Context:

Assam’s immigration detention system jeopardises the liberty and welfare of detainees and raises significant concerns regarding its adherence to fundamental constitutional principles and values.

Detention of Non-Citizens in India: Legal Framework

Key Legal Provisions for Detention

• Foreigners Act, 1946: This law allows the government to detain and deport individuals deemed to be foreigners if they lack valid documents. Many individuals in Assam, labeled as “foreigners” by Foreigners Tribunals, have been detained under this Act.
  
  
• National Security Act (NSA), 1980: Under this law, individuals can be detained without trial for up to 12 months if they are deemed to pose a threat to national security or public order. Non-citizens, especially those suspected of disturbing public order, are often detained under the NSA.
  
  
• Passports Act, 1967: This Act penalizes individuals who enter or remain in India without a valid passport or travel documents. It is frequently applied in conjunction with the above laws, leading to detention prior to deportation proceedings.
  
  

Assam NRC Crisis

• Exclusion from NRC: The National Register of Citizens (NRC) in Assam excluded 19 lakh people, many of whom were lifelong residents of India but were declared foreigners despite no ties abroad.
  
  
• Unjustified Foreigners Declaration: Several individuals were declared non-citizens based on minor errors in documentation, such as names, especially when required to prove pre-1971 residence in flood-prone areas.
  
  
• Unreasonable Documentation Demands: The pre-1971 proof requirements were often difficult to meet, causing widespread exclusion of citizens from the NRC.

Legal and Human Rights Concerns in Assam’s Detention Practices

Legal Challenges and Constitutional Violations:

• Supreme Court Challenge (Rajubala Das v Union of India, 2020): This case challenged the constitutionality of indefinite detention of non-citizens in Assam. The Supreme Court was tasked with evaluating whether such detention violated the fundamental rights enshrined in the Indian Constitution.
  
  
• Global Precedent – Australia (NZYQ v Minister for Immigration, 2023): The High Court of Australia ruled that non-citizens cannot be detained indefinitely unless there is a realistic prospect of deportation. This principle draws from the global understanding of constitutional limits on liberty and emphasizes the need for legal justification for prolonged detention.
  
  
• Violation of Article 21: The detention practices in Assam, where detainees are neither charged nor convicted, violate Article 21 of the Constitution, which guarantees the right to life and personal liberty. As the detention serves no legitimate purpose (punitive, preventive, or for deportation), it is deemed constitutionally void.
  
  

Lack of Deportation Mechanism:

• Ineffective Deportation: Out of over 1.59 lakh declared foreigners in Assam, only 26 have been deported since 2017. This highlights the inefficiency and impossibility of deporting many individuals who have no country willing to accept them.
  
  
• Deportation Impossibility: Many detainees cannot be deported because they have no legitimate nationality or accepting country, making their detention indefinite and unjustifiable under international law.
  
  

Humanitarian and Ethical Concerns:

• Vulnerable Detainees: Elderly, poor, and innocent individuals are imprisoned without charge, denied basic rights like legal aid, and subjected to inhumane conditions in detention camps.
  
  
• Separation of Families: The lack of a time limit on detention results in the indefinite separation of families, raising significant ethical and moral dilemmas regarding the balance between state control and individual liberties.
  
  

International Human Rights Norms:

• Violation of ICCPR (Article 9): The International Covenant on Civil and Political Rights prohibits arbitrary detention, and the indefinite detention of non-citizens in Assam clearly contravenes this standard.
  
  
• UNHCR Standards: International refugee and human rights norms discourage the detention of individuals when repatriation is not feasible, further exacerbating the humanitarian crisis in Assam.

Why have so many people in Assam lost their citizenship as a result of the NRC? Stringent Documentation Requirements: Applicants had to provide official documents to prove their ancestry prior to March 24, 1971. For example, many rural residents were unable to provide land or birth records from that time due to illiteracy or displacement.Natural disasters, particularly floods, resulted in the destruction or loss of important documents. For example, in flood-prone areas of Assam, many families lost old records several times over the course of decades.Minor discrepancies: Minor differences in names or spelling between documents resulted in rejection. For example, a person identified as "Rafiqul" in one document but "Rafiqul Islam" in another was flagged as suspicious.Exclusion of Marginalised Communities: The verification process disproportionately affected Bengali Muslims, women, and tribal groups without formal documentation. For example, patriarchal registration systems frequently left women without independent proof of lineage.Unfair and opaque procedures: Foreigners Tribunals rejected many claims without providing clear reasoning or an opportunity to appeal. Individuals were declared foreigners without being properly notified or heard by the tribunal.

Constitutional Implications:

• Undermining Judicial Authority: The executive's influence over detention challenges the judiciary's customary role.
• This poses a significant challenge to the rule of law and constitutional governance.

Conclusion

Indefinite incarceration of non-citizens in Assam violates Article 21, weakens the rule of law, and poses grave constitutional issues. Reforms and judicial scrutiny are vital for restoring justice and safeguarding fundamental rights.

Practice Questions Q. Discuss the legal and humanitarian issues of prolonged detention of "declared foreigners" under the Foreigners Act, 1946 and National Security Act, 1980 in a constitutional democracy.