Foreigners Act | Once Sentence Is Over, Prison Stay Becomes Illegal: Supreme Court Orders Bail for Foreign Nationals Detained Over 3 Years Post-Conviction

“You Can’t Keep Them in Jail Just Because You Have No Detention Centre”, In a powerful assertion of constitutional liberty and judicial restraint, the Supreme Court of India held that foreign nationals who have completed their sentence under the Foreigners Act, 1946 cannot be indefinitely detained in prisons due to pending deportation formalities or the absence of detention infrastructure.

The bench of Justices J.B. Pardiwala and R. Mahadevan delivered this order in Transferred Case (Criminal) No. 1 of 2013: Maja Daruwala & Anr. v. State of West Bengal & Anr., while directing the release on bail of all such detainees who have been imprisoned for more than three years post-sentence, in West Bengal.

“Undoubtedly, once a person has undergone the sentence, he cannot be kept in prison. But in the absence of a detention centre, illegal immigrants are still confined,” the Court noted, urging the State to urgently complete the construction of a dedicated correctional facility.

The PIL was filed by Ms. Maja Daruwala, a public rights advocate, highlighting the continued incarceration of several foreign nationals in West Bengal prisons, despite the completion of their sentences under the Foreigners Act, 1946. The challenge was directed against Clause 4 of Memo No. 241-43 FNB/12-01-06 (dated 06.03.2007) and Clause (iv) of Circular No. F1401/55/09-FVI (dated 23.11.2009), which allegedly allowed for post-sentence imprisonment pending deportation, despite no statutory support.

The petition also called for the overhaul of deportation and repatriation procedures, and the establishment of correctional homes specifically for foreign nationals.

At the heart of the case was the constitutional right to personal liberty under Article 21, and the legality of continued detention post-sentence without judicial order or a valid statutory mechanism.

The Court was categorical:

“If any person is tried, sentenced and has undergone the sentence, he cannot be kept in a prison... But being an illegal immigrant, he has to be kept in a correctional home/detention centre in its true sense.”

The Court was particularly troubled by West Bengal’s failure to establish any such facility. It noted that “the absence of correctional homes for illegal immigrants results in a de facto illegal detention regime.”

Addressing the constitutional validity of Clause 4 of the State’s 2007 memo, the Court refrained from making a final declaration, noting the matter was pending before a larger Bench. However, it underscored that “continued imprisonment merely for want of deportation arrangements is impermissible.”

Interim Relief and Structured Release Mechanism

Pending the outcome of the larger constitutional challenge in W.P. (C) No. 859/2013 (Jaffar Ullah & Ors. v. Union of India), the Court granted interim bail to foreign nationals in West Bengal who have remained in custody for over three years post-sentence. The bail conditions reflect safeguards adopted from previous rulings:

“(a) Bond with two sureties of ₹1,00,000 each; (b) verifiable address of stay; (c) biometric recording including iris and fingerprints; (d) weekly police station reporting; (e) quarterly reports by SP (Border) to Foreigners Tribunal.”

The Court directed the State authorities to identify all such detainees within four weeks, and ordered that once the new detention centre is complete, all such immigrants should be shifted out of prisons.

The Court emphasized that the release order would not apply to any immigrant facing prosecution in other pending criminal cases.

Matter Transferred to Larger Bench for Constitutional Review

Recognizing the sensitive foreign policy and humanitarian dimensions—especially in light of ongoing deportation proceedings of illegal immigrants from Bangladesh—the Court ordered that the present matter be tagged with W.P. (C) No. 859/2013 and related petitions already being heard by a larger Bench.

“Judicial propriety demands that when the very same issue is being looked into by a larger Bench, we should not say anything further in the matter,” observed the Court.

This judgment affirms the fundamental rights of even the most marginalized—foreign nationals without valid documentation—against arbitrary detention. The Supreme Court drew a clear constitutional boundary between justified preventive detention and unlawful post-sentence imprisonment, calling out the administrative vacuum in West Bengal and mandating immediate bail for those imprisoned beyond their sentence.

The ruling upholds the principle that liberty cannot be held hostage to administrative inertia.

“You cannot continue to keep a man in jail because your deportation process is slow and your detention centre is unfinished.”

Date of Decision: 16 May 2025