, lack of due process, and arbitrary decision-making.
While Sarma insists that only “confusing cases” will go to FTs, this reverses the default mechanism: from judicial determination to administrative fiat. Many argue this risks turning citizenship adjudication into a purely bureaucratic exercise.
- Violation of natural justice
The SOP grants only 10 days for a suspected person to prove citizenship. Given the well-documented difficulties in Assam — poor documentation, illiteracy, displacement due to floods, and language barriers — this period may be unrealistically short. Legal scholars caution that it fails to meet the constitutional requirements of fair hearing and reasonable opportunity under Article 14 (equality before law) and Article 21 (right to life and liberty).
- Separation of powers and Constitutional mandate
By allowing DCs to override FTs, the SOP arguably undermines the statutory role of Foreigners’ Tribunals, established precisely to ensure that complex citizenship questions are not left to executive discretion. The principle of separation of powers — where determination of rights is reserved for judicial or quasi-judicial bodies — is at stake.
- Risk of arbitrary expulsions and statelessness
The SOP also permits immediate pushbacks at the border within 12 hours, without any process. This could lead to collective expulsions in violation of Article 21 of the Constitution and India’s obligations under international law, including the principle of non-refoulement under customary international law.
Constitutional and legal questions
- Does the SOP violate Article 21? The Supreme Court has repeatedly held (e.g., Maneka Gandhi v. Union of India (1978)) that “procedure established by law” must be just, fair and reasonable. Ten days to prove citizenship may not satisfy this threshold.
- Can executive SOP override statutory mechanisms? The Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 explicitly entrust FTs with the task of determining citizenship disputes. An executive SOP cannot, in law, displace this statutory framework unless backed by Parliament.
- Equal Protection (Article 14): Selective targeting of Bengali-speaking Muslims, as human rights groups fear, may amount to hostile discrimination. Even if the SOP is facially neutral, its implementation could violate the Article 14 guarantee against arbitrariness.
- Judicial Review: The SOP is likely to face constitutional challenge. Courts will have to weigh whether the 1950 Act, designed as an emergency measure, can be resurrected in a way that dilutes procedural safeguards crafted over decades.
Government justification
It has been argued by the state that the move is consistent with the Supreme Court’s 2024 directions to employ the 1950 Act alongside Section 6A. According to the report of NDTV, with over 82,000 cases pending before FTs, the government says speedier administrative action is necessary to curb illegal immigration.
Sarma has also claimed that Assam has already “pushed back” more than 30,000 illegal immigrants, and the SOP simply codifies what has been practice on the ground, as reported by Assam Tribune.
Conclusion
The Assam government’s SOP under the 1950 Act is more than a bureaucratic measure — it marks a radical shift in how India addresses contested citizenship. By moving decision-making from quasi-judicial bodies to executive officers, it raises deep constitutional concerns about due process, separation of powers, and fundamental rights.
The legal test ahead will be whether courts uphold this framework as a legitimate application of the Supreme Court’s 2024 judgment, or strike it down as executive overreach incompatible with the Constitution’s guarantees of liberty and justice.
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