Detention of Non-Citizens in Assam, India: Legal and Constitutional Concerns

In Assam, a significant number of people have been declared non-citizens and detained under the National Security Act, 1980 and the Foreigners Act, 1946. As of December 31, 2023, over 1,59,353 individuals have been declared foreigners by the State’s Foreigners’ Tribunals, yet only 26 have been deported since 2017. This situation has sparked legal and constitutional debates in India.

Background and Issues

• 19 lakh individuals were stripped of their citizenship through the National Register of Citizens (NRC) process, facing detention in camps.
• The process required documentary proof of family residence in India before 1971, with many documents rejected due to misspellings.

Legal Challenges and Case References

• Rajubala Das v Union of India (2020): Supreme Court case challenging the indefinite detention of non-citizens in India.
• Similar proceedings in Australia (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, 2023) have led to prohibiting indefinite detention without realistic removal prospects.

Constitutional Principles and Legal Concerns

The detention regime in Assam violates fundamental legal principles:

• Deprivation of liberty is traditionally under judicial control. Non-citizens in Assam are detained without being charged with a crime, counter to common law heritage and Article 22 of the Constitution.
• Detention should serve a legitimate purpose, like punishment, pending trial, or removal, which is not the case here.

Implications for the Rule of Law

The current detention practices raise significant concerns about the erosion of judicial power and the threat to the rule of law, as the executive and legislature encroach upon the traditional roles of the courts.