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Previously, I have written about the multiple procedural irregularities that have characterised the Supreme Court’s NRC Case: the use of sealed covers, consequential decisions being taken in closed-door hearings, and the bench’s disturbing disregard for due process rights. In the course of this years-long proceeding, the Court has far exceeded its brief as the apex judicial organ of the country, with its repeated stress on deportations making it appear more executive-minded even than the executive: more the Supreme Deportation Authority rather than the sentinel on the qui vive. But yesterday’s hearing in Harsh Mander v Union of India marks a low point even within this ongoing story.

According to accounts of the oral proceedings, the government of Assam brought forward a plan to secure the monitored release of foreigners who had been in detention centres more than five years. The plan entailed the detainees paying a hefty deposit amount of Rs 5 lakhs, having their biometric details taken, and then set free from the detention centres. The Chief Justice-led bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners (this has been a common theme of every hearing). The Chief Justice claimed that the government was asking the bench to be “a part of an illegal order where a foreigner who has no right to stay in the country will remain and sign a bond and so on.” He further lectured the government about what it should have been arguing, noting that “the stand of the government of India and the state of Assam should be that the foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” When the amicus curae made the rather basic point that technically, deportation could hardly be carried out without the cooperation of the host country, the Chief Justice’s only response was “we can say that the government has failed to do its job.” The Chief Secretary then promised to come up with “better measures.”

Separation of Powers and International Law

There are a few things worth noting here. To start with, Harsh Mander v Union of India is a PIL about inhumane conditions in detention centres. How it has become a case about deportations is anyone’s guess. And there is a particularly cruel irony in the fact that a case filed to draw attention to inhumane conditions in detention centres has now brought us to a pass where the Court nixes the government attempts to release a small class of detainees from those centres.

But leave that aside for the moment. The Chief Justice’s repeated enquiries about deportation suggest not only an ignorance of the basic international law principles of non-refoulement and against statelessness, but also either ignorance – or contempt – of the principle of separation of powers. Section 3 of the Foreigners Act is pellucidly clear: the entry, departure, or presence of foreigners in India is a matter for the central government. It is not for the Court to browbeat the government into taking a stand on whether or not to deport (notwithstanding some observations in Sarbananda Sonowal, which are not only obiter, but completely unsupported by any legal principle of authority). Matters are worse confounded by the fact that when a Foreigners Tribunal makes a decision on the status of an individual, its decision is limited to deciding whether or not the said individual is an Indian national. The Foreigners Tribunal does not – and cannot – return a finding on whether that individual is a national of a named other country. The Chief Justice’s reaction – “why don’t you deport?” – therefore flies in the face of reality as well, because there will be – and there are – many situations where a Foreigners Tribunal declares an individual as a foreigner, but there is no country to deport that individual to, because no country is claiming them as their national.

In sum, therefore, the law on deportation is that it is a decision for the government to make, a decision that is constrained by principles of customary international law. What the Court is doing in these proceedings is taking a bludgeon to this legal structure, by ignoring both these core legal elements. This is damaging in many respects, but it is particularly damaging because the task of checking whether the government is exercising its discretion to deport in consonance with principles of customary international law is a judicial task. However, when the Court itself is acting in this fashion, to which forum are people supposed to appeal, if they think that the government is acting illegally? This is why the separation of powers exists: for courts to review the actions of the government, and ensure the government acts legally. And this is why the blurring of the line between the court and the political executive – of which the entire NRC case is an exemplar – is so profoundly dangerous.

Article 21

But let us come to an even more serious issue. As indicated above, the government set out a plan where detainees who had spent more than five years in detention centres were to be conditionally released. The conditions of release are so onerous that in my view, they rise to the level of being unconstitutional, but let us ignore that for the moment. The Court refused to accept this proposal as, in the opinion of the CJI, it amounted to sanctioning an “illegality”. Why? Because the government should have been deporting them.

It is at this stage that it becomes necessary to revisit the text of Article 21 of the Constitution – a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters. Article 21 of the Indian Constitution states as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.


There is no – no – law that authorises indefinite detention of an individual, whether citizen or foreigner. And if there was a law that did so, it would almost certainly be struck down as unconstitutional. On what basis, therefore, does the Court say that releasing detainees who have spent more than five years in detention would be endorsing an illegality? The boot of illegality, rather, is on the other foot: by refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21, the provision that is supposed to be the heart and soul of the Constitution. And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.

Conclusion

Like every other legal culture, we too have our “never again” moment. For us, that “never again” moment is the notorious judgment in ADM Jabalpur, the Habeas Corpus case. The Supreme Court’s judgment in that case that sanctioned Emergency-era excesses – most of which were visited upon detainees – is what we hold up as the marker of that “valley of shadow” into which we’ve been, and into which we must not go again.

But when the Supreme Court prevents the government from (conditionally) releasing detainees who have been in detention centres (which, by all account, are inhumane places) for more than five years, thus condemning them to a continuing, lawless deprivation of personal liberty, then it is perhaps time to ask whether all we can do is keep saying “never again”, even as it happens all over again.