Foreigners Tribunals: Detaining Non-Citizens and Rule of Law

Context: The Assam detention regime is in news because of concerns related to liberty and well-being of persons caught in it.

Relevance of the topic:

Prelims: Key facts about Foreigners Tribunals in Assam.

Mains: Foreigners Tribunals: Challenges associated.

Foreigners Tribunals in Assam:

Foreigners Tribunals (FTs) are quasi-judicial bodies established in Assam to adjudicate cases concerning individuals suspected of being illegal immigrants.
They were created under the Foreigners (Tribunals) Order, 1964, which derives its authority from the Foreigners Act of 1946.
The tribunals primarily handle cases related to individuals left out of the National Register of Citizens (NRC), with a significant number of cases involving approximately 19.06 lakh people.

Rule of Law and Liberty: Indian Constitution upholds the principle that personal liberty can only be curtailed under clear legal and judicial frameworks (Article 21).
Detention of Non-Citizens: Non-citizens in India can be detained under:
- Foreigners Act, 1946
- National Security Act (NSA), 1980
Preventive Detention: Though permissible under Article 22, it is subject to strict safeguards and judicial review.

NRC and Citizenship Crisis: 19 lakh people excluded from the NRC in Assam (2019). Many declared themselves "foreigners" despite being long-term residents with no other nationality.
Documentation Challenges: Proof required: Ancestors’ residence before March 24, 1971.
Common Issues:
- Unavailable or destroyed documents (E.g., due to floods).
- Rejection due to minor discrepancies in names.
Impacts: Individuals are stripped of citizenship and placed in detention centers without effective legal recourse.

Violation of Legal Norms: Detentions occur without conviction, charge, or trial, it is not aligned with any recognised preventive or punitive purpose.
As of December 31, 2023: Over 1.59 lakh people declared foreigners. Only 39 deported since 2017 (26 till 2023; 13 more recently). A vast majority cannot be deported — they are stateless in effect.

Principles of Detention under Indian Law: It is ordinarily permitted on conviction by a court, pending trial (judicial custody) or under limited preventive detention, with safeguards (Article 22).
Current Regime in Assam Violates These Norms: Detention is not based on court orders or judicial sentencing. There is no legitimate aim such as deportation, trial, or punishment.

Undermining Judicial Oversight: Courts have traditionally controlled the deprivation of liberty, executive-directed detentions without effective court supervision violate this balance.
Lack of Due Process: Procedural fairness ignored in NRC-related adjudications. Individuals declared foreigners by Foreigners Tribunals — quasi-judicial bodies often lacking transparency.

Nature of Citizenship and Statelessness: Many detainees are de facto stateless — no country accepts them.
Judicial Role and Independence: If the power to detain shifts away from courts, the judiciary’s role is eroded.
Threat to Constitutional Governance: Arbitrary detentions without judicial justification undermine Article 21 and the principle of limited government.

India: Rajubala Das v. Union of India (2020): Challenge to arbitrary and indefinite detention of declared foreigners. The Supreme Court has not yet decisively settled the constitutional limits on such detentions.
Australia: In NZYQ v. Minister (2023), the High Court ruled: Indefinite detention without realistic prospect of deportation is unconstitutional. It also emphasised judicial oversight and legitimate purpose as essential for detention.

Detention must serve a legitimate purpose and follow due process. The regime in Assam represents a constitutional aberration, it violates Articles 21 and 22 and disrupts the balance between liberty and state power.
There is an urgent need for clear legal standards, stronger judicial oversight, and protection of the rights of individuals caught in the citizenship net.