On being declared foreigner in Assam, families being torn apart, children growing up in detention

detention camp

Amnesty International India has called upon the authorities in Assam to end rights violations against persons declared foreigners and are held in detention centres. An Amnesty note:

Assam must end human rights violations against persons declared foreigners by the Foreigners Tribunals and held in detention centres across the state.

Detention of ‘irregular foreigners’ in detention centres within prisons, often indefinitely, has become routine in Assam. Amnesty traced the history of the anti-foreigner agitation in Assam, the legal regime and processes for identifying, detaining and deporting ‘foreigners’, and the inhumane conditions in detention centres in Assam.

“The government of Assam should remember that the constitutional right to life and personal liberty is available to all persons, including foreigners. Detention must be an exception, and used only as a last resort, while dealing with irregular migrants. Our study found a number of persons who have been in detention centres for months and even years, without any access to parole. They are separated from their families and have limited contact with the outside world. Other than severely restricting movement and access to livelihood, indefinite detention has devastating effects on the mental health of those detained and their families”, said Aakar Patel, Amnesty India.

Amnesty’s view is based on semi-structured interviews with key stakeholders, including individuals who had been detained and their families, doctors who work in prisons in Assam, academicians, lawyers who practise in the Foreigners Tribunals and Gauhati High Court, a former member of a Foreigners Tribunal and a former Special Monitor of the National Human Rights Commission. Relevant laws and policies, as well as orders from appellate courts, were examined.

Amnesty India found that:

  • There is no statutory limit on the period for which individuals declared as foreigners can be detained.
  • Individuals declared as foreigners are kept inside criminal prisons along with convicts and undertrial prisoners.
  • Circumstances and conditions of detention cause harm to individuals’ mental and physical health.
  • Foreigners Tribunals, which adjudicate citizenship cases, follow flawed processes to identify irregular foreigners.

As on 25 September 2018, 1,037 persons declared foreigners were being detained in detention centres in Assam. Many do not know what crimes have led to their incarceration. Most of them do not know what the future holds. They have no certainty about whether they will ever be released, and if so, when.

“We saw very high levels of depression. They didn’t understand what was happening to them. They had no way of exiting from there. They had no idea of the future. They were lonely, desperately lonely. It was really hellish. There is no arrangement to deal with the mental health burdens that exist,” said Harsh Mander, former Special Monitor of National Human Rights Commission (NHRC) who visited two of these detention centres.

Tracing the process by which these detainees ended up in detention, it was found that there are 100 Foreigners Tribunals across Assam which determine if persons brought before them are foreigners. The burden of proof to prove Indian citizenship is on the person accused. Often investigations are lackadaisical and notice is not served on the person.

“In fact, 30% of the 1,037 detainees in detention centres as on 25 September 2018 were declared foreigners in proceedings they were not even aware of. There is pressure on Tribunals to dispose off a large number of cases and that is disturbing. The authorities have totally failed to consider non-custodial alternatives to detention,” said Leah Verghese, an Amnesty India researcher.

“Families are being torn apart. Children are growing up in detention. No child should have to grow up in a prison,” said Aman Wadud, a lawyer working on detention cases. There are 31 children inside detention centres in Assam as of 25 September 2018. Many female detainees told Amnesty India that there were children inside the detention centres, staying with their mothers. Some of them had even attained majority in custody. Detention of children with their parents in these prisons is contrary to international human rights standards, and violates the principle to always act in the best interests of the child.

Detention centres are overcrowded and there is no segregation between the detainees, and convicts and undertrial prisoners. Kismat Ali, a former detainee said to us, “The room had a capacity of 40. When we reached there it was filled with around 120 people. There was no space. We had to live on top of each other.” Detention causes serious harm to detainees’ mental and physical health, as well as harm to their family members. This is especially so in cases of indefinite detention. Medical facilities are inadequate, especially mental health treatment.

The process of updating the National Register of Citizens is only adding to the prevailing uncertainty and fracture lines in Assam. This year, there have been at least 16 reported instances of people committing suicide for fear of losing their citizenship.

Amnesty India’s questions to the Assam government on detention centres remain unanswered. The time has come for the Assam government and the Government of India to take concrete measures to address inhumane conditions in detention centres in the state. The Assam government must seek non-custodial alternatives to detention wherever possible, and only treat detention of irregular migrants as a last resort.

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