When the Supreme Court of India recently reprimanded the Assam government for its inaction in deporting declared foreigners, it wasn’t just a judicial order – it was a moment of reckoning. The bench, led by Justices Abhay S. Oka and Ujjal Bhuyan, delivered a stinging rebuke, sarcastically asking if the government was “waiting for a muhurat (auspicious time)” to execute deportation orders.
The courtroom exchange wasn’t just another procedural hiccup; it was a reflection of how deeply entangled the issue of illegal migration remains in Assam’s political, legal and humanitarian landscape. The inability – or unwillingness – to deport foreigners declared by Foreigners Tribunals has turned detention centres into limbo zones where individuals, neither fully Indian nor successfully repatriated, languish indefinitely.
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But who exactly are these “declared foreigners”? Why is their deportation so difficult? And how does this tie into Assam’s decades-long immigration crisis?
Who are foreigners?
In India, a foreigner is legally defined under the Foreigners Act, 1946, as “a person who is not a citizen of India”. However, this broad definition encompasses several sub-categories, each with distinct legal implications:
- Declared foreigners: Individuals who have been legally adjudicated as foreigners by the Foreigners Tribunals in Assam. They are required to be deported, but many remain stuck in detention due to diplomatic and logistical challenges.
- Doubtful voters (D-Voters): Individuals flagged by the Election Commission for unclear citizenship status. They are referred to Foreigners Tribunals for verification. Until a verdict is passed, they remain in a state of limbo, unable to access full citizen rights.
- Undetected illegal migrants: Those who have crossed over from Bangladesh without valid documents and have not yet been identified by authorities. Many have been living in Assam for decades, blending into local communities.
- Stateless persons: Individuals who neither qualify as Indian citizens nor can claim citizenship elsewhere. These include people left out of the National Register of Citizens (NRC), a process meant to determine legitimate residents of Assam.
The Supreme Court’s recent reprimand specifically dealt with the sub-category of declared foreigners.
Why is deportation so difficult?
The obvious legal question arises: If the law mandates their removal, why is Assam struggling to act?
Deporting foreigners is not as simple as issuing a judicial order. It is a complex exercise fraught with legal, logistical and diplomatic roadblocks.
1. The stateless dilemma: Where do they belong?
Many declared foreigners, despite being branded Bangladeshi, have no way of proving their ties to Bangladesh.
Since Bangladesh does not officially recognise them as its citizens, deportation becomes nearly impossible. The Assam government cannot simply push them across the border without Dhaka’s cooperation. Without valid travel documents, these individuals become prisoners of geography – trapped in India yet unwelcome in any country.
2. The bureaucratic bottleneck
Deportation between India and Bangladesh necessitates strong diplomatic negotiations. However, the absence of a formal repatriation treaty between the two countries means that each case must be processed individually, often resulting in significant delays due to diplomatic reluctance.
Bangladesh has shown minimal willingness to accept deportees unless undeniable proof of their nationality is provided. Furthermore, a lack of political will on India’s part exacerbates the issue as the government, wary of potential international backlash, refrains from aggressively pursuing repatriation efforts.
3. The political quagmire
The deportation debate is heavily politicised in Assam. Political parties, fearing electoral consequences, have either fueled or resisted aggressive deportation drives based on their voter base.
The failure to act isn’t just administrative – it’s deliberate inaction fueled by political calculus.
4. Humanitarian concerns and indefinite detention
India does not have a refugee law, meaning there are no clear provisions for dealing with stateless persons. The result? Many declared foreigners end up in detention centres for years, sometimes decades.
The Supreme Court, citing Article 21 of the Constitution (Right to Life and Liberty), has repeatedly ruled that indefinite detention is unconstitutional.
In Md. Babul Islam v. Union of India (2021), the Gauhati high court ruled that a foreigner cannot be detained indefinitely and must be deported or released with restrictions. Yet, detention remains the government’s default response to date.
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What the courts have said
The judiciary has repeatedly confronted the Assam government’s inaction on the issue of illegal immigration. Several landmark cases have shaped this matter over the years.
In Sarbananda Sonowal v. Union of India (2005), the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, deeming it a barrier to the deportation of illegal immigrants and emphasising that migration is a national security issue.
Similarly, in Hussainara Khatoon v. State of Bihar (1979), the Court ruled that indefinite detention violates fundamental rights and underscored the necessity of speedy trials and humane treatment of detainees.
More recently, in Md. Babul Islam v. Union of India (2021), the Gauhati High Court reaffirmed that indefinite detention is unlawful and urged the state to either deport detainees or release them with restrictions.
These cases highlight the judiciary’s ongoing efforts to address the legal and humanitarian concerns surrounding illegal immigration and detention policies in Assam.
The legal stance is clear – detention without deportation is unconstitutional. Yet, Assam continues to drag its feet.
Will Assam finally break the cycle?
The Supreme Court’s warning is more than just a legal reprimand – it is a moral and constitutional indictment of the Assam government’s inaction, which has resulted in humanitarian crises in overcrowded detention centres, legal violations of the right to life and dignity, and the erosion of public trust in the justice system.
In Benjamin Franklin’s words, “Justice will not be served until those who are unaffected are as outraged as those who are.”
The issue of foreigners in Assam is beyond a legal dilemma – it is a humanitarian crisis, a diplomatic challenge and a political minefield. The Supreme Court has drawn the battle lines, demanding action.
The question remains: will Assam finally act, or will history repeat itself yet again?
As poet Warsan Shire poignantly wrote, “No one leaves home unless home is the mouth of a shark.” For thousands in Assam, home remains an unresolved question until the government provides an answer.
Sreejayaa Rajguru is a law student.
Note: This piece was edited to reflect changes after its author retracted quotes erroneously attributed to two other authors.
