Detaining Non-Citizens & the Rule of Law

Assam’s immigration detention regime is not just a threat to the liberty and well-being of those caught up within it; it also raises important questions of constitutional principles.

Indefinite Detention of Non-Citizens in India

• Under the National Security Act, 1980 and Foreigners Act, 1946, non-citizens in India can face prolonged detention, often without a clear legal purpose or timeline.

Assam NRC Crisis

• Exclusion from the NRC: In Assam, 19 lakh people were excluded from the National Register of Citizens (NRC).
• Unjustified Foreigners Declaration: Many were declared foreigners despite lifelong residence in India and lack of ties abroad.
• Unreasonable Documentation Demands: Pre-1971 proof requirements were unreasonable, especially in flood-prone areas, with minor errors in names leading to rejection.

Arising Concerns

• Legal Challenges:
  • Supreme Court Challenge: In Rajubala Das v Union of India (2020), India’s Supreme Court was asked to assess the constitutionality of indefinite detention.
  • Global Precedent – Australia’s High Court: In Australia, the High Court ruled in NZYQ (2023) that non-citizens cannot be detained without a realistic prospect of deportation — a principle grounded in constitutional limits on liberty.
• Violation of Legal Principles:
  • Legal Basis for Deprivation of Liberty: Indian law ties deprivation of liberty to judicial power, criminal conviction, or lawful preventive detention (under Article 22).
  • Indefinite Detention in Assam: Assam’s detainees are not charged, not convicted, and not removable — yet remain in detention camps.
• Lack of Deportation Mechanism:
  • Ineffective Deportation: Since 2017, only 26 foreigners have been deported from Assam, out of over 1.59 lakh declared.
  • Deportation Impossibility: Many have no other country willing to accept them — making removal impossible.
• No Legitimate Detention Purpose:
  • Lack of Legitimate Detention Purpose: Detention is not punishment, not preventive, and not for deportation.
  • Violation of Constitutional Rights: It thus violates Article 21 of the Constitution, which guarantees protection of life and personal liberty.
• Humanitarian & Ethical Concerns:
  • Old, poor, and innocent people jailed without crime.
  • Denied basic dignity, legal aid & recognition.
  • No time limit – families separated indefinitely.
  • Ethical dilemma: State vs individual liberty.
  • Raises questions on constitutional morality & human rights.

Constitutional Implications

• Undermining Judicial Authority: The executive’s control over detention undermines the judiciary’s traditional role.
• Threat to Rule of Law: This poses a serious threat to the rule of law and constitutional governance.

Conclusion

The indefinite detention of non-citizens in Assam violates Article 21, undermines the rule of law, and raises serious constitutional concerns. Reforms and judicial oversight are essential to restore justice and protect fundamental rights.