Jan 27, 202511:00 AM
Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1
This Republic Day, this article, the first in the series related to the illegal detention of foreigners in Assam, examines domestic and global laws allowing such unfettered powers to governments.
The writer is the executive director, South Asia Human Rights Documentation Centre.
Published on:
26 Jan 2025, 6:53 pm
Assam’s foreigner detention centres and the laws at play
ON January 23, 2025, the Supreme Court of India questioned the Assam government for detaining 270 foreigners at the Matia transit camp in the state without giving reasons. The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!
Affidavit of blunders
The Bench was hearing a plea concerning the deportation of persons declared foreigners and facilities at the detention centres in Assam.
The Supreme Court had given six weeks’ time to the state government on December 9, 2024 to file an affidavit and provide reasons for detaining 270 foreign nationals in the transit camp.
The court sought to know why detentions were continuing and whether there were any steps taken to initiate the process of deportation. The Assam government counsel stated the affidavit was confidential and should remain sealed, to which the Bench expressed their displeasure.
The Bench remarked, “This shows that the state does not want to come clean. Tell us what is confidential in the affidavit?”
The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!
The Assam government counsel answered that the affidavit contained the addresses of the detained foreigners, which could reach the media.
The Supreme Court Bench observed, “Assam counsel states that affidavit filed should be kept in [a] sealed envelope, as contents thereof are confidential. Though we are directing that it be kept in [a] sealed envelope, prima facie we disagree with the counsel that there is something confidential about the contents.”
Preventive detention: A loss of right within the fundamental rights
The top court had earlier directed the Assam State Legal Services Authority to conduct surprise visits at the Matia transit camp for foreigners to check the facility’s hygiene and food quality.
While hearing the matter on May 16, 2024, the Supreme Court observed that the Union government must take immediate steps to deport 17 foreigners at the detention center in Matia. It said priority should be given to deport four, who had spent more than two years in the detention centre.
The plea also sought a direction to the Assam government not to detain any person declared a foreigner by the tribunal until it could show proof of a possible deportation in the near future.
The Assam government and the Union government failed to inform the Supreme Court that, given the strained nature of Indo-Bangladesh relations, expecting Dhaka’s concurrence to deport many of the detainees allegedly from Bangladesh given the parlous nature of Indo-Bangladesh relations presently is akin to climbing a glass mountain!
As for the Rohingya detainees, Myanmar refuses to recognise them as citizens. Does this mean the Stateless Rohingya will remain in detention centres, euphemistically termed ‘transit centres’ till kingdom come?
A few Chin are also held in the same detention centre. Will the government of India hand them over to the Myanmar authorities, given that Indian intelligence agencies are tripping over each other to cultivate the Chin National Army (CNA) and the Arakan Army (AA)?
Both armed opposition groups control large swathes of Rakhine state, particularly around Sittwe, where India has vital assets and interests
Historical context
In the decades following 1947, the Indian government passed several Bills to introduce structure into the bureaucratic and legal chaos that persisted after independence, and to establish a legal framework to determine who would henceforth be considered a citizen of the nation-state India.
Mass influx of refugees in India: Case for a rules-based regime
The Foreigner’s Act was passed in 1946 and was the first law that established a basic framework to regulate the treatment of non-citizens residing in the newly formed state. The second, the Citizenship Act of 1955, provides the definition of an ‘illegal migrant’, a term still in use today. It defines an illegal migrant as a foreigner who has entered India “(i) Without a valid passport or other prescribed travel documents; or (ii) With a valid passport or other prescribed travel documents but remains in India beyond the permitted period of time.”
The northeastern state of Assam became a key issue for the Union government due to its long border with Bangladesh and the undetermined number of non-citizens residing within the state’s borders.
Importantly, the Assam Accord of 1985 codified that persons who had entered Assam before midnight on December 31, 1965, would be recognised as Indian citizens. Those who had entered between January 1, 1966 and March 24, 1971 were required to register as foreigners, while those who had entered after that date would be identified as illegal immigrants and expelled from the country.
As for the Rohingya detainees, Myanmar refuses to recognise them as citizens. Does this mean the Stateless Rohingya will remain in detention centres, euphemistically termed ‘transit centres’ till kingdom come?
While this may appear to conflict with other laws governing citizenship in India, Assam holds a unique position in Indian law, often governed by special provisions or overriding other clauses. Thus, although the Citizenship Act, 1955 states that any child born on Indian territory between January 26, 1950 and July 1, 1987 is automatically an Indian citizen, the Act includes a provision laying out exceptional rules for Assam.
By August 2017, local authorities had declared approximately 89,500 individuals as foreigners under the Assam Accord. Of these, around 2,000 were held across Assam’s six detention centres, awaiting a decision on their status as illegal immigrants. The interval between being declared a foreigner and subsequent detention varies significantly, and in some cases, a declared foreigner may experience no repercussions for multiple decades.
Arrests are drastically increasing, and illiterate or less educated parts of the population often do not understand the reasons for their detention. In many cases, individuals were unaware they had been declared foreigners until their arrest, as such declarations often occur through ‘ex-parte proceedings’ which do not require the individual’s presence, leaving them oblivious to the investigations against them.
Amid growing pressure to identify immigrants in Assam, the number of declared foreigners has increased rapidly, with 13,434 individuals identified in 2017 alone.
This rise is tied to the government’s initiative to update the National Register of Citizens (NRC) and ensure that no foreigners are included. The deadline to complete the update has been repeatedly deferred, with the most recent extension to August 31, 2019, due to severe flooding of government offices.
However, despite the deadline extension, the Supreme Court denied permission to re-verify names allegedly included in or excluded from the NRC in error.
While numerous laws and policies are involved, the core allegations pertain to provisions of the Citizenship Act of 1955 and the Foreigner’s Act of 1946.
Together, these Acts, through their wording and implementation, violate India’s international obligations. Both laws permit excessively arbitrary forms of detention and disregard established principles of legal procedure.
In this context, detention is not a proportionate means to an end. Further, the Citizenship Act of 1955 and the Foreigner’s Act of 1946 provoke arbitrary detention, falling under categories III, IV and V as established by the United Nations Working Group on Arbitrary Detention.
The United Nations has issued four statements on related issues of arbitrary detention. In June 2018, multiple special rapporteurs raised concerns with the Indian government regarding the NRC process, to which the Indian government did not respond.
How a Nationwide Register of Citizens violates Citizenship Laws and the Constitution
In December of 2018, the Working Group on Arbitrary Detention together with several special rapporteurs issued another communication highlighting apparent discrimination against minority groups in the process of weeding out ‘foreigners’ under the NRC process.
This concern was reiterated in another communication in February 2019. Finally, on May 27, 2019, the same authors released a third statement criticising the status quo of the NRC process, specifically the challenges involved in reviewing decisions to declare individuals as foreigners.
Applicable law
Domestic law
Three legal instruments passed by the Indian government are central to the issue of detention: the Citizenship Act of 1955 and its amendments, the Foreigner’s Act of 1946, and the Foreigner’s (Tribunal) Order of 1964.
International law
Specific provisions of Indian law, along with their implementation, violate core provisions of international law, resulting in widespread arbitrary deprivation of liberty through detention.
Specific provisions of Indian law, along with their implementation, violate core provisions of international law, resulting in widespread arbitrary deprivation of liberty through detention.
The primary arguments for this position draw upon the International Covenant on Civil and Political Rights (ICCPR), ratified by India on April 10, 1979, and the International Convention on the Elimination of Racial Discrimination (ICERD), ratified by India on December 3, 1968.
Of particular importance are Articles 9 and 14 of the ICCPR. Article 9 imposes a negative obligation to avoid arbitrary arrest or detention. Deprivation of an individual’s liberty is permissible only to the extent that it is in accordance with the procedure established by law.
Importantly, the drafting history of Article 9 of the ICCPR clarifies that ‘arbitrariness’ is broader than being merely ‘against the law’. It includes elements of inappropriateness, injustice and lack of predictability.
‘Preventive detention no longer viewed as an exceptional measure’
Article 9(1) of the ICCPR further specifies that arbitrary and unlawful deprivation of liberty are distinct concepts— an arrest can be arbitrary while remaining permissible under domestic law. In such cases, compliance with domestic law does not preclude the deprivation of liberty being counter to international law.
The UN Working Group on Arbitrary Detention has established five categories to determine whether a deprivation of liberty violates Article 9 of the ICCPR, three of which are relevant here:
- Category III: Detention is arbitrary if it entails total or partial non-observance of international norms relating to the right to a fair trial, as enshrined in Article 14 ICCPR.
- Category IV: Administrative custody for immigrants or refugees becomes arbitrary if it is prolonged without the possibility of administrative or judicial review, as required by Article 9 of the ICCPR.
- Category V: Detention is arbitrary if it is based on discriminatory grounds, as documented in the ICERD.
Inappropriateness of preventive detention
Declared foreigners are arrested at indeterminate times and confined in detention centres while awaiting a decision on their deportation or a work permit. While preventive detention may be permissible under domestic law, it is highly arbitrary under international law.
The Citizenship Act of 1955 and the Foreigner’s Act of 1946 violate India’s international obligations.
Domestically lawful detention
The grounds invoked by Indian law enforcement and judiciary for arresting and detaining individuals declared foreigners lies in Section 3(2) of the Foreigner’s Act, 1946, which states, “Orders made under this Section may provide that the foreigner— (g) shall be arrested and detained or confined.”
While detention is thus a permissible option, the Act also allows non-custodial alternatives such as requiring individuals to report to authorities regularly or imposing travel restrictions within a region. Despite these alternatives, detention has become the default approach for dealing with certain migrant groups in Assam.
How Preventive Detention Laws in Assam, UP, and Haryana Work
Apart from the Foreigner’s Act, 1946, the detention of foreigners is addressed in other legislation, such as the National Security Act of 1980, which specifies conditions for detention.
Section 3(1) of the National Security Act, 1980 states, “The Central government or the state government may,— (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, if it is necessary so to do, make an Order directing that such person be detained.”
Hence, this provision explicitly permits detention if its purpose is to regulate the individual’s presence in the country, or facilitate their expulsion, provided such action is deemed necessary.
Arguably, the wording of this provision is quite vague, as it does not require detention to be ‘absolutely’ necessary or demand that non-custodial options be deemed ineffective before detention is imposed. However, the mere existence of domestic legal provisions permitting detention does not preclude the unlawfulness of such actions under international law.
According to the UN Working Group on Arbitrary Detention, detaining illegal immigrants to regulate their presence within a country should never be the rule, but may only be an exceptional measure.
As Nils Melzer, the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, stated on February 26, 2018, “The margins of permissibility of migration-related detention are narrow, both in terms of substantive justification and in terms of duration, and the mere fact that detention is authorised by domestic law does not exclude its arbitrariness under international law.”
Preventive detention for immigrants as a mandatory rule
As can be read from the wording of the provisions in the Foreigner’s Act, 1946 and the National Security Act, 1980, the detention imposed under these laws is preventive in nature. While preventive detention is debated in international forums, it is permissible under Indian law due to remnants of British rule.
Generally, preventive detention in India is limited to six months and requires a review after three months. But in matters of immigration and citizenship law, ‘extraordinary’ legal provisions provide for extended durations of preventive detention, pending an Order for the individual’s expulsion from the country.
However, according to the UN Working Group on Arbitrary Detention, detaining illegal immigrants to regulate their presence within a country should never be the rule, but may only be an exceptional measure.
The present case in Assam regarding foreigners’ tribunals and the detention of illegal immigrants barely refers to the National Security Act of 1980, which requires detention to be at least ‘necessary’ and instead primarily refers to the Foreigner’s Act, 1946. It leads to a situation where individuals may be detained merely based on their status as declared foreigners.
This practice clearly contravenes Article 9(1) of the ICCPR, as it fails to differentiate between different individuals and instead introduces a blanket rule for a broad category.
The United Nations Human Rights Committee (UNHRC), in its General Comment No. 35 on Article 9 of the ICCPR, elaborates, “Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category. [It] must consider less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding.”
Nils Melzer has emphasised that criminal or administrative detention based solely on migration status exceeds the legitimate interests of States in protecting their territory and regulating irregular migration and should be regarded as arbitrary.
Next week: Proportionality of detention considering the low likelihood of deportations