A recent Amnesty International India report, “Between Fear and Hatred: Surviving Migration Detention in Assam” say that as on 25 September 2018, there are 1,037 people detained for being ‘irregular foreigners’ in detention centres housed inside prisons in the Indian state of Assam . Many do not know what crimes have led to their incarceration. Most of them do not know what the future holds. Some of them have appealed against official decisions deeming them ‘irregular foreigners’. There is no statutory limit on the period of detention. Some have been in custody for many months, and some for years without access to parole.
Pointing out that there is no system by which their detention is periodically reviewed, the report states that these individuals are not segregated from convicts and undertrial prisoners, who are also housed in the same prison facilities. They have limited contact with their families. Some are even separated from family members who are also being held in detention in other centers. There are children who grow up with their mothers inside prison. Many detainees suffer from mental and physical health issues associated with the conditions of their detention. Healthcare services are inadequate, and there are few avenues for recreation.
International human rights law requires that detention in connection with migration must only be used as a last resort, when lawful, necessary and proportionate. Yet, detention has become a default option in Assam, it adds.
Once a Foreigners Tribunal declares a person is a foreigner as per the Foreigners Act, 1946, the person is invariably detained in one of the six detention centres across Assam. The powers of officials to detain people declared as foreigners stems from Section 2 and 3(2)(g) of the Foreigners Act, 1946 and Para 11(2) of the Foreigners Order, 1948. The Act provides for non-custodial alternatives to detention such as requiring the person to reside in a particular place, imposing restrictions of movements, requiring the person to check in with authorities periodically, prohibiting the person from associating with certain people or engaging in certain activities. However, in practice the Foreigners Tribunals treat detention as the default option.
The use of detention has the sanction of the Assam state government. The government of Assam in its ‘White Paper on Foreigners Issue’ published in 20 October 2012, approved of the use of detention for those declared as ‘irregular foreigners’ to restrict their movements and to ensure that they “do not perform the act of vanishing.” At that point in 2012 there were three detention centres in Assam, Goalpara, Kokrajhar and Silchar. Three more were added later, in Tezpur, Jorhat and Dibrugarh. The law does not provide a statutory time limit for detention.
Prolonged and indefinite detention
Data from the detention centres reveals a pattern of prolonged detention. The uncertainty of such indefinite detention can have devastating effects on the mental health of the detainees. 33% of the detainees had been in detention for more than two years. The number of detainees increased significantly from 2015 onwards because the number of Foreigners Tribunals increased and the number of people being declared as ‘irregular foreigners’ also increased.
Detention and separation of families
The process of determining ‘irregular foreigners’ also results in separation of families. Spouses who are declared ‘irregular foreigners’ are not always kept in the same detention centre. Mohammad Ayub and his wife Rahima Khatun were declared ‘irregular foreigners’ by a Foreigners Tribunal. She is in a detention centre in Kokrajhar Prison and he is in the one in Goalpara Prison. They have lost their appeal in the Supreme Court and their family is staring at years of separation. Children are the worst affected when families are separated. Detaining children for immigration purposes is never in their best interest.
Detaining individuals with vulnerabilities
The Foreigners Act makes no exception for detention of pregnant or lactating mothers. Their circumstances are not taken into account when determining the necessity and proportionality of detention. Rashminara Begum, a former detainee was served a notice asking her to appear before a Foreigners Tribunal in Goalpara because of contradictory dates of birth mentioned in her school leaving certificates. She submitted nine documents to prove her citizenship but was declared an ‘irregular foreigner’ on 31 October 2016 because of technical issues in the documents. She also was not sure of her age and year of birth. She was sent to a detention centre in Kokhrajhar, even though she was in an advanced stage of pregnancy. She gave birth while in detention. The Supreme Court has granted her bail because of childbirth.
People who fail to prove Indian citizenship are mostly presumed to be Bangladeshi nationals. As observed by UN Special Rapporteurs, the process disproportionately affects Bengali Muslims, as they are frequently assumed to be Bangladeshi citizens. Tribunal members rarely make efforts to ascertain the nationality of persons declared ‘irregular foreigners’.
Orders of the Foreigners Tribunal prescribe detention and eventual deportation to Bangladesh. In 2013, the Gauhati High Court in State of Assam vs. Moslem Mondol ordered that the process of deportation had to be completed within two months of a person being declared an ‘irregular foreigner’. In reality the process of deportation is long and cumbersome. The Government of India, in its affidavit before the Supreme Court in Assam Sanmilita Mahasangha vs Union of India, described the process of deportation to Bangladesh.
The state government has to first provide details of the person to the Indian Ministry of Home Affairs, which refers it to the Ministry of External Affairs. The Ministry of External Affairs then refers the case to the Bangladeshi authorities, who investigate the matter. Once the Bangladeshi authorities verify that the person is Bangladeshi, they are repatriated. The reality is that the number of persons actually deported to Bangladesh is quite small. The Indian Minister of State for Home Affairs, Kiren Rijuju stated before the Lok Sabha (the lower house of the Indian Parliament) that in the years 2016 and 2017, 39 Bangladeshi nationals were deported from detention camps.
Assam’s Industry Minister Chandra Mohan Patowary said while replying to a question in the Assam legislative Assembly that the Assam state government has pushed back a total of 29,663 declared foreigners and convicted persons to Bangladesh till December 31, 2017. He also said that 128 Bangladeshis have been deported till August 31, 2018. To give context to this number, it would be useful to keep in mind that in 2017, 13,434 people were declared foreigners by Foreigners Tribunals over 11 months in 2017.
The state machinery clearly does not have the wherewithal to deport large number of people to Bangladesh, even in the unlikely scenario that Bangladesh agrees to take them. With respect to NRC, the Bangladeshi government has made it abundantly clear that it is an internal Indian matter and that it is not willing to take anyone declared a foreigner in the process. The Indian government has also not raised the issue of deportation with Bangladesh.
The Indian government has sanctioned funds for the Assam government to build a new detention centre, signaling its continuing approval of the use of detention in immigration cases. The Assam government will consider shifting current detainees to the new facility. The new center will have a capacity to hold 3000 detainees and is expected to be completed by 31 August 2019.
Inside detention centres
As a former Special Monitor of the NHRC, Harsh Mander visited two detention centres in January 2018 and observed a situation of “grave and extensive human distress and suffering”. He has also filed a writ petition before the Supreme Court seeking redress for violation of fundamental rights and internationally recognized human rights of detainees in six detention centres across Assam. In September 2018, the Supreme Court issued a notice to the Central Government and Assam government in this case.
Detainees face indefinite detention in overcrowded prisons where there is no segregation of detainees from convicts and undertrial prisoners. Former detainees interviewed by Amnesty India researchers said that the prisons were overcrowded with hardly any space to move or even turn around. A doctor who had been working with prison inmates and detainees in Assam also described overcrowding in the detention centres. He told Amnesty India researchers that in some prisons where the total capacity was 250, there were up to 400 inmates. He described the congestion as being obvious to everyone.
Kismat Ali, whose Indian citizenship was recognized after he spent more than two years in a detention centre in Goalpara, as a ‘D’ voter said to Amnesty India researchers, “The room had a capacity of 40 people. When we reached it was filled with around 120 people. There was no space. We had to live on top of each other. Ashraf (another former detainee) and I slept next to the bathroom. It was dirty. We couldn’t get any sleep. You’d get around 1.5-2 feet space for yourself. We weren’t allowed to take more space. If we did, we were threatened. The convicts get much bigger and broader beds. At that time, we were all put together – we shared space with convicts, all mixed. Each day the numbers kept increasing. It was very hot, there was a fan, but still it was hot. There was no space or peace. They started building other rooms as the room got overcrowded. The new rooms were given to older people; young people were kept in the original room with the convicts.”
The experience of women detainees was no different. Bina Rani Saha who was in the Kokrajhar detention centre for two years said to Amnesty India researchers, “We were surrounded by walls. Not even a cat or dog could enter. I remember there were a lot of people. We slept on the floor on blankets. All of us in rows next to one another.” Rahima Bibi, who was also in the same detention centre said, “There were 50 or 60 or 70 of us in one room. We were all kept together.”
Mental health issues
A doctor working in detention centres, pointed to the health issues that detainees face, “Most of them (men or women) have depression. The Civil Hospital did not have a psychiatrist and that is why we tried holding camps. We tried referring the acute psychosis cases to hospitals in Guwahati, Barpeta and Tezpur.” But the main shortcoming for detainees remained that the environment is not mentally healthy for them. They are not criminals and yet the jail security guards treat them as criminals. Many of the persons Amnesty India spoke to reported that fellow detainees were suffering from mental health problems.
The facilities for treatment of mental health disorders within the prisons are highly inadequate. Rashminara told Amnesty India researchers, “The women used to cry a lot. They also went hungry, the chai pani (food and drink) was not enough. There was immense sadness. The women were brought so far away from their homes. They weren’t allowed to be given things from outside. Women weren’t even allowed many visitors.”
Rashminara talked about women who would talk to trees. She described a woman as having suffered from “brain short” which was her way of describing someone who had, according to her, lost her mental equilibrium while in detention. Individuals who had formerly been detained, one doctor and Harsh Mander agreed that they had observed very high levels of depression. When Harsh Mander went inside a prison and detainees realized that someone was speaking to them with empathy, they gathered around him and started to weep. Some of them lay prostrate, holding his feet and begging him to get them out of prison.
Limited communication with family
While describing the difficulty they face when they have to meet their family members inside prison, some families told Amnesty India researchers that the distance and cost involved is often prohibitively expensive. They felt uncomfortable in the spaces where detainees meet visitors because of the presence of prison staff. The families of detainees felt that the detainees could not speak freely to them about the conditions inside the detention centres in such circumstances. Anima Dey’s son Subrata died in the Goalpara detention centre on 26 May 2018 within two months of being sent there.
When asked if her son described the conditions in the detention centre, Anima said, “No, he never said anything about the conditions. How could he? Whenever we met him, there was always police and jailors surrounding the place. They would be standing a little behind him. They (authorities) said he passed away because of a heart attack. But it was very difficult to know what kind of a situation he lived in. When we saw him on Monday it was evident that he was weak and coughing.” The district administration in the lower Assam district has ordered a magisterial inquiry into Dey’s death.
Dention of children
There are 31 children inside detention centres in Assam as of 25 September 2018. Many female detainees while speaking to Amnesty India researchers said there were children staying with their mothers inside the detention centres. Some of them had even attained majority in detention. Rashminara Begum, a former detainee also talked about children inside the detention centre, “Children had to eat the same food. On a rare day, a jailor would get them bananas and biscuits. If anyone inside the jail knew to teach anything, they would help.”
Former detainees told Amnesty India that children growing up in prisons had no counseling and were left to themselves. They recalled that they were taken to a school in a car and brought back to the prison after class. While girls were allowed to stay with their mothers, boys above the age of six years were sent out of the detention centres. Although this takes them out of the confines of the prison, often there is no one willing to take responsibility for them.
Detention of children with their parents in prisons is contrary to international human rights standards, especially the best interests’ principle in the United Nations Convention on the Rights of the Child. According to Article 37(b) of the Convention on the Rights of the Child: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”
Restrictions on work and movement
Detainees are also subjected to severe restrictions of movement. When detainees and other prison inmates are sent to hospitals for treatment, they are escorted by reserve police and prison staff. These escorts regularly violate standard rules in their treatment of detainees. As a doctor interviewed by Amnesty India said, “There is no rule to handcuff them (the detainees) but if the escort party feels that they want to do this, they do it.” There are also instances of detainee patients being handcuffed to hospital beds in violation of Supreme Court guidelines.
The Assam Prison Manual governs the running of the detention centres, since they are within prisons. However, unlike convicts, detainees do not get work inside prison nor are they eligible for parole. They hang in a limbo within the prison and are subject to various unwritten rules created by the prison authorities. Some former detainees told Amnesty India researchers that there have been occasions when they were asked to do cleaning work, including cleaning toilets in detention centres and were not paid for it.
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