M & Z Legal – Advocates & Solicitors
Introduction
India occupies a distinctive position in international refugee law. Despite hosting refugees and asylum seekers from several countries, India is neither a signatory to the 1951 Convention Relating to the Status of Refugees nor a party to its 1967 Protocol.
The absence of a comprehensive domestic refugee statute has resulted in a legal framework in which refugees and asylum seekers are largely regulated through immigration legislation, executive policies and constitutional principles.
An important question arises when a foreign national who claims a genuine fear of persecution in their country of origin is arrested for immigration-related violations, subsequently granted bail by a competent criminal court, but continues to be confined in a Special Camp pursuant to an executive order.
Does the grant of bail confer a right to be released from such confinement? Can the executive continue to restrict a refugee’s liberty independently of criminal proceedings? What constitutional safeguards apply to such restrictions?
These questions require a careful examination of Articles 14 and 21 of the Constitution, India’s immigration laws and the international principle of non-refoulement.
I. The Constitutional Position of Foreign Nationals
Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except according to procedure established by law.
The deliberate use of the expression “person”, rather than “citizen”, is significant.
Foreign nationals within Indian territory are entitled to the protection of Article 21, notwithstanding their immigration status.
In Louis De Raedt v. Union of India, (1991) 3 SCC 554, the Supreme Court recognised that foreigners are entitled to the protection of Article 21 while also affirming that they do not possess a fundamental right to reside and settle in India under Article 19(1)(e).
This distinction forms the foundation of the constitutional analysis.
The State possesses extensive powers to regulate the entry, residence and departure of foreign nationals. However, the exercise of such powers remains subject to applicable constitutional safeguards.
The absence of a fundamental right to settle permanently in India does not mean that a foreign national may be deprived of personal liberty without lawful authority and constitutionally permissible procedure.
II. Criminal Prosecution and Executive Confinement: Two Distinct Legal Processes
An immigration-related prosecution and an executive order restricting a foreign national’s residence are legally distinct.
A foreign national may be prosecuted for alleged violations of immigration law and may simultaneously be subject to administrative restrictions imposed under the applicable statutory framework.
The grant of bail ordinarily releases the accused from criminal custody subject to conditions imposed by the competent court.
However, it does not automatically invalidate a separate executive order issued under an independent statutory power.
This creates an important legal question. Where the criminal court has determined that continued custodial detention is unnecessary for the purposes of the prosecution, what is the justification for continued confinement under an executive order?
The answer cannot depend merely upon the existence of an administrative order.
The legality of the restriction must be examined with reference to the statutory source of power, the nature and extent of confinement, the purpose sought to be achieved and the constitutional requirement of a fair and reasonable procedure.
III. The Legal Character of Special Camp Confinement
Special Camps established for foreign nationals occupy a legally complex position.
The executive may describe such arrangements as restrictions upon residence or movement rather than imprisonment.
However, the constitutional analysis should not depend exclusively upon the terminology employed in an executive order.
The actual conditions of confinement are relevant.
Where a person is required to remain within a secured facility, cannot freely leave, faces restrictions upon communication and is subject to continuous supervision, the practical consequences may resemble custodial detention.
A court examining the legality of such restrictions must therefore consider both the statutory character of the order and the actual degree of interference with personal liberty.
The distinction between regulating a foreign national’s place of residence and imposing a deprivation of liberty is constitutionally significant.
IV. The Effect of Bail on Continued Confinement
The grant of bail is an important consideration, but not necessarily conclusive.
Bail granted in criminal proceedings does not extinguish an independently valid immigration restriction.
Nevertheless, continued confinement after bail raises legitimate questions concerning necessity, proportionality and the availability of less restrictive alternatives.
For example, where the foreign national has a verifiable residential address, undertakes to cooperate with the authorities, agrees to periodic reporting and is willing to comply with reasonable conditions, the necessity of continued confinement may require closer scrutiny.
The central issue is whether the executive restriction remains justified by a lawful purpose or whether it imposes a disproportionate burden upon personal liberty.
A constitutional challenge must therefore address the legal validity of the executive order itself rather than proceed solely on the assumption that bail automatically requires release from the Special Camp.
V. Refugee Recognition and Its Legal Significance
Recognition by the United Nations High Commissioner for Refugees (UNHCR) may constitute relevant evidence that a foreign national has a credible claim to international protection.
However, UNHCR recognition does not, by itself, confer Indian citizenship, a residence permit or an unconditional statutory right to remain in India.
The legal significance of refugee recognition must therefore be understood within the framework of Indian law.
Nevertheless, where an individual possesses recognised refugee status and claims a genuine fear of persecution upon return, that circumstance deserves consideration in administrative decisions concerning removal, deportation and restrictions on liberty.
The existence of refugee recognition may also be relevant when assessing whether the individual should be provided an opportunity to pursue available immigration regularisation procedures.
VI. The Principle of Non-Refoulement
Non-refoulement is a foundational principle of international refugee protection.
Broadly stated, it prohibits returning an individual to a territory where they face a qualifying risk of persecution or serious harm.
Although India is not a party to the Refugee Convention, questions concerning non-refoulement arise through constitutional protections and India’s obligations under other international human rights instruments.
India is a party to the International Covenant on Civil and Political Rights (ICCPR), including its protections concerning the right to life and freedom from torture or cruel, inhuman or degrading treatment.
The United Nations Human Rights Committee has interpreted the ICCPR as imposing obligations concerning removal to places where there is a real risk of irreparable harm.
In Nandita Haksar v. State of Manipur, decided on 3 May 2021, the Manipur High Court considered the protection of Myanmar nationals seeking refuge in India and examined the relationship between non-refoulement and Article 21.
However, the position must also be considered in light of the Supreme Court’s decision in Mohammad Salimullah v. Union of India, order dated 8 April 2021, in which the Court declined to grant the requested interim protection against deportation of Rohingya detainees, while requiring that deportation follow the procedure prescribed by law.
Accordingly, it would be inaccurate to suggest that Indian courts have uniformly recognised an absolute and independently enforceable right of non-refoulement in every case.
The scope of protection remains legally contested and depends upon the applicable statutory framework, constitutional principles and the particular facts.
VII. The Immigration and Foreigners Act, 2025: A Changing Statutory Framework
The Immigration and Foreigners Act, 2025 introduces an important dimension to the discussion.
The legislation consolidates and replaces several earlier enactments governing foreigners and immigration, including the Foreigners Act, 1946, subject to the commencement, repeal and savings provisions.
Where an alleged immigration violation commenced before the new legislation came into force but continued thereafter, questions may arise concerning the applicable statutory provisions and the effect of the savings clause.
A distinction must be drawn between liability for conduct committed under the earlier legislation and the legal authority governing subsequent executive action.
The commencement of new legislation does not necessarily extinguish proceedings or liabilities validly incurred under a repealed statute.
Equally, restrictions imposed after the commencement of the new legal framework must be supported by an applicable and legally effective source of authority.
These transitional questions assume particular importance in cases involving prolonged residence restrictions or confinement.
VIII. Proportionality and Alternatives to Confinement
The principle of proportionality provides a useful constitutional framework for examining restrictions on personal liberty.
An executive restriction should have a legitimate legal objective, bear a rational connection to that objective and be examined for whether less restrictive measures can adequately achieve the same purpose.
In immigration-related matters, relevant considerations may include the risk of absconding, identity verification, availability for criminal proceedings, cooperation with immigration authorities and the practical possibility of removal.
Where a person can be adequately supervised through residential conditions, periodic reporting, travel restrictions or other lawful measures, continued confinement may raise questions of proportionality.
This does not mean that every foreign national must be released upon furnishing an address.
Rather, it highlights the importance of an individualised assessment instead of an automatic or indefinite restriction unsupported by continuing necessity.
IX. The Practical Difficulties of Immigration Regularisation
An additional concern arises where a foreign national seeks to regularise their immigration status but is unable to access essential identity or travel documents because those documents remain in the custody of investigating authorities.
Such circumstances may create an administrative impasse.
The individual may be required to produce documents for immigration processing while simultaneously being unable to obtain those documents without official assistance.
Where regularisation is legally available, the authorities should consider mechanisms that permit verification, production of certified copies or controlled access to documents without compromising legitimate investigative requirements.
Administrative difficulties should not unnecessarily obstruct compliance with the law.
X. Conclusion
India’s sovereign authority to regulate the presence of foreign nationals is well established.
However, that authority must be exercised within the framework of constitutional protections, statutory powers and applicable legal procedures.
The grant of bail does not automatically invalidate an independent immigration restriction. Equally, an executive order cannot be treated as immune from judicial scrutiny merely because the person affected is a foreign national.
The legality of Special Camp confinement must be examined through the statutory source of authority, the actual conditions of restriction, its continuing necessity and the constitutional protection of personal liberty.
Where a recognised refugee faces a credible risk of persecution upon return, the need for careful and individualised consideration becomes particularly compelling.
The broader challenge for Indian refugee jurisprudence is to reconcile legitimate immigration enforcement with the constitutional proposition that the right to life and personal liberty belongs to every person within the protection of Indian law.
