The Supreme Court on Thursday sharply criticised the Assam government for its proposal to end the process of indefinite detention in the state’s detention centres.
The Assam government had argued that anyone who completes five years in a detention centre should be released if they furnish a bond of Rs 5 lakh and provide biometric details like an iris scan.
Assam’s detention camps are unique to the state and are a part of a parallel judicial system to identify foreigners. The facilities act in conjunction with Foreigner’s Tribunals, which have the power to determine whether a person is an Indian citizen or an undocumented migrant. The process is an outcome of Assam’s long campaign against “Bangladeshi outsiders”.
The Supreme Court’s position is a cause for concern, given the widespread criticism this parallel judicial system has received for violating basic principles of justice.
To begin with, the process by which the Foreigner’s Tribunals identify non-Indians is shot with problems. In many instances, the order to declare a person a foreigner is delivered “ex-parte” or without the presence of the accused person. This is ostensibly because the accused person has failed to appear before the tribunal. But because the process is so poorly managed, there are widespread complaints that many accused people have failed to be served with the summons to appear before the tribunals.
In other cases, the people accused have been too poor to afford proper legal counsel. Moreover, the Foreigners Act of 1946, which governs this system, places the burden of proof on the accused. This means that the poor, migrant workers and also women – who are often inadequately documented – are disproportionately targeted.
In February, the Centre told the Supreme Court that 938 people were being held in six detention centres in Assam. Of these, 823 of them have been declared as foreigners by tribunals. However, there is no formal agreement between New Delhi and Dhaka to allow India to deport persons it deems to be Bangladeshi foreigners.
The conditions in the detention centres are worse than those in many prisons. In several cases, men, women and children have been torn away from their families. Last year, activist Harsh Mander, who visited two centres as a special monitor for the National Human Rights Commission, wrote a searing report about the plight of the people in detention. In a centre for women, he noted that the detainees, “many barely literate homemakers, some aged widows, have not been allowed to move outside a confined space of maybe 500 square metres for close to a decade”.
Once in a detention centre, a person can challenge his imprisonment in the high court but the steep legal cost means that for many, this becomes an indefinite detention. Just this month, a 70-year old man, Amrit Das, died in a detention centre after being imprisoned for two years without appeal.
Amnesty, the international human rights pressure group, has also pointed to indefinite detention as a major point of concern with Assam’s detention camps. According to United Nations’ guidelines, detention of undocumented migrants must be the exception, not the rule. Indefinite detention is contravenes human rights principles altogether. Moreover, Article 21 in India’s Constitution itself guarantees the right to life and liberty.
In most situations, the courts act as a check on the arbitrary use of power by governments. Here, however, the roles are reversed: the Assam government is taking the progressive step to check indefinite detention even as the Supreme Court’s position violates basic human rights.