Detention of non-citizens and the rule of law

In this photo from August 28, 2019, people are waiting in the foreign court office in Barpeta, Assam. Only 26 declared foreigners have been deported since 2017 – although as of December 31, 2023, the state's foreigners court announced 1,59,353 foreigners. |Picture source: AP

IIn the National Security Act of 1980 and the Foreigners Act of 1946, those deemed non-citizens can be detained. Detained non-citizens can spend years in detention camps with sustained uncertainty and harsh conditions.

Experience in Assam

In Assam, 1.9 million people were deprived of citizenship in the compilation of the National Register of Citizens (NRC). Many people deprive their citizenship through this process. Most of these “non-citizens” cannot be evacuated from India – because they have lived in India all their lives and have no meaningful or persistent connection with any other country. They were deprived of their citizenship through unfair procedures. They were asked to prove their citizenship through their family’s residence in India before 1971, although the documents are inaccessible to many and may be lost or destroyed in Assam where floods are prone to. Many of their files are rejected due to misspellings or different versions of their names, although such documents are common throughout India.

India's arbitrary and indefinite detention of non-citizens, including those deprived of citizenship by the NRC, is being questioned in the Supreme Court Rajubala Das v. Union of India (2020). Similar programs Australia sues minister in NZYQUsed for immigration,,,,, Citizenship and multicultural affairs (2023) led the High Court to prohibit indefinite detention of non-citizens, who have no realistic prospects to evacuate them from Australia, maintaining important constitutional restrictions on deprivation of liberty. Whether similar restrictions have important implications for the rule of law and judicial independence in India.

In Indian law, the primary basis for depriving a person of freedom, if not the only basis, is that the person is convicted of a criminal offence and sentenced by the court, or where they are detained, or in custody at trial and sentence. That is, they have been detained or detained with the exercise of judicial power.

Therefore, deprivation of liberty is a form of punishment. In addition to being punished, there are many reasons why a person can be detained; the most obvious example is preventive detention under article 22 of the Constitution. But, like in Australia, these purposes are limited and limited, including Article 22 itself, an important part of India's common law legacy. A person cannot be detained for any reason. In Indian law, in some cases, institutions other than courts (such as courts) may exercise judicial powers. But the power of detention is under the control and supervision of the state courts.

Violation of principles

Non-citizens violate these principles in their current form of detention in Assam. The detained person has not been convicted of any crime or sentenced to any imprisonment. It is not possible to seriously claim that they were detained in order to evacuate them from India. To answer questions raised in the Assam legislative assembly, it is acknowledged that only 26 declared foreigners have been deported since 2017 – although as of December 31, 2023, the foreigners court in the state announced 1,59,353. Recently, the Centre informed the Supreme Court that 13 more Bangladeshi nationals have been deported. But only a small percentage of those detained, not to mention those deprived of citizenship, were removed from India. Most non-citizens who are detained cannot be deleted because they are citizens of no other country and no other country will accept it.

There is no legal reason

In recent orders Rajubala Dasthe Supreme Court has ordered deportation even if the address of the detainee in the country being deported is not verified. This is not the answer to this dilemma. In order to delete a detainee, his nationality must be verified, and the deported country must be willing to accept it. Detainees must be provided with travel documents to enable them to enter the country. But none of this will happen for detainees who have no other country to call home. In Australia, people in similar positions (i.e., those who have not been evacuated from Australia have no realistic possibility) cannot be detained because their detention will not be able to achieve any legal purpose.

Therefore, non-citizens will not be detained as punishment, pending trial, or evacuation from India, or for any other recognized “preventive” purpose, or for any guarantee of preventive detention as provided for under article 22 of the Constitution. They were detained just for the sake of being detained. This is not a recognized or legal cause for deprivation of his freedom under Article 21, whether the person is a citizen or a non-citizen.

Therefore, the immigration detention system in Assam is not only a threat to the freedom and well-being of those trapped in it; it raises important questions about constitutional principles. Traditionally, deprivation of liberty is the power exercised and controlled by the courts.

If the executive and legislature violates the traditional role of the court, it poses a real threat to the rule of law.

Douglas McDonald-Norman, PhD candidate at the University of New South Wales