How the Rajubala case in the Supreme Court, its genesis and context has now become the ground for ‘state expulsion” A citizenship case challenging her husband’s prolonged detention — is now being used, despite contradictory state affidavits, to justify a sweeping post-May 2025 deportation drive
20, Jun 2025 | CJP Team
In 2011, a Foreigners’ Tribunal in Morigaon, Assam, declared Rajendra Das to be a “foreigner” under the Foreigners Act, 1946, based on his alleged Bangladeshi origin. Nearly a decade later, his wife, Rajubala Das, approached the Supreme Court by filing Writ Petition (Criminal) No. 234 of 2020—Rajubala Das v. Union of India—challenging the legality of his continued incarceration since 2018. The key claim advanced was that this prolonged and indefinite detention, in the absence of any real possibility of deportation, amounted to a gross violation of his fundamental right to life and personal liberty under Article 21 of the Constitution.
The petition drew strength from the Supreme Court’s earlier order in Supreme Court Legal Services Committee v. Union of India (May 2019), where the Court held that individuals detained pending deportation for over three years could be conditionally released. That order had laid down certain safeguards such as the detainees were to furnish a surety bond of ₹1,00,000, provide two Indian sureties, submit verifiable addresses, and disclose biometric details. Rajubala’s plea questioned the constitutional sustainability of a detention regime that indefinitely incarcerates individuals without any foreseeable repatriation mechanism in place. The fundamental argument was simple yet potent: that the State cannot justify continued detention unless it can demonstrate, at the very least, a realistic prospect of deportation within a reasonable timeframe.
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Supreme Court Interventions
On August 27, 2021, the Supreme Court heard the petition via video‑conference and explicitly listed the matter for further directions, emphasising its urgent public law dimension. Though no relief was granted immediately, the hearing set the stage for sustained judicial scrutiny of Assam’s foreigner‑detention architecture.
A whole three years later, in July 2024, acting on a report filed by the Assam State Legal Services Authority, the Court was confronted with a bleak account of the lived realities inside the Matia camp: chronic water shortages, barely functional toilets, and rampant sanitation failures. These were not merely administrative failings, but they signaled a deep disregard for the constitutional promise of humane treatment, even in the context of foreigner detention.
In response, the Court ordered the Assam government to file a comprehensive affidavit. The affidavit was to include:
(i) the names of all detainees at Matia;
(ii) the legal basis and documents substantiating each person’s detention; and
(iii) concrete steps taken to deport those whose foreign nationality was not in dispute.
However, the affidavit filed by the State was nothing short of a bureaucratic evasion. It offered no clear justification for the continued detention of 270 individuals, some of whom had been incarcerated for a staggering ten years or more, and failed to lay out any meaningful steps toward deportation. In a strongly worded order dated January 22, 2025, the Court held that such indefinite detention, unsupported by any demonstrable prospect of repatriation, constituted a direct violation of Article 21.
When the matter was heard again on February 4, 2025, the State, in its defence, invoked a familiar but increasingly flimsy excuse: deportation was not possible in many cases due to the absence of verifiable addresses in the foreign country. The Court refused to be persuaded. While directing deportation of these ’63 individuals’ (it later transpired that several of these were challenging Foreigner Tribunal Orders in the constitutional courts)’ the bench, comprising Justices Abhay S. Oka and Ujjal Bhuyan, laid out a set of immediate directives.
- Demand for complete data: A complete list of detainees, along with the legal provision under which each one was held.
- Highlighting inactivity, lack of due process: The absence of a deportation roadmap was condemned as inexplicable.
- Accountable representation: The Chief Secretary of Assam was directed to personally appear via video-conference in the next hearing and supervise an on-site inspection.
- Partial confidentiality: The Court rejected the plea for blanket confidentiality over the detainees’ data. Only genuinely sensitive information could be sealed.
By March 21, 2025, Assam disclosed that 13 out of the 63 identified Bangladeshi nationals had been deported, with their nationality verified through Nationality Status Verification forms submitted to the Ministry of External Affairs on February 14, 2025. The affidavit filed on this date by the state was significant.
This affidavit, ridden with contradictions, detailed the status of 270 individuals detained in its deportation centres. Shockingly, of the 63 detainees, that the state had earlier claimed were ‘in line for deportation,’ the state on this date stated in its affidavit that 33 of these have their petitions pending in the Constitutional Courts. Each of them has initiated legal proceedings against their declaration as illegal migrants by Foreigners Tribunals. As per the affidavit, 29 such proceedings are pending before the Gauhati High Court, and 4 remain pending before the Supreme Court. The question then is why the state should have included them in any affidavit in line for deportation at all? Among these is the case of Ajabha Khatun, supported by the Citizens for Justice and Peace (CJP), who’s deportation has been stayed by the Gauhati High Court on March 3, following an intervention application filed by her in the Supreme Court (see details below) in the Rajubala case. It is also critical to highlight here that these 11 people who have been deported to Bangladesh are not from the original list of 63 persons that the union government had deemed to be from Bangladesh.
Hence what is important to understand is, that, while this petition has been pending in the Supreme Court since 2021, the court’s 2024 ruling in Rajubala Das v. Union of India, which directed strict compliance with legal procedures before deportation is significant. The Court laid down the strict compliance with this procedure, such as:
- Submission of Nationality Verification Requests (NVRs) to Bangladesh
- Issuance of travel permits
- Public documentation of deportation orders
While future hearings in this case pending, the constitutional stakes have only intensified, especially since the chief minister of Assam has launched a random, apparently malafide “exclusion drive” in the state of Assam, with the Border Police authorities unlawfully detaining such persons, without any due process or public disclosure . Mass questionable deportations have also been reported from Maharashtra, Gujarat, Rajasthan, West Bengal and Delhi.
The Rajubala Das litigation, therefore, though rooted in the individual plight of one detainee, has become a stage on which the larger crisis of indefinite foreigner detention is playing out. The core questions that remain unresolved are no longer merely logistical: What exactly does a constitutionally compliant deportation process entail?
A glance at Ajabha Khatun
Ajabha Khatun’s case sits at the uneasy intersection of bureaucratic indifference, procedural injustice, and constitutional neglect. Declared a “foreigner” by the Barpeta Foreigners Tribunal in 2019 through an ex parte order.
Her inclusion on the Union government’s list of 63 persons marked for deportation, filed in the Supreme Court as part of the ongoing Rajubala caser, Ajabha remained at liberty for five years until her abrupt arrest in September 2024. She now languishes at the Matia Transit Camp, detained without charge, conviction, or a clear path forward. That, in itself, is symptomatic of the larger dysfunction the Rajubala Das litigation lays e, prompted immediate alarm, especially given that her writ petition challenging the very basis of her foreigner designation was still pending before the Gauhati High Court. Assisted by Citizens for Justice and Peace, Ajabha filed an intervention application before the Supreme Court in February 2025, arguing that deportation without adjudication would be not only premature, but legally indefensible.
The apex court acknowledged that her legal challenge remained sub judice and directed her to seek relief from the High Court. Acting on this directive, a Division Bench of the Gauhati High Court stayed her deportation on March 3, 2025. The Bench also issued notice to the Union of India, the State of Assam, the NRC Authority, and the Election Commission, and requisitioned records from the Foreigners Tribunal. The Court’s interim protection, barring her removal from the country without its explicit permission, is a crucial buffer against arbitrary State action.
What makes Ajabha’s case especially disturbing is the duration and opacity of the process. Since 1997, she has lived under suspicion, her name struck off electoral rolls, her civic presence denied. The Tribunal that declared her a foreigner ignored her documents, dismissed her father’s testimony, and placed the burden of proof on her shoulders in a system already skewed against the marginalised.
Taken together, the narratives of Rajendra Das and Ajabha Khatun do not merely underscore individual misfortune, they reveal a systemic pathology. The architecture of foreigner adjudication and detention in Assam appears not merely indifferent but structurally incapable of aligning with constitutional guarantees. In both cases, the absence of foreseeable deportation timelines, the opacity of procedures, and the cavalier use of indefinite detention expose a serious rupture between executive practice and the constitutional promise of due process. The Rajubala Das case, then, is not an isolated legal oddity, but it is a prism through which the entire regime of citizenship determination and foreigner detention must now be constitutionally reimagined.
The procedural architecture of deportation law in India
Deportation in India had traditionally been rooted in the Foreigners Act, 1946, which empowered the Central Government to make orders for the detention and expulsion of foreigners under Section 3(2)(c) of the 1946 Act. It defined a “foreigner” under Section 2(a) as “a person who is not a citizen of India,” and did not require the state to establish mens rea or provide elaborate procedural safeguards once foreigner status was determined. In Assam, the operation of this framework was supplemented by the Foreigners (Tribunals) Order, 1964, which allowed the state to refer cases to Foreigners Tribunals under Paragraph 2(1) of the Order. The burden of proof remained on the individual concerned as per Section 9 of the 1946 Act, “the onus of proving…that he is not a foreigner…shall lie upon such person.” In cases where a person had been declared a foreigner and completed a sentence or was held in detention pending deportation, the actual execution of removal was governed by a mix of state-level standard operating procedures and Ministry of Home Affairs’ instructions.
Interestingly, the Immigration and Foreigners Act, 2025 has now replaced the 1946 statute along with the other three, aiming to centralise and modernise immigration control. While the 2025 Act retains the same definition of “foreigner” in Section 2(f), it significantly expands the enforcement machinery. For Section 3 mandates that “no foreigner shall enter or exit India without a valid passport or travel document,” and Section 6 requires all foreigners to register with a Registration Officer within such time and in such manner as may be prescribed. Further, Immigration Officers are granted wide discretionary powers under Section 3(3)(b), including the authority to “refuse entry” if the person’s presence is deemed “prejudicial to sovereignty, public order, or relations with any foreign state.”
Crucially, deportation is now governed by Section 29 of the 2025 Act, which allows the Central Government to “order the removal of any foreigner” who has contravened the Act or any order made under it, or against whom there exists an “adverse security report.” Additionally, Section 7(2)(d) permits the government to recover costs for the foreigner’s “maintenance and removal,” which troublingly implies continued detention pending deportation. Important to note, no statutory ceiling is placed on the duration of such detention whatesoever, nor are there provisions governing conditions of confinement.
The 2025 Act also codifies significant executive discretion without a parallel procedural apparatus for redress. There appears to exist no statutory right of appeal against a deportation order under the Act, and review must therefore be sought only under Article 226 or 32 of the Constitution. Moreover, Section 27(1) provides that any officer authorised under the Act may take such steps and use such force as may, in his opinion, be reasonably necessary to enforce removal. Thereby making it an open-ended clause that relies solely on the officer’s subjective belief. These enforcement powers are further protected by Section 32, which shields actions taken “in good faith” from legal proceedings.
Overall, while the 2025 statute consolidates India’s immigration framework, it also entrenches a model where broad executive authority over deportation is not meaningfully counterbalanced by procedural safeguards or independent oversight, especially concerning vulnerable or stateless individuals.
Finally, the machinery for executing deportation operates through a heavily bureaucratised and opaque process, especially for detainees held in Assam. Once a person is declared a foreigner and detained, the process of nationality verification becomes the gateway to actual removal. This process is initiated at the state level, where the detaining authority prepares a National Status Verification format for each detainee. These documents are then forwarded to the Ministry of External Affairs, which coordinates with the concerned foreign embassy or high commission (often that of Bangladesh) so as to confirm the individual’s nationality. Upon receiving this confirmation, the relevant diplomatic mission issues travel documents or emergency certificates to facilitate the individual’s repatriation. The final handover is executed by the State Government, which transfers custody of the individual to the Border Security Force for deportation to their country of origin.
This entire process, however, is riddled with uncertainties and lacks statutory scaffolding. Nationality verification is, by its nature, a sovereign act of a foreign government. Where confirmation is delayed, refused, or ambiguous (as it often is in cases of undocumented persons or those born in India) the process stalls indefinitely. The 2025 Act contains no provisions to address such contingencies. Nor does it offer alternatives such as supervised release, community detention, or periodic judicial review. Another deep dive analyses into all the laws that may impact the process of deportation may be read here.
Even as individual and collective litigation, since early June 2025, questioned the state government’s mass expulsion drive, the chief minister, Himanta Biswas Sarma, pulled out another 1950 executive power to justify his moves: the Immigrant Expulsion from Assam Act, 1950 (repeated when the IMDT Act was enacted in the 1980s which has been since been itself repealed. Examining these recent actions, this article that may be read here analyses their interpretation and asks whether they are justified by invoking a 1950 executive order.
Also read CJP’s legal resources on the issue of deportation and due process here as also the articulation of the need for a universally relevant refugee law here.
Non-Citizens and the constitutional imperative of due process
Despite the absence of a formal due process clause in the Indian Constitution, the Supreme Court has long read procedural fairness into Article 21, which guarantees that no person (citizen or foreigner) shall be deprived of life or personal liberty except “according to procedure established by law.” The phrase, although borrowed from Article 31 of the Japanese Constitution and distinct from the American “due process,” has been judicially interpreted to encompass substantive fairness and procedural reasonableness. This interpretation assumes particular significance in the context of deportation, where state action directly affects a person’s liberty and sometimes even their life, particularly in cases involving stateless individuals or refugees who may face persecution upon return.
In Louis De Raedt v. Union of India, the Supreme Court unambiguously held that “the fundamental right of life and liberty enshrined in Article 21 is available to every person, including foreign citizens.”
Similarly, in National Human Rights Commission v. State of Arunachal Pradesh, the Court emphasized that “the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise.”
The Gujarat High Court in K.A. Habib v. Union of India extended this reasoning to refugees, holding that India must protect such individuals from refoulement, provided their presence does not endanger national security.
Thus, a consistent line of judicial authority recognises that India’s constitutional ethos, more particularly Article 21 demands that deportation decisions adhere to minimal procedural safeguards.
It is also worth noting that the right to freedom protections, such as the rights to reside and settle under Article 19(1)(d) and to practice a profession under (Article 19(1)(g)) are limited to citizens, while the right to equality under Article 14 remains fully available to non-citizens.
As laid down by the Andhra Pradesh High Court in Vincent Ferrer v. District Revenue Officer, Ananthapur, “foreign nationals are entitled to the equal protection of the laws,” though they may not claim the full range of liberties reserved for citizens.
Article 14’s applicability, thus, means that any classification or executive decision in deportation must satisfy the twin tests of “intelligible differentia” and a “rational nexus” to the objective sought to be achieved. And so, if deportation is grounded in vague or opaque criteria, such as the undefined term “adverse security report” under Section 29 of the 2025 Act – it risks falling foul of Article 14, especially if applied unequally or discriminatorily to similarly situated persons.
Moreover, the very structure of deportation under Indian law has historically depended on executive discretion rather than judicial oversight. Under the 1946 Act and the 1964 Order, individuals were declared “foreigners” following quasi-judicial proceedings in designated tribunals. But once declared, deportation itself became an executive act which was to be conducted without detailed procedural guidelines or review mechanisms.
The 2025 Act, while repeals and consolidates previous laws, continues this pattern. Although Section 29 empowers the Central Government to remove any foreigner who has violated the Act or against whom there exists an “adverse security report,” the statute fails to define this term, nor does it specify whether such reports are to be disclosed to the individual concerned. The absence of a statutory appellate mechanism or procedural framework for challenging such removal orders compounds the problem, rendering the exercise of deportation power opaque and potentially arbitrary.
In Maneka Gandhi v. Union of India, the Supreme Court has made it abundantly clear that any “procedure established by law” must be “fair, just, and reasonable.” If deportation under the 2025 Act can be triggered by secretive, undefined, and unreviewable reports, with no opportunity for hearing, legal representation, or even the disclosure of grounds, then such procedure may well fail the Maneka test. Even though the state retains a legitimate interest in controlling borders and regulating the presence of non-citizens, such interests cannot justify a complete eclipse of procedural safeguards.
For what we must understand is that the balance between sovereign interests and individual liberty, requires that any removal or deportation proceed through a process that is non-arbitrary, transparent, and proportionate. Additionally, the rule of law, which animates the entire constitutional order, demands that all state action, and especially action affecting life and liberty be subject to reasoned decision-making and judicial review.
In National Human Rights Commission, the Court reminded the State that India is “governed by the rule of law,” which cannot be interpreted as permitting unfettered executive discretion. Deportation, especially when it involves long-term detainees, individuals born on Indian soil, or those with pending claims to citizenship, must thus be accompanied by safeguards akin to those in criminal or quasi-criminal adjudication: informed notice, access to legal counsel, meaningful opportunity to respond, and independent adjudication.
The absence of such procedures is not merely a statutory omission but a potential constitutional infirmity, particularly in light of Article 21’s expansive scope.
Reimagining deportation through the lens of due process
Rajubala Das, despite the way in which the state is misinterpreting its directives, does not just raise red flags about humanitarian lapses, but invites a serious re-evaluation of how deportation functions as a legal process in India. The existing framework, particularly under the 2025 Act, invests sweeping powers in the executive without building in even the most elementary checks that constitutional norms would require. If the state is to retain deportation as a legitimate tool, it must be restructured around a core commitment to procedural fairness.
To begin with, the principle of audi alteram partem, i.e., the right to be heard – must be formally incorporated into deportation decisions. It is one thing for a Foreigners Tribunal to declare an individual as a non-citizen, but quite another for the executive to carry out deportation without any further opportunity for the affected person to contest the grounds. Especially where deportation is based on vague and undefined notions like “adverse security report”, a minimal procedural code should require:
- Communication of the reasons for deportation in writing.
- Access to legal assistance.
- A personal hearing before an independent officer or tribunal.
These are not luxuries. They are basic safeguards against arbitrary state action.
Second, the idea of detention pending deportation must be placed within constitutional boundaries. At present, the law permits indefinite detention of foreigners, including stateless persons or those whose deportation is factually impossible because no foreign address is available. This is plainly unconstitutional. Preventive detention must be governed by reasonableness, proportionality, and periodic review. A similar structure must be embedded into the deportation context. One way to do this is to introduce a statutory ceiling on detention (for instance, six months, extendable by judicial review). This would ensure that detention doesn’t morph into punishment, and that the state remains under pressure to actually coordinate repatriation or consider alternatives like supervised release.
Third, India’s framework must recognise the special case of refugees, asylum-seekers, and stateless individuals, who are often the most vulnerable in deportation proceedings. Though India is not a party to the 1951 Refugee Convention, the principle of non-refoulement – that no person should be sent back to a country where they face persecution – has been recognised by Indian courts as part of Article 21’s protection in n K.A. Habib.
What is needed now is a statutory embodiment of that principle, even if in skeletal form. This could be achieved through a clause requiring the state to conduct a risk assessment before deporting anyone who claims a well-founded fear of persecution, with reference to international and human rights norms.
Finally, we must reconceive the broader role of the courts. While Article 226 and Article 32 petitions remain technically available, access to these remedies is not always realistic for poor, rural, or linguistically disadvantaged detainees. High Courts and the Supreme Court must proactively fashion deportation jurisprudence that compels the state to act within constitutional parameters. This could take the form of guidelines, akin to D.K. Basu v. State of West Bengal, laying down the minimum procedural guarantees to be followed in every deportation case. The judiciary has done this before in contexts like arrest and preventive detention, and there is no reason it cannot extend the same logic here.
In Closing
What is required is a rights-based legislative architecture that upholds principles of natural justice and ensures humane treatment of all persons, irrespective of their citizenship status. The creation of independent review mechanisms, the imposition of temporal limits on detention, and statutory adherence to international norms are essential to rectifying the current imbalance.
Until such reform is realised, the figure of the “declared foreigner” who cannot be deported remains suspended in a constitutional void, caught between state sovereignty and statelessness, liberty and confinement. Thus, it is precisely for such figures that the Constitution’s promise of dignity, liberty, and fairness must ring the loudest.
(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Rajyavardhan Singh)
Related:
Seeking sanctuary, facing scrutiny: Why India must revisit its approach to the displaced
India: A deep dive into the legal obligations before “deportation”
