Deportation sans law: Jurisprudential framework on the right to compensation
Final part of the five-part series examining the forcible expulsion of Indian citizens to Bangladesh based on unverified suspicions of illegal migration, conducted without due process
Published on: 27 February 2026, 10:19 am
THE SUPREME COURT’S JURISPRUDENCE has made India’s reservation to the International Covenant on Civil and Political Rights (ICCPR) redundant. In a number of judgments, the Court has recognized granting compensation as a necessary public law remedy for violations of fundamental rights, including wrongful incarceration and arrests.
Unlawful arrests and detention not only cause loss of years, but can also create social stigma and ostracization even after being released.
Article 21 and the right to compensation
As India follows a common law system, its courts apply common law principles to determine the relationship between international law and municipal law. This approach has continued across the Executive, Legislature, and Judiciary since independence. Indian courts, particularly the Supreme Court and the various High Courts, have extended protection to refugees by invoking Article 21 of the Constitution.
The leading authority is State of Arunachal Pradesh v. Khudiram Chakma (1993), in which the appellants, along with a number of other Chakma refugees, asserted fundamental rights under Articles 21, 19(1)(d), and 19(1)(e), and sought the benefit of Sections 6(A) and 6(2) of the Citizenship Act 1955. The Supreme Court held that Article 21 applies to “any person,” including refugees present on Indian territory. By contrast, the Court ruled that Articles 19(1)(d) and 19(1)(e) can only be invoked by Indian citizens and are therefore unavailable to refugees.
Relying on Louis De Raedt v. Union of India (1991), the Court reaffirmed that foreigners, including refugees, are entitled to the fundamental right to life and personal liberty guaranteed under Article 21, but cannot rely on Article 19(1)(e), which is reserved for citizens.
While these refugee cases clarify the substantive reach of Article 21, the Court also expanded its remedial dimension, particularly in situations of unlawful deprivation of liberty. The development of a compensation jurisprudence is evident in Rudul Sah v. State of Bihar (1983), where the petitioner was arrested in 1953 for allegedly murdering his wife, acquitted in 1968, yet kept in jail for a further fourteen years until his release in 1982.
In Bhim Singh v. State of Jammu and Kashmir (1985), the Supreme Court recognized that an enforceable right to compensation is implicit in the guarantee of fundamental rights.