Legal Framework on Foreigners’ Detention

Sections 3(2)(g) of the Foreigners Act 1946 enables the Central Government to make an order to arrest, detain or confine ‘foreigners’, i.e. persons who are not recognised as Indian citizens. According to a 2012 White Paper on Foreigners’ Issues, ‘foreigners’ are officially detained to ensure that they do not ‘perform the act of vanishing … till they are deported to their country of origin’. Individuals are declared to be ‘foreigners’ by quasi-judicial bodies called Foreigners Tribunals. However, there have been increasing concerns about the marred independence of Foreigners Tribunals and due process violations in determining who is a ‘foreigner’. Further, the law does not prescribe a maximum detention period and many ‘foreigners’ have been detained for years on end.

Detention in times of a Pandemic

In March 2020, in light of COVID-19, the Supreme Court took suo moto cognizance of overcrowding in prisons and directed state governments to take adequate steps towards decongestion. In this context, Raju Bala Das, a declared ‘foreigner’ who had been detained for two years in Assam, submitted a petition to the Court praying for his release. His argument was two-pronged: (i) overcrowded and unhygienic detention conditions made social distancing impossible and heightened the risk of contracting infection; and (ii) deportation was no longer possible in light of State-imposed travel restrictions.

Justice and Liberty Initiative, a legal aid organisation, also filed an application praying that all ‘foreigners’ in Assam’s detention facilities be similarly released. The application relied on a 2019 Supreme Court order that had already held ‘foreigners’ detained for three years as eligible for conditional release. In light of COVID-19, the present application for immediate release of all declared foreigners was founded upon the right to life and personal liberty guaranteed to all persons – not only citizens – under Article 21 of the Indian Constitution. The Supreme Court modified its 2019 order and decided that all declared ‘foreigners’ who had spent at least two, as opposed to the original three, years in detention would be eligible for conditional release.

The Curious Case of Continued Detention

The 2020 order is admittedly a positive step towards curtailing the risk of spread of COVID-19. However, the reasoning in the judgment (or lack thereof) seems suspect.

Firstly, there is no rational nexus between the possible aim of preventing ‘foreigners’ from contracting infection in detention and the basis for differentiating between those who do and do not qualify for conditional release. The duration of a foreigner’s detention, on its own, has no relation to his/her proclivity to get infected. Instead, age and preexisting medical conditions of detained ‘foreigners’ should have arguably been taken into account.

The second justification for release could have been the lack of reasonable prospects of deportation. However, given the current border closures that make deportations impossible, all declared ‘foreigners’ should have been made eligible for conditional release, irrespective of the duration of their detention. In ordering the conditional release of only those who had spent two years in detention, the Court effectively legitimises the continued detention of the remaining ‘foreigners’ who also have no reasonable prospects of deportation.

The absence of a principled justification for the continued detention of select ‘foreigners’ in the context of COVID-19 illustrates a punitive function served by foreigners’ detention that is otherwise masked as an administrative formality. The continued detention of ‘foreigners’ today seems to operate not as an administrative measure to effect deportation but as punishment for their inability to prove citizenship. In the wake of recent attempts to expand foreigners’ detention across India, there will be a critical need to situate foreigners’ detention within the crimmigration paradigm in future research.

The international human rights corpus was slow to develop in respect to the rights of persons with disabilities. The Universal Declaration on Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) failed to explicitly mention disability as a protected ground of discrimination. In fact, the 1975 UN General Assembly Declaration on the Rights of Disabled Persons was the first inclusive recognition of disability within an international rights-based model. In particular, the Declaration provided that disabled persons had the ‘same civil and political rights as other human beings’, with special regard to ‘measures designed to enable them to become self-reliant’. Subsequent to marking 1981 as the International Year of Disabled Persons and organizing the World Programme of Action concerning Disabled Persons in 1982, the UN General Assembly drafted the 1993 Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, Rule 5 of which particularly targets accessibility as a condition precedent for equal participation with regard to physical environment, information, and communication. The 1993 ICESCR General Comment No. 5 on Persons with Disabilities crystallised the international commitment to securing, in method and substance, equality and liberty to persons with disabilities. The General Comment expressly locates the purpose of anti-discrimination measures in the principle of equal rights for persons with disabilities, which entails, inter alia, access to all community services and employment of resources to ensure equal opportunity for participation. It further acknowledges that various civil and political, and socio-economic rights cannot be effectively realised without the removal of certain barriers.

Diffuse international efforts to incorporate disability as a human rights concern culminated in the form of the Convention on the Rights of Persons with Disabilities in 2008 (CRPD), which sought to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ and expressly mentioned accessibility (Art 9) and equality of opportunity as core principles of the Convention. Against an arguably robust international human rights context, let us now evaluate India’s commitment to equality guarantees for persons with disabilities through the prism of Rajive Rature.

India has both international and domestic obligations to protect and secure the rights of persons with disabilities: as a State party to the CRPD, India enacted a statute to concretise its principled commitment to barrier-free access to facilities, which takes the present form of the Rights of Persons with Disabilities Act 2016. The deliverables in the recent judgment meticulously elaborate on what constitutes access to public spaces, and range from installation of auditory signals at traffic lights to drafting of bus route maps and schedules in Braille. Pertinently, however, the Court premises the justificatory duty imposed upon the State in a reimagined understanding of equality, that transcends mere equality in treatment to entail ‘remedying of discrimination against groups suffering systematic discrimination in society’. The substantive content of the State obligation then is not only negative, ie ‘protection of individuals against unfavourable treatment’, but also positive, in addressing and alleviating disadvantage, stigma, exclusion, and social neglect. The Supreme Court foregrounded this positive duty of the State in three constitutional imperatives. First, it relied upon the fundamental right to life under Article 21, which has been interpreted to mean a dignified and meaningful life, to frame the need for active measures to enable persons with disabilities to lead a life with dignity. Second, it invoked Article 19(1)(d) that guarantees to every citizen the fundamental right to move freely throughout the territory of India, which cannot be effectively realised without taking active steps to remove barriers to free movement for persons with disabilities. Lastly, the Court cited Article 41, a Directive Principle of State Policy, which requires the State to make effective provisions for securing the right to work, to education, and to assist, inter alia, the disabled. In so doing, the judiciary was able to comprehensively locate positive duties of the State in a matrix of constitutional and statutory provisions.

Admittedly, Rajive Raturi is not the first case that directed access to amenities for persons with disabilities in India: the judiciary has previously guaranteed deliverables such as accessible amenities in voting stations, disabled-friendly work environments, and accessible amenities in railway stations in what seems to be a growing reservoir of disability rights jurisprudence. However, the recent judgment’s uniquely mature appreciation of substantive equality and positive obligations of the State will leave an indelible mark in India’s equality jurisprudence in specific respect to disability rights.