‘I Did the Right Thing’: Harsh Mander on SC Deportation Case Drama

The activist explains why he asked CJI Ranjan Gogoi to recuse himself, and why he still stands by his concerns.

Social activist Harsh Mander found himself in the news on Thursday, 2 May, after a controversial hearing in Assam deportation case in the Supreme Court of India, where Chief Justice of India Ranjan Gogoi not only refused to recuse himself from the case, but removed Mander from the case – despite him being the petitioner.

Mander had filed an application requesting the CJI to recuse himself in the case given the way the case had changed direction, in his opinion. It was originally filed as a request for humane treatment of illegal immigrants in detention centres and an end to their indefinite detention, but oral observations by the judges had seen the focus shift to deportation.

The Quint spoke to Mander a day later about why he took this step, and whether he thinks he made the right decision. “I would do it again,” he said, adding “I can act only according to my conscience and judgement.”

Here’s what he had to say about why he isn’t disappointed with what happened, and what he still hopes for the case to come (with some clarifications of points made in the original audio).

What is your reaction to what happened in court?

When we look to the highest judiciary for justice, I believe that true justice is only justice that is tempered with compassion. And it was really compassion that I was most seeking from India’s highest court, and what I found most missing in the way that I saw the Chief Justice responding to the predicament that I placed before them in my report and petition.

We’re talking about a thousand people living in completely hellish circumstances, often for close to a decade, families separated, with no prospect of coming out, for no crime except that they’re not being able to prove their citizenship. And the degree of suffering and distress.

I very carefully in this petition separated it from all other larger questions of the NRC or citizenship or process. My argument was that even if by the fairest of processes you declare somebody to be a foreigner and the other country doesn’t accept the person, then what are we going to do with these people? Are we going to lock them up indefinitely and in these circumstances?

This contravenes humanitarian principles, contravenes the constitutional guarantees of the right to life, it contravenes international law. International law says maximum three months for people of contested citizenship, in very rare circumstances, this can go up to six months. Here we’re talking about something close to a decade now for many of the people.

The danger is that after the NRC and the Foreigners Tribunals, what is going to happen to the perhaps millions of such people – there has to be a stated policy.

The second point is that in the absence of it, the remarks that the Chief Justice made were very worrying – they may be oral remarks, but the kind of impact they had had locally was huge, both in terms of political statements and the sense of fear the community has started living with subsequent to these remarks.

Once cannot say that you know, technically we just made remarks, we didn’t pass orders.

You mentioned that the impact of the preceding hearing, where the CJI took exception to the Assam government’s plan to release detainees who’d been there for five years, was very worrying. What did you mean by this?

I’m in close touch with people there. The politics of it is terrible. What was particularly atrocious was the Congress party in Assam said that the Assam government should be dismissed because it even suggested that people could be released even after five years.

People said that they were now frightened to even leave their homes. There’s a continuous fear that they’ll now be arrested in large numbers. And this is something I’ve been unable to confirm, but I am told that arrests have gone up significantly in recent days.

See, when the highest court speaks it means a lot anyway, and a lot of this whole process has been directed by the Supreme Court. As a consequence of my petition at least this very grudging response had come in the last affidavit where the Chief Secretary and Home Ministry and the Government of Assam had sat together and said that they would allow or consider releasing people after five years on a very heavy bond, and that they’ll have to report to a police station every week, etc.

These were very hard conditions to apply and much below the standards set by international law. But it was still the first time a tiny window was opened, in a sense. And it was on that that Justice Gogoi made all his remarks that what you’re proposing is against the law and Constitution and you can be punished and all of that.

And so in the latest affidavit they are talking about setting up one thousand Foreigners Tribunals, etc.

Why were you not satisfied with this approach of the court?

The Chief Justice is entirely free to suo motu take up any of those issues. But this petition was about the plight of these one thousand people living in this kind of distress, and life and liberty is not something that one should take lightly.

In my opinion, a petition that was supposed to draw attention to and end the distress of the circumstances of their confinement, the separation of families and the indefinite detention – seemed to have been converted into a petition about mass deportation and much larger detention of people.

Had any directions been passed by the court dealing with the issues of inhumane treatment and indefinite detention?

There were many positive developments regarding my first plea, of better conditions of detention, when [Justice] Madan Lokur was hearing the petition – it was first in his bench – it was going in the direction I would have wanted it to go. The government actually gave assurances that they will reunite families, they will not separate them.

Till Justice Lokur retired, it in theory dealt with most of my concerns except the central question of indefinite detention.

On most points except indefinite detention in principle it seemed we were moving closer to an agreement. I had said they shouldn’t be dealt with under the Jail Manual since they’re not prisoners. They should not be kept in jails, not separated from their families. The state government said they were in the process of writing a separate manual for these detainees, to separate them from jails, to create a detention centre which allows families to live together, reunite families in the meanwhile.

These were not rolled back by the new bench headed by Justice Gogoi, but a lot of it is in the future. That we are in the process of creating this manual, that we are in the process of creating the new detention centre, etc.

The CJI says the doubts raised by you can do severe damage to the institution. Is it correct to raise concerns of bias in cases like this, especially when it’s just about oral observations of the judges?

The third point that I was trying to make – this idea that to question an institution like the Supreme Court is not because one doesn’t have faith in it. But it is because one has faith in it that one raises questions.

And the idea is that the highest institution of the land and the highest courts are still subordinate to India’s poorest people and they have to be accountable to them and be open to answering questions to them.

On the technical question about oral statements not having force of law, this has been long discussed. What grabs the headlines in most cases is the observations that judges make, but it’s never recorded, never part of any record. What remains is the judgment and the judgment can be quite at variance with what the person has said. But the impact of what is reported about the oral statements is huge. So many of us believe that oral observations should be part of the record.

Why did you opt for recusal? Were you advised to do this rather than take up another option?

It was entirely my decision. That’s why Prashant [Bhushan], my lawyer, separated himself from this case – in all friendship and support. But he said ‘I can’t argue this’.

If my intervention in the Supreme Court results in a situation that could, in the direction I saw the case moving, could actually cause even more distress and injustice to even more large numbers of people, I had to do everything I could in my judgement that the law allowed me, to call it out, to try to stop this.

I had no right to criticise the judgment in the public domain because I was the petitioner – I felt that my only legal recourse was that I could go back with my concerns and worries to the court itself. Because no lawyer was willing to argue my case, I had to do it as a petitioner in person.

Did you expect this to happen?

I was ready for any consequence – for much worse as well. But I needed to have my say. Even the worst that could happen to me was a minuscule fraction of what each person in the detention centre was enduring. So that was not a big deal.

Are you disappointed with what happened in court, being struck off the case? What does the removal of you as the petitioner in your own case mean for it going forward?

I am very hopeful. The issues were pointed out, the court heard me, and the petition will continue with Prashant [Bhushan] who is completely devoted to the cause and issues. The same people who were supporting me in this petition will support him.

So I am not despondent at all by the outcome of what happened yesterday. I felt I needed to say in the public domain to the court my concerns, and leave the rest to the court and to how the case proceeds.

Did you think what the judges said about why the other issues had come up in oral observations justified what had happened in court till then? Do those answers change your opinion on the proceedings?

I stand by my concerns. I do believe that oral observations did cause enormous worries and distress – not to me as a petitioner as much as to people on the ground whose liberty and futures, tens of thousands of such people, are in the balance. I continue to feel that I did the right thing according to my conscience. I might have been right, I might have been wrong, but I have only my conscience to answer to.

I would do it again. I can act only according to my conscience and judgement.

How do you hope the case will proceed? Will you be going back to the detention centres to see what’s happening?

I’m not allowed entry again into the detention centres, it was just that window that I got because I was an appointee of the NRC. So I became the first non-official I think in almost a decade who was allowed to enter and report on it. That’s what initiated the proceedings and that’s why I went to the Supreme Court, because I had observed it.

Now there’s no question of them letting me in. But I will hope that the amicus is permitted to go, and that’s what I will request and advise. So that he can verify the improvement in conditions that are reported.

The central question of indefinite detention will of course have to be resolved outside the detention centres. That is the most important question of the right of these dispossessed poor people of contested citizenship to their fundamental right to life and liberty.