Handcuffing And Leg Shackling Of US Deportees: Legal Perspective

What added to the shock was the lack of formal protest or condemnation from the Indian government. While India remained officially silent, several less powerful states, both militarily and economically, criticised the US for such inhumane treatment. Colombia, Brazil and Mexico protested strongly against the US's unilateral action. Colombian President disallowed the entry of US military planes into their territory, saying, “The US cannot treat Colombian migrants as criminals.” Later, he allowed deportation flights on the condition that his citizens would not be sent on US military planes.

On the other hand, no formal objections were raised by the Government of India. Rather than denouncing the incident, India appeared to defend the US actions, a stance that many found disappointing and diplomatically submissive. External Affairs Minister S. Jaishankar informed the members of the Parliament that the deportation of illegal migrants was not a new development, and the use of restraints on the deportees was a 'standard operating procedure' (SOP). However, such inhuman and undignified treatment cannot be justified in the name of SOP. Regulatory backing of such harsh measures cannot justify its use in every instance. The legality of such restraint should be assessed after considering the principles of necessity and proportionality.

U. S. Immigration and Customs Enforcement (ICE) is a federal law enforcement agency whose mission is to protect the United States from illegal immigration and cross-border crime. ICE works to detect and dismantle transnational criminal networks targeting Americans and threatening their industries, organizations, and financial systems. ICE works to remove those who are in the country illegally. However, as said by Karoline Leavitt, the spokeswoman of the White House, the deportation of criminal drug dealers, rapists, murderers, and individuals who have committed heinous acts within the country and terrorized law-abiding American citizens is the priority of the ICE.

Although ICE follows the Standard Operating Procedure (SOP) while deporting illegal migrants. Still, the application of the same degree of restraint to both heinous criminals and innocent illegal immigrants clearly violates the principle of necessity and proportionality, and hence, such restraint cannot be justified, especially in a State that adheres to the principle of 'due process of law.' The procedural due process requires an individualized judicial determination of the need for restraints rather than the general one.

This can also be inferred by examining the provisions of the ICE Standard Operating Procedure for the use of force and restraints (National Detention Standards, as revised in 2019). It authorizes the use of force “only after all reasonable efforts to resolve a situation have failed”; here, 'use of force' includes restraining a detainee. Physical restraints are permitted to gain control of an apparently dangerous detainee. It specifically prohibits using restraint equipment that causes physical pain or extreme discomfort. By reading this, it can be clearly inferred that the legislative intent behind providing for restraint is in the case of heinous criminals, which threatens the peace and security of the US, and not in the case of innocent illegal immigrants.

The rule also provides that under no circumstances shall force be used to punish a detainee. However, in reality, the way in which the entire deportation process has been carried out appears to be more punitive and less preventive.

The use of military aircraft for deportation is unprecedented, it is eight times more expensive than using commercial flights. In addition to higher costs, it also creates a perception of more harshness. The handcuffed and chained deportees, transported in a military plane, give the impression of dangerous criminals. President Trump has long referred to illegal immigrants as "criminals" who have "invaded" the United States. Trump himself remarked, “For the first time in history, we are locating and loading illegal aliens into military aircraft and flying them back to the places from which they came. We're respected again after years of laughing at us like we are stupid people.” Therefore, the use of military aircraft for the purpose of deportation carries a strong political message.

Violation of International Law:

The International Covenant on Civil and Political Rights (ICCPR), 1966, to which both India and the US are a party, obliges states in its preamble to promote respect for human rights and freedoms. It highlights the importance of recognizing the inherent dignity and equal and inalienable rights of all members of the human family. Article 7 of the ICCPR states that “no one shall be subjected to inhuman or degrading treatment or punishment.” Further, Article 10 of the covenant provides that “all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.” However, handcuffing and leg chaining of innocent deportees not only violate their liberty but also their human dignity.

In India, it is a well-settled principle that handcuffing, except in extreme circumstances, is against human dignity and violates Article 21 of the Constitution. In the case of Sunil Batra v. Delhi Administration (1978), the Supreme Court of India held that law enforcement authorities must justify using handcuffs and should not be used as a form of punishment. The court emphasized that handcuffing is a severe restriction on personal liberty and should be the exception rather than the rule. The Supreme Court has further reiterated this principle in many other cases.

Although India cannot regulate the actions taken by the U.S. within its territory, it may file a complaint before the UN Human Rights Committee under Article 41 of the ICCPR against the U.S. for violation of provisions of the ICCPR.

The author is an Advocate at Delhi High Court. Views are personal.