Supreme Court Clarifies Bail Mechanism
The Supreme Court has modified its earlier Migrant Bail Release Order concerning foreign nationals detained in West Bengal correctional homes. Many of these detainees have already completed their prison sentences. However, they continue to remain in custody because authorities have not completed their deportation process.
On August 31, 2026, a three-judge Bench clarified the procedure for their conditional release. Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana formed the Bench.
The Court directed authorities to read “jurisdictional trial court” alongside or in place of “Foreigners’ Tribunal” in the relevant bail conditions.
This clarification became necessary because West Bengal does not have functional Foreigners’ Tribunals to supervise the process. Advocate Soutik Banerjee brought the issue before the Court through a clarification application.
Case Originated From 2011 Communication
The litigation began with a communication sent to the Chief Justice of the Calcutta High Court in 2011. The petitioner highlighted the prolonged detention of suspected Bangladeshi migrants.
These individuals allegedly remained in correctional homes even after completing their sentences under the Foreigners Act. Delays in deportation prevented their release.
Consequently, the Calcutta High Court initiated suo motu proceedings. The matter later reached the Supreme Court in 2013.
A Bench led by Justice J.B. Pardiwala subsequently suggested that the Court tag the case with pending Rohingya-related petitions.
Conditions for Release of Detainees
The earlier order allowed conditional bail for detainees who remained in custody for more than three years after completing their sentences.
However, the Court attached several safeguards to their release.
First, each detainee must execute a personal bond of ₹1 lakh. They must also provide two sureties for the same amount. Recognised Indian citizens must provide those sureties.
Second, the detainee must submit a clear and verifiable local residential address.
Third, authorities must record biometric details before release. These include ten fingerprints and photographs. Authorities may also collect iris scans where facilities are available.
Fourth, every released person must report weekly to a designated police station. The relevant judicial authority will identify that police station.
Finally, the detainee must immediately inform the police about any change in residential address.
Trial Courts Replace Foreigners’ Tribunals
The latest clarification mainly concerns the supervision of these conditions.
Under the earlier framework, the Superintendent of Police (Border) had to submit quarterly compliance reports to a Foreigners’ Tribunal. The tribunal would monitor appearances and compliance with bail conditions.
Additionally, authorities had to produce a detainee before the tribunal if that person violated the conditions.
However, this mechanism created practical problems in West Bengal because the state lacks functioning Foreigners’ Tribunals.
Therefore, the Supreme Court transferred these responsibilities to jurisdictional trial courts. Local courts can now examine compliance reports and deal with violations of release conditions.
Court Addresses Practical Implementation Problem
The revised Migrant Bail Release Order seeks to remove an administrative obstacle that prevented implementation of the earlier directions.
The clarification does not remove the existing safeguards. Instead, it changes the authority responsible for supervising them in West Bengal.
As a result, jurisdictional trial courts can now perform the functions previously assigned to Foreigners’ Tribunals. This allows authorities to process conditional releases without waiting for a specialised tribunal that does not exist in the state.
Case Continues Before Supreme Court
The proceedings continue before the Supreme Court in Ms. Maja Daruwala and Anr. v. Union of India | T.C.(Crl.) No. 1/2013.
The case raises broader questions about prolonged detention after completion of a criminal sentence. It also highlights the practical difficulties surrounding deportation and judicial supervision of foreign nationals.
Through its latest clarification, the Supreme Court has attempted to ensure that procedural gaps do not prevent implementation of its conditional release directions.
