A. STANDAR DS FOR ASSESSI NG WH E T H E R DE T E N T ION IS ARBIT R ARY This is evidenced by their prolonged detention in deplorable conditions180 as well as the inconsistent rates of deportation [↘]. Furthermore, Guideline 28(i) of the ERT Guidelines states that removal ceases to be a legitimate object when it is not practicable within a reasonable period of time.181 This necessitates the periodic review of the feasibility of removal action and detention pending such removal by domestic authorities. No such review procedure in this context exists in Indian law. In consideration of the ongoing pandemic, the Supreme Court’s recent order allows for the conditional release of detainees who have served a period of two years in detention.182 This means that a detainee must complete two years in detention to be considered eligible for release, and must additionally comply with other conditions prescribed in the order such as reporting requirements, deposit of sureties, verifiable residence, etc. The Court did not provide any rationale in concluding this duration. This order is silent on the aspect of periodic review of the proportionality of the detention, taking into consideration the circumstances of each individual case. Therefore, it fails to recognise and address the possibility of detention turning infructuous as a result of the State’s inability to complete the removal action within a stipulated timeframe. The terms and conditions of release are determined by an exigency – the covid-19 outbreak – not by an engagement with the substantive rights of detainees. Significantly, most persons detained under the guise of deportation have a ‘genuine link’ to India [↘] and are subject to processes which put them at the risk of arbitrary deprivation of their Indian nationality. Furthermore, the state of their alleged nationality (such as Bangladesh) does not acknowledge such persons as its citizens.183 Hence, they are Indian nationals and 180 Studio Nilima, ‘Report Of Visit To District Jail, Goalpara’ (n 158). See also Sangeeta Pisharoty, ‘Bad Food, Hunger Strikes: What Life Is Like If You’re Not On Assam’s NRC List’ (n 157). 181 ERT Guidelines (n 170). 182  Re: Contagion of COVID 19 Virus in Prisons (2020) WP (C) 1/2020 (Supreme Court). 183 Shoaib Daniyal, ‘Bangladesh government expresses concerns over Assam’s NRC process for the first time’ (n 164). chapter ii • detention see Section I.B.1 (Chapter II), pg 115 107 SECTION I.A.1 see Section I.A.1. (Chapter I), pg 43