Deportation sans law: Compensation in cases of forced expulsion – Part 3

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 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.