For years, the debate surrounding persons declared to be “foreigners” in India has largely revolved around one question: who can be declared a foreigner? The proceedings before Foreigners Tribunals, the burden of proof under Section 9 of the Foreigners Act, 1946, and the evidentiary standards required to establish citizenship have dominated constitutional litigation. Comparatively little judicial attention had been devoted to the equally important question that arises after a person has been declared a foreigner—what does the Constitution require before the State can deport that individual?
The affidavit filed by the Union Ministry of Home Affairs (MHA) on July 31, 2026 in Rajubala Das v. Union of India marks an important intervention in that debate. Filed pursuant to the Supreme Court’s order dated March 21, 2025, the affidavit seeks to explain the legal and administrative framework governing deportation where the nationality of a declared foreigner remains unknown or unverified. In doing so, the Union makes one of its clearest judicial admissions to date: deportation cannot even be initiated unless the individual’s nationality has first been verified by the receiving State, appropriate travel documents have been obtained, and the receiving country has agreed to accept the individual. This is no ordinary procedural clarification.
The affidavit fundamentally distinguishes between being declared a foreigner and being legally deportable. While a declaration by a Foreigners Tribunal may settle a person’s legal status within India, it does not, the Union now accepts, authorise the State to physically remove that individual from Indian territory. Deportation remains contingent upon a separate process involving diplomatic engagement, nationality verification, issuance of travel documents and, most importantly, the consent of another sovereign State. In other words, the executive cannot unilaterally deport a person merely because Indian authorities believe them to be a foreign national. That proposition carries consequences far beyond the Rajubala case.
For months, instances of forced deportations and illegal pushbacks have surfaced from Assam, West Bengal, Gujarat, Rajasthan, Maharashtra and Delhi of individuals “suspected” of being Bangladeshi nationals. In many of these cases, the family of those deported have approached the courts alleging that the removals were carried out without any disclosed nationality verification, without travel documents, and without Bangladesh formally acknowledging or accepting the individuals concerned.
Detailed reports may be read here, here, here, here and here.
Against this backdrop, the Union’s affidavit assumes a significance that extends well beyond the immediate dispute before the Court. By placing on record the legal prerequisites for deportation, the Government has simultaneously articulated a benchmark against which its own recent executive actions may now be tested. If nationality verification and acceptance by the receiving State are indeed indispensable legal requirements, as the affidavit repeatedly states, the obvious constitutional question is whether recent deportations and border removals have consistently adhered to those very standards.
The case of Rajubala Das
What began in 2020 as a challenge to the continued detention of one individual has gradually transformed into the Supreme Court’s most comprehensive examination of India’s detention and deportation regime. The litigation traces its origins to Rajendra Das, who was declared a foreigner by a Foreigners Tribunal in Morigaon, Assam, in 2011 under the Foreigners Act, 1946, on the allegation that he was a Bangladeshi national. Following that declaration, he was eventually detained in 2018 and remained incarcerated for years despite there being little indication that his deportation was imminent. His wife, Rajubala Das, approached the Supreme Court through the present Writ Petition, arguing that the State’s inability to deport him could not constitutionally justify his indefinite detention. The petition did not primarily dispute the Foreigners Tribunal’s declaration. Instead, it raised a deeper constitutional challenge. If deportation was not realistically possible because nationality remained disputed, travel documents were unavailable, or Bangladesh had not accepted the individual, could the State continue to deprive a person of liberty indefinitely? That question went to the heart of Article 21. For several years, the proceedings remained relatively limited. However, from 2024 onwards, the litigation underwent a remarkable transformation.
2024: The scrutiny of Matia Detention Centre- The case assumed far greater constitutional significance in 2024 when the Supreme Court considered reports of deplorable conditions inside Assam’s Matia detention centre. A report submitted by the Assam State Legal Services Authority documented severe shortages of drinking water, poor sanitation and prolonged detention of hundreds of individuals in conditions raising serious Article 21 concerns.
The Court’s inquiry consequently expanded beyond Rajendra Das’ detention to the functioning of the entire deportation regime. It directed the Assam Government to disclose the legal basis of every detainee’s incarceration, the documents supporting their detention and, crucially, the concrete steps taken towards their deportation. The Court was no longer prepared to accept broad assertions that deportation was “under process.” It demanded documentary proof that deportation was legally and practically feasible.
January–March 2025: Contradictions exposed- The affidavits filed by Assam only deepened the Court’s concerns. The State failed to explain the continued detention of nearly 270 individuals, many of whom had spent close to a decade in detention, while offering little evidence of meaningful diplomatic efforts to secure their deportation. The absence of information regarding nationality verification, travel documents and communication with Bangladesh prompted the Court to observe on January 22, 2025 that prolonged detention without any demonstrable prospect of deportation raised serious concerns under Article 21.
When the matter was heard again on February 4, 2025, Assam attributed the delays to the inability to ascertain addresses in Bangladesh. The Supreme Court was unconvinced. It directed the State to produce complete records of every detainee, explain the absence of a deportation roadmap and required the Chief Secretary to personally oversee compliance.
The contradictions became even more apparent in March 2025. Although Assam informed the Court that thirteen individuals had been deported after nationality verification through Nationality Verification Requests (NVRs), the same affidavit disclosed that 33 of the 63 persons earlier identified for deportation were simultaneously challenging the Foreigners Tribunal orders against them before the Gauhati High Court and the Supreme Court. One such detainee, Ajabha Khatun, had already secured protection against deportation from the Gauhati High Court. Even more strikingly, the thirteen persons ultimately deported were reportedly not from the original list of sixty-three individuals the State had earlier claimed were awaiting deportation. These contradictions exposed the absence of a coherent and transparent deportation framework and significantly undermined the State’s earlier assertions.
Detailed report may be read here and here.
CJP’s legal intervention in Ajabha Khatun’s matter may be read here.
The March 21, 2025 order- Faced with these inconsistencies, the Supreme Court shifted its focus from Assam to the Union Government. Recognising that deportation ultimately depends upon diplomatic engagement through the Ministries of Home Affairs and External Affairs, the Court, by its order dated March 21, 2025, directed the Union to explain the legal procedure applicable where a declared foreigner’s nationality remains unknown or unverified. The July 31, 2026 affidavit is the Union’s response to that direction.
Detailed report may be read here.
The Union’s Affidavit: A judicial admission that deportation cannot occur without nationality verification
If the earlier phases of the Rajubala Das litigation exposed the constitutional deficiencies of India’s detention regime, the Union Government’s affidavit dated July 31, 2026 seeks to explain the legal framework governing deportation itself. Filed pursuant to the Supreme Court’s order of March 21, 2025, the affidavit is, on its face, an attempt to answer a seemingly straightforward question: what happens when a person has been declared a foreigner but their nationality cannot be verified?
The answer offered by the Union is strikingly clear. According to the affidavit, such a person cannot be deported. More importantly, the Union goes a step further and states that the deportation process itself cannot even be initiated until nationality verification is complete. This is perhaps the single most important legal proposition emerging from the affidavit. It is also one that may have consequences extending far beyond the Rajubala case and Assam.
Deportation is not a unilateral exercise of sovereign power: Public discourse often treats deportation as though it were entirely within the executive’s control—that once Indian authorities conclude that someone is a foreign national, they may simply escort that individual across the international border. The Union’s own affidavit rejects that understanding. Instead, it recognises that deportation is an exercise involving two sovereign States, not one.
The affidavit explains that where a foreign national possesses valid travel documents, the concerned State Government, Union Territory Administration or the Foreigners Regional Registration Office may proceed with deportation after criminal proceedings conclude and provided no other criminal case remains pending. However, the affidavit makes it equally clear that this represents only one category of cases.
A much larger legal problem arises where the individual possesses no passport, travel document or proof of nationality. In such situations, deportation cannot simply proceed on the basis of India’s unilateral determination. Instead, the receiving State must first verify that the individual is indeed its national, and only thereafter can travel documents be issued and deportation can legally occur.
A declaration by a Foreigners Tribunal answer only one question—whether, under Indian law, the person has established lawful citizenship or lawful residence. It does not determine whether another sovereign country recognises that individual as its citizen. That determination belongs exclusively to the receiving State.
The three preconditions the Union says are indispensable: Coming to the legal prerequisites for deportation, the affidavit effectively recognises three cumulative conditions.
- First, the individual’s nationality must be verified.
- Secondly, the concerned foreign government must issue or facilitate the issuance of appropriate travel documents.
- Thirdly, the receiving country must agree to receive that person.
The Union leaves little ambiguity. It states:
“ That, a foreign national whose nationality is unknown/unverified can be deported to their home country only upon confirmation of their nationality/possession of a valid travel document/ acceptance by the home country concerned. The deportation procedure cannot be initiated without nationality verification.” (Point 10)
The Union’s formulation is significant because it elevates nationality verification from a mere procedural formality to a legal precondition for deportation. By stating that the deportation process “cannot be initiated” without nationality verification, the affidavit makes clear that verification is not simply one step in the process but the foundation upon which any lawful deportation rests. In effect, the Union acknowledges that, until nationality is confirmed and the receiving State agrees to accept the individual, there is no legally valid deportation process that can commence.
The Ministry of External Affairs emerges as the central actor: The affidavit also clarifies an aspect of deportation that has often remained opaque in public discourse. It explains that nationality verification is not undertaken directly by State Governments. Instead, once an individual is apprehended—or, in certain cases, once an FIR is registered—the concerned State Government or Foreigners Regional Registration Office is required to immediately forward the individual’s particulars, including photographs, to the Ministry of External Affairs.
The Ministry of External Affairs then engages with the Embassy or High Commission of the country believed to be the person’s home State. Only after the foreign government examines the material, verifies nationality and agrees to issue travel documents can the deportation process move forward. This explanation is legally significant because it reveals that deportation is not merely an exercise under the Foreigners Act; it is simultaneously an exercise in diplomacy.
“That, in case the foreigner does not have a valid travel document/passport, it is necessary to obtain the requisite travel document from the Embassy/High Commission ofthe country concerned through the process of nationality verification before he/she can be deported in accordance with Clause 12(4) of the Immigration & Foreigners Order, 2025.” (Point 8)
“That, in such cases, the State Government/UT Administration/FRRO/FRO concerned may take up the matter regarding issuance of travel document in favour of the foreigner with the Ministry of External Affairs (Consular Division), with detailed particulars and photograph of the said foreigner immediately on arrest of the foreign national or on filing of FIR, whichever is earlier.” (Point 9)
The affidavit acknowledges the limits of Indian sovereignty: The Union expressly states that no time limit can ever be prescribed for nationality verification because the process is entirely within the domain of the foreign government. This is a significant concession as it amounts to an acknowledgment that India cannot compel another sovereign State to decide whether a particular individual is its citizen. Nor can India dictate the speed with which that determination must be made.
“That, since verification of nationality is a sovereign function of the foreign government, no time limit can be fixed for completion of the process of nationality verification. Consequently, until such time as nationality is duly verified and deportation is effected, the movement of the illegal migrant, must remain restricted within a designated holding centre to ensure his/her physical availability for deportation.” (Point 12)
Yet this admission also exposes a constitutional dilemma. The affidavit acknowledges that nationality verification is entirely dependent on the receiving State, over which India has no control, and that no timeline can be prescribed for its completion. If so, on what constitutional basis can the State continue to detain a person for an indeterminate period while awaiting a process whose duration is uncertain and potentially indefinite? The affidavit offers no limiting principle. It merely states that such individuals should remain in holding centres until verification is completed, without addressing what Article 21 requires if that process takes years—or never concludes at all.
The affidavit attempts to justify continued detention: To address this obvious constitutional concern, the Union argues that persons awaiting nationality verification should remain in designated holding centres. According to the affidavit, restricting their movement is necessary to prevent absconding, protect national security and ensure that deportation can be carried out once nationality is verified. While these are familiar justifications for immigration detention, they do not fully answer the concerns raised by the Supreme Court in Rajubala. Article 21 may permit temporary restrictions on liberty, but it does not sanction detention for an indefinite period. The affidavit assumes that detention can continue until nationality verification is complete, without addressing the constitutional question of how long such detention can remain lawful if deportation continues to be uncertain or remote. The Court’s concern has consistently been not merely whether deportation is pending, but whether continued detention remains proportionate when there is no foreseeable prospect of removal.
“That, in pursuance of the orders of the Hon’ble Supreme Court of India dated 28.02.2012 in the matter of Bhim Singh vs Union of India & Ors. the Ministry has advised State Govt/UT Administrations to ensure that all foreign nationals who have completed their sentence but whose deportation/repatriation is awaited due to nonconfirmation of nationality/issue of travel documents by the country concerned may be réleased from jails immediately and may be kept at appropriate place outside the 4 jail premises with restricted movements pending their repatriation. State Govts/UT Administrations have also been advised to ensure that the places where such foreign nationals are being kept must have basic facilities of electricity, water and hygiene.” (Point 13)
The reliance on Bhim Singh is both important and incomplete: To support its position, the Union relies upon the Supreme Court’s decision in Bhim Singh v. Union of India. The affidavit notes that, following that judgment, the Ministry of Home Affairs advised States and Union Territories that persons who had completed their criminal sentence but whose deportation remained delayed due to non-confirmation of nationality or non-issuance of travel documents should ordinarily not continue inside prisons. Instead, they could be accommodated in designated places outside prison premises where their movement could remain restricted pending deportation. The Union cites this advisory as demonstrating that the present practice of housing such individuals in detention or holding centres has judicial support. That reliance is only partly persuasive.
The Bhim Singh framework sought to distinguish immigration detention from ordinary criminal incarceration. It recognised that individuals who had completed their sentences should not continue to be treated as convicted prisoners merely because deportation had become difficult. However, Bhim Singh did not answer the larger constitutional question now arising in Rajubal, which is how long can a person remain in such a holding centre before the detention itself becomes arbitrary?
The July 31 affidavit reproduces the administrative framework flowing from Bhim Singh, but it does not confront its constitutional limits. That omission becomes especially significant given the Supreme Court’s repeated observations since 2024 that Article 21 cannot permit indefinite executive detention unsupported by a realistic prospect of deportation.
The affidavit and the question of recent deportation practices
The Union’s affidavit is notable not only for the legal framework it sets out, but also for what it does not address. It repeatedly states that deportation is contingent upon three conditions: verification of nationality by the receiving State, issuance of travel documents, and acceptance by that State. Yet, it is silent on how these requirements align with the recent allegations of “push back” operations reported from Assam and other States, where individuals were allegedly taken across the border without any publicly disclosed process of nationality verification or acceptance by the receiving country.
This omission is significant because the affidavit is a sworn statement before the Supreme Court, setting out the Union’s own understanding of the law. The Government does not describe nationality verification as a matter of administrative convenience; it states in categorical terms that the deportation process “cannot be initiated” without it. The affidavit also recognises that verification is a sovereign function of the receiving country and that deportation is possible only after that country confirms the individual’s nationality and agrees to accept them. These are presented as legal prerequisites, not procedural formalities.
Against this backdrop, the affidavit inevitably invites comparison with recent events. The Supreme Court is already seized of petitions alleging that several persons from West Bengal were forcibly pushed into Bangladesh without due process. One such case came to forefront in November 2025, wherein Sunali and her husband, Danish Sheikh, along with their son, were apprehended in Delhi’s K.N. Katju Marg in June, labelled as illegal immigrants. Their deportation was ordered by the Foreigners Regional Registration Office (FRRO) and executed despite Sunali’s family presenting Aadhaar and PAN documents. The petitioners further argued that the authorities had ignored the Ministry of Home Affairs’ own guidelines dated May 2, 2025, which required verification from the individual’s home State before deportation. They contended that no meaningful opportunity of hearing had been provided and that the deportations violated both statutory procedure and the constitutional guarantee of fairness. In the case of Bhodu Sheikh v. Union of India, the Union ultimately was made to undertake the decision of bringing these six people back, on humanitarian grounds, after they had allegedly been pushed across the border.
Detailed reports may be read here and here.
Similarly, in the Rajubala proceedings themselves, the Court has repeatedly insisted that deportation must follow nationality verification through Nationality Verification Requests (NVRs), issuance of travel permits and other documented procedures. The affidavit, however, does not explain whether these safeguards were followed in the recent removals that have become the subject of litigation.
The affidavit also has significant implications for how constitutional courts scrutinise deportation cases. Once the Union itself has stated on oath that deportation cannot even be initiated without nationality verification, travel documents and acceptance by the receiving State, courts can no longer be satisfied with bare assertions that an individual has been “deported” or “repatriated”. The legality of deportation necessarily turns on whether these mandatory procedural steps were actually followed.
This issue was focussed on by the CJP legal team in Gauhati Court after the illegal deportation of Doyjan Bibi in May 2025. CJP’s legal intervention in Doyjan’s case may be read here, here and here.
This shifts the focus of judicial review. It will no longer be sufficient for the State to merely state that a person has been deported. Courts will increasingly have to insist on the underlying record: when the Nationality Verification Request (NVR) was sent, whether the receiving country confirmed the person’s nationality, whether travel documents were issued, whether the receiving State formally agreed to accept the individual, and whether the deportation was carried out pursuant to a lawful order after the individual had exhausted or waived available legal remedies.
Indeed, this is precisely the direction in which the Rajubala litigation has already moved. Dissatisfied with vague assertions of impending deportation, the Supreme Court repeatedly sought detailed data from the Assam Government on detainees, nationality verification, pending litigation and the actual steps taken towards deportation. The Union’s July 31 affidavit reinforces that approach. If compliance with these procedural safeguards is what makes a deportation lawful, then those safeguards cannot remain matters of executive assertion—they must be demonstrated through documentary evidence capable of judicial verification.
In that sense, the affidavit has implications beyond the immediate case. It raises the evidentiary threshold for the State in future deportation litigation. Courts will have to examine not only whether a person was deported, but how the deportation was carried out and whether it conformed to the legal framework that the Union itself has now placed before the Supreme Court.
The affidavit leaves little room for informal “push back” operations
Perhaps the most significant implication of the affidavit lies in what it suggests about the legality of the recent “push back” operations reported from Assam and other States. Over the past few months, multiple petitions before the Supreme Court and High Courts have alleged that persons suspected of being Bangladeshi nationals were taken across the international border without any publicly disclosed deportation process. In several cases, families have alleged that individuals were picked up without prior notice, denied access to lawyers or relatives, and removed without any disclosed deportation order or travel documents.
Detailed report may be read here, here, here and here.
The Union’s affidavit describes only one legally recognised route to deportation. According to it, removal can take place only after the receiving country verifies the individual’s nationality, issues the necessary travel documents and agrees to accept them. Significantly, the affidavit states that the deportation process itself cannot be initiated before nationality verification. It does not recognise any separate category of “push back” operations or explain the legal basis on which such removals could take place outside this framework.
That omission is important. If “push back” is treated as a form of deportation, it would necessarily have to satisfy the procedural safeguards outlined in the affidavit. If it is not deportation, the affidavit offers no explanation of the statutory or constitutional authority under which such cross-border removals are carried out. The affidavit therefore leaves unresolved a question that is already before constitutional courts: whether recent removals complied with the legal process that the Union itself now says is mandatory.
Beyond Nationality Verification: The missing due process framework
While the affidavit sets out the broad mechanics of deportation, it is noticeably thin on the procedural safeguards that accompany the process. It explains how nationality verification is to be initiated but says almost nothing about the rights of the individual who is its subject.
For instance, the affidavit does not clarify whether a person is informed when a Nationality Verification Request (NVR) is sent to a foreign government, whether they have access to the material relied upon for such verification, or whether they have any opportunity to contest incorrect or incomplete information before it is acted upon. Equally, it is silent on what follows once nationality is confirmed. Is a formal deportation order issued? Is the individual notified that the receiving State has accepted them? Can that decision be challenged before a constitutional court? None of these questions are addressed.
These are not peripheral procedural details. They go to the heart of procedural fairness under Article 21. Deportation is among the most coercive powers the State can exercise—it results in the physical removal of a person from the territory of India. Such a power necessarily requires a transparent legal process, one that affords notice, an opportunity to be heard where appropriate, and meaningful judicial oversight before the final act of removal.
The significance of these omissions becomes even more pronounced in light of recent litigation concerning alleged “push back” operations. If the Union’s own position is that deportation cannot commence without nationality verification and acceptance by the receiving State, the procedural steps connecting those two stages assume constitutional importance. Without clarity on how those decisions are communicated, documented and implemented, it becomes difficult for courts to effectively scrutinise whether the legal requirements identified by the Union have actually been followed in an individual case.
The affidavit therefore provides only part of the legal architecture. It explains the prerequisites for deportation, but not the due process safeguards that ensure those prerequisites are fairly implemented. That gap is likely to assume increasing significance as constitutional courts continue to examine the legality of detention and deportation in the Rajubala proceedings and in the growing number of cases challenging recent removals across the country.
Beyond Rajubala: Why this affidavit reinforces the constitutional limits of deportation
The significance of the Union Government’s July 31 affidavit extends well beyond the immediate dispute in Rajubala Das. Rather than introducing an entirely new legal framework, the affidavit reiterates and reinforces the procedural safeguards that the Supreme Court has been examining throughout the proceedings. In doing so, it re-emphasises a central constitutional question: what constitutes a lawful deportation?
For years, courts have largely focused on whether an individual was correctly declared a foreigner under the Foreigners Act, 1946. The Rajubala case has broadened that inquiry by examining the legality of what follows—the process of detention and eventual deportation. The Union’s affidavit continues that shift by setting out the legal conditions that, according to the Government itself, must precede any deportation.
A key takeaway from the affidavit is that deportation is not a unilateral executive act. While Indian authorities may identify a person as a foreign national and initiate the process, deportation ultimately depends on nationality verification by the receiving State, issuance of travel documents and that State’s willingness to accept the individual. Until these steps are completed, the Union says, deportation cannot be initiated.
The affidavit therefore re-emphasises that executive power under the Foreigners Act is not unfettered. Declaring a person to be a foreigner may establish that they have no legal right to remain in India, but it does not automatically authorise their physical removal from the country. Deportation remains a separate legal process governed by procedural safeguards and diplomatic engagement.
This is an important clarification because it places legal limits on the State’s deportation powers. Those limits arise not only from constitutional guarantees under Article 21 but also from the Union’s own understanding of the deportation process, as placed before the Supreme Court. In that sense, the affidavit is significant not because it creates a new legal standard, but because it reaffirms one before the country’s highest court. That reaffirmation is likely to shape future judicial scrutiny of deportation cases, particularly where allegations are made that individuals were removed without following the safeguards that the Union itself now says are mandatory.
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