Showing remarkable compassion, a bench comprising of the Chief Justice of India S.A. Bobde and Justices L.N. Rao and M Shantanagoudar of the Supreme Court of India passed an orderon 13th April, 2020 on a plea by Justice and Liberty Initiative, Assam, inter alia, directing release of such detenus who, having been declared as 'Foreigners' under the Foreigner's Act, 1946, have already suffered two years' detention upon furnishing a bond of ₹5,000/- with two sureties.
Under the Foreigners Act, 1946, once a person accused of being a foreigner is unable to provide documents and witnesses to establish that he or she is an Indian, he or she is destined to be perpetually detained, with the hope that he or she would be deported one day. There is no upper limit on the period of detention. Thus, if a genuine citizen (whether in Assam or anywhere) is unable to provide evidence, he is liable to be detained perpetually. No bail, parole or furlough applies. These detention centres are civil prisons within the jail compounds.
Last year, Supreme Court passed an order on 10th May 2019 permitting release of detenus who had suffered detention of three years with certain conditions including a strict condition of a bond of ₹ 1 Lac and two sureties, and certain other procedural conditions. This was a welcome order – for it provided hope. The order has been passed even though the Solicitor General had opposed the intervention applications citing the inability of the Government to trace such detenus upon release, in case "the Government resorts to certain steps under the law". However, rejecting the contentions advanced by the Solicitor General, the Hon'ble Chief Justice issued directions to release the certain category of detenus.
. With the issuance of this order by the Supreme Court, it appears that social justice which is the signature tune of our Constitution has finally been struck and the courts appear to be marching ahead with times. The order is significant for three reasons. Firstly, it recognizes (implicitly) that detenus have rights that must be respected.
Secondly, that detenus are mostly poor and therefore the bond has been reduced from ₹ 1 lac to ₹5,000/- Notably, the reduction of surety amount mirrors the words of one of the greatest Judges of all times, the Late Justice V.R. Krishna Iyer (1915-2014) in the matter of Moti Ram and others Vs State of M.P. (AIR1978 SC 1594), wherein it was observed that "It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000/- The magistrate must be given the benefit of doubt for not fully appreciating that our Constitution enacted by 'We the People of India'' is meant for the butcher , the baker and the candle - stick maker - shall we add , the bonded labour and pavement dweller."
Thirdly, the court appears to have made a distinction between a "genuine foreigner" versus a "technical foreigner", as the court has maintained the requirement of having two Indian sureties – as this ensures that those released have 'roots in the Indian community' and also they are traceable or available – should they be required to be deported at any time in the future. Notably, deportation is mostly theoretical because in the context of Assam, it is dependent upon Bangladesh Government's confirmation that such persons are actually residents or citizens of Bangladesh. Therefore, only "genuine foreigners" can be deported, and rest everyone is simply "stateless". As per Reports in December 2019, out of 1.29 lakh declared as foreigners – only 6 persons could be deported.
The Chief Justice while taking suo moto cognizance of the matter, had displayed rational foresight and vide order dated 23rd March, 2020 directed the State Governments/Union Territories to constitute High Powered Committees to consider laying down of parameters upon which certain categories of prisoners/undertrials could be released on parole or interim bail, as the case may be, so as to prevent overcrowding and effectively practice social distancing in jails.
Prisons/jails have closed and camp-like environments wherein prisoners share basic amenities, moreover, jail reports show massive overcrowding to the extent of 165% in some States. Hence, the risk of human to human transmission of a deadly virus like the COVID-19 is very high and prisons/jails run the highest risks of becoming hotspots for the disease. In a report published by Amnesty International India on 6th April, 2020, it has been stated that "Amnesty International India found that the authorities indefinitely detained Indian citizens who were declared foreigners in a discriminatory manner. It also documented appalling living conditions including overcrowding, separation from families, lack of segregation between different categories of prisoners, high levels of depression and inadequate medical facilities in the detention centres".
Although the discretion has been left upon the High Powered Committees constituted at the State level to determine the categories of prisoners who may be released. Yet, it may be a matter of great concern if such High Powered Committees do not show the same zeal, generosity, empathy and regard for the rights of the prisoners, as shown by the Chief Justice of India in taking up this matter suo motu. The Chief Justice has set forth a great example in the arena which shall hopefully be embodied in future decisions made in this regard and would be followed by the High Powered Committees, normally presided by the second senior most judge in every High Court.
One cannot lose sight of the fact that the power that is being exercised and that has been delegated by the Supreme Court of India upon the High Courts is located in Article 142 of the Constitution of India. It is intended to do "complete justice".
The order passed by the Supreme Court on 13th April 2020 has promptly been effectuated by the Gauhati High Court taking suo moto cognizance of the same vide order dated 15.04.2020 whereby certain conditions have been prescribed for implementing the directions of the Supreme Court. The Supreme Court's decision has also improved India's stature internationally. Applauding the aforesaid decision on it's twitter account, the United States Commission on International Religious Freedom (USCIRF) cited it to be a beacon of hope and encouragement which recognizes the vulnerability of such detenus who are lodged for indefinite periods of time in detention centres. The USCIRF further went on to say that although such detenus have been released due to the concerns over spread of COVID-19, yet the fact that these individuals were wrongfully labeled as 'foreigners' and detained in the first place, still remains a matter of concern.
USCIRF @CommrBhargava: "It is encouraging that India's Supreme Court recognized the vulnerability of detainees in the detention centers. We remain concerned, however, that these individuals were wrongfully labeled as 'foreigners' and detained in the first place." (1/2) https://t.co/kQzRX1g2gr— USCIRF (@USCIRF) April 14, 2020
USCIRF @CommrBhargava: "It is encouraging that India's Supreme Court recognized the vulnerability of detainees in the detention centers. We remain concerned, however, that these individuals were wrongfully labeled as 'foreigners' and detained in the first place." (1/2) https://t.co/kQzRX1g2gr
Surely, the Supreme Court which is considering the issue of detention only upon the possibility of deportation in Rajubala Das v. Union India, would probably also consider the issue of "technical foreigner" versus "genuine foreigner", as this distinction would occupy a central space in post NPR-NRC India.
The generous compassion and benevolence displayed by the Bench of the Supreme Court presided by the Hon'ble Chief Justice while dealing with the dire situation at hand, where the rights of the prisoners, undertrials and detenus have been safeguarded, may herald a new era where empathy forms a key virtue while dealing with matters concerning the rights of prisoners and undertrials. After all the object of punishment is reformation and not unnecessarily prolonged incarceration as William Shakespeare writes in his poem 'Time's Glory' – To wrong the wronger till he render right. As young members of the bar, we hope that the High Powered Committees in all States, particularly those where prisons are massively overcrowded, like Uttar Pradesh (165.04%), Chhattisgarh (157.23%) and Delhi (151.22%) give due consideration to the rights of prisoners and undertrials as has been displayed by the Supreme Court. (Author graduated from Dr. Ram Manohar Lohia National Law University, Lucknow in 2015 and practices before the Allahabad High Court at Lucknow)