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SC remark on ‘foreigners’ detention in Assam defies constitutional obligations: rights body

“Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice,” says CHRI

A rights body, comprising a retired Supreme Court judge and a former Assam police chief, has said the apex court’s remark on the detention of ‘foreigners’ in Assam was unfortunate and “flies in the face of India’s constitutional and international obligations”.

One of the reasons, the Commonwealth Human Rights Initiative (CHRI) has pointed out, is that accounts from Assam indicate “arbitrariness and not rule of law” is often used to define those who came post 1971 from Bangladesh — of whatever religious denomination — and those who are Indian nationals.

“Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice,” a statement issued by the CHRI on Thursday night said.

The chairperson of CHRI is Wajahat Habibullah, India’s first Chief Information Commissioner. The members include Madan B. Lokur, former Supreme Court judge; A.P. Shah, former Chief Justice of Delhi High Court, Nitin Desai, former Under Secretary in the United Nations, and Jayanto N. Choudhury, former Assam Director General of Police.

“The Supreme 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,” the CHRI said.

“As concerned citizens, we look to the Supreme Court to reaffirm India’s constitutional and international obligations to rights on sensitive issues. That is why we are disappointed by recent statements by the Chief Justice of India on a complex matter relating to illegal detention and deportation, without heeding India’s own constitutional and international obligations,” it said.

CJI’s admonition of Chief Secretary

The statement was in reference to Chief Justice of India Ranjan Gogoi’s admonition of Assam Chief Secretary Alok Kumar for proposing a methodology for the release of a handful of foreign prisoners who had been in detention beyond their term of sentence for illegal entry. The rebuke was while advocating greater detention of suspected ‘foreigners’.

“We regard these remarks as unfortunate as the case concerned the wilful violation of the human rights of hundreds of detainees who were languishing in what the court itself accepts are “inhuman conditions”, the CHRI said, referring to Article 21 that says no person in India can be deprived of her/his right to life and liberty without due process.

“There is no deportation agreement with Bangladesh. International law lays down that such deportations can take place only with the consent of the country of origin. Bangladesh has consistently refused to accept that its citizens migrate in large numbers to India. Indeed, Bangladesh regards such unilateral efforts as harmful to a bilateral relationship that is critical for the security and stability of both countries and especially of our eastern region. We cannot place ourselves in a situation where we are seen as forcing people out at gunpoint; it would be ethically unjust, wrong in law and draw international condemnation,” it said.

The rights body said its members were sensitive to the concerns in Assam and other parts of the country about the problem of illegal migration from Bangladesh, a long-standing issue that has defied official proclamations and pledges of “push back”, “deportation” and “detection”.

“Any method used must be undertaken within the rule of law frame, be just and fair and designed to minimise individual hardship and tragedy. We believe there is a need that this is a tragedy of growing intensity which is gathering momentum as a result of the current National Register of Citizens (NRC) exercise in Assam,” the CHRI said.

Many of those at risk of being marked foreigners were from the bottom of the economic pyramid, unable to sustain the complex adjudication process needed to establish their citizenship. Large numbers were already in detention camps, the CHRI pointed out.

Plea to not hurry the process

It also urged the Supreme Court to not hurry through the process of verifying the applications of 38 lakh people out the 40.07 lakh left out of the complete draft of the NRC. The court has set July 2019 as the deadline for the final list.

“The efforts need to be steady and methodical so that the charges of arbitrariness, prejudice and poor record keeping, which have plagued the NRC process, do not stick,” the CHRI said.

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