While the Supreme Court’s last order rightly observed that “indefinite detention in detention camps violates basic rights”, including the Right to Life under Article 21 of the Constitution and India’s obligations under international human rights law, by explicitly eschewing lack of process, the proceedings have been quoted for this hostile action by the state government.

As a result, the Assam Government has adopted an arbitrary “push –back” policy in the state. On  June 11, 2025 the Chief Minister of the state, Himanta Biswa Sharma went several steps further and defiantly announced that persons suspected to be illegal immigrants could be deported to Bangladesh even if their names appear in the National Register of Citizens (NRC).

On May 25, Manowara Begum, was detained by the Dhubri Police station, even though the petition for determination of her citizenship is pending before the Supreme Court. Further, on May 24, Khairul Islam and 8 others were picked up and detained by the Assam Police on charges of being a foreigner. These are some of the several cases of detentions and deportations being conducted without following due process.

Details of court proceedings in several of these matters, some supported by the Citizens for Justice and Peace may be read here, here and here and here.

The All BTC Minority Students Union (ABMSU) had filed a petition against this “push-back” policy directly in the Supreme Court on June 2, 2025 which was declined.

This short piece examines the ongoing deportation campaign that amounts to a grave violation of constitutionally guaranteed rights, including the Right to Life and Personal Liberty under Article 21 and the Right to Equality under Article 14, in addition to breaching India’s international obligations under human rights law.

The functioning of Foreigner Tribunals

The current deportations target people who have been declared as Foreign Nationals and detained by one of the many FTs established in Assam. It therefore becomes essential to examine the functioning of these tribunals. FTs are quasi-judicial bodies which have been long criticized for arbitrary rulings, lack of independence, and procedural lapses.

As per the Foreigners (Tribunal) Order, 1964, the Central Government appoints the presiding members of the tribunal. They government also determines the terms of service including salary, term, etc. These powers have now been delegated to the State government in accordance to the Foreigners Act, 1946. This clearly shows executive overreach and violates of the principle of separation of powers.

Additionally, the tribunals put the onus on suspected people to prove their citizenship. An article by the caravan highlights the arbitrary procedure followed by FTs including the suspects not being provided with legal aid, the proceedings being held in private and opportunity to cross-examine the inspecting officer being denied. Further, ex-parte orders are routinely passed by these tribunals.

These practices violate Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary arrest and detention, and Article 14 of the ICCPR, which guarantees the Right to a fair trial. Additionally, the United Nations Working Group on Arbitrary Detention has affirmed that any deprivation of liberty resulting from an unfair trial falls within Category III of its classification and is, by definition, arbitrary.

They also constitute a clear breach of Article 21 of the Indian Constitution, which safeguards the right to life and liberty. Moreover, Article 22 provides safeguards against arbitrary detention and arrests. In the case of Anand Kundu v. Union of India, the Guwahati High Court held that the detention of suspects is preventive in nature, to ensure that the suspects do not vanish. However, even preventive detention has to follow due process as per Article 22 of the Constitution such as providing an opportunity of hearing before competent judges and informing of their charges. The Supreme Court reiterated this in the case of Pebam Ningol Mikoi Devi v. State of Manipur & Ors. In this case, the apex court emphasised that in India “the utmost importance is given to life and personal liberty of an individual”.

The Supreme Court has, itself on several occasions has overturned judgments by FTs and Guwahati High Court, declaring individuals’ foreigners even when they had provided adequate documents to prove their citizenship. In the case of Md. Rahim Ali v. The State of Assam, the Supreme Court overturned the Guwahati High Court’s judgment upholding the FT’s order declaring the Appellant a Foreigner. The Court also called the order a ‘grave miscarriage of justice’. The court’s direction for deportation in this light comes as a shock. Further, deportations when the detainees have not even exhausted their right to appeal is again a serious deprivation of rights, and sadly the Apex court that is supposed to uphold constitutional rights has taken a step back.

Another issue with these deportations is that these are being conducted without any consultation with the Government of Bangladesh. Article 15 of the Universal Declaration of Human Rights (UDHR) grants the Right to a nationality and provides that no one should be arbitrarily deprived of the same. The lack of consultation, therefore, might lead to statelessness of such individuals and irreversible Human Rights violation. Moreover, deportation without due process clearly violates Article 19 of the Indian Constitution which guarantees the Right to Reside in India.

The current deportation drive also disproportionately targets the Muslim minority population of Assam violating Article 14 of the Indian Constitution. The judicial failure to intervene in this matter reflects a broader systemic collapse in protecting the rights of the most vulnerable. The functioning of the Foreigners Tribunals and the arbitrary nature of the deportation drive collectively amount to a grave miscarriage of justice. In a democracy founded on the rule of law, such violations must not go unchecked. The judiciary, as the guardian of fundamental rights, must reclaim its role in safeguarding constitutional and human rights, especially for those who lack the means to defend themselves.

(The student is a fourth‑year law student at Gujarat National Law University, Gandhinagar)

Related:

Gauhati HC closes Habeas petition after Hasinur’s release from detention, declines compensation while acknowledging procedural default

Gauhati HC: Union government admits Samsul Ali was handed over to BSF, Court grants family visitation rights if not yet deported

The Immigrant Expulsion from Assam Act, 1950: Re-evaluating executive powers in light of judicial pronouncements and due process

Gauhati HC orders verification of police attendance records in re-arrest of two bail-compliant detainees in Torap Ali case

Gauhati HC grants visitation rights after state confirms Doyjan Bibi is in Kokrajhar Holding Centre

“Illegal detention not even for a minute”: Gauhati HC orders immediate release of bail-compliant detainee in Assam

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