Amid COVID-19 pandemic, plea in SC to release individuals from Assam’s detention centres

With the COVID-19 pandemic holding India hostage, and 29 confirmed cases and one death reported in Assam as of 12 April, concerns have emerged about a potential outbreak of the virus in the state’s detention centres. Adnan Abidi/REUTERS
12 April, 2020

“If they continue to stay like this, they will die,” a 52-year-old man said, referring to the plight of the people currently held in the six detention centres in Assam. He had been held in one of the detention centres in 2019 but is currently out on bail, and spoke to me on the condition of anonymity. With the COVID-19 pandemic holding the world hostage, and 29 confirmed cases and one death reported in Assam as of 12 April, concerns have emerged about a potential outbreak in the state’s detention centres. On 13 April, the Supreme Court will hear an application seeking the release of individuals who have been declared foreigners, which notes that a “detention camp is an ideal breeding ground for the virus.”

The application has been filed by the Justice and Liberty Initiative, an Assam-based non-profit providing legal support to individuals facing proceedings before the state’s Foreigners Tribunals. In Assam, amid an exercise to update the state’s National Register of Citizens, a list of its Indian residents, hundreds of individuals had to submit themselves to a quasi-judicial determination of their Indian citizenship by the tribunals. The individuals whom the tribunals declare as foreigners are detained at the detention centres. According to a response given by the home ministry in the Rajya Sabha, there were 802 individuals held in Assam’s detention centres as of 6 March 2020.

According to the former detainee, who was held at the Goalpara detention centre before he was released on bail, the centre could hold around forty people in one room. “It is like a jail,” the former detainee told me. “Only two feet is allotted to each person.” The former detainee recounted that the living conditions were very poor with stale food, unhygienic quarters and poor sanitation practices. “All forty people in a room share one urinal and it created a bad odour through the night,” the former detainee said. “Doctors come to check on us but they are inexperienced and can only treat headache or stomach ache.”

The JLI’s application was filed in a suo-moto petition taken up by the Supreme Court about the potential for a COVID-19 outbreak among the inmates across India’s prisons. On 16 March, the apex court passed an order noting that “the bitter truth is that our prisons are overcrowded” and that there was a “high risk of transmission of COVID-19 virus to the prison inmates.” On the next date of hearing, a week later, the court directed all states and union territories to form a “High Powered Committee … to determine which class of prisoners can be released on parole or interim bail” to avoid spreading the infection. “Looking into the possible threat of transmission and fatal consequences, it is necessary that the prisons must ensure maximum possible distancing among the prisoners including undertrials,” the court observed.

Following the directive, in end March, the Assam government released 722 undertrial prisoners. The six detention centres in Assam are cordoned-off portions of the state’s district jails that hold the declared foreigners. On 18 March, the home ministry submitted in Rajya Sabha that 26 people had died in Assam’s detention centres since 2017, and less than three weeks later, a 60-year-old woman died in the Kokrajhar centre. In its application, the JLI submitted, “The Applicant organization prays that similar benefit of release be also extended to persons “declared to be foreigners” facing perpetual detention in the State of Assam. Being ‘human beings’ they have a minimum basic right to live and to not die of COVID-19 in the precincts of a prison merely by virtue of being confined in close human contact i.e. a negation of social distancing.”

The JLI is not the only body to raise the concern of potential infections among the detainees. On 6 April, the international human-rights body Amnesty International issued a statement calling upon Assam’s chief minister, Sarbananda Sonowal to release the detainees. “While steps taken by the Assam Government to release over 700 prisoners to contain the novel coronavirus (COVID19) outbreak are welcome, the Chief Minister of Assam, Sarbananda Sonowal must ensure that those declared foreigners and detained across the six detention centres of Assam are also released immediately,” Amnesty said.

In 2018, Amnesty had conducted a study on the detention centres and released a report titled, “Between Fear and Hatred: Surviving Migration Detention in Assam.” According to the report, Amnesty found that the living conditions that included overcrowding, separation from families, lack of segregation between different categories of prisoners, high levels of depression and inadequate medical facilities in the detention centres. In its April press release, Avinash Kumar, the executive director of Amnesty International India, stated, “As the COVID19 pandemic spreads across India, the Assam Government must recognise that the detainees in overcrowded detention centres face a heightened risk of infection and must do everything to protect them starting with their immediate release.”

On 31 March, four international bodies—the United Nations High Commission for Refugees, the International Organization for Migration, the Office of the United Nations High Commissioner for Human Rights and the World Health Organization—issued a joint statement for the release of refugees and migrants held in detention. “The situation for refugees and migrants held in formal and informal places of detention, in cramped and unsanitary conditions, is particularly worrying,” the statement noted. “Considering the lethal consequences a COVID-19 outbreak would have, they should be released without delay.”

The JLI stated in its application that the detention centres held people from all walks of life, including minors. It noted that the inmates have a high chance of contracting the virus from their interaction with the jail staff, officials and other visitors. Comparing forceful detainment to a death sentence, the organization submitted to the court, “Pending disposal of petitions and inability of the government of India to deport the detenues immediately to their country of origin may result in eventually imposing a death sentence to them, in the event of outbreak of coronavirus.”

Assam reported its first positive case of COVID-19 on 31 March. Since then, the number has risen to 29 in less than two weeks. Yet, the state government did not seem to consider addressing the risk of a COVID-19 outbreak in the the detention centres a priority. Kumar Sanjay Krishna, the chief secretary of Assam, believed the detainees were being held in good conditions, stating that quarantine centres were kept ready and that medical check-ups of the detainees were held regularly.  He added, “Hand sanitizers and soaps are distributed to the detainees and any case of fever is reported to medical colleges.”

Responding to allegations that rooms in the detention centres are overcrowded, Krishna said the gap between two people is more than one metre and added while “there may be forty detainees in one space, but they were held in a hall, and not a room.” When asked about Amnesty’s appeal to release the detainees, the chief secretary denied having any knowledge of it.

Given that the Assam government had released the undertrial prisoners following the Supreme Court’s orders, it is curious that the chief secretary did not recognise the same concerns arising from the detention centres. Aman Wadud, a lawyer and a co-founder of the JLI, had faint hopes of getting the state government’s support. “I don’t think the government will favor us. If they had any intention to release the detainees, they would have done it already,” he said. But Wadud said the organisation had “high expectations” of the Supreme Court and believed that it would pass a favorable order. “We have high expectations from the honorable supreme court.”

It would not be the first time that the Supreme Court would permit the release of declared foreigners from the detention centres. On 5 May 2019, the Supreme Court had issued an order allowing detainees who had completed three years at the centres to be released on bail after the fulfilment of certain conditions, including producing sureties of Rs 1 lakh each from two Indian citizens. The court passed its order in a petition seeking humane and lawful treatment of the detainees. The petition was initially filed by Harsh Mander, a social activist who had visited two detention centres in 2018, in Goalpara and Kokrajhar districts, while serving as the National Human Rights Commission’s special monitor for minorities.

Abdul Kalam Azad, a human-rights researcher from Assam who was part of Mander’s team, recounted how the detainees were deprived of their rights. “Wives are separated from their husbands, and children are separated from their parents with neither party having any idea if their kin are alive,” Azad recalled from his visits to the detention centres. “Devoid of recreation opportunities and no access to television or newspapers or even small-scale work, the detainees spend years only engaging in the activity of having a meal and sitting in their ward.” He also spoke of incidents where healthy young men died after being taken to the detention centre due to deteriorating health and delayed medical attention.

Mander’s team was prevented from visiting other detention centres and the NHRC refused to act on his report. In June 2018, Mander resigned from the position, and two months later, he filed the petition before the Supreme Court. In the following May, after a dramatic court hearing in which the former chief justice Ranjan Gogoi struck Mander’s name off the petition—after the activist-petitioner sought Gogoi’s recusal—the court passed the order permitting the release of detainees.

While speaking about the declared foreigners held in the detention centres during the COVID-19 pandemic, Azad said that it was a violation of their basic human rights. “They have already been deprived of their rights when they were detained due to minor mistakes such as an error in calculating their age or an unclear document, or due to their inability to afford legal aid.” He added, “You won’t find any country in the world who keeps their own citizens like this.”

The JLI application also refers to global cases of COVID-19 outbreaks in prisons and how various countries have begun processes to release the inmates. Quoting a Financial Times article published on 24 March, the application noted that there were positive cases in prisons in United Kingdom and in the United States, and that emergency containment measures in Italy had sparked prison riots that left over a dozen inmates dead. In Chicago’s largest jail, in the United States, over four hundred staff and inmates have tested positive for the virus, becoming one of the largest cluster outbreaks in the country.

In its application, the JLI argued that many of the people held in the detention centres could not afford any legal services, and have no property or well-to-do acquaintances who would stand as surety for them. It also noted that the “detention of ‘declared foreigners’ is not subsequent to any conviction or sentence. The Government based on the opinion rendered by Foreigners Tribunal has the power to detain persons who are not able to prove that they are Indian Citizens.”

The argument refers to the fact that declared foreigners are individuals who are unable to prove their Indian citizenship, but they are not convicted of any crime by the Foreigners Tribunals. In this context, Wadud asked, “If they release prisoners, why not declared foreigners who have committed no crime?”