Answer

The indefinite detention of ‘declared foreigners’ under the Foreigners Act, 1946 and National Security Act, 1980 raises serious constitutional, legal, and humanitarian concerns in a democracy. The Assam NRC exclusion crisis has highlighted systemic issues in documentation, due process, and rights protection.

Legal Challenges in a Constitutional Democracy

• Violation of Article 21: Detentions without charge or conviction breach the right to life and personal liberty under Article 21.
• Absence of Judicial Oversight: Detentions driven by executive discretion bypass courts, undermining judicial authority and due process.
  Example: In Rajubala Das v Union of India (2020), the SC was petitioned to assess constitutionality of such indefinite detention practices.
• Preventive Detention Misuse: The NSA and Foreigners Act allow prolonged detention without realistic deportation, lacking legal clarity.
• Lack of Deportation Viability: Without bilateral repatriation, detention serves no legitimate legal purpose, turning into punishment.
  Example: Since 2017, only 26 foreigners have been deported from Assam, despite over 1.59 lakh declared foreigners.
• Breach of Constitutional Morality: Detaining people with no foreign ties or criminal charges erodes constitutional morality and legal safeguards.
  Example: Many detainees in Assam are lifelong residents, often elderly, declared foreigners due to minor documentation errors.

Humanitarian Challenges in a Constitutional Democracy

• Denial of Human Dignity: Detainees face inhumane conditions without access to legal aid or social protections.
  Example: In Assam’s detention centres, aged and poor individuals are jailed without crime, denied basic human dignity.
• Family Separation & Trauma: Indefinite detention splits families, causing psychological trauma and social alienation.
  Example: Many declared foreigners are separated from their kin indefinitely, often with no recourse or appeal mechanism.
• Documentation Injustice: Unreasonable demands for pre-1971 proof, especially in disaster-hit areas, result in wrongful detentions.
  Example: Minor spelling errors on legacy documents led to people being unjustly excluded from the NRC.
• Loss of Livelihood and Identity: Detainees lose access to welfare, jobs, and civil identity, living in a state of statelessness.
  Example: Many declared foreigners are denied ration, Aadhaar, and bank access, compounding economic and social exclusion.
• Erosion of Human Rights Standards: Practices violate India’s international obligations under UN human rights conventions.
  Example: India is a signatory to International Covenant on Civil and Political Rights(ICCPR), yet indefinite detention without judicial review contradicts international human rights norms.

Way Forward

• Time-Bound Judicial Review: Mandate periodic court review of detentions to prevent arbitrary and prolonged custody.
  Example: Set a statutory 3-month review cycle for each case under judicial supervision to uphold due process.
• Bilateral Agreements for Deportation: Establish clear repatriation protocols with neighbouring countries to enable feasible deportation.
  Example: India must negotiate repatriation deals with countries like Bangladesh, avoiding indefinite custody without removal options.
• Rehabilitation for Stateless Persons: Create legal pathways for long-term residents without citizenship to gain residency rights.
• Humanitarian Detention Standards: Ensure minimum rights like legal aid, health care, and communication access in detention centres.
  Example: Implement Model Detention Centre Rules (2021) with regular inspections by state human rights commissions.
• Legal Aid and Documentation Assistance: Offer legal support to help citizens correct documentation and avoid wrongful detention.
  Example: Deploy NRC Seva Kendras and paralegal volunteers to assist in document verification and appeals.

Prolonged detention under the Foreigners Act and NSA undermines constitutional rights, rule of law, and humanitarian standards. Legal reform, judicial oversight, and humane policy interventions are essential to balance sovereignty with individual liberty in a constitutional democracy.

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