On Monday, June 2, the Supreme Court refused to entertain a plea challenging the Assam Government’s move to indiscriminately detain and deport persons, without due process since May 23, 2025. Not all those thus being “picked” up and pushed out are even Bangladeshis who have entered the country illegally, many being legitimate Assamese citizens with documentation, even though many have been at the receiving end of adverse, non-reasoned orders from the state’s notorious Foreigner’s Tribunals (FTs). The petition was filed by the All BTC Minority Students Union (ABMSU); they were asked to approach the High Court for their relief.
These events, including the rather brazen assertion by Assam Chief Minister Himanta Biswa Sarma of a “push-back” policy for undocumented immigrants from Bangladesh and Myanmar (including Rohingyas), have brought the issue of deportation and refugee rights into sharp focus. A report by the Indian Express stated that approximately 2,000 individuals have been forcibly returned under “Operation Sindhoor.” People from states like Gujarat, Rajasthan and Maharashtra have been reportedly detained and taken to Bangladesh border.
A top officer of the Bangladesh Army has termed the forcible expulsion or so called “push-back” policy unacceptable. A woman—Shona Bhanu— was pushed into Bangladesh at gun point. She has lived in Assam all her life.
As in all matters related to citizenship, Assam and its people, especially the marginalised, have faced the brunt. Citizens for Justice and Peace (cjp.org,in) with its vibrant on ground team in the state, has been closely involved in not just monitoring and documenting this humanitarian tragedy but also intervened with para legal aid, counselling and actual legal interventions. See here and here. Comprehensive memorandums to the National Human Rights Commission (NHRC) may be read here and here.
Much of the recent action (s) of the authorities, in states ruled, interestingly by the far right Bharatiya Janata Party (BJP), have been experienced as executive overreach, with no public disclosures on procedures and documents to legally and constitutionally justify the process. Sudden demolitions of entire bastis, the forcible detention of families, backed by over-hyped and exaggerated statements on purging the country of illegal immigrants have even put the judiciary on the defensive. That these actions have been launched in a coordinated manner after the Pahalgam terror attack (April 22) and the military face-off between India-Pakistan (May 7-10, 2025), squarely plays into public sentiment that remains silent or “allows” such unlawful actions.
Given that India remains a constitutional republic, bound to a process of law, procedure and even international obligations, it is crucial to ask, what is the law and procedure, on ‘deportation’ and how important it is that this be rendered in the public consciousness and meticulously followed?
In this extensive legal resource (in two parts) CJP’s legal team examines this sticklish question.
A common, yet simplistic, view is that individuals who are not Indian citizens and have entered India illegally should be sent back. This perspective often overlooks the complex legal and humanitarian dimensions involved. This document aims to provide a comprehensive analysis of the legal framework governing deportation in India. It will explore:
- The rights of refugees and illegal migrants under the Indian Constitution.
- How various court judgments have upheld these fundamental rights, including the right to due process, thereby shaping the law of the land?
This analysis will primarily focus on the legal aspects, with a subsequent part that deals with the broader societal and humanitarian considerations for treating refugees with not just greater compassion but adherence to constitutional jurisprudence and international obligations.
- Legal Regime—Immigration and deportation in India
The management of immigration and the deportation of foreign nationals is a complex and often contentious domain within Indian law and policy. The “push-back” strategy, characterised by the forcible return of individuals without adherence to established legal procedures, starkly contrasts with the human rights guarantees enshrined in the Indian Constitution and affirmed by its judiciary. The recent enactment of The Immigration and Foreigners Act, 2025 (hereinafter “the 2025 Act”), which consolidates and replaces previous legislation, further shapes this landscape, necessitating a thorough examination of its provisions and implications.
2.1. The legislative framework (Foreigners Act, 1946—Pre-2025 Act)
Prior to the 2025 Act, the deportation process in India was primarily governed by the Foreigners Act, 1946, and the Foreigners (Tribunals) Order, 1964.
- Definition of a “Foreigner”: Section 2(a) of the Foreigners Act, 1946, defined a “foreigner” as a person who is not a citizen of India.
- Foreigners Tribunals: Established under the 1964 Order, these tribunals were empowered to determine if an individual was a foreigner.
- Expulsion: Once declared a foreigner, an individual was liable for expulsion from Indian territory under Section 3(2)(c) of the Foreigners Act, 1946.
- Saving Provision: The Foreigners Act, 1946 was repealed by the 2025 Act, but a saving provision ensured that rules made under the 1946 Act continue to be valid.
2.2. Role of the Citizenship Act, 1955, and Special Provisions (Assam-Specific)
The Citizenship Act, 1955, contains crucial provisions, particularly relevant in the context of Assam:
- Section 6A (Assam Accord): This section provides special provisions for persons of Indian origin who entered Assam between January 1, 1966, and March 25, 1971. If declared foreigners, they may still be permitted to register for citizenship after a 10-year waiting period from the date of detection. During this period, they cannot vote but enjoy other citizenship rights. Entrants post-March 25, 1971, if found to be foreigners, are liable for expulsion.
- Section 9 (Burden of Proof): This section places the burden of proving Indian citizenship on the individual when questioned by authorities, rather than the state having to prove they are not a citizen.
- Referral to Tribunals (Assam): For individuals in Assam or those covered under special notifications, cases with inadequate documentation or unclear citizenship are referred to Foreigners Tribunals. This is mandated by the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, and Paragraph 2 of the Foreigners (Tribunals) Order, 1964.
2.3. The Passports Act, 1967
The Passports Act, 1967, while not directly providing for deportation, plays a significant role in the identification and apprehension of individuals liable for deportation:
- Powers of Passport Authorities (Sections 6 & 10): Authorities can refuse, impound, or revoke passports if the applicant is not an Indian citizen, or if issuance is contrary to public interest, national security, or foreign relations.
- Penalties (Section 12): Prescribes penalties for obtaining or using passports through false information or by foreigners masquerading as Indian citizens.
- Arrest Powers (Sections 13 & 14): Law enforcement can arrest individuals with fraudulent passports or without valid documentation, often a preliminary step towards deportation.
- Complementary Legislation: The Passports Act, 1967, operates alongside the Foreigners Act, 1946 (now repealed), and the Registration of Foreigners Act, 1939(also repealed by the 2025 Act).
Foreigners staying illegally in India risk violating provisions of both the (now-repealed) Foreigners Act, 1946, and the Passports Act, 1967, potentially leading to imprisonment of up to 5 years. The question of what happens after such a foreigner is released from jail often involves arbitrary administrative discretion.
2.4. Procedure for deportation
Deportation in India, though grounded in statutory powers, was largely operationalised through internal administrative mechanisms and Standard Operating Procedures (SOPs) by state authorities (See here, here and here) following directions from the Centre.
Typical deportation process:
- Identification/Completion of Sentence: A foreign national is declared a foreigner or completes a prison term for violating applicable laws.
- Notification: Jail authorities notify relevant police officials (e.g., Superintendent of Police) about the impending release.
- Custody and Order:
- If the government decides on deportation, a formal order is issued.
- Upon release, the individual is taken into police custody and served with the deportation order.
- Physical Removal: Arrangements are made for their removal from the country, often under police escort. The serving officer reports the execution of the order back to the government.
- Consular notification (Vienna Convention):
- As per Article 36 of the Vienna Convention on Consular Relations, Indian authorities must inform the consular representatives of the foreign national’s country about their arrest or detention.
- Indian practice (MEA Office Memorandum No. T.4415/1/91 (CPO/CIR/9)) requires:
- Asking the arrested foreign national if they wish their consulate to be informed.
- Immediately notifying the Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA).
- Providing detailed particulars (name, nationality, passport details, offence, arrest details, location) to Joint Secretaries at MEA and MHA, and state authorities.
- Deportation for minor violations: In cases of brief overstays or delayed registration, prosecution might be withdrawn with court approval, and the individual directly deported under delegated powers of Section 3(2)(c) of the (now-repealed) Foreigners Act. A record is submitted to the MEA.
2.5. The Immigration and Foreigners Act, 2025: A New Consolidated Regime
The Immigration and Foreigners Act, 2025, received Presidential assent. It aims to consolidate and modernise India’s immigration laws by repealing four key statutes:
- The Passport (Entry into India) Act, 1920
- The Registration of Foreigners Act, 1939
- The Foreigners Act, 1946
- The Immigration (Carriers’ Liability) Act, 2000
2.5.1. Key Provisions of the 2025 Act
- Definition of “Foreigner” (Section 2(f)): A person who is not a citizen of India (consistent with the 1946 Act).
- Entry, Exit, and Registration:
- Section 3: Mandates valid passports/travel documents for all entering/exiting India. Foreigners additionally require a valid visa, unless exempted.
- Section 6: Requires foreigners to register with a designated Registration Officer upon arrival, subject to prescribed conditions.
- Section 5: Provides for notification of designated immigration posts and establishes a Bureau of Immigration.
- Powers of Immigration Authorities:
- Section 3: Immigration Officers can examine travel documents/visas and deny entry on grounds specified by the Central Government (national security, sovereignty, public order, public health, foreign relations).
- Section 26: Police officers (not below Head Constable rank) can arrest without a warrant individuals suspected of contravening entry requirements or other Act provisions.
- Powers of the Central Government:
- Section 7: Empowers the Central Government to issue orders/instructions to prohibit, regulate, or restrict entry, departure, or continued presence of any foreigner or class of foreigners. This can include directives on residence, movement restrictions, proof of identity, and reporting presence.
- Tracking and Monitoring:
- Sections 10, 12, and 17: Impose reporting obligations on carriers, accommodation providers (hotels, etc.), educational institutions, and medical institutions treating foreign patients to furnish prescribed information to registration authorities.
- Penalties:
- Section 18: Carriers liable for fines up to ₹50,000 for contravening Section 17. If a carrier brings an illegal foreigner, the fine can be ₹2-5 lakhs.
- Section 21: Entering India without a valid passport/visa can attract imprisonment up to five years and a fine up to ₹500,000.
- Section 22: Using forged documents can lead to imprisonment for two to seven years and fines from ₹100,000 to ₹1,000,000.
- Section 23: Overstaying, violating visa conditions, or trespassing in restricted areas can result in imprisonment up to three years and a fine up to ₹300,000.
- Mechanisms for Identification, Detention, and Deportation:
- Section 29: Authorizes the Central Government to order the removal of any foreigner from India if they have contravened the Act/orders or if there is an “adverse security report” against them. “Adverse security report” is not defined in the Act.
- Government officers are granted reasonable powers to enforce removal.
- Foreigners may be required to bear the cost of their removal and maintenance pending removal.
- The Act does not detail pre-deportation detention facilities or conditions, suggesting these could be in rules framed under the Act meaning that they are left to executive discretion.
- The term “illegal immigrant” is not explicitly defined, though actions constituting illegal entry/stay are penalised.
(Note: “illegal migrant” is defined in Section 2(1)(b) of The Citizenship Act, 1955 as a person entering the Country without valid documents or overstaying permitted time in country despite having entered with valid documents).
2.5.2. Concerns Regarding the 2025 Act
While presented as a modernising step, the 2025 Act appears to consolidate and potentially amplify executive dominance:
- Vague grounds for removal (Section 29): The term “adverse security report” is undefined, allowing for potentially unfettered discretion without a clear, independent review mechanism within the Act.
- Absence of adequate appellate mechanism: No statutory appellate mechanism within the Act to challenge deportation orders, forcing individuals to approach constitutional courts.
- Silence on refugees/asylum seekers: The Act lacks explicit classifications or special provisions for refugees and asylum seekers.
- Expansive power of removal and use of force:
- Section 29: Grants broad power for removal.
- Section 27 (Use of Force):
- Subsection (1): Allows any authority to take steps and use force “as may, in its opinion, be reasonably necessary” for compliance or effective exercise of power.
- Subsection (2): Extends similar powers to police (Head Constable and above) to use force “as may, in his opinion, be reasonably necessary.” The subjective nature of “reasonably necessary” provides wide latitude.
- Subsection (3): Grants a “right of access to any land or other property whatsoever,” potentially facilitating removals.
- These provisions could legitimize forcible “push-back” operations with limited procedural review.
- Delegation and immunity:
- Section 28 (Delegation of Powers): Allows the Central Government to delegate its powers widely (to subordinate officers/authorities, State Governments, or their subordinates). This could lead to decentralized and less scrutinized implementation of removal directives, including “push-backs.”
- Section 32 (Protection of action taken in good faith): Protects individuals from legal proceedings for actions “done, or intended to be done in good faith” under the Act. In the context of vague terms and broad force powers, this may shield authorities in “push-back” operations.
- Rule-making power and continuity of previous regime:
- Section 30 (Power to make rules): Grants extensive rule-making power to the Central Government. Significant aspects of the deportation process (detention, removal specifics, and safeguards) will be determined by executive rule-making rather than direct legislative scrutiny.
Overall Concern: The 2025 Act solidifies executive dominance. Vague removal grounds, sanctioned use of force based on officer opinion, wide delegation, and protective clauses create a framework where policies like “push-back” can be implemented with a veneer of legality. The Act’s silence on specific protections for refugees means these broad powers can apply to vulnerable individuals without distinction, potentially lacking robust procedural safeguards and independent oversight.
2.6. The “Push-Back” Policy: Assam’s approach to undocumented citizens/immigration
Against this new legal backdrop, the Assam Chief Minister has publicly announced the state’s adoption of a “push-back” policy for undocumented immigrants, primarily targeting individuals from Bangladesh and Myanmar (including Rohingyas). This policy is framed as an expedient alternative to established legal deportation procedures, citing national security.
- Reported Incidents: Forcible return of Bengali-speaking Muslims and Rohingyas, sometimes from detention centres, with individuals allegedly stranded at the “zero line” if refused entry by neighbouring countries.
- Alignment with MHA Directives: This state-level policy appears to resonate with Union Ministry of Home Affairs (MHA) directives aimed at expediting deportation. The MHA has instructed states to:
- Verify credentials of suspected illegal immigrants within a 30-day deadline, failing which deportation is to proceed.
- Establish special district-level task forces for detection, identification, and deportation.
- Risks of MHA’s 30-Day Deadline: High risk of wrongful deportations, as nationality verification is often complex and cannot realistically be completed in such a short timeframe, especially for vulnerable individuals. This could lead to violations of the principle of non-refoulement if asylum seekers are erroneously deported.
- Legal Ambiguity: The “push-back” policy operates in a legally ambiguous, if not outright unlawful, space. It flouts the procedural protections required by the Constitution and affirmed by the Courts. What are these protections?
3. The Judicial Bulwark – Constitutional Rights and Deportation Jurisprudence
While legislation grants the state powers to regulate foreigners, the Indian judiciary has consistently intervened to ensure these powers are exercised in conformity with constitutional principles.
3.1. Constitutional Protections for Non-Citizens
The Constitution of India extends certain fundamental rights to all persons within its territory, not just citizens.
- Article 21 (Protection of Life and Personal Liberty): “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
- The Supreme Court in Maneka Gandhi v. Union of India established that “life” means the right to live with human dignity, and “personal liberty” has been broadly interpreted.
- Critically, the “procedure established by law” must be just, fair, and reasonable. This is fundamental to any deportation process.
- Article 14 (Equality before the Law): “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
- This acts as a bulwark against arbitrary state action. Any differential treatment for deportation must be based on an intelligible differentia with a rational nexus to the objective.
Policies like “push-backs,” which bypass due process, are prima facie incompatible with Article 21. If such policies disproportionately target specific ethnic or national groups without a non-discriminatory legal basis, they could also be challenged under Article 14.
3.2. Judgements on Deportation and Rights of Foreigners
A nuanced judicial landscape has emerged regarding the treatment of foreign nationals.
3.2.1. Right to Life and Liberty (Article 21)
The Supreme Court in Louis De Raedt & Ors vs Union Of India And Ors, 1991 (3) SCC 554 firmly stated that a foreigner’s fundamental right is confined to Article 21 for life and liberty. It “does not include the right to reside and settle in this country, as mentioned in Article 19(1) (e), which is applicable only to the citizens of this country.”
3.2.2. State’s Power to Expel
The Supreme Court, in Louis De Raedt, referencing an earlier Constitution Bench decision, held that “the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.” This power is typically exercised under the Foreigners Act, 1946 (now the 2025 Act).
3.2.3. Principle of Non-Refoulement
This international law principle prohibits a state from returning a refugee to a country where their life or freedom would be threatened.
Although India is not a signatory to the 1951 Refugee Convention, courts have drawn inspiration from international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (to which India is a party) to interpret domestic fundamental rights.
In Ktaer Abbas Habib Al Qutaifi And Anr. vs Union Of India (Gujarat High Court), (1998) SCC OnLine Guj 304, concerning Iraqi refugees, the Court declared that the principle of non-refoulement “is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India.” It noted India’s UN membership and Article 51(c) of the Constitution (fostering respect for international law). The Court directed authorities to release the detained foreigners and decide on their handover to the UNHCR rather than deporting them to Iraq.
In Nandita Haksar v State of Manipur (Manipur High Court), (2021) SCC OnLine Mani 176,
dealing with Myanmarese asylum seekers, the Court held that Article 21 “would indubitably encompass the right of non-refoulement, albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or adverse to the security of this country.” It distinguished ‘migrants’ from ‘asylum seekers’ who fled imminent threats and directed facilitation of their travel to the UNHCR in New Delhi.
In a recent case being heard by the Bombay High Court, a vacation bench of justices Neela Gokhale and Firdosh P Pooniwalla ordered the Mumbai police to release immediate an 18-year old daughter of a Bangladeshi national from detention. Her father, reportedly a Bangladeshi national was initially detained by the Mankhurd police in Mumbai ‘for an inquiry regarding his citizenship and was later deported to the neighbouring country.The court was hearing a petition filed by the 18-year-old girl and her two younger siblings aged 16 and 8 years, who contended that they were born in India and had all requisite documents to prove their Indian citizenship. According to their petition, their father, Dadamiya Khan, had been residing in India for over 37 years. He had married an Indian woman named Mariyam Khan and was working as a cab driver. While all three children were detained by Mankhurd police following a special drive to identify foreign nationals staying illegally in India, the two younger siblings were handed over to their mother after they filed the Habeas Corpus petition.
3.2.4. Supreme Court on Rohingya Deportation
In Mohammad Salimullah vs Union Of India, (2021) 19 SCC 191, the Supreme Court, while acknowledging Articles 14 and 21 are available to non-citizens, denied interim relief against deportation for Rohingya refugees. It cited “threat to internal security of the country” and “agents and touts providing a safe passage into India for illegal immigrants.” However, even in this context, the Court stipulated that deportation must follow the “procedure prescribed for such deportation.”
3.2.5. Natural Justice and Right to be Heard
Louis De Raedt: The Supreme Court noted that while there’s no hard and fast rule, an opportunity to present one’s case is relevant.
In State Of Arunachal Pradesh vs Khudiram Chakma, 1994 (1) SCC (SUPP) 615, involving the proposed shifting of Chakmas, multiple notices and representations over time were deemed sufficient opportunity for a hearing. Interestingly, despite upholding state power, the Court allowed the Chief Minister to afford a post-decisional hearing on humanitarian grounds.
3.2.6. State’s Duty to Protect
In National Human Rights Commission vs State Of Arunachal Pradesh & Anr, (1996) 1 SCC 742, the Supreme Court directed the state government to protect the life and liberty of Chakma refugees facing threats and ‘quit notices’ from organised groups. This affirmed the state’s constitutional and statutory obligation to safeguard all human beings, citizens or otherwise.
3.2.7. Judicial Essence
While the Indian judiciary acknowledges the executive’s broad power to regulate foreigners and deport illegal entrants, it has consistently emphasized that any such deportation must follow the prescribed procedure, aligning with the principles of natural justice and constitutional safeguards under Article 21.
4. Conclusion
In the case of Maja Daruwala v. State of West Bengal, the Supreme Court passed an order on January 30, 2025, and posed some questions to respondents (Centre and West Bengal) regarding what their stance was on deportation of illegal migrants. The Court expressed a confusion and said as follows:
“The pivotal issue that falls for our consideration is that if an illegal immigrant from Bangladesh after being apprehended and proceeded under Section 14A(b) of the Foreigners Act, 1946 is convicted and sentenced to undergo a particular term of imprisonment then after he completes his term of sentence should be immediately repatriated/deported to his own country or should he be kept for an indefinite period in the Correctional Homes in India.
The only confusion in our mind is that once an illegal immigrant is put to trial and is held guilty then what is the requirement for further verification of his nationality at the end of the Ministry of External Affairs.”
On May 16, 2025, the two-judge bench of the Supreme Court comprising of Justices J.B. Pardiwala and R. Mahadevan transferred the issues in this case to be heard along with another case— Jaffar Ullah & Ors. v. Union of India & Ors—dealt by a larger bench.
The latest order—in Jaffar Ullah— was the Supreme Court refusing to interfere in deportation until it finally hears the case which it is set to hear on July 31, 2025. This was done after the Union drew the Court’s attention to the Mohammad Salimullah order which mandated that government follow the procedure before deportation.
One clear conclusion from the above happening is that a specific well thought out law on deportation does not exist. All we have are some memorandums and executive decided processes. The Supreme Court’s expression of confusion is a testament to that.
This means that the current policy being followed, involving pushback, does not take into account things like lack of documentation etc. especially in poor Bengali speaking communities. And in the absence of a set law, the pushbacks reported are happening in a legally dubious manner putting vulnerable people including those that fled persecution at risk.
In essence, while the legislative framework, particularly the new 2025 Act, appears to strengthen the executive’s hand in managing immigration and effecting deportations, this power is not unfettered. It is limited by constitutional safeguards and a body of judicial precedent that insists on procedural fairness, non-arbitrariness, and respect for human dignity. The ongoing challenge lies in ensuring that administrative practices and the implementation of laws like The Immigration and Foreigners Act, 2025, rigorously adhere to these judicially reinforced standards.
Whether the Supreme Court will herald a new era in human rights law by mandating better procedures for deportation or not is a question that will be answered after July 31. The second part of this explainer will explore the broader humanitarian and societal arguments for why refugees should be treated with greater compassion and why upholding such principles is vital for India as a civilization.
(The author is part of the legal research team of the organisation)
Related:
From Detention to Deportation: The mass deportations and detention crisis at Assam’s Matia centre
Restoring Citizenship, Rebuilding Lives: CJP continues its journey in Assam
Declared Foreigner, buried Indian: The tragic death of Abdul Matleb in Assam’s detention camp
SC: Only 10 deported, 33 of 63 contest foreigner status from the Matia Transit Camp, Assam