Assam Detention Centres: SC Just Stopped Short Of Issuing Non-bailable Warrant To Chief Secretary

The Supreme Court on Monday reprimanded the state of Assam for its submission that thousands of illegal immigrants declared as foreigners by its Foreigners Tribunals have absconded and merged with the general public.

The bench headed by Chief Justice Ranjan Gogoi was also miffed by the absence of the state's Chief Secretary from the court. As Solicitor General Tushar Mehta personally undertook to assure his presence next Monday, the bench just stopped short of issuing a non-bailable warrant against the official, though making it categorical that the Chief Secretary shall now make himself readily available until otherwise allowed by the court.

The bench was hearing a PIL filed by activist Harsh Mander through advocate Prashant Bhushan on the plight of foreigners in detention centres. The plea alleges that they were kept in detention indefinitely just because they were not Indians and were treated as "illegal aliens".

"You are saying that the declared foreigners have gone untraceable? How do you intend to identify them and deport them? And what would be the situation as to those against whom the proceedings are pending?", inquired the Chief Justice.

"The state government is just playing with the court! Your affidavits are futile!", remarked an upset Chief Justice, even as the SG sought to convince the court that the Assam government is at the top of the problem at hand.

In respect of the policy of push-back followed until a few year back by way of deportation of the immigrants, Chief Justice Gogoi commented.

On March 13 also, the court had come down heavily on the state government, directing it to reveal the number of persons declared as foreigners by the Tribunals ever since their reconstitution in 2005, the number of persons held in custody in detention centres and the number of persons sent back to their countries of origin- "This has gone too far! This has become a joke! We are not even told that this is the total number of foreigners who have been detected! You say they mingle with the public and are not traceable, so there must be an ex-parte order? Against 60000 cases, you have 800 people (in detention centres)?!...How long are these cases pending?...How are these people manning the Tribunals? How are they are doing this job? Who are the Presiding Officers- How many are advocates, how many are retired judicial officers?...How many tribunals are felt necessary by the state?", Chief Justice Gogoi had rebuked. 

The petition submits that in the absence of a formal agreement between the government of India and the government of Bangladesh on deportation and repatriation of declared foreigners who are identified by Foreigners Tribunals as Bangladeshis and kept in detention, their incarceration is indefinite, arbitrary and violative of Articles 14 and 21. The petition is primarily based on the findings of "deplorable conditions" in such centres, as recorded in the report prepared for the National Human Rights Commission (NHRC) by Mr. Mander himself. The report also highlights various rights violations of detainees, including their right to health, education, family unity, work and recreation and access to legal services.

The petition further points out that while on one hand, the government has wide powers of deportation under the law, on the other hand, there are no clear procedures in place for ascertaining nationality of suspected 'illegal immigrants' and their subsequent deportation to the country of confirmed nationality. This, it says, compounds the problem of pushbacks of alleged illegal immigrants, leading to violation of International law commitments.

Furthermore, the petition notes that the legal basis for such detention stems from Section 2 and 3(2)(e) of the Foreigners Act, 1946 and Para 11(2) of the Foreigners Order, 1948, under which the Government of India has authorized the Government of Assam to set up such detention centers. It, however, asserts that the capacity for indefinite detention is arbitrary and violative of Articles 14 and 21 of the Constitution of India. Besides, the Constitutional provisions, it says, are also violated when people are sent to immigration detention without giving them reasonable opportunity of being heard. Additionally, the petition demands safeguards for juveniles in immigration detention, as well as seeks adherence to various international law principles, treaties and conventions for such detention.