by BHRPC

Covid-19 pandemic is an opportunity for Assam to correct a historical wrong

All the six detention centers meant for declared foreign nationals in the northeastern state of India are inside congested prisons with no concept of social distancing. Detainees have hardly any rights and no waged work or parole. They must be released in the process of decongestion of prisons. 

By Arijit Sen 

Attempts are on across India to try and prevent the spread of COVID-19 pandemic. There’s a lockdown in place. Physical distancing, a luxury for many, is imperative, and so is personal hygiene. In this fight, poor migrants and daily wage laborers have been dehumanized. Treated with indignity, they have been stranded without work, money, food or a roof above their heads, left to fend for themselves. The lockdown, unplanned and sudden, has been a lethal blow for them.

In the first week of the lockdown, 27 Indians died according to the National Campaign Against Torture. Inside the detention centers meant to incarcerate foreigners in Assam in India’s northeast, this tale of horror assumes an even more terrible face. The hunt for foreigners or illegal migrants in Assam has been going on for many years. From 1979 to 1985, Assam witnessed a widespread and violent anti-foreigner movement that demanded detection of foreigners, their deletion from voter lists and their deportation to neighboring Bangladesh. The implicit assumption was equating foreigners with Bangladeshis. The Assam agitation ended with the signing of the Assam Accord in 1985, which led to special provisions to determine Indian citizenship that was were only applicable to Assam. The agitation also had a demand to use the National Register of Citizens (NRC) 1951 that was based on the census of the same year to create a legal list of citizens. That demand for an NRC re-emerged and was set in motion in 2014, after the Supreme Court directed the state government to update the NRC list. Those not on the list have to face Foreigners’ Tribunals to prove their citizenship. In Assam, the Border Police and the State Election Commission can send notices to citizens suspected to be foreigners. The burden of proof lies on those marked as alleged foreigners; a failure to do so, leads them to the detention centers. The Citizenship (Amendment) Act 2019 (CAA) also lies within this chase for foreigners.

The detainees, packed in overcrowded rooms, are vulnerable at the best of times. Now it’s even worse. On 25 March 2020, a Guwahati-based organization called Justice and Liberty Initiative submitted a representation before the Chief Justice of India, seeking the release of all detainees, all of them in custody after being declared foreign nationals.

Lawyer Aman Wadud, who heads the organization, told me, that they can’t be sitting ducks for an infection that the entire world is trying to fight. “Detention centers are crowded. When the entire country is practicing social distancing, why should detainees live in crowded places? Often people are detained and sent to detention centers, what if they carry contagious diseases? Under any circumstance detaining declared foreigners, the way it is done in Assam, is unreasonable. In these testing times, let a historical wrong be corrected.”

Detainees face punishment meant for criminals. In crowded prisons, rights of detainees are erased every day to the point of being non-existent.There are 802 detainees lodged in six detention centers across Assam. At least ten people died in these centers in 2019 alone. There has been a total of 30 deaths since 2016 in Assam. People who have spent time in the centers agree that they are worse than hell. There is no segregation between undertrials, convicts and detainees. There is overcrowding and absence of basic hygiene. Detainees face punishment meant for criminals. In crowded prisons, rights of detainees are erased every day to the point of being non-existent. The centers are almost like spaces of legal exception and indifference. A 2018 report on the six detention centers in Assam submitted by a former special monitor to the National Human Rights Commission (NHRC), Harsh Mander, clearly established how these centers are overcrowded. Mander resigned and made the report public after no action was taken by the NHRC. The report pointed out that the state did not make any distinction between detention centers and jails. The detention centers are in fact inside jail premises and the detainees add to the number of people who are incarcerated. According to the latest statistics available with the Ministry of Home Affairs’ National Crime Records Bureau, the general occupancy rates in all jails in Assam are at 93.2 per cent. In district jails of Assam, the percentage is at 103.03. Silchar, Goalpara, Tezpur, Kokrajhar, Dibrugarh, and Jorhat are all district jails inside which the detention centers are situated. A six-feet social distancing is an impossibility in such circumstances of congestion. 

“Reaching the camp, I saw that there was no proper food, we didn’t get any bathing soap or oil or any such thing. We used to only get soaps that are used to wash clothes, the cheap ones. They used to give us food, which was fit for dogs and cats,” Ashraf Ali, a former detainee at the Goalpara detention center in Assam, told me when we met some time ago.

With him was his neighbor Kismat. Both of them had been sent to the same detention center, one of six in Assam meant for people declared as foreign nationals by the Foreigners’ Tribunals. That these tribunals exist to serve the government’s cause and not those of the people is an open secret.

“The room had a capacity of 40 people, but when we reached there it was filled with around 120 people. There was no space, we had to live on top of one another,” Kismat told me. “Ashraf and I slept next to the bathroom. It was dirty, we couldn’t sleep at all. Each of us had around two-two-and-a-half-feet of space. We were threatened. The convicts get much bigger beds. At that time, we were all put together – we shared space with convicts, all mixed. Each day the numbers increased. It was very hot, there was a fan, but it didn’t work. There was no space or peace.”

The rooms Kismat mentioned were roughly 80 feet by 21 feet–for 120 people. Ashraf and Kismat have left, but nothing has changed in the six detention centers, even in 2020.

Technically, declared foreigners are detained not as a punishment but to wait before they are deported to their alleged country of citizenship. It’s like a waiting hall, Wadud adds, “but it is apparent that deportation is not foreseeable. In the last six years only four declared foreigners have been deported. If deportation is not possible, why detain them? Hence we feel that they should be released from the detention centers.”

The treatment of detainees follows the pattern of stigmatization faced by people suspected to be foreigners in Assam for decades. There have been innumerable instances of genuine citizens being marked as “suspects,” as “foreigners” and then being harassed by a mob.All these detainees are tried under The Foreigners Act 1946, which provides for non-incarcerative alternatives such as requiring a person to reside at a particular place, imposing restrictions on movement, requiring the person to check in with authorities periodically, prohibiting the person from associating with certain people or engaging in certain activities. Yet, as pointed out by Amnesty International, detention has become the default option in Assam. The government plans to set up ten more detention centers. The treatment of detainees follows the pattern of stigmatization faced by people suspected to be foreigners in Assam for decades. There have been innumerable instances of genuine citizens being marked as “suspects,” as “foreigners” and then being harassed by a mob. There are a hundred Foreigners’ Tribunals in Assam, which decide if a person is a foreigner or not (or Indian or not). The burden of proof is on the person suspected to be a foreigner, or an infiltrator. Before this, a person suspected of being an illegal migrant was tried under the Illegal Migration (Determination by Tribunal) Act 1983 that was enacted as a response to the Assam agitation. The burden of proof was then on the state agency or whoever accused a person as being a foreigner. This was challenged before the Supreme Court and struck down, in 2005, as being too lenient. 

This process of finding an illegal migrant has been in the spotlight because of a citizenship drive called the National Register of Citizens (NRC) that puts together a legal list of citizens. The process has been found to be deeply biased and in violation of basic constitutional rights granted to all Indian citizens: 1.9 million people in Assam have been left out of it and have to prove their citizenship. At the end of the process there is the prospect of overcrowded detention centers and statelessness for thousands.

Why can’t detainees be released?

The Supreme Court of India recently took suo motu cognizance of a writ-petition on overcrowding at prisons in the wake of the COVID-19 outbreak. The Court underlined that in India’s 1,339 prisons, there are at least 466,084 inmates and, according to the National Crime Records Bureau, the occupancy rate is at 117.6 %. The Court further noted that in closed spaces such as prisons the chances of the COVID-19 virus spreading is high. It puts at risk not only the prisoners — old and new — but every single person associated with the prison. “We are of the opinion that there is an imminent need to take steps on an urgent basis to prevent the contagion of COVID-19 virus in our prisons,” the Court said.

The state of Uttar Pradesh, where overcrowding stands at 176.5%, has decided to release 11,000 prisoners from 71 facilities. This includes 8,500 undertrials and 2,500 convicts. All of them, face jail terms of seven years or less and hence, according to the Supreme Court’s instructions, are eligible for release. Maharashtra has decided to release 11,000 prisoners from its 60 jails. Prisoners have also been released from Delhi’s Tihar Jail. In West Bengal, 3,076 prisoners have been released. Assam has also released 722 undertrials.

In a 2013 judgment (Thana Singh versus Central Bureau of Narcotics), the Supreme Court made an important observation about a person in a prison awaiting trial. The plight of the undertrial, said the Court, gains focus “only on a solicitous enquiry by this Court, and soon after, quickly fades into the backdrop.” In this context, the story of Machan Lalung in Assam is relevant. A member of the Tiwa community in Arunachal Pradesh, Machan was in prison for 54 years without any specific charge or facing trial. He was released in 2005 and died two years later. India’s undertrial population (the third highest in Asia) and those who are in the six detention centers of Assam face the same indifference with which Machan was treated. It is ironic that it has come to the deadly COVID-19 pandemic to bring focus back on these lives in incarceration.

Detainees should be released on personal recognizance bond irrespective of how many years they were in detention because they are not criminals.The recent Supreme Court order says that prisons across India are overcrowded thus social distancing is an impossibility. The Court underlines that “contagious viruses such as COVID-19 virus proliferate in closed spaces such as prisons. Studies also establish that prison inmates are highly prone to contagious viruses. The rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenues etc.) are brought to the prisons on a daily basis.” Detainees inside these prisons cannot be the exception to that observation. When it comes to detainees, the Assam government in its White Paper on Foreigners’ Issue (published on 20 October 2012 when there were only three detention centers) approved 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.” The reason was to keep a tab on individuals declared as foreigners, but for this detention is not required, says advocate Oliullah Laskar. “It can be done if they are released on bail.” Both Oliullah and Wadud agree that there has been no initiative on the part of the Government of India in respect of their deportation. During our interview, Oliullah recalls a Supreme Court panel on prison conditions headed by Justice Amitav Roy set up in 2018. It had recommended, among other things, that people who are otherwise entitled to bail and are unable to arrange surety should be released on a Personal Recognizance Bond.This is important in the context of former Chief Justice of India Ranjan Gogoi’s direction to release detainees who were in detention for more than three years on a surety of INR 200,000. In a recent decision, the Supreme Court also held that bail cannot be made conditional upon heavy deposits beyond the financial capacity of an applicant for bail. (Dhanapal versus State, (2019) 6 SCC 743). Detainees should be released on personal recognizance bond irrespective of how many years they were in detention because they are not criminals. So far, Assam has only released undertrials.

A few months ago, I visited the site for an upcoming detention center in Assam’s Goalpara district. The project is in a 300,000-square-feet area and is designed to house 3,000 detainees — women, children and men. It will be the largest detention center in India: unreal, dystopian; high walls, watchtowers, searchlights; the signs of a dehumanized space ready to take away and wipe out rights. The place reminded me of a conversation with a doctor who was treating detainees at a center in Assam two years ago. “Most of the detainees suffer from depression,” he told me. “The main shortcomings in detention centers are that the environment is not healthy. They are not criminals, and yet the jail security guards treat them as criminals.” Former detainees, I met, had stories of fellow detainees suffering from brain-short disease — a word they use for acute psychosis, or even madness.

“Inside [the center where I was detained] there were 30-40 women in the room. There were very old people. 50-, 60-, even 80-year old people. There were young children too with their mothers. People used to cry a lot. Some of the women went hungry. There was immense sadness,” Rashminara Begum, a former detainee told me about two years ago, while recalling her time at in a detention center.

In December 2019, I met Manikjan Bibi and Ashida Bibi in Bongaigaon. Manikjan was sent to a detention center by a Foreigners Tribunal and had been there for four years. She was released only after the Supreme Court’s direction to release those detainees who had spent more than three years in detention. She has to report to the local police station every week. Her name appeared on the final list of the National Register of Citizens but was removed after “‘someone”’ filed an objection. “At the detention center, I felt like I was in a graveyard. I have documents. I was born in India. My father and grandfather are Indians. I don’t know what else I should do,” she told me. Manikjan’s neighbor Ashida Bibi was also sent to a detention center for a year. Her husband died while she was inside, and she was not allowed to attend his funeral despite her requests. Ashida now works as a daily wage laborer. “I have all the documents,” she insists, “I still don’t know why I was sent to a detention center. My life has been destroyed.”

Inside the detention centers there are many others whose lives have been destroyed.  They are stuck without any clue as to why they are there and are desperate to get out of the congested rooms.

According to Dr. Saptak Sarkar, a junior resident at Diamond Harbour Medical College and Hospital in West Bengal, congested rooms will fail to maintain all the criteria specified by either the Center for Disease Control for Interim Management in Correctional or Detention facilities or by the Ministry of Health in India for the COVID-19 prevention. “The virus mainly transmits through droplets emitting from other persons’ cough or sneezes; from direct contact or contact with used object and body fluid of COVID-19 positive individuals. Hence, the practice of social distancing and maintenance of proper hygiene in camps can prevent the spread many folds if not cease the spread for good.” It is therefore imperative need to free the detainees.

In response to the current emergency, there has also been a call from another NGO, the Committee for Justice and Peace, to convert that site for the new detention center into a hospital to treat COVID-19 patients, a sensible idea at a time when dignity and hope for the poor seem to be absent from lockdown policies. In addition to this, if the government has a change of heart and releases the detainees as Wadud demands, then perhaps this moment of crisis could be a small step towards something good.

Justice and Liberty Initiative’s application will be heard by the Supreme Court on 13 April 2020. In another petitionfiled by detainee Rajubala Das, the Court has issued notices to the Central Government and the Assam Government to file their reply and the matter will again be considered on the same date.

In Assam, lives have been lost, migrants have been stigmatized, people viewed with suspicion in the citizenship debate. This crisis, though, can be an opportunity, a page-turner for the detainees in Assam. Will the people in power do the right thing, though?

Arijit Sen is an independent journalist based in Kolkata. Over the years he has been covering the northeast as a reporter and researcher, apart from traveling the region during a stint with Amnesty International. He tweets @senarijit.