Forced expulsion is not merely a procedural error in the deportation framework but an aggravated form of unlawful custody. Whereas wrongful detention cases ordinarily end with release, pushbacks combine deprivation of liberty with the risk of statelessness, family separation, and displacement across an international border. Victims frequently lose access to homes, livelihoods, medical care and community support structures. In Bangladesh, expelled individuals may face criminalisation as irregular entrants, creating harms that extend well beyond the moment of expulsion. These cumulative harms sharpen the constitutional injury under Article 21 and strengthen the argument that forced expulsion demands a heightened remedial response.
The constitutional framework analysed earlier establishes a clear principle: where the State causes unlawful detention or deprivation of liberty, compensation under Articles 21, 32 and 226 is available as a public law remedy. This principle does not depend on the geographical site where the unlawful detention ends. Forced expulsion, particularly when preceded by warrantless detention, denial of judicial scrutiny and summary removal across an international border, constitutes an aggravated form of unlawful custody and an actionable constitutional wrong.
The pattern of forcible expulsions documented in border districts of West Bengal and Assam therefore raises not only citizenship disputes but urgent remedial questions: whether victims of detention and expulsion are entitled to compensation, which harms are compensable, and how such victims can realistically access remedies given their removal from Indian territory and their socio-economic marginalisation.
Forced expulsion, particularly when preceded by warrantless detention, denial of judicial scrutiny and summary removal across an international border, constitutes an aggravated form of unlawful custody and an actionable constitutional wrong.
Forced expulsion as continuing illegal custody
In the Supreme Court’s compensation jurisprudence, the trigger for public law liability is not the length of custody but the absence of lawful authority, the denial of due process and the infringement of dignity and liberty under Article 21. In numerous border expulsions, individuals are detained without statutory basis, deprived of the right to know the grounds of custody, denied access to counsel or judicial oversight and removed across borders without adjudication.
Such expulsions constitute an extension of illegal custody where the deprivation of liberty does not cease at the point of removal but is aggravated by statelessness risk, separation from family, loss of livelihood and exposure to criminalisation in the receiving country. Under Rudul Sah v. State of Bihar (1983), Nilabati Behera v. State of Orissa (1993) and contemporary High Court practice, each of these harms is cognisable as part of the constitutional injury.
Forced expulsion also produces a broader class of harms than traditional wrongful detention cases. These include statelessness or uncertain nationality status; long-term stigma and social ostracisation; deprivation of medical care, particularly acute for children, elderly persons, and pregnant women; economic displacement and loss of residence; and psychological trauma linked to sudden displacement. These consequences demonstrate why illegal detention culminating in expulsion is an aggravated constitutional wrong rather than a mere procedural lapse.
Why relief is unlikely in practice
Despite clear constitutional principles and doctrinal foundations for compensation, victims of forced expulsion are structurally unable to access remedies. Practical obstacles render compensation almost unattainable.
Victims are physically removed from Indian territory, making writ jurisdiction under Articles 32 and 226 practically inaccessible. In the absence of a statutory compensation regime, victims must rely on judicial discretion rather than clear legal entitlements. India’s reservation to Article 9(5) of the International Covenant on Civil and Political Rights further weakens external accountability mechanisms that might otherwise strengthen domestic remedies.
Through a line of landmark cases, the Supreme Court and High Courts have recognised a right to compensation for unlawful arrest, detention and custodial abuse as an integral component of Article 21.
Those targeted for expulsion are overwhelmingly poor, Bengali-speaking, Muslim, Rohingya, or Adivasi populations with limited access to legal representation. Border Security Force operations are often shielded from scrutiny, and deportation procedures lack transparency. Tribunal orders, bail conditions and appellate processes are routinely disregarded in favour of executive pushbacks. Complaints to human rights institutions rarely result in effective relief. Thus, although constitutional jurisprudence strongly supports an entitlement to compensation, prevailing structural conditions render the remedy largely theoretical.
Towards a statutory compensation framework
To convert constitutional doctrine into enforceable remedies, victims of forced expulsion require a statutory framework that recognises illegal detention and forced expulsion as compensable harms, provides clear criteria for quantification, including enhanced awards for vulnerable groups such as pregnant women, children, elderly persons, and those rendered stateless, establishes an independent body empowered to investigate pushback incidents and award compensation, permits applications from abroad or through legal aid, NGOs, or remote representation, and integrates compensation with accountability mechanisms, including recovery from responsible officials.
A statutory scheme would align India’s remedial architecture with global practice. Comparative jurisdictions such as Spain, the United Kingdom, the United States, Germany, and New Zealand recognise compensation for wrongful detention not merely as a discretionary gesture but as a structural guarantee against State abuse of coercive power. In the Indian context, such a framework would ensure that victims of detention and expulsion are not relegated to a legal no-man’s land – deprived of liberty, displaced from their homes, and denied the remedies the Constitution already promises.
What can be done
India’s constitutional jurisprudence has travelled far from the position reflected in its reservation to ICCPR Article 9(5). Through a line of landmark cases, the Supreme Court and High Courts have recognised a right to compensation for unlawful arrest, detention and custodial abuse as an integral component of Article 21. Contemporary High Court decisions, including those of the Kerala and Patna High Courts, demonstrate that this right continues to be actively enforced in cases of wrongful imprisonment and unlawful detention of juveniles.
Yet this remedial architecture largely bypasses those at the country’s borders. For Indian citizens and citizenship-contested populations summarily detained and forcibly expelled to Bangladesh or Myanmar, the constitutional promise of liberty and remedy is effectively annulled. Because victims are removed from Indian territory, live in conditions of extreme precarity, lack documentation and legal assistance and confront powerful border-policing institutions, they rarely reach the Supreme Court or High Courts. The result is a systemic remedial deficit precisely where violations are most severe.
To make the right to compensation meaningful, India requires a comprehensive statutory framework that transforms fragmented judicial doctrine into an accessible, uniform and enforceable scheme.
Forced expulsion must be recognised for what it is: an aggravated form of arbitrary detention and a grave constitutional wrong. If the State is strictly liable for a few days of unlawful custody within India, it cannot be absolved of responsibility when its agents unlawfully seize a person, deny due process, and abandon them in another country. The logic of Rudul Sah, Nilabati Behera and subsequent High Court practice leads inexorably to the conclusion that victims of forced expulsion are entitled to compensation. Unlike deportation regimes in the European Union, where expulsion follows an individualised assessment, written reasons and appellate safeguards, pushbacks in eastern India often occur without any determination of nationality, lawful authority or procedural protections.
To make the right to compensation meaningful, India requires a comprehensive statutory framework that transforms fragmented judicial doctrine into an accessible, uniform and enforceable scheme. Compensation must not depend on litigation capacity or happenstance, but operate as a predictable constitutional guarantee. Until such a framework is established, victims of border expulsions will continue to inhabit a legal no-man’s land – deprived of liberty, displaced from their homes and denied the remedies that the Constitution, in principle, already promises.
This is Part 2 of a five-part series. Part 3 will examine domestic and international law on compensation.