Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 2

As the first flight carrying Indians deported from the United States, it would do well to remind ourselves that this is being done with the acquiescence of the Indian Government. And rightly so. However, after the Supreme Court’s order of February 4, 2025, directing the immediate deportation of 63 individuals in detention camps, the Assam government and the Union find themselves between a rock and hard place.

Clearly, the deportation process will not be following accepted bilateral procedures on deportation agreed upon earlier between India and the once SheikhHasina ruled Bangladesh. There is a distinct possibility of forcible deportations and pushbacks at the already tense Indo- Bangladesh border.It is also another impediment to normalizing relations with our eastern neighbor. Given the mood of the streets in Dhaka, if Bangladesh shows acquiescence to the deportations by India, it will be a major nail in the coffin being built for the Mohammad Yunus led interim government by a range of actors on the political chessboard for Bangabhaban.

The move is also bound to attract international opprobrium. As is, Raisina Hill does not enjoy the political or economic heft to be able to expend diplomatic capital under President Donal Trump on the issue of immigrants.

A little Background

As per the Assam Accord of 1985, the official reason why declared foreigners are kept in detention centres is to facilitate the Border Security Force (BSF) to apprehend them after the procedure for deportation to another country has been finalized. In a similar articulation, the Gauhati High Court has held that the purpose of detaining foreigners in detention centres immediately after detection is to ensure that they “do not perform the act of vanishing”.  This reasoning does not differentiate between different individuals and their risk of absconding. Beyond this, a broader issue with detention is that in practice, deportation is highly unlikely to occur. 

According to a report by Amnesty International, as of August 31, 2018, only 128 declared foreigners had been deported to Bangladesh, the alleged country of origin of the majority of declared foreigners.  Notably, many of those detained have not even been declared foreigners yet. Still, they fall within the category of “D-voters” – those whose citizenship status is merely doubted or debated, and who have not in fact been declared foreigners yet.  For D-voters, the prospect of deportation – which is the underlying motivation for preventive detention – is even more unlikely. In fact, because India declares individuals’ foreigners without consulting the individual’s alleged country of origin – usually Bangladesh – the responding country may refuse to allow the individual to be deported there, thus leading to roadblocks in the expulsion process and to an indeterminately prolonged detention.  This, again, stands clearly opposed to basic principles of international law, which hold that detention must end when it becomes apparent that deportation is not likely to occur within a reasonable period.