On July 23, 2025, the Gauhati High Court continued to closely examine the legality of the re-detention of Abdul Sheikh and Majibur Rehman, both of whom were declared foreigners by Foreigners Tribunals and had been released in 2021 under the Supreme Court’s April 2020 order in Suo Motu W.P. (C) No. 1 of 2020. Both had spent over two years in detention and had been regularly complying with weekly police reporting until May 2025, when they were –without due process or notice– suddenly picked up again and sent to the Kokrajhar Holding Centre.
At the hearing, the petitioners strongly contested the justification for re-detention, calling the State’s affidavit “vague” and insufficient, particularly in light of the fact that no bail cancellation was ever sought. The Court, signalling its concern, directed that the Union Government’s May 2, 2025 notification on deportation procedures, cited by the State as the basis for renewed custody, must be placed on record before any further hearing. The matter is now listed for July 25. CJP has been providing legal aid for these two cases.
Petitioner’s Counsel: Detention is illegal, affidavit vague
Appearing for both petitioners, Advocate Mrinmoy Dutta argued that the State’s latest affidavit, submitted pursuant to earlier directions, was “as vague as it can be”, particularly pointing to paragraph 7, which failed to provide any specific grounds or documentation justifying why the two men were re-detained.
Dutta submitted that the issue was not verification, but detention; that factual or documentary verification for deportation could easily have been undertaken without arresting and detaining individuals who were already on court-sanctioned bail. He stressed that the men had been released not merely due to COVID, but on the explicit ground of prolonged detention and that the Supreme Court order under which they were released was still binding.
“The SC order is not just a COVID-related release, it applies to those who have completed more than 2 or 3 years in detention. That order has not been recalled. This is a clear violation of that binding direction,” Dutta submitted before the division bench comprising Justices Kalyan Rai Surana and Susmita Phukan Khaund.
State Counsel: COVID-era bail was temporary, deportation now underway
Opposing the petitioners’ challenge, the FT counsel reiterated the State’s position that the detainees were previously released while they awaited deportation, but deportation was stalled due to the pandemic. With the situation having now changed, the Government of India and Assam are “initiating deportations”, and for that, verification of identity and nationality is underway.
He claimed that the individuals were “not in detention centres but in holding centres”, and that such custody was merely to complete verification before deportation could be effected.
However, the Court appeared unconvinced.
Bench seeks clarity: “Where is the notification?”
The Division pressed the State on its failure to produce any official notification along with the affidavit that would justify treating these detentions as part of a lawful deportation process.
“Where is the notification? You’ve not annexed anything to support this position,” the Court remarked during the hearing.
The Bench observed that as per UN Conventions and principles of international law, some form of verification may be necessary before deportation. However, the counsel for the petitioners emphasised that verification alone does not authorise detention, especially when the person is on standing bail under a court order.
The Court directed the Ministry of Home Affairs’ (MHA) May 2, 2025 notification on deportation to be brought on record. Advocate Dutta was also asked to prepare submissions specifically addressing the State’s claim that deportation proceedings justify the detention of bail-compliant individuals. The matter is now listed for July 25, 2025.
Previous hearings may be referred here.
Background
Both Abdul Sheikh and Majibur Rehman were declared foreigners by FTs in Assam and detained for more than two years. In 2021, they were released under the Supreme Court’s April 2020 directions, which permitted conditional release of detainees who had completed prolonged detention terms and were not facing imminent deportation.
From the time of their release, both men had been consistently appearing before their respective police stations, as required by the bail conditions. Their last attendance was recorded in May 2025, shortly before they were suddenly picked up again by police and transferred to the Kokrajhar Holding Centre — without any order cancelling their bail or citing violation of its terms.
The ongoing hearings raise a serious constitutional question — can individuals, released on binding bail orders, be re-detained without cancellation of bail, merely because the State has decided to restart deportation processes?
In earlier hearings on June 25 and June 26, the Court had already recorded the State’s admission that both Abdul Sheikh and Majibur Rehman had been fully compliant with their bail conditions. Despite this, the State continued to defend its action on the ground that deportation is now feasible, and detention is part of the “preparatory process”.
The petitioners have argued that such detentions, without any recall of prior judicial orders, are a direct breach of Article 21, and threaten to render the judicial system meaningless if State agencies can override court orders without due process.
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