Polity & Governance Prelims cum Mains

SC view on foreigners detention defies constitutional obligations

The News

  • The Commonwealth Human Rights Initiative has recently condemned the Supreme Court’s remark on the detention of ‘foreigners’ in Assam.


Illegal Migrant

  • According to Citizenship Act 1955, an illegal migrant is a foreigner who enters the country without valid travel documents, like a passport and visa, or enters with valid documents, but stays beyond the permitted time period.
  • Illegal migrants may be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.


Foreigners Tribunal: Foreigners Tribunal (FT) was set up in Assam in 1964 through the Foreigners Tribunal Order 1964. The tribunals have been mandated with identifying the legal status of suspected foreigners in Assam


Commonwealth Human Rights Initiative (CHRI)

  • It is an independent, non-partisan & non-profit international non-governmental organisation which works towards the practical realisation of human rights in the countries of the Commonwealth.
  • Objective: To promote awareness and adherence to the internationally recognised human rights instruments, as well as domestic instruments supporting human rights in member states.



  • A PIL was filed for humane treatment to suspected foreigners detained in camps.
  • On April 9, the Supreme Court had asked the Assam government to detail how it planned to release foreigners held in the state’s detention centres who had allegedly entered illegally.
  • In response to the court’s order, the Assam government suggested to consider the conditional release of foreigners in detention centres and avoid endless incarceration of the detainees.
  • However, the apex court criticized for Assam government’s proposal to end the process of indefinite detention in the state’s detention centres and made remarks to the effect that there should be more detention of suspected foreigners.
  • In reaction to this, the CHRI has released a statement urging the Supreme Court to reaffirm India’s constitutional and international obligations to rights on complex issues of nationality, detention and deportation.



  • Assam is home to several small ethnic communities. Successive waves of migration through the virtually open border with Bangladesh have incensed the state’s indigenous communities.
  • Clause 6 of the Assam Accord speaks of providing constitutional protection to “Assamese people”. However, there is no definition of Assamese people given by government ‘Assamese people”.


CHRI arguments:

  • The accounts from Assam indicate that often arbitrariness not rule of law is used to define those who have come post-1971 from Bangladesh and those who are Indian nationals.
  • There is no deportation agreement with Bangladesh and International law lays down that such deportations can take place only with the consent of the country of origin.
  • Also, such unilateral efforts are harmful for bilateral relationship with Bangladesh as is critical for the security and stability of both countries and especially of our eastern region.
  • It is against Article 21, as no person in India can be deprived of his/her right to life and personal liberty except according to procedure established by law.


Way Forward

  • Failure to address this critical situation adequately and justly would be seen internationally as a gross violation of human rights and a blot on India’s traditional record.
  • The efforts need to be steady and methodical so that the charges of arbitrariness, prejudice and poor record keeping do not stick, which have plagued the National Register of Citizens (NRC) process.
  • The social fault lines could be exacerbated by insensitive handling that could leave many people desperate, particularly youth, with the potential of radicalization.
  • The Court needs to reaffirm India’s constitutional and international obligations to rights on complex issues of nationality, detention and deportation and not be unmindful of its own commitment to these duties.

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