Calcutta High Court Finds “Arbitrary Whimsical” Deportation Illegal, Orders Repatriation of Birbhum Residents

Kolkata - In a significant ruling that scrutinizes executive power and reinforces procedural safeguards, the Calcutta High Court has declared the deportation of six migrant workers from West Bengal's Birbhum district to Bangladesh illegal. A Division Bench comprising Justices Tapabrata Chakraborty and Reetobroto Kumar Mitra directed the Union of India to secure the return of the individuals, including a woman in an advanced stage of pregnancy, within four weeks, delivering a pointed critique of the "hot haste" and "overenthusiasm" displayed by the Delhi Police and the Foreigners Regional Registration Office (FRRO).

The judgment, arising from a habeas corpus petition ( Bhodu Sekh Vs. Union of India & Ors , WPA (H) 50 of 2025), not only sets a crucial precedent on deportation protocols but also offers a profound commentary on the interpretation of fundamental rights in the face of executive action. The court unequivocally rejected the central government’s request for a temporary stay on the order.

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Background of the Habeas Corpus Plea

The case was initiated by Bhodu Sekh, a permanent resident of West Bengal, who filed a habeas corpus writ petition seeking the return of his daughter, Sunali Khatun, her husband Danish Sheikh, their eight-year-old son, and another family of three. The families, who were working as migrant labourers in Delhi, were picked up during an 'identity verification drive' in June 2025.

According to the petition, within a mere two days of their detention at K N Katju Marg police station, they were deported to Bangladesh on June 26, 2025, on the suspicion of being illegal Bangladeshi nationals. The urgency of the matter was heightened by the fact that Sunali Khatun was, and remains, in an advanced stage of pregnancy, raising concerns about the citizenship of her unborn child.

Centre's Arguments and the Court's Rebuttal

The Additional Solicitor General (ASG), representing the Union government, mounted a defence based on two primary arguments. First, he contended that the detainees had confessed to Delhi Police that they were residents of Bangladesh who had entered India via an unauthorized route in 1998. Second, invoking the Foreigners Act, 1946, the ASG argued that the burden of proof lies with the individual to establish that they are not a foreigner. The Centre also questioned the jurisdiction of the Calcutta High Court, suggesting the matter should have been heard in Delhi.

The Division Bench systematically dismantled these arguments, grounding its reasoning in constitutional principles and procedural fairness.

On the Admissibility of Confessions: The court deemed the alleged confessions to police officers as constitutionally invalid without proper safeguards. It held that such statements are presumed to be involuntary and potentially obtained through coercion.

"A confessional statement made before a police officer and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India," the Bench held.

This finding strikes at the core of the evidence used to justify the deportation, underscoring the judiciary's protective stance against potential police overreach. The court further noted a glaring factual inconsistency: Sunali Khatun's Aadhaar and PAN cards list her age as 26, indicating a birth year of 2000, making it impossible for her to have entered India in 1998 as claimed in the police report.

On the Burden of Proof and Executive Power: While acknowledging the provisions of the Foreigners Act, the court cautioned against its misuse. The Bench stated that the Act "does not empower the executive to pick up a person at random, knock at his or her door and tell him that he is a foreigner."

In a strongly-worded observation on the nature of executive discretion, the court remarked:

"If an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down... the act cannot by the furthest of imagination be construed to be a 'procedure established by law'. The executive cannot be vested with any non-fettered discretion."

Procedural Lapses and Violation of MHA Guidelines

A critical aspect of the court's decision was the blatant disregard for established deportation protocols. The FRRO's action was based on a Ministry of Home Affairs (MHA) memo dated May 2, 2025, which explicitly requires an inquiry by the state government where the suspected individuals reside.

The court found that the Delhi Police made no effort to communicate with the West Bengal police to verify the detainees' claims of residency. Even after the petitioner lodged a complaint, the Delhi Police failed to respond to inquiries from their West Bengal counterparts. This failure to conduct a proper inquiry was deemed a fatal flaw in the deportation process.

"The process and procedure adopted in the deportation raise a suspicion that the authorities concerned, while acting in hot haste, have clearly violated the provisions of the memo," the order stated. "Not following such procedure and acting in hot haste to deport them is a clear violation which renders the deportation order bad in law and liable to be set aside."

Legal and Constitutional Implications

The judgment in Bhodu Sekh is poised to have significant ramifications for immigration law, administrative law, and the protection of civil liberties.

1. Reinforcement of Procedural Due Process: The court's emphasis on adhering strictly to MHA guidelines serves as a powerful reminder that deportation, a severe executive action, cannot be carried out summarily. It mandates inter-state cooperation and a thorough verification process before stripping an individual of their right to remain in the country.

2. Judicial Scrutiny over Executive Discretion: The ruling is a classic example of judicial review acting as a check on the executive branch. By labelling the officials' actions as "arbitral whimsical," the court sends a clear message that administrative actions, particularly those affecting fundamental rights under Article 21, are subject to rigorous scrutiny for fairness, reasonableness, and adherence to law.

3. Living Interpretation of Fundamental Rights: The Bench’s assertion that "fundamental rights cannot be read as dull lifeless words" and that law must accord "with the felt necessities of the times" reflects a dynamic and purposive approach to constitutional interpretation. It signals the judiciary's willingness to adapt legal principles to address contemporary social realities, especially for vulnerable populations like migrant workers.

4. Citizenship Determination: While the court refrained from making a final determination on the detainees' citizenship—stating that Aadhaar and PAN cards are not conclusive proof—it firmly established that such a complex question cannot be decided hastily by police authorities. It requires a quasi-judicial or judicial forum with the opportunity for the individuals to present evidence. By ordering their return, the court ensures that this determination can be made through a proper legal process on Indian soil.

Conclusion

The Calcutta High Court's decision is more than just a procedural victory for two families from Birbhum; it is a robust defence of the rule of law. By quashing the deportation order and mandating the return of the six individuals, the court has drawn a clear line against arbitrary state action. The judgment serves as a critical guidepost for law enforcement and administrative bodies, emphasizing that suspicion, "howsoever high," is no substitute for proof, and that the process of law must be as just as its substance. As the Union government reportedly considers an appeal to the Supreme Court, the legal community will be watching closely to see how these fundamental principles of justice and due process are upheld.