“It is the obligation of every person born in a safer room to open the door when someone in danger knocks.”

In the wake of the recent COVID-19 outbreak, the Supreme Court of India passed an order to release all the detainees who have completed two years in detention centres in Assam upon furnishing a bond of Rs. 50,000 with two sureties of the that sum by Indian citizens. Originally, the apex court had ruled that only those detainees are to be released who have completed more than three years in detention centre upon execution of a that bond with two sureties of Rs. 1 lakh. The compassionate order of the Supreme Court has domestic as well as global ramifications. In this article, we will talk about the conditions of these detainees and the rights being violated, especially during the ongoing pandemic of COVID-19.

To understand the importance of the order, a little background of the situation is essential. Under the supervision of the Supreme Court, the state government of Assam undertook a statewide exercise, known as “National Register of Citizens (NRC) for Asssam” to identify and deport illegal immigrants. On December 31, 2019, the final draft of the NRC was published and out of 30.3 million people, more than 1.9 million people were excluded. The Union has the power to deport foreign nationals staying illegally in the country under Section 3(2)(c) of The Foreigners Act, 1946 and the state governments have also been entrusted with similar powers under Article 258(1) of the Constitution. While the NRC itself has been seen as a procedural and administrative debacle, the more pressing concern is the dismal and inhuman condition of the detention centres in Assam.

According to the data provided by the Union Home Ministry, over 1000 people are lodged in 6 detention centres in Assam. While Assam is in its nebulous stage of COVID-19 transmission, with 34 positive cases reported, there is a fear that if the situation escalates, the detainees crammed in the detention centres will suffer the worst, as they lack even basic hygiene and medical facilities. Recently, a report by Amnesty International portrayed overcrowding of these detention centres where detainees are forced to survive without basic amenities of life. This is in violation of Article 25 of the Universal Declaration of Human Rights, 1948, which promises a standard of living adequate for their health and well-being.

The state government’s apathy has led to deprivation of the Fundamental Right to Life and Personal Liberty of the detainees, as guaranteed by the Constitution of India. The denial of basic rights in the detention centre is violative of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, namely, Principle 1, 3, 4 and 6. Further, it is also in violation of Article 7 and 9 of the International Covenant on Civil and Political Rights, 1966 and Article 5 and 9 of the UDHR. Also, Guideline 6 of the UNHCR Detention Guidelines, 2012 provides that no illegal migrant shall be detained for an indefinite period of time, but the Foreigners Act, 1946 of India doesn’t specify any upper limit.

Against this backdrop, the order of the Supreme Court assumes significance and vindicates the Right to life, as guaranteed to both, citizens and non-citizens by the Constitution. The Supreme Court has interpreted ‘right to life’ in Francis Coralie Mullin v. The Administrator, Union to include within its ambit the right to live with human dignity and the right to all basic necessities of life. In the State of Punjab v. M.S. Chawla, the apex court ruled that ‘right to life’ includes within its boundaries the right to health and medical care. The order of the Court upholds the Human Rights of the detainees as enshrined under the UDHR and ICCPR, both of which have been ratified by the Union of India.

With the enactment of the Citizenship (Amendment) Act, 2019 and the promise of the Home Minister to undertake a nationwide NRC, the equitable and compassionate stand of the Supreme Court is much welcomed, in the context of the rights available to illegal immigrants. In the disturbing times of this pandemic, the most vulnerable people across the world are the stateless refugees, while there are serious concerns about their well-being. In such a scenario, the order of the Supreme Court, which in the garb of protecting national security, provides relief to immigrants, comes as a beacon of hope in the sea of human rights jurisprudence.

For more on COVID-19, see our special coverage.

Navya Bhandari and Himanshu Ranjan are both pursuing B.B.A.LL.B. (Hons.) degrees at the National Law University, Jodhpur. They share keen interest in the issues relating to refugee crises across the globe.

Suggested citation: Navya Bhandari and Himanshu Ranjan, Lighting a Candle in the Darkness: The Supreme Court of India Extends Support to Illegal Immigrants, JURIST – Student Commentary, May 12, 2020, https://www.jurist.org/commentary/2020/05/bhandari-ranjan-supreme-court-india-illegal-immigrants/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org