1. Challenge to executive policies allowing continued detention of foreign nationals in correctional homes after completing sentences under the Foreigners Act, 1946, pending repatriation. (Para 3 , 4 , 11 , 12 )
Back
Next 
2025 Supreme(SC) 1360
SUPREME COURT OF INDIA
J.B. PARDIWALA AND R. MAHADEVAN, JJ.
Ms Maja Daruwala And Another – Appellant
Versus
State Of West Bengal And Another
Transfer Case (Criminal) No. 1 of 2013
Decided on : 30-01-2025
Advocates:
Advocate Appeared:
For the Appellant :Mr Soutik Banerjee, Advocate, Mr. Zoheb Hossain, Advocate
For the Respondent:Mrs. Aishwarya Bhati, A.S.G., Mr.Kunal Mimani, Advocate,Ms. Astha Sharma, Advocate, Mr. Raj Bahadur Yadav, Advocate, Ms. Chitrangda Rashtravara, Advocate, Ms. Shagun Thakur, Advocate, Mr. Aditya Shankar Dixit, Advocate, Ms. Satvika Thakur, Advocate and Mr. Ishaan Sharma, Advocate
Advocate Appeared:
For the Appellant :Mr Soutik Banerjee, Advocate, Mr. Zoheb Hossain, Advocate
For the Respondent:Mrs. Aishwarya Bhati, A.S.G., Mr.Kunal Mimani, Advocate,Ms. Astha Sharma, Advocate, Mr. Raj Bahadur Yadav, Advocate, Ms. Chitrangda Rashtravara, Advocate, Ms. Shagun Thakur, Advocate, Mr. Aditya Shankar Dixit, Advocate, Ms. Satvika Thakur, Advocate and Mr. Ishaan Sharma, Advocate
The Court is examining the legality of indefinitely detaining Bangladeshi nationals in correctional homes after they complete their sentences under the Foreigners Act, 1946, questioning the necessity of further nationality verification post-conviction and the failure to adhere to prescribed timelines for repatriation.
Headnote:(A) Foreigners Act, 1946 - Sections 14A and 14B - Constitutional Rights - Illegal detention of Bangladeshi nationals who have completed their prison sentences in Correctional Homes while awaiting repatriation challenges their fundamental rights under Article 21 of the Constitution. The Government of West Bengal’s standard operating procedure facilitates continued detention beyond the prescribed sentence duration, breaching established legal principles. Court directs immediate release of detained persons no longer awaiting verification. (Paras 1, 4, 10, 15, 22)
(B) Public Interest Litigation - The petition illustrates systemic failures in deportation procedures and raised fundamental issues regarding human rights violations and arbitrary government policies. (Paras 11, 14, 18)
Facts of the case:
This case arises from a public interest petition addressing the detention of Bangladeshi nationals convicted under the Foreigners Act, who continue to be held in Correctional Homes long after serving their sentences. Petitioners contend that their continued detention without a defined timeframe violates their constitutional rights.
Findings of Court:
The court acknowledges unlawful detention practices, mandates the release of duly completed sentence individuals, and calls for adherence to constitutional guarantees.
Issues: The main issues include the legality of continued detention post-sentence and the government's procedural adherence concerning repatriation of illegal immigrants.
Ratio Decidendi: The court emphasizes the illegality of prolonged detention without adequate legal framework, endorses swift deportation processes and addresses historic treatment gaps towards illegal immigrants post-sentencing.
Result: Immediate release of detained individuals ordered, pending further compliance reports from the State of West Bengal and the Union of India.
Legal Category Hierarchy
Table of Contents
2. Petitioners argue that continued detention after sentence completion violates Article 21 and that executive policies allowing indefinite detention awaiting repatriation are unconstitutional. (Para 5 )
3. The court questioned the necessity of further nationality verification after conviction and the failure to adhere to the 30-day verification window for deportation. (Para 14 , 16 , 19 , 20 )
4. The court is examining whether conviction under the Foreigners Act establishes non-citizenship, rendering further nationality verification and indefinite post-sentence detention legally untenable. (Para 14 , 16 )
5. The Union of India and State of West Bengal are directed to submit reports and affidavits explaining the rationale and current status of detentions. (Para 23 , 25 )
6. Does conviction under the Foreigners Act, 1946, establish non-citizenship for repatriation purposes?
The court questioned whether a conviction for an offence under the Foreigners Act logically establishes that the individual is not a citizen of India, thereby making further nationality verification by the Ministry of External Affairs redundant. (Para 14 , 16 )
7. What is the prescribed timeframe for nationality verification and deportation under the Government of India's 2009 circular?
Clause 2(v) of the circular indicates that the entire exercise of deportation and verification should be completed within a period of 30 days. (Para 18 , 19 )
8. Is the detention of foreign nationals in correctional homes as 'Jaankhalash' convicts after sentence completion legally permissible?
The court is examining whether illegal immigrants should be immediately repatriated upon completing their sentence or if they can be kept for an indefinite period in correctional homes awaiting administrative processes. (Para 14 )
ORDER :
1. We have heard Mr. Soutik Banerjee, the learned counsel appearing for the petitioner nos. 1 and 2, Ms. Aishwarya Bhati, the learned A.S.G. appearing for the Union of India and Mr. Kunal Mimani, the learned counsel appearing for the State of West Bengal.
2. At the outset we take notice of the order passed by this Court dated 19th November, 2012, the order read thus:-
"We have heard Mr. S.K. Dholakia, learned senior counsel for the petitioners and Mr. Soumitra G. Chaudhuri, learned counsel for the respondent No. 1 -State of West Bengal.
2. No body appears for the respondent No. 2 - Union of India, although vakalatnama has been filed on its behalf.
3. We have perused the order passed by the High Court on November 18, 2011 which reads as follows:
"Learned counsel for the petitioners brought to our notice that the Supreme Court of India is seized with the similar issues involved in this petition as it is dealing with the petition filed by one Bhim Singh (W.P. (Crl.) No. 310 of 2005 Bhim Singh vs. Union of India and others . It is submitted that the petitioners would like to apply before the Supreme Court of India for transferring the present writ petition before the Supreme Court of India, so that the Supreme Court can deal with the matter.
Learned Additional Solicitor General and the learned Government Pleader have no objection.
We grant leave to the petitioners to move the Hon'ble Supreme Court by getting this matter transferred from our file to Supreme Court."
4. Having regard to the above, we grant this Transfer Petition and transfer Writ Petition No. 8105 (W) of 2011 - Ms. Maja Daruwala and others vs. State of West Bengal and another, pending before the Calcutta High Court to this Court. The Registrar General of the Calcutta High Court shall send the record of the above case to this Court as expeditiously as may be possible.
5. Transfer Petition stands disposed of accordingly."
3. It appears from the materials on record that the petitioners herein a Public Spirited Citizen Associated with an Organisation by name "Common Health Human Rights Initiative (NGO) addressed a letter dated 2nd May, 2011 to the Chief Justice of the High Court of Judicature at Calcutta highlighting the plight of illegal immigrants from Bangladesh who after being convicted for the offence under the FOREIGNERS ACT are being kept confined to correctional homes.
4. The letter brought to the notice of the High Court that all those illegal immigrants from Bangladesh who are put to trial for the offence punishable under the FOREIGNERS ACT after undergoing sentence instead of being deported to their own country are being detained in the Correctional Homes of the State of West Bengal.
5. The letter referred to above, reads thus:-
"IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
[SPECIAL ORIGINAL JURISDICTION]
LETTER PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA [As against the illegal and continued detention of Bangladeshi nationals in detention/ correctional facilities throughout West Bengal, India]
To,
The Hon'ble Chief Justice
And His Companion Judges of the
Hon'ble High Court of Judicature at Calcutta
The Petitioners undersigned,
Most Respectfully Showeth:
1. This Letter Petition is to bring to the immediate and urgent attention of this Hon'ble Court, the plight of Bangladeshi nationals who had been convicted for illegal entry into India and consequently imprisoned, as under section 14A and/or section 14B of the Foreigners' Act, 1946 (as amended by the Foreigners (Amendment Act, 2004) and who despite having completed their prescribed sentence, continue to be illegally detained in various correctional facilities throughout West Bengal, India, whilst awaiting repatriation. A copy of the aforesaid provisions as inserted into the FOREIGNERS ACT , 1946 by the 2004 Amendment Act is annexed hereto as Annexure P-1.
2. As per the official records maintained and issued by the Directorate of Correctional Services, Government of West Bengal; as on 1st February, 2011, out of
