It’s irritating when some of our basic human rights like the right of free movement, right to assemble in public places etc are being suspended by the government due to the current pandemic.
Let’s think, what will be the situation of a person whose basic human rights are continuously being violated for years?
What may make this relevant is that before the start of the pandemic, the issue of uncontrolled and undocumented immigration in India from its neighbouring countries, particularly from Bangladesh, was being debated in every desk of the media houses of Assam. Now, it’s been replaced by talks over new UGC guidelines or by the prospect of young leaders forming a new political party in Assam. This means, the prospects of human rights of the detainees in the detention centres of Assam are kept in abeyance stayed for a while until the situation becomes normal again.
Let’s start from the very beginning. Illegal immigrants are people who migrate to a country in violation of the immigration laws of that country, or their continued residence without having the legal right to live in that country. But they are not criminals.
Detention centres are meant for housing illegal immigrants who are detected by foreigners’ tribunals until they are deported.
Assam currently has six detention camps. All these have been set up inside jails in the Goalpara, Kokrajhar, Tezpur, Jorhat, Dibrugarh and Silchar districts of Assam. A total of ten centres have been planned to be built in Assam. The detention centres to be constructed following the exclusion of people from the final National Register of Citizens of India. This facility is likely to house a section of those who have been declared foreigners by the foreigners’ tribunals.
Various studies have revealed that throughout the process, from detection to the deportation of illegal migrants, the minorities and the poor people have had to suffer a lot. There are allegations that prisoners under the detention centres of Assam are being deprived of their basic human rights and facilities; thousands of illegal migrants are being kept in detention centres for years in Assam without being repatriated or deported to their countries of origin.
By giving much stress over the severity of this matter, a mission called “NHRC Mission to Assam’s Detention Centres” was conducted over the detention centres of Assam from 22 to 24 January, 2018, on behalf of the National Human Rights Commission. The mission was guided by a few human rights activists. Throughout the mission, the team visited two detention centres of Assam and met the detainees. Interestingly, the mission found a situation of grave and extensive human distress and sufferings in every detention centre. Detainees revealed that they were held in two jails for several years, in a twilight zone of legality, with no contact with their families and with no hope of their release. The mission found ‘actual foreigners’ who were in detention for as long as nine years, from Bangladesh, Pakistan, Nigeria and Afghanistan.
Again, on 23 November, 2018, a report was published by “Amnesty International India” with the heading “Assam: End Rights Violations against Persons Declared Foreigners and Held in Detention Centres.” The report is based on the findings of a mission as taken by Amnesty India over the conditions of the detainees who are being kept in the detention centres of Assam for long.
During the interview, Kismat Ali, a former detainee said to the interviewing team that the room where they were kept had a capacity of 40. When they reached there it was filled with around 120 people. There was no space. They had to live on top of each other.
In this context, a public interest litigation (PIL) was filed by activist Harsh Mander that highlighted the plight of people lodged in detention centres. The apex court had expressed concern over this matter. According to the ruling by the Supreme Court of India, illegal immigrants can be held for three years at such facilities, after which they are eligible for bail. The court held that those foreigners who have spent over three years in detention centres in Assam can be released on two Indian sureties of Rs 1 lakh each. But such released foreigners will have to report to local police stations to ensure that they do not abscond.
International law also explicitly lays down that immigrants cannot be detained in jails and that their status is not that of criminals. The status of immigrants is not that of criminals.
According to UNHRC Guidelines, detention can happen only in officially recognized places of detention. Prisons and jails should be avoided for such purposes. States are obligated to ‘place asylum-seekers or immigrants in premises separate from those persons imprisoned under criminal law’.
The UNHRC lays down that detention should not be punitive in nature. The use of prisons, jails and facilities designed or operated as prisons or jails should be avoided. Female detainees should be held in an area that is separated from that which accommodates male detainees, and their privacy should be guaranteed.
Despite these strong guidelines, the detainees in the detention centres are still counting their years for release. Their basic human right to live with dignity and right to procedural due process are continuously being violated with no reason. At a time when the whole world is trying to kick back the novel coronavirus with much positivity of meditation and yoga, perhaps with much better force the deprived detainees are positively gaining much negative force there.
Recently, Gauhati High Court has showed positive concern over this serious matter. On 7th October, 2020, the Gauhati High Court declared that foreigners’ detention centres in Assam had to be moved out of jail premises. The court was hearing a petition asking how detention centres used to hold persons identified as “foreigners” and awaiting deportation/repatriation or persons waiting for their citizenship claims to be settled, and should be operated. The Assam government had argued that a 2018 notification by the Centre allows a part of jail premises to be converted into detention centres as a temporary measure if no other buildings are available. The Gauhati High Court observed that “10 years have passed since jail premises in Goalpara, Kokrajhar and Silchar were declared detention centres”, which can no more be said to be a temporary arrangement.
“Even in respect of Jorhat, Dibrugarh and Tezpur, a period of 5 years is almost over which also again cannot be strictly said to be a temporary arrangement,” the Court observed.
Finally, the High Court ordered the state government of Assam to submit an “action taken report” on steps to set up detention centres outside jail premises. The report was listed for hearing on October 16.
Nevertheless, it is not possible either for the central or state government to come up with instant solutions, but a clear long-term policy on the government’s part will perhaps shorten this issue in near future. Not only strict guidelines, but this issue demands detailed research from the very grassroots level with the active participation of human rights activists, stakeholders and NGOs in the process of strategy making.
(The author is a law faculty based in Guwahati. The views expressed in the article are her own.)
