*Tarun Chittupalli & Anamika Singh
(Source: Human Rights Watch)
This blog critiques prolonged post-sentence detention of illegal immigrants in India, especially post-Maja Daruwala v. State of West Bengal (2025), citing Article 21 violations. It urges legislative reforms ensuring timely deportation, humane transitional measures, and a balance between personal liberty and national security under the new Immigration and Foreigners Act, 2025.
Introduction
The Supreme Court, in its order dated 16th May, 2025, concerning the case of Maja Daruwal & Anr. v. State of West Bengal & Anr., directed the Government of West Bengal to identify the existing illegal migrants in the state who remain imprisoned post their sentence and release them on bail. The court gave a timeline for the same, which was four weeks. The Court’s order comes in light of the prevailing circumstances of wrongful detention of the illegal immigrants, post the completion of their sentence under the Foreigners Act, 1946. A major section of these illegal immigrants includes people from the Rohingya community.
Even after having served their sentence, such individuals continue to be subjected to confinement. This inherent paradox is the result of a lacunae in the legal framework which does not account for the subsequent deportation and rehabilitation of these convicts. This lacunae results in the grave violation of their constitutional and humanitarian rights, fundamentally undermining essential human dignity.
This blog begins by identifying the lack of clear procedural mechanisms, the constitutional inconsistencies arising therefrom and further goes on to identify the systemic and institutional inadequacies. Subsequently, it addresses the need for amendments to the Immigration and Foreigners Act, 2025 and concludes by suggesting the same.
Legal Framework and Constitutional Gaps
Previously, the Foreigners Act of 1946, along with other legislations, governed the entry and regulation of foreigners in India. This was later repealed, and the Immigration and Foreigners Act of 2025 was introduced to streamline and modernise this process.
The circumstances arising in the present case and subsequent judicial intervention were a result of the manifest gaps in the Foreigners Act, 1946, regarding the presence and departure of immigrants. Section 3 of this Act gave the Central Government complete discretion in the matter, without specifying any statutory time limits for accountability concerning rehabilitation or deportation post-sentence.
The new Immigration and Foreigners Act, 2025, which aims to supersede and streamline the multiple pre-existing laws, shows intent to regulate supplementary matters as may be expedient or necessary for giving effect to this Act under Article 7(3) of the Act. Its ambit may be expanded to include matters such as deportation timelines and a necessary administrative framework to facilitate and expedite such deportations. While expedited deportation stands to reduce prolonged detention, it is essential to ensure that such a process upholds due process and is not solely driven by administrative convenience. In this regard, it is important to take into account the vision of the drafters of the Constitution, as they sought to uphold Article 21 as an all-encompassing safeguard, guaranteeing the dignity, liberty and life of all individuals. This intent is evident from the exact wording of the article– employing the term ‘no person(s)’ instead of ‘no citizen(s)’, thus extending this protection to every individual within the territory of India, irrespective of their nationality or legal status. In the same vein, this expansive and inclusive spirit brings illegal immigrants within the ambit of Article 21. In the Hans Muller judgement involving the detention of a foreign national pending deportation, the Supreme Court held that while the state has the right to deport foreigners, their liberty cannot be curtailed without a procedure established by law. Where no such process exists or is indefinitely delayed, continued confinement breaches the core of Article 21. It unjustifiably restricts personal liberty by isolating these individuals from society and subjecting them to custodial conditions without legal authority. This absence of a timeline, clubbed together with a lack of access to judicial review, creates a regime of arbitrary, indefinite detention which is violative of the constitutional mandate of due process as enshrined under Article 21. Furthermore, this confinement in the absence of legal authority and limited movement or access to transitional facilities reflects a complete suspension of the right to freedom of movement protected under Article 21. Thus, the continued detention of these individuals, even after their sentence completion, in the absence of a procedure established by law, is in direct violation of Article 21. Thus, they remain confined not as convicts, but as individuals caught in a legal vacuum.
Systemic Failures due to Legal Lacunae
“What is the idea in keeping hundreds of such illegal immigrants in Detention Camps/Correctional Homes for an indefinite period of time?” – Justice Pardiwala’s question elucidates the administrative failure. It highlights a disregard for basic rights and due process of law. A circular issued by the Ministry of Home Affairs in 2009, under its clause 2(v), provided for the verification and deportation of Bangladeshi immigrants within 30 days. However, this mandate fails to guarantee efficiency due to the fragmented processing of documents involved in the verification and deportation process. There exists a lack of specialised institutions that would serve the purpose of a transitional home between the time the convicts have served their sentence and their deportation. This vacuum causes convicts to be confined for a prolonged period of time without adequate protection of constitutional rights. The current infrastructure is inadequate in ensuring the required freedom of movement for such individuals, while balancing a certain degree of surveillance and state control required to carry out the deportation process.
Furthermore, the current deportation process under this order begins with communication between correctional homes and the concerned District Intelligence Branch, which then forwards the required documents to the State Home Ministry, which further makes it available to the Ministry of External Affairs, finally being handed over to the Bengal High Commission. The primary issue lies in the delay caused by each additional bureaucratic link and the inherent inaction within their functioning.
Thus, the existing circumstances are a result of the administrative inadequacies, including the absence of dedicated detention centres and the insufficient 30-day window. Justice Pardiwala’s observations in the Maja Daruwala case must be read as a legislative prompt, requiring set practical timelines, role divisions as well as the development of requisite infrastructure. Without accounting for these administrative and diplomatic failures in the form of a comprehensive legislative reform, these problems will continue to persist.
Suggested Reforms
In light of the above challenges, we propose reforms within the new Immigration and Foreigners Act, 2025, as an essential step toward institutional reform and the structured handling of convicted foreign nationals post-sentence.
First and foremost, there needs to be a maximum period of 15 days within which the individual must be processed and transferred to a repatriation or transitional facility. These facilities shall differ from correctional centres and jails with respect to their purpose, conditions and treatment standards, as they will be intended not for punishment, but for temporary and humane custody while repatriation or deportation processes are underway. This is in line with the constitutional mandate of protection of personal liberty and human dignity under Article 21.
Moving forward, a strict 90-day timeline must exist that commences from the date of admission into the repatriation or transitional facility. This timeline shall ensure expedited deportation and rehabilitation processing. This 90-day duration provides sufficient time for the authorities to process the individual’s deportation, in contrast to the 30-day timeline, which proved inefficient with respect to practical realities on the ground.
Furthermore, in the event of failure to comply with the above mentioned 90-day timeline, such individuals shall be released from the custody of such repatriation or transitional facility and be placed under conditional supervision. This conditional supervision shall entail periodic attendance before local authorities (as determined by the Central Government). Further, the intra-state travel of such individuals shall be restricted in the interests of national security and public order. Post the 90-day timeline, an extension can be requested for not more than 60 days at a time and the extension has to be authorised by a Committee set up by the designated state government(s) which shall assess the urgency of the case as well as the steps taken by the authorities in the process of deportation. This measure would establish a procedure for extension and would curb arbitrary administrative delays.
In the event where no foreign state confirms the nationality of such an individual, the conflict between the sovereignty of a nation and the humanitarian obligations of a nation arises. Such temporary residence will curb prolonged detention from a humanitarian point of view, while also balancing the right of India as a state in not conferring complete rights of nationality upon such foreign individuals. The proposal to confer temporary residence rights or limited legal status on individuals who cannot be deported raises complex legal, political, and ethical considerations. While granting even minimal legal recognition would be viewed as undermining India’s sovereign authority to regulate its borders and raise concerns about security and migration precedents, a complete denial of protection in situations where deportation is not feasible would conflict with constitutional and humanitarian obligations.Therefore, for the purposes of deportation formalities, the Central Government may confer temporary residence rights to such individuals, subject to periodic review of the status of such individuals.
Moreover, if a scenario arises wherein such individuals remain unaccepted for a period of more than 5 years, following proper consultation and investigation, the Central Government may grant them limited legal status, including civil rights but excluding political ones. Additionally, a record of all such individuals must be maintained and updated from time to time.
From a sovereignty and national security standpoint, granting even minimal legal recognition may be perceived as compromising India’s sovereign authority to regulate its borders and decide who may reside within its territory. It may also trigger fears of setting a precedent, potentially incentivising undocumented migration by creating a perception of eventual regularisation. Furthermore, national security agencies may caution that providing conditional legal status to individuals whose identity or nationality cannot be conclusively verified introduces risks related to identity fraud, surveillance evasion, or public order violations.
However, such a recognition is not an offer of citizenship but a necessary humanitarian mechanism grounded in constitutional and international law. Article 21 of the Indian Constitution explicitly protects the life and liberty of ‘all persons’, not just citizens. Where deportation is not viable and indefinite detention becomes the norm, temporary legal status can safeguard human dignity and provide access to basic services and legal protection.
Furthermore, there exist international practices, such as the United States’ Temporary Protected Status (TPS), that offer forms of partial or conditional legal recognition, striking a balance between individual rights and state sovereignty. In order to prevent misuse of such a system, robust safeguards are essential. Temporary residence should be granted only after deportation efforts fail and should be subject to periodic renewal and review. Rights may be limited to basic civil protections, excluding political rights such as voting or naturalisation. Legal status should remain revocable in cases of false declarations or security threats. A centralised and transparent database of such individuals must be maintained, with oversight by parliamentary or judicial authorities.
In conclusion, this reform seeks to strike a balance between humanitarian considerations and the sovereign right of India as a state to regulate the presence of foreign individuals, protect national security, and uphold the rights and interests of its citizens and democratic institutions.
Conclusion
In the absence of clear procedural safeguards, the continued incarceration of illegal immigrants post-sentence poses a constitutional failure. The proposed reforms serve as a structural response to both legal and administrative ambiguities, bringing the legislation in line with India’s constitutional values. This issue, as highlighted in the current judgment, underscores a systemic failure resulting from the absence of a coherent policy mechanism. It is not justifiable to keep such individuals confined, long after their due sentence has already been served.
Such prolonged confinement is not in line with humanitarian principles and highlights a significant lacuna in the state’s ability to adequately handle the deportation and repatriation of such individuals. Furthermore, even from a constitutional standpoint, this raises concerns about India’s commitment to guarantee the right of personal liberty to all individuals, regardless of their citizenship status. As a democratic country, India’s continued commitment to upholding the dignity of all human beings, as enshrined in various domestic and international instruments, must guide its legislative and policy reforms. The issue of post-sentence detention is not merely a legal oversight, it is a humanitarian crisis veiled in administrative silence. This humanitarian crisis is one that makes such individuals essentially become ‘forgotten prisoners’, with no prospects of rehabilitation or a home country to return to.
*Tarun Chittupalli is currently a third-year student pursuing B.A. LL.B. (Hons.) at the National Law Institute University, Bhopal (NLIU).
*Anamika Singh is currently a third-year student pursuing B.A. LL.B. (Hons.) at the National Law Institute University, Bhopal (NLIU).