AT LEAST 300 of those expelled are from the state of Assam, which, in 2019, underwent a contentious citizenship verification process that was arbitrary, flawed and excluded nearly two million people.
Expulsion and non-refoulement
The Citizenship Act, 1955 and associated rules provide that official documents such as land records and electoral rolls may be relevant in establishing citizenship. Determination of foreigner status lies with civil courts, foreigners tribunals, and duly constituted administrative authorities under the Foreigners Act, 1946 and related legislation.
Border Security Force (BSF) has no statutory competence to unilaterally declare someone a foreigner or to expel them from Indian territory. When BSF summarily removes individuals across borders, it bypasses institutions designed to adjudicate citizenship disputes.
The Constitution of India contains provisions on the status of international law in India under the Directive Principles of State Policy enshrined in Part IV of the Constitution which provide that the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another. It is well established in India that the principle of customary international law can be enforced by the courts if they are not in conflict with the statutes.
While India is not a party to the 1951 Refugee Convention, general principles of non-refoulement and the prohibition on collective expulsion are recognized in customary international law and international human rights instruments. The European Court of Human Rights has held in Hirsi Jamaa and Others v. Italy (2012) that Italy violated the prohibition on collective expulsion and non-refoulement by intercepting migrants at sea and returning them to Libya without individualized assessment or remedy. In Čonka v Belgium (2002), the Court found that the summary expulsion of a Roma family without effective remedy violated Article 5 (liberty), Article 13 (effective remedy) and Article 4 of Protocol No. 4. Pushing individuals, including pregnant women, into foreign territory without status determination violates these principles and exposes victims to destitution, criminalization in the receiving country, and risk to life.
Indian authorities have expelled about 100 Rohingya refugees from a detention center in Assam across the Bangladesh border. The United Nations Office of the High Commissioner for Human Rights (OHCHR) reported that the authorities forced another 40 Rohingya refugees into the sea near Myanmar, giving them life jackets and making them swim to shore in what the UN special rapporteur on Myanmar, Tom Andrews, called “an affront to human decency.” Others cite higher figures.
India is obligated under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) to ensure the protection of everyone's rights and to prevent deprivation of citizenship on the basis of race, color, descent, or national or ethnic origin.
According to Human Rights Watch, India's detention and expulsion of anyone without due process violates fundamental human rights. The Indian government should ensure access to fundamental procedural safeguards for anyone subject to expulsion. This includes access to full information about the grounds for deportation, competent legal representation, and an opportunity to appeal a decision to expel.
An estimated 40,000 Rohingya live in India, at least 20,000 of whom are registered with the UN refugee agency. Although India is not a party to the 1951 UN Refugee Convention or its 1967 Protocol, India is bound by the customary international law principle of non-refoulement, which prohibits countries from returning or expelling people to places where they face threats to their lives or freedom.
Collective expulsion and customary international law
The incidents described exhibit elements of collective expulsion as understood in international human rights law: removal without individualized assessment, absence of remedy, and lack of procedural guarantees. The earlier mentioned jurisprudence of the European Court of Human Rights (such as in Hirsi Jamaa and Čonka) confirms that collective expulsion violates both the prohibition on arbitrary detention and the right to effective remedy, principles recognized in customary international law and binding on India notwithstanding its non-party status to the Refugee Convention.
Statelessness
Pushbacks often strand individuals in Bangladesh without recognized nationality or documentation. Where Bangladesh refuses to accept expelled persons, families may become divided across borders and long-term uncertainty regarding nationality and return becomes inevitable. Statelessness is a recognized aggravating harm under international law, and its risk is heightened in regions where citizenship documentation has historically been contested.
Humanitarian harms
Pushbacks produce humanitarian consequences beyond the deprivation of liberty. Victims report loss of shelter, food insecurity, medical neglect, and exposure to criminalization as irregular entrants in Bangladesh. Elderly persons, children, and pregnant women face heightened risks, and the sudden displacement fractures family units and economic livelihoods. The International Committee of the Red Cross (ICRC) has underscored that deprivation of liberty entails obligations concerning humane treatment, health, and family contact; pushbacks ignore all three.
Recent Supreme Court jurisprudence
In a recent judgment reported by The Hindu, the Supreme Court held that the State is constitutionally prohibited from initiating or continuing criminal proceedings when there is no reasonable prospect of securing a conviction, as this would amount to an abuse of the criminal process and a violation of Articles 14 and 21. The Court emphasized that State power must be exercised with ‘constitutional responsibility’ and ‘evidentiary discipline’, and that baseless or speculative allegations cannot justify the restraints placed on an individual's liberty.
This principle directly strengthens the conclusion that forcible expulsion, carried out without evidence, legal authority, or any lawful procedure, constitutes an arbitrary deprivation of liberty. If the State cannot prosecute a citizen without reasonable grounds, it certainly cannot detain or expel a citizen in the complete absence of legal basis. The BSF's actions therefore exceed not only statutory limits but also the constitutional threshold established by the Supreme Court for any State interference with personal liberty.
Soft law and comparative remedial standards
Global remedial frameworks reinforce the view that unlawful detention and deprivation of liberty must be paired with effective remedies, including compensation. The UN’s Basic Principles and Guidelines on the Right to a Remedy and Reparation (2005) recognize restitution, rehabilitation, satisfaction, and compensation as integral components of redress for unlawful detention.
The UN Working Group on Arbitrary Detention has consistently held in its opinions that compensation is not discretionary but a necessary remedial consequence of arbitrary detention. Regional human rights systems, including the European Court of Human Rights (see Article 5(5) ECHR) and the Inter-American Court of Human Rights (as in Yean and Bosico v. Dominican Republic (2005) and Bámaca Velásquez v Guatemala (2000 and 2001)), have developed compensation jurisprudence due to the right to liberty and non-discrimination.
In addition, instruments under the International Convention on the Elimination of All Forms of Racial Discrimination obligate States to provide effective remedies for discriminatory deprivation of nationality or expulsion (see Article 5(d)(iii) and Article 5(d)(ii)). Comparative common law jurisdictions (such as UK Criminal Justice Act, 1988, s. 133) provide statutory or judicially administered compensation for wrongful conviction and detention, which shows that arbitrary deprivation of liberty engages not only constitutional accountability but remedial obligations.
This is Part 2 of a five-part series. Part 3 will examine compensation in cases of forced expulsion.
