Context and Legal Basis
- Legal Instruments Used: Detention of non-citizens in India is primarily carried out under:
- Foreigners Act, 1946
- National Security Act (NSA), 1980
- Assam NRC Impact: 19 lakh people excluded from the National Register of Citizens (NRC), many declared non-citizens and subjected to detention.
Relevance : GS 2(Governance, International Relations)
Constitutional and Judicial Principles
- Article 21: Guarantees protection of life and personal liberty to all persons (citizens and non-citizens).
- Article 22: Provides safeguards against arbitrary preventive detention, including:
- Right to be informed of grounds of arrest
- Right to consult a legal practitioner
- Right to be presented before a magistrate within 24 hours
- Judicial Power & Common Law Tradition:
- Liberty can only be curtailed through judicial process or preventive detention under strict constraints.
- Detention should be purpose-driven (trial, punishment, or legitimate preventive need).
Assam Detention Practices: Violations & Concerns
- Violation of due process:
- Detainees not charged or convicted of any criminal offence.
- Citizenship stripped on documentary grounds often flawed (e.g., spelling errors, floods destroying records).
- Indefinite & Arbitrary Detention:
- No realistic prospect of deportation — only 39 deportations since 2017 against 1.59 lakh declared ‘foreigners’.
- No legitimate purpose: Detention serves no penal, preventive, or removal purpose — making it constitutionally void under Article 21.
Backward Linkages
- ADM Jabalpur v. Shivkant Shukla (1976): Earlier upheld suspension of liberty during Emergency; later criticised.
- Maneka Gandhi v. Union of India (1978): Landmark ruling that any procedure depriving liberty must be “just, fair, and reasonable.”
- K.S. Puttaswamy (2017): Reaffirmed Article 21’s expansive protection of liberty and dignity.
- International Human Rights Norms:
- Violates Article 9 of ICCPR: Prohibition against arbitrary detention.
- UNHCR standards discourage detention where repatriation is not possible.
Comparative Jurisprudence
- Australia – NZYQ Case (2023):
- High Court held indefinite detention without realistic removal prospects unconstitutional.
- Reinforces judiciary’s role in guarding liberty.
- India – Rajubala Das v. Union of India (2020):
- Challenge to NRC-related detention pending.
- Raises question: Can India indefinitely detain stateless individuals?
Larger Implications
- Threat to Rule of Law:
- Executive overreach undermines separation of powers and judicial oversight.
- Weakens constitutional commitment to liberty, fairness, and legality
- Humanitarian Crisis:
- Statelessness leads to permanent legal limbo, with no rights and no nationality
- Need for Legal Reform:
- Update Foreigners Act, 1946 to align with modern constitutional jurisprudence and human rights standards.
