By: Samprathi Gowda
In the final part of this two-part series concerning the deficiencies in the functioning of the Foreigners Tribunals, the author argues as to how the working of the Foreigners Tribunals does not adhere to international standards and concludes by suggesting reforms which can be incorporated in order to protect the rights of those concerned.
THROUGH THE LENS OF INTERNATIONAL LAW
Meeting the tenets of lawfulness under national laws does not preclude the deprivation of liberty as per the set standards of international law. As the acts of the Tribunals engulf many to the risk of indefinite detention and potential statelessness, it warrants a check on the validity of these actions and processes under established principles of international law. The primary document being the International Covenant on Civil and Political Rights (ratified by India on 10th April 1979), in particular Article 9 and 14.
Under the aegis of Article 9, a negative obligation is imposed on member states to not subject an individual to arbitrary arrest or detention. Arbitrariness in the present context shall be interpreted to equate it to elements of injustice, inappropriateness and lack of predictability. The mechanisms employed by the Tribunals fall short of fulfilling the requirements laid down under various categories by the UN Working Group on Arbitrary Detention (hereinafter ‘UN WGAD’). Category III talks about the detention being arbitrary if it involves non-observance of international norms with regards to the right to a fair trial as enshrined in Article 14 of the ICCPR. Category IV involves prolonged administrative custody of the immigrants without the possibility of judicial review as required by Article 9 of the ICCPR.
Despite the Foreigners Act providing for non-custodial alternatives such as reporting to the concerned authorities on a regular basis or restricting the travel of the individual beyond the region, the act of subjecting the individuals to detention has become the default norm. This goes in clear violation of the UN WGAD’s opinion that detaining suspected migrants should not be the rule but can be taken up only as an exceptional measure.
General Comment No. 35 on Article 9 of the ICCPR states that the detention shall be deemed not arbitrary if the same is justified as reasonable, necessary and proportionate in light of circumstances, and reassessed as it extends in time. Further, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concluded that detention based solely on migration status exceeds the legitimate interests of States in protecting their territory and regulating irregular migration and should be regarded as arbitrary. The Gauhati High Court has justified the detention of individuals in order to ensure they do not perform the act of vanishing. This clearly fails to differentiate between individuals with a high risk of absconding and those who pose no risk. Further Article 9 (1) of the ICCPR states that individuals whose deportation status is pending shall not be detained in prisons, but in separate detention facilities. A majority of the detention centres constructed by the Assam government are located within the vicinity of district prisons.
A stagnation of the deportation process is witnessed as the alleged country of origin – usually Bangladesh- has more often refused to take back the deemed foreigners. Thus the process of detention lacks clarity (as deportation is a rare occurrence). Lastly, the above-discussed defaults in the quasi-judicial process of the Tribunals such as lack of judicial independence, untrained lawyers, closed proceedings, absence of compensation for miscarriage of justice, reversed burden of proof, and prevalence of ex-parte proceedings all add up to constitute an unfair trial as per Article 14 of the ICCPR and Category III of UN WGAD.
The problem of migration is not alien to many countries. Each has set up its own mechanism to deal with the said issue by adhering to international legal standards. With regards to the burden of proof requirements in legal proceedings at the tribunal, the practice of Canada can provide guidance. The Immigration Division of Canada leans on the ‘balance of probabilities’, where the individual is granted a benefit of doubt. This leads to the sharing of the evidentiary burden between the state and the alleged migrant. Further, the department provides for mandatory legal representation for all contesting parties and conducts the hearing in open court. The performance of the members of the department is not subject to figures, but as to how well they have adhered to the internal code of conduct and abided by the principles of natural justice. The order of the department is not deemed final and individuals can contest their citizenship claims in higher courts as the same is subject to judicial review. The forum looks into individual cases and if there exists any violation of legal rights, the individual is awarded compensation for the miscarriage of justice. The arrest in furtherance of detention is only ordered if the alleged migrant’s presence in the society pose a general threat to the public at large, there exists a risk of flight if the identity of the person concerned has not been established and lastly if there are grounds for reasonable suspicion that the individual was involved in acts of organised crime or those violating international or human rights. Post detention the Department of Immigration is obliged to carry out a review into the lawfulness of the detention at multiple points in time. The logic being, the longer the detention, the stronger should be the reason for which it has continued.
The major concern of the entire process is the tag of statelessness that robs the individual of many state-sanctioned rights. India could follow the mechanism adopted by Kyrgyzstan, whereby individuals are granted some degree of citizenship rights barring only a select few. This ensures that those who are unable to be deported to their country of origin can reside in Kyrgyzstan with sufficient safeguards. Or take the German route which provides migrants, who fail to prove citizenship and are rendered stateless, permanent and unconditional residency permit. This avoids the option of confining the migrants to detention centres for prolonged periods.
Best practices within the paradigm of detention and citizenship exist in our country too. The Apex court permitted the practice of conditional release if the detention of the person has exceeded three years. In the wake of the Corona Virus pandemic, the time limit was further relaxed to two years. However, in order to be granted bail, detainees are required to furnish a bond worth two lakhs through two local sureties. Though this is a welcome move, many detainees lack the financial means necessary to meet the bail conditions. Relaxing this monetary condition on a need basis would ensure the release of many who are languishing in the detention centres for well over a decade.
Two legal precedents should be the touchstone for the Foreigners Tribunal in their adjudication. The first being the ruling of the Madras High Court which held that the Tamil refugees from Sri-Lanka, who were placed in transit camps and rendered stateless for a prolonged period, should be provided compensation, the most appropriate being the grant of citizenship. The court deemed the act of the government to be in violation of Article 21 of the constitution.
The second precedent pertains to the judgment of the Supreme Court of India concerning the Chakma and Hajong refugees of Bangladesh. They were settled in the state of Arunachal Pradesh by the government. Under the directions of the court, the central government decided to grant them citizenship status. Even if the said decision is highly contested, it provides guidance for a future court directed intervention with regard to citizenship claims that can ensure protection from statelessness.
(Samprathi is a graduate from Dr. Ram Manohar Lohiya National Law University, Lucknow. He may be contacted at email@example.com.)
Cite as: Samprathi Gowda, In Pursuit of Exclusion: Foreigners Tribunals: Part II (Through the Lens of International Law) (The RMLNLU Law Review Blog, 05 July 2020) <https://rmlnlulawreview.wordpress.com/2020/07/05/in-pursuit-of-exclusion-foreigners-tribunals-part-ii-through-the-lens-of-international-law> date of access.