“Can you return all those who crossed the border in the 1970s?” The Calcutta High Court on Thursday put this pointed question to the State while examining the continued detention of a man suspected of being a Bangladeshi national, bringing into sharp focus the constitutional limits on detention and deportation in cases where nationality itself remains disputed. Justice Saugata Bhattacharyya questioned how a person could be kept in custody for nearly two months merely on the basis of an allegation concerning his nationality and emphasised that, before the State takes the irreversible step of deporting a person, it must establish the legal basis for treating him as a foreign national. The Court’s intervention is significant because it places a basic constitutional proposition at the centre of the ongoing controversy over suspected illegal immigration in West Bengal: the State undoubtedly possesses the authority to identify, detain and deport foreign nationals who are unlawfully present in India, but that power must operate through a procedure established by law and cannot rest upon suspicion alone.
The proceedings arose from the detention of a man who was taken into custody on August 8 on suspicion of being an illegal Bangladeshi immigrant. The Court specifically questioned the authorities about the length of his detention, noting that almost two months had elapsed. The State was represented by Additional Advocate General Rajdeep Majumdar, who sought to defend the action by referring to the material available with the authorities and the subsequent deportation order passed by the Foreigners Regional Registration Officer. The Bench, however, was not prepared to treat the existence of an administrative order as an answer to the more fundamental question of whether the detention and proposed deportation had been preceded by a legally sufficient determination of nationality.
One of the most pointed aspects of the hearing concerned the material on which the deportation order appeared to have been founded. The Court questioned whether statements made by family members could by themselves establish that a person was a Bangladeshi national. The question, “Does family member statement prove he is Bangladeshi?”, goes to the heart of evidentiary fairness in nationality proceedings. Citizenship or nationality is not a conclusion that can ordinarily be inferred merely because relatives make an allegation, because a person has difficulty producing a particular document, or because the authorities suspect that identity documents may have been obtained improperly. Where the consequence is detention followed by removal from the country, the State must identify the evidentiary basis upon which the nationality determination has been made and demonstrate that the prescribed statutory process has been followed.
The State’s submission that documents such as Aadhaar or PAN cards may themselves have been obtained through forged documents illustrates why these cases require a careful distinction between identity, residence and citizenship. An Aadhaar card is fundamentally an identity document and does not by itself confer Indian citizenship. A PAN card similarly cannot independently establish nationality. But the converse proposition is equally important: the mere allegation that an identity document is forged does not, without an appropriate inquiry, establish that the person is a foreign national. Forgery, if proved, may constitute a separate offence and may undermine the reliability of a document, but it cannot automatically supply the missing proof of nationality. The legal inquiry has to proceed from the reliability of the evidence to the question the authority is actually empowered to determine.
The Court’s reference to persons who crossed the border in the 1970s carries an important historical and constitutional dimension. The India-Bangladesh border has a complicated history shaped by the Partition of 1947, the creation of Bangladesh in 1971, migration, displacement, economic movement and the absence of easily verifiable documentation among sections of the population living in border districts. The Court’s rhetorical question was not a declaration that every person who crossed the border decades ago is entitled to Indian citizenship. Rather, it highlighted the practical impossibility of treating historical migration as a sufficient basis for present-day detention or deportation without individualised legal determination. The fact that a person or his family may have crossed an international border decades ago cannot by itself answer the separate legal question of his present nationality and entitlement to remain in India.
This distinction is particularly important in the context of the Foreigners Act, 1946 and the broader statutory regime governing foreigners in India. The State possesses substantial powers to regulate the entry, stay and removal of persons who are not Indian citizens. The law also recognises situations in which a foreign national may be detained pending identification or deportation. But the existence of extensive executive power does not eliminate constitutional scrutiny. Article 21 applies to every person, not merely to citizens, and no person can be deprived of life or personal liberty except according to a procedure established by law. A suspected foreign national therefore does not become a person without constitutional protection merely because the State alleges that he entered India illegally.
The question of nationality becomes even more consequential because deportation is qualitatively different from ordinary administrative action. Once a person is removed from India and transferred across the border, the practical consequences can be profound. If the receiving country does not accept the person as its national, or if the deportation is based on an erroneous identification, the individual may find himself caught between two jurisdictions. That possibility explains why courts insist upon an evidentiary and procedural foundation before permitting the State to exercise coercive immigration powers. The State has a legitimate interest in protecting territorial integrity and regulating illegal immigration; the individual has an equally important interest in not being deprived of liberty or forcibly removed without lawful determination. Constitutional adjudication must hold these interests together rather than allowing one to completely displace the other.
The present controversy also has to be understood against the background of the Supreme Court’s recent jurisprudence concerning the Special Intensive Revision of electoral rolls. In its May 2026 judgment concerning the SIR exercise, the Supreme Court held that the Election Commission can undertake a limited inquiry into citizenship for the purpose of determining eligibility for inclusion in electoral rolls. At the same time, the Court made an important distinction: exclusion from the electoral roll does not itself amount to a final declaration that a person is not an Indian citizen. The Court recognised that the question of citizenship ultimately lies within the statutory framework governing citizenship and that the electoral consequences of a person’s exclusion must not automatically be converted into a comprehensive determination of nationality.
That distinction has become particularly significant in West Bengal, where the SIR exercise has generated a large number of claims, objections and appeals. The Election Commission’s own official SIR material records final electoral rolls, deletion lists and appellate supplementary lists following the 2026 revision. The existence of an electoral-roll dispute, however, cannot be mechanically equated with proof of illegal foreign nationality. Indeed, the Supreme Court subsequently reiterated that removal from an electoral roll does not, by itself, extinguish citizenship and that cases raising questions about citizenship must proceed through the competent legal mechanism.
This legal separation becomes crucial in cases such as the present one. If a person’s name is removed from an electoral roll or he is identified for verification during an SIR exercise, that may justify further inquiry into his electoral eligibility. It does not automatically authorise the police or another authority to treat him as a Bangladeshi national and proceed to deport him. The State must still establish the legal foundation for the separate act of deportation. The High Court’s questioning therefore reflects an important constitutional firewall between electoral verification, citizenship determination and immigration enforcement.
The Court was also informed that the FRRO had passed a deportation order after the High Court had already intervened in the matter and while the proceedings were pending. This development appeared to concern the Bench because the very legality of the detention and proposed deportation was before the Court. The State sought to have the petitioner approach the FRRO against the administrative order, but the Court declined to simply redirect the matter in that fashion, observing that the police had detained the man and that the detention memo itself had originated from the police authorities. The Court’s response indicates that an authority cannot necessarily cure an earlier challenge to detention merely by subsequently passing another administrative order when the legality of the underlying custody remains under judicial examination.
There is a larger principle of administrative law at work here. Executive action must be traceable to a lawful source of power, and the authority exercising that power must satisfy the conditions attached to it. A deportation order cannot be treated as a self-proving document. The authority must be able to show the factual material and statutory basis supporting the conclusion that the individual is a foreigner liable to be removed. If the order is based upon material that does not legally establish nationality, the mere existence of the order does not resolve the constitutional challenge. Judicial review in such circumstances is not an interference with immigration policy; it is an examination of whether the policy has been implemented through lawful means.
The Court’s concern over the duration of detention is equally significant. Preventive or administrative detention cannot become indefinite custody simply because the authorities are still attempting to establish a person’s identity or nationality. The longer detention continues, the greater becomes the need for a demonstrable legal basis and meaningful review. Article 21’s protection against arbitrary deprivation of liberty is not suspended because an individual is suspected of being a foreign national. Even where the State ultimately possesses the power to deport, detention pending that process must remain connected to a lawful purpose and must be subject to procedural safeguards.
Indian constitutional law has repeatedly recognised that personal liberty cannot depend upon the convenience of the executive. The Supreme Court’s post-Maneka Gandhi jurisprudence has transformed Article 21 from a narrow procedural guarantee into a substantive protection against arbitrary State action. Immigration control may involve special considerations of national security and territorial sovereignty, but those considerations do not create a constitutional vacuum. A person suspected of illegal entry remains entitled to fair treatment, lawful procedure and judicial scrutiny where detention becomes prolonged or the evidentiary basis for removal is questioned.
The present case also demonstrates why nationality proceedings should not be confused with criminal proceedings. The State may have reasons to investigate whether a person entered India unlawfully, whether identity documents were fabricated or whether immigration laws were violated. Those are legitimate subjects of investigation. But an allegation of document fraud is not identical to proof of Bangladeshi nationality, just as an allegation of illegal entry is not necessarily equivalent to proof that every subsequent document or claim made by the individual is false. Each proposition requires its own evidentiary foundation. Conflating them can result in a chain of assumptions in which suspicion becomes evidence, evidence becomes finding and finding becomes the basis for detention and deportation without any stage receiving meaningful independent scrutiny.
The problem becomes more complex in border districts where family histories, documentation and migration patterns may extend across generations. A person born and raised in India may have incomplete records concerning an ancestor’s migration. Conversely, a person who has entered India illegally may possess documents that appear authentic on their face. Neither circumstance permits the State to abandon individualised inquiry. The law has to distinguish between genuine cases of illegal immigration and cases in which documentation is imperfect because of historical, socioeconomic or administrative circumstances. A rule that treats documentary deficiency as conclusive proof of foreign nationality would risk disproportionately affecting precisely those communities in which documentation has historically been weak.
The High Court’s remarks should therefore not be interpreted as creating a judicial presumption in favour of every person claiming Indian nationality. The Court did not hold that a person cannot be deported merely because he has lived in India for a long period. Nor did it hold that historical migration into India is irrelevant. The point is narrower and legally more defensible: deportation requires a lawful determination based on relevant material, and detention cannot continue indefinitely without compliance with due process. The State retains the authority to investigate and, where the law permits, remove a foreign national. What it does not possess is an unrestricted power to decide nationality by administrative assertion alone.
The proceedings also illustrate the delicate balance courts must maintain in cases involving illegal immigration. On one side lies the State’s constitutional responsibility to protect India’s territorial integrity and enforce immigration laws. Unregulated illegal migration can have consequences for national security, demographic administration, public resources and electoral processes, and the State cannot be expected to ignore credible evidence of unlawful entry. On the other side lies the possibility that an aggressive enforcement mechanism may mistakenly classify an Indian citizen as a foreigner. The consequences of the latter error are not merely administrative; they can involve detention, loss of livelihood, separation from family and forced removal from the country with which the individual claims a genuine legal connection.
The recent sequence of cases from West Bengal makes this tension particularly visible. Earlier proceedings before the Calcutta High Court have involved persons detained on suspicion of Bangladeshi nationality even though their families claimed Indian residence and documentation. In one recent matter, the Indian Express reported that a Murshidabad woman approached the High Court after her husband, a farmer, was detained on August 8 on suspicion of being an illegal Bangladeshi immigrant; his family maintained that he had Indian identity and property documents, while the State alleged that he had entered India illegally and procured forged credentials. The factual dispute in such cases demonstrates precisely why the determination of nationality cannot be replaced by a presumption arising from one disputed document or one administrative classification.
There is also an important institutional lesson in the Court’s decision to release the present writ petition and direct that it be placed before the appropriate Bench dealing with SIR-related matters, with the matter now slated to be placed before Justice Krishna Rao on October 14. The move does not decide the substantive dispute but recognises the overlap between the detention issue and the larger electoral-roll litigation. Such coordination is valuable because fragmented adjudication of the same person’s nationality before different authorities can create contradictory conclusions and make effective judicial remedies difficult to secure.
Ultimately, the Calcutta High Court’s intervention brings the debate back to a principle that should remain non-negotiable irrespective of the political sensitivity surrounding illegal immigration: the State must prove before the law what it asserts before the public. If a person is a foreign national, the law provides mechanisms to establish that status and to remove him where the statutory requirements are satisfied. If the person claims to be an Indian citizen, that claim can be tested through the legally competent process. But neither suspicion, electoral deletion, disputed identity documents nor statements of relatives can simply be allowed to substitute for that process. The question posed by Justice Bhattacharyya about those who crossed the border decades ago is therefore more than a rhetorical challenge. It exposes the central difficulty of contemporary nationality enforcement in India: historical migration may be a fact, illegal immigration may be a genuine concern, but constitutional government requires that individual liberty and nationality be determined through evidence and due process rather than through assumptions. Until that distinction is maintained, the power to deport may risk becoming, in individual cases, the power to decide a person’s identity first and ask the law to justify it afterwards.
