Mapping Developments: A follow-up to the Detention Chapter from the Securing Citizenship Report

Khush Aalam Singh is a third-year law student pursuing the B.A. (LL.B.) program at Jindal Global Law School. He is a Student Fellow at Centre for Public Interest Law, JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness. Khush is one of the authors of  Securing Citizenship: India’s legal obligations to precarious citizens and stateless persons, released in November 2020.

The Securing Citizenship report is divided into three chapters – Status, Detention and Socio-Economic Rights. Each chapter addresses the international law obligations of India vis-à-vis precarious citizens and stateless persons. As authors of the Detention chapter, real-time developments posed a challenge for us. We had to be mindful of the news and the overall argument the report sought to advance. This article is an attempt to engage with major developments since September 2020 which did not make the final text. As such, it endeavours to expand the conversation around issues at the nexus of statelessness, precarious citizens, and detention pending deportation.

A development of significance is the Gauhati High Court’s order (dated 7th October) in the case of Santhanu Borthakur v. Union of India and Ors. (W.P. (Crl.)/2/2020). In this criminal writ petition, the court observed that persons declared as foreigners shall be kept in detention centres outside of prisons. The court also observed that earmarking a specific area in jail premises as a detention centre is not in accordance with Supreme Court guidelines. These guidelines stem from its judgement in the case of Bhim Singh v. Union of India (2012).

Furthermore, the Santhanu Borthakur order refers to communications by the Central Government specifying that detention centres need to be set up outside jail premises. These communications included a recommendation that the state consider hiring private buildings for the purpose of keeping detainees while the detention centres are under construction. While the order does not declare the detention of foreigners inside prisons as outrightly illegal, it directed the state authorities to place a status report showing measures taken to set up detention centres. This status report is likely to be placed before the court at the next hearing of the matter.

The Court’s observations relating to the detention of ‘foreigners’ inside prisons complement a key concern that we flag in the report. The nature of confinement for persons declared as foreigners is materially different from that of convicts or undertrials. As per the Assam Government White Paper of 2012, the detention of declared foreigners is ‘administrative’ in nature. In other words, the detention of such persons takes place for deporting them to their country of origin and is not necessarily a criminal penalty. However, the intent of deporting is illusory as low rates of deportation show that removing such persons to their purported country of origin is not an option. This is because Indian citizens in Assam whose citizenship status is precarious are detained under the guise of ‘foreigner’. Stateless persons may also be detained as ‘foreigners’ without a nationality. These persons are kept along with undertrials and convicts without any proper system of distinguishing between these categories. This has worrisome consequences such as discrimination by jail officials, overcrowding of prisons, physical and mental health concerns as well as shortage of rations.

Therefore, the Court’s observations are welcome to the extent that they are consonant with international law on administrative detention pending deportation. However, we are yet to see a judicial pronouncement that explicitly sets out the premise that stateless persons and precarious citizens cannot be detained. Such a pronouncement must be foregrounded in the language of rights and should leave no scope for ambiguity. The Supreme Court orders allowing the release of detainees are examples of this ambiguity, as has been mentioned in the report. This is because the Court employs a language bereft of any reference to rights. The overriding imperatives prompting the orders seem to be administrative convenience or public health. This becomes an issue as these orders do not recognize the rights of precarious citizens and stateless persons.

After the Supreme Court relaxed the conditions required for release of detainees earlier last year (W.P. (C) 1/2020 (Supreme Court)), the Gauhati High Court initiated a suo motu writ petition (W.P. (C) (Suo Motu) 1/2020) to oversee the process. The orders record the release status of detainees and the number of detainees released. According to the last order dated 17September 2020, 349 eligible detainees had been released from detention. The data provided in the order does not specify whether this figure is across all detention centres or from a specific detention centre. None of the orders have a breakdown of the numbers from each detention centre. Instead, there is a lumpsum figure as was submitted by the state counsel. This is yet another reflection of the ambiguity surrounding numbers from Assam, making it difficult to have a clear idea of the situation. Furthermore, the numbers do not mean that there are no persons in detention at present. As of those eligible, about 13 detainees have not yet been released due to non-fulfilment of bail conditions. It is unknown whether persons who have not yet completed two years in detention are still inside these detention centres. Additionally, no details have emerged about the conditions inside these detention centres – especially given the COVID-19 situation.

Outside of Assam, the Karnataka High Court also made observations about the detention of illegal migrants/foreigners. In Babul Khan and Anr. v. State of Karnataka and Anr., Justice Phaneendra observed that persons found to have violated the Foreigners Act, 1946 do not have the right to move around freely “as if they are the citizens of the country”. Furthermore, the court reiterated that persons declared as foreigners shall be detained pending deportation. The order does recognize some aspects that we have sought to highlight in the report. The court affirms that children in detention are particularly vulnerable, along with women, therefore their rights have to be protected. The court relied on the UN Declaration on the Rights of the Child (1959) as well as the Supreme Court guidelines in R.D. Upadhyaya v. State of AP. These guidelines enshrine the right of the child to education, food, recreation, medical care, etc. Further, the court cited the Juvenile Justice Act (2015) and the Rules to show that these rights have a firm grounding without reference to the nationality of a child.

While the observations with respect to children complement our arguments, there are many concerns when it comes to the nature of detention in such cases. As Securing Citizenship argues, stateless persons and precarious citizens cannot be detained for deportation. Such persons have a right to immediate release if they are presently detained. In the case of stateless persons, they cannot be removed to any country, since no country considers them as its citizens. Precarious citizens, on the other hand, are Indian citizens by virtue of their ‘genuine link’ to this country. When both stateless persons and precarious citizens are deemed ‘foreigners’ before the law, their confinement inside detention centres is arbitrary and violates domestic and international law. The lack of a periodic review mechanism by a judicial body further aggravates the issue. This is particularly disappointing as courts have recognized statelessness as a situation to be avoided. Yet, courts and policy-makers have paid inadequate attention to the nexus between statelessness, precarious citizenship and detention pending deportation.

There is a dire need for a well-drafted and well-thought out policy that addresses these issues substantively. Through our intervention, we have attempted to highlight areas of concern with the existing policies and how they neglect these categories of persons. The impact of detention without substantive and procedural safeguards continues to be disproportionate. As we argue in the report, principles of international law need to be kept in mind while addressing these issues, with an overarching emphasis on human rights. To ensure this, the fundamental rights contained in the Constitution can provide a strong basis. Furthermore, detention should be used as a measure of last resort. The state shall exhaust all possible lesser-restrictive options before deciding to detain someone. Our paramount concern remains the situation of stateless persons and precarious citizens in detention centres, particularly in Assam. We sincerely hope that our intervention finds consideration and concrete expression through policy reform.