Three staples required for constructing detention centres in India include law, state and ‘illegal migrants’. These, along with bricks, cement and mortar, build suffocated cubicles, cramped by many who fail to prove their citizenship. In trying to establish their linkages with the state and in prooving bloodlines on paper, many succumbed to legal and administrative machinery.
Deepanshi Mehrotra tells the story of violations and confinement and an increasing number of detention centres in India despite COVID-19.
By Deepanshi Mehrotra, a law graduate from Symbiosis Law School in Pune, Maharashtra. Deepanshi is currently freelancing.
What Are Detention Centres? Where Can You Find Them?
The construction and presence of detention centres meant for housing illegal immigrants took over the political debate during the promulgation of the Citizenship Amendment Act (CAA).
The anxiety around detention centres slowly gained prominence as Union Home Minister announced the National Registry for Citizens (NRC) for the whole of India.
The Union Home Minister claimed to have built detention centres in huge numbers across India. This move was subjected to international criticism for violating human rights. In these detention centres, detainees are often grouped under two categories: declared foreigners and convicted foreigners.
‘Declared foreigners’ are notified to be a foreigner by a tribunal or court due to the lack of documentation. Convicted foreigners are the ones who were held for committing an offence in India, and after serving their sentence, they are waiting to be deported back to their home country.
Section 3(2)(e) and Para 11(2) of the Foreigners’ Act, 1946 authorize the operation of detention centres in India.
The Tarun Gogoi government was first to establish these centres in Assam according to the Guwahati High Court’s order in the case State of Assam v. Moslem Mondal.
The court order provided for establishing detention centres to house declared foreign nationals who have failed to prove their citizenship.
As of January 2020, as per the government, there are ten operational detention centres in India. Six in Assam, housing almost 1000 detainees. These centres exist in Kokrajhar, Tezpur, Dibrugarh, Jorhat, Silchar, and Goalpara district jail. 98% of detainees in Assam have migrated from Bangladeshi, and the rest are from Myanmar.
The other four centres are in Lampur in Delhi, Mapusa in Goa, Alwar Central Jail in Rajasthan, and Amritsar Central Jail in Punjab. Three new facilities are under construction in Matia in the Goalpara district of Assam, Tarn Taran in Punjab, and Bengaluru in Karnataka. The Goalpara detention centre in Assam is nearing its completion and is said to have a capacity to hold 3000 inmates.
The Devendra Fadnavis’ government undertook similar plans for Mumbai, but the incumbent Chief Minister Uddhav Thackeray shut them down. Bengal government also initiated the establishment of two detention centres in New Town and Bongaon.
Purpose Of Detention Centres in India
The primary purpose of setting up detention centres in Assam was to tackle the heavy influx of immigrants from Bangladesh that resulted in a gradual change in the demography of Assam.
Foreigners’ Tribunals were set up in Assam in 1964 to deal with the entry of illegal immigrants into the state. These tribunals acted as quasi-judicial bodies adjudicating on cases referred to it by the Foreigner Regional Registration Office (FRRO), which works on recommendations by the Assam Border Police Organisation.
Various observation and news studies show that individuals whose names did not appear in the Assam NRC were declared foreigners and sent to detention centres or camps. When the Modi government announced a plan for the nationwide National Register of Citizens, there was a massive uproar against it. Although the government immediately backed out on any such plans, only recently, during the Bengal election, Union Home Minister Amit Shah again signalled a possibility for its implementation.
Therefore, if NRC were to be implemented, there is a high possibility that those who do not make it to the cut may end up in these centres. The upheaval against Assam’s implementation of NRC can only lead one to conclude that nationwide NRC would be a catastrophe.
An essential objective of detention centres is the denial of liberty to non-citizens within the territory of a state. A nationwide NRC exercise will be disastrous for the state’s social structure and result in severe human rights abuse.
Another purpose of detention centres is to restrict the movement of illegal immigrants so that the government can quickly deport them back to their state.
The issue here lies in the definition of an ‘illegal immigrant’ in India. ‘Illegal migrant’ is an umbrella definition that includes refugees, stateless persons, asylum seekers, and other persons of concern.
Restraining their movement and eventually forcing them to return to their states violate international norms and principles.
All the detention centres in India are present within prison compounds, but they are not supposed to be prisons. Prisons house criminals, whereas detention centres are supposed to accommodate individuals waiting for a decision on the legality of their presence in the country.
Moreover, detention centres were first set up in Assam as a temporary measure until a permanent solution emerged. However, this predicament does not seem to end even after almost ten years of its making.
Life Inside Detention Centres in India
In 2020, the Hindustan Times did a detailed coverage about the conditions persisting in detention centres. One of the many chronicles of despair is the story of Mohammad Sanaullah. Sanaullah, a retired Army veteran, had spent 11 days in a detention centre. On recounting his experience, he stated:
“Nearly 40-45 people are crammed inside one room. We had to sleep on the floor, the food was inedible, and the toilets were dirty. Mornings started with one roti and stale tea without milk or sugar; for lunch, there used to be stale rice, watery dal and one sabzi, and a similar routine was followed for dinner.”
He further said,
“When family members come to visit, we had to talk to them from inside an iron grill while they stayed 5-6 feet away behind a fence. It was my fate that I had to spend time in detention despite being an Indian.”
The detention centres in Assam are operating according to the 2016 Assam Jail Manual. There are no facilities in these centres and no provision of waged work. There has been widespread criticism against the existing facilities due to overcrowding and poor hygiene.
Following these inhumane conditions, activist Harsh Mander had filed a Public Interest Litigation before the Supreme Court. PIL discussed the poor and unhygienic conditions of the detention centres in Assam, resulting in the death of 28 people since 2011, as per official records.
As a direct consequence of the PIL, the Union Government handed out a manual to states regarding the governance and maintenance of detention centres.
As per the Ministry of Home Affairs, the manual is supposed to be a guide comprising multiple amenities to ‘maintain standards of living in consonance with basic human needs’.
Chapter four of the manual specifies the amenities that must be provided within detention centres, holding centres and camps. Among other amenities, part 4.10 includes electricity, drinking water (including water coolers), sanitation facilities, properly segregated accommodations for male and female detainees with beds, and a kitchen.
Point 22 under chapter 4 states that members of the same family must not be separated, and all family members should house in the same detention centre.
Although this direction may look humane, the same doesn’t translate on the ground well. For instance, women are the worst hit in these conditions. Most of them are illiterate and cannot authenticate ties with their families, making them highly vulnerable to the exclusionary policy of the government. According to a report by Sadiq Naqvi in the Hindustan Times, a family listed in NRC could not prove their ties with their daughter Halima.
Halima Khatun was one of the detainees in the Kokrajhar detention centre for four years as she couldn’t provide the documents to prove her citizenship. After getting released towards the end of December 2019, she described the conditions of the camps to be deplorable, where forty detainees shared one room. They were forced to use clogged toilets with little privacy and were not provided with enough food to satisfy their hunger. In her interview with Bloomberg, she said,
“It is like chickens raised in a poultry farm…it was better to die.”
The spread of Covid-19 also had a profound effect on the detainees, worsening the conditions of the detention centres.
The centres or camps have insufficient hygiene levels and limited access to healthcare which amplifies the susceptibility to Covid-19.
Conditions in these centres are inhuman lacking necessities like beds and toilets, with 40-45 inmates sharing one room. Such unhygienic conditions can be a breeding ground for the coronavirus. The detainees are forced to live in closed spaces, thereby violating norms of social distancing necessary to mitigate the spread of Covid-19.
During the first wave of Covid-19 last year, foreign nationals were not a part of the emergency release of prisoners from jail based on bail or parole.
According to a Justice and Liberty Initiative report, 29 declared foreigners died in detention centres due to various diseases since 2016. Ten of them died between March 1, 2019, and February 20, 2020.
These centres have become a symbol of human distress and suffering. Detainees have no prospects of release and no rights available compared to the prisoners in the actual jails. They have no contact with their own families.
Unlike prisoners, detainees cannot walk outside their barracks, even during the daytime. And have no source of work or education.
Legality Of Detention Centres In India
The Indian law on illegal immigration states that illegal immigrants should be put in a separate detention centre within a jail compound to ensure that they do not mix up with the other jail inmates.
Even though detention centres are compared to a prison, various rights of prisoners are not available to detainees. They are not eligible to get waged work inside the centre or parole and bail facilities.
In its 2019 order against a plea by Harsh Mander, the Supreme Court offered a namesake relief to illegal immigrants who had spent three or more years in detention to be released on conditional grounds.
The Court further ordered that the authorities must collect detainees’ ‘biometric, iris and all ten fingerprints and photos before releasing them’.
A newspaper headline reads, ‘Detention centres house illegal immigrants.’
This statement raises a pertinent question as to who is an ‘illegal immigrant’. The Foreigners Act defines an illegal immigrant as a person who is not a citizen of India.
This definition would include even refugees, asylum seekers, and stateless people seeking refuge from violence in their countries. Imposing restraint and further mental distress upon these persons of concern and throwing them inside a centre, essentially a prison, is a severe violation of international refugee law and any individual’s human rights.
The decision of the tribunal is final in cases of citizenship. Appeals can be filed in the High Court and the Supreme Court, but adjudication can take years, and all this, while the individual concerned remains locked up in a detention centre.
In April 2020, the worsening of the situation due to the rise of Covid-19 forced the Supreme Court to order conditional release on bail of those ‘foreigners’ who had completed over two years in jail to prevent congestion and overcrowding. However, those unable to meet these conditions got exposed to the virus.
The concept of detention centres essentially stands as an exception to criminal law as non-citizens are isolated and detained by the government. Non-applicability of criminal law also raises the issue of non-applicability of the rights available to such detainees.
Scholars Martina Tazzioli and Glenda Garelli states,
“It is not formally a punishment, nor does it require a criminal conviction. Individuals are detained without charge or trial, and typically with a lower standard of legal safeguards than available to those subject to criminal law.”
These centres are established to restrict the movement of a person by essentially curbing their liberty.
Multiple individual rights and freedoms guaranteed to the citizens are not available to the detained non-citizen in the state. Detention centres are a symbol of human rights violation of individuals stripped of their citizenship due to lack of documents.
Suggestions to Improve the Condition of Detention Centres in India
All detention centres in India are located within jail compounds. However, these centres operate outside the purview of criminal law.
It is thus, needed to free such centres from a prison-like environment. Therefore, moving detention centres outside jail premises.
Detention centres have a substantial population of women and children. Hence, it is necessary to provide welfare facilities for children and pregnant women. It is also essential to ensure that these centres have amenities like water, electricity, and security.
The High Court of Guwahati also asserted this by stating that the first detention centre in Assam became operational ten years ago. It is a long time to term these centres as mere temporary arrangements. Thus, steps need to be taken by the government to provide essential amenities to the detainees to safeguard their rights.
Refugees and asylum seekers form a prominent part of the population residing in detention centres in India. This highlights the need to promulgate a better and more accurate law dealing with the vulnerable refugees in India. It is a high degree of human rights and international law violation to put them in detention centres, originally meant for criminal offenders.
The centres must provide essential legal services to the detainees, including access to legal aid facilities. Detainees can experience profound stress due to their living conditions and the unclear status of their cases. They are also unable to meet their relatives or get employed like other prisoners.
All these factors can have a cumulative effect on the mental health of an individual. The government must take steps to enable these individuals to meet with their families and provide easy access to legal aid.
It is imperative to secure the Right to Education (RTE) of the children residing in these detention centres. The court should direct for safe teaching facility for children with teachers and study material.
Conclusion: Where are we heading?
Detention centres are supposed to house foreigners illegally residing in India, but many Indian citizens who lack proper documentation and identifications are often declared foreigners by the Foreigners’ Tribunal.
The government has no apparent plans concerning individuals directly impacted by CAA and NRC. Assam NRC excluded 1.9 million people, rendering them stateless. Now they fear either deportation or detention. A nationwide NRC would be catastrophic to the social structure as well as the demography of the country.
When India is struggling against a pandemic, families of undocumented migrants are held indefinitely in a detention centre. And the state continues to deny them fundamental human rights.
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 Constitution of India, art. 21(A)