Mapping Developments: A follow-up to the Detention Chapter from the Securing Citizenship Report

Khush Aalam Singh is a third-year law student pursuing the B.A. (LL.B.) program at Jindal Global Law School. He is a Student Fellow at Centre for Public Interest Law, JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness. Khush is one of the authors of  Securing Citizenship: India’s legal obligations to precarious citizens and stateless persons, released in November 2020.

The Securing Citizenship report is divided into three chapters – Status, Detention and Socio-Economic Rights. Each chapter addresses the international law obligations of India vis-à-vis precarious citizens and stateless persons. As authors of the Detention chapter, real-time developments posed a challenge for us. We had to be mindful of the news and the overall argument the report sought to advance. This article is an attempt to engage with major developments since September 2020 which did not make the final text. As such, it endeavours to expand the conversation around issues at the nexus of statelessness, precarious citizens, and detention pending deportation.

A development of significance is the Gauhati High Court’s order (dated 7^th October) in the case of Santhanu Borthakur v. Union of India and Ors. (W.P. (Crl.)/2/2020). In this criminal writ petition, the court observed that persons declared as foreigners shall be kept in detention centres outside of prisons. The court also observed that earmarking a specific area in jail premises as a detention centre is not in accordance with Supreme Court guidelines. These guidelines stem from its judgement in the case of Bhim Singh v. Union of India (2012).

Furthermore, the Santhanu Borthakur order refers to communications by the Central Government specifying that detention centres need to be set up outside jail premises. These communications included a recommendation that the state consider hiring private buildings for the purpose of keeping detainees while the detention centres are under construction. While the order does not declare the detention of foreigners inside prisons as outrightly illegal, it directed the state authorities to place a status report showing measures taken to set up detention centres. This status report is likely to be placed before the court at the next hearing of the matter.

The Court’s observations relating to the detention of ‘foreigners’ inside prisons complement a key concern that we flag in the report. The nature of confinement for persons declared as foreigners is materially different from that of convicts or undertrials. As per the Assam Government White Paper of 2012, the detention of declared foreigners is ‘administrative’ in nature. In other words, the detention of such persons takes place for deporting them to their country of origin and is not necessarily a criminal penalty. However, the intent of deporting is illusory as low rates of deportation show that removing such persons to their purported country of origin is not an option. This is because Indian citizens in Assam whose citizenship status is precarious are detained under the guise of ‘foreigner’. Stateless persons may also be detained as ‘foreigners’ without a nationality. These persons are kept along with undertrials and convicts without any proper system of distinguishing between these categories. This has worrisome consequences such as discrimination by jail officials, overcrowding of prisons, physical and mental health concerns as well as shortage of rations.

Therefore, the Court’s observations are welcome to the extent that they are consonant with international law on administrative detention pending deportation. However, we are yet to see a judicial pronouncement that explicitly sets out the premise that stateless persons and precarious citizens cannot be detained. Such a pronouncement must be foregrounded in the language of rights and should leave no scope for ambiguity. The Supreme Court orders allowing the release of detainees are examples of this ambiguity, as has been mentioned in the report. This is because the Court employs a language bereft of any reference to rights. The overriding imperatives prompting the orders seem to be administrative convenience or public health. This becomes an issue as these orders do not recognize the rights of precarious citizens and stateless persons.

After the Supreme Court relaxed the conditions required for release of detainees earlier last year (W.P. (C) 1/2020 (Supreme Court)), the Gauhati High Court initiated a suo motu writ petition (W.P. (C) (Suo Motu) 1/2020) to oversee the process. The orders record the release status of detainees and the number of detainees released. According to the last order dated 17September 2020, 349 eligible detainees had been released from detention. The data provided in the order does not specify whether this figure is across all detention centres or from a specific detention centre. None of the orders have a breakdown of the numbers from each detention centre. Instead, there is a lumpsum figure as was submitted by the state counsel. This is yet another reflection of the ambiguity surrounding numbers from Assam, making it difficult to have a clear idea of the situation. Furthermore, the numbers do not mean that there are no persons in detention at present. As of those eligible, about 13 detainees have not yet been released due to non-fulfilment of bail conditions. It is unknown whether persons who have not yet completed two years in detention are still inside these detention centres. Additionally, no details have emerged about the conditions inside these detention centres – especially given the COVID-19 situation.

Outside of Assam, the Karnataka High Court also made observations about the detention of illegal migrants/foreigners. In Babul Khan and Anr. v. State of Karnataka and Anr., Justice Phaneendra observed that persons found to have violated the Foreigners Act, 1946 do not have the right to move around freely “as if they are the citizens of the country”. Furthermore, the court reiterated that persons declared as foreigners shall be detained pending deportation. The order does recognize some aspects that we have sought to highlight in the report. The court affirms that children in detention are particularly vulnerable, along with women, therefore their rights have to be protected. The court relied on the UN Declaration on the Rights of the Child (1959) as well as the Supreme Court guidelines in R.D. Upadhyaya v. State of AP. These guidelines enshrine the right of the child to education, food, recreation, medical care, etc. Further, the court cited the Juvenile Justice Act (2015) and the Rules to show that these rights have a firm grounding without reference to the nationality of a child.

While the observations with respect to children complement our arguments, there are many concerns when it comes to the nature of detention in such cases. As Securing Citizenship argues, stateless persons and precarious citizens cannot be detained for deportation. Such persons have a right to immediate release if they are presently detained. In the case of stateless persons, they cannot be removed to any country, since no country considers them as its citizens. Precarious citizens, on the other hand, are Indian citizens by virtue of their ‘genuine link’ to this country. When both stateless persons and precarious citizens are deemed ‘foreigners’ before the law, their confinement inside detention centres is arbitrary and violates domestic and international law. The lack of a periodic review mechanism by a judicial body further aggravates the issue. This is particularly disappointing as courts have recognized statelessness as a situation to be avoided. Yet, courts and policy-makers have paid inadequate attention to the nexus between statelessness, precarious citizenship and detention pending deportation.

There is a dire need for a well-drafted and well-thought out policy that addresses these issues substantively. Through our intervention, we have attempted to highlight areas of concern with the existing policies and how they neglect these categories of persons. The impact of detention without substantive and procedural safeguards continues to be disproportionate. As we argue in the report, principles of international law need to be kept in mind while addressing these issues, with an overarching emphasis on human rights. To ensure this, the fundamental rights contained in the Constitution can provide a strong basis. Furthermore, detention should be used as a measure of last resort. The state shall exhaust all possible lesser-restrictive options before deciding to detain someone. Our paramount concern remains the situation of stateless persons and precarious citizens in detention centres, particularly in Assam. We sincerely hope that our intervention finds consideration and concrete expression through policy reform.

A Fact-Sheet on Detention Centres in India

This is the second in a three-part series of guest posts by Paresh Hate. Paresh Hate is a PhD candidate at Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. Their work revolves around critically engaging with the discourse of ‘Bangladeshi infiltrator’ in Indian politics by looking at immigration detention and immigration law as sites of its cultivation, deployment and legitimization. Paresh is the digital editor for Migrant Solidarity Network – India and is a founding member of Hasratein: a queer collective, LGBTQIA+ resource group and political organisation based in New Delhi, India.

As argued in the first part of this series, immigration detention is neither a recent development nor limited to Assam. It has been part of the punitive mechanism set up by immigration law, particularly Section 3(2)(e) of the Foreigners Act, 1946 and para 11(2) of The Foreigners Order, 1948, since its inception.

Recent detention centres are mandated under Amit Shah’s Model Detention Manual 2019, which was released on 9 January 2019, according to which one detention camp should exist in one the city or district where a major immigration check post is located and every member of a family should be housed in the same detention centre.

However, immigration detention has a long history in India, and such sites of detention are to be found all over the country. The immigrant foreigner population in detention centres in India is convicted under one or more of the four acts pertaining to immigration law, i.e. 1) The Foreigners Act, 1946; 2) the Registration of Foreigners Act, 1939; 3) the Passport Act, 1967; and 4) the Passport (Entry into India) Act, 1920.

While the case of Assam detention centres clearly shows that there are plenty of Indian citizens, particularly Bengali-speaking individuals, who end up in detention centres, the state maintains these sites for unauthorized immigrants. I use the term ‘unauthorized’ for two reasons: first, to problematize ascribing legality onto humans on the move and to attempt to destigmatize the ideological connotations associated with illegality; second, to point out that many who are stuck in the detention regime possess documents of some kind but are insufficient by state’s evidentiary standards to prove their “undetainability”. In this sense, ‘unauthorized’ refers to individuals without official permission to enter a nation-state, because they are marked racially, religiously, gender-wise, class-wise, or due to the bureaucratic and administrative protocols which disallow them to be seen as legitimate candidates for permission to enter or claim citizenship.

Until early 2000s, the population that was accused and convicted in immigration matters was kept in prisons that operated as makeshift spaces for detaining “illegal immigrants” who violated the clauses of the immigration law and may have additionally committed a crime under India’s penal laws. This practice continues even today in most parts of the country.

According to the Prison Statistics India 2019 Manual of National Crime Records Bureau, as of 31^st December 2019, there are total 5608 foreign prisoners in India, out of which around 2171 are convicts, 2979 are undertrials, 40 are detenues (mostly in Jammu and Kashmir and Delhi), and 418 are held as other kind of prisoners. Out of these, the highest number is that of Bangladeshis who constitute around 2513 of these prisoners. Estimates of foreigners and non-citizens omit child detainees in juvenile homes and those held at other quasi-correctional state institutions such as the Reception Centres outside the prison system. Bengali-speaking population is also the most precarious group facing penalties under immigration law and are under threat due to the National Register of Citizens.

As of now, there are different detention centres across the country which function for punitive and non-punitive purposes managed by state government correctional homes, shelter homes, Border Security Force camps, and sites of Foreigners Regional Registration Office.

Assam:

The first de facto detention centres were built in the state of Assam under High Court’s orders of 2008 for detaining declared foreigners. In July 2009, the Revenue Minister Bhumidhar Barman of Assam had informed the state assembly that two detention camps would be set up to hold illegal immigrants at Mancachar and Mahisashan. By 2010, three such detention camps had begun at Goalpara, Silchar and Kokrajhar. In the next few years, three more detention camps had started functioning at Tezpur, Jorhat and Dibrugarh.

Currently, under the Model Detention Manual 2019, the current biggest detention centre meant for illegal immigrants is being built in Goalpara district’s Matia which shall house at least 3000 inmates.

New Delhi:

In Delhi, there are three publicly known locations where immigrants are detained. Two of them are managed by the Department of Social Welfare of Government of Delhi. One of them is located at Nirmal Chaaya in West Delhi which holds immigrant women and another is at Lampur Complex in North Delhi which holds immigrant men. This population includes trafficked women, irregular economic migrants, and refugees. The third one is at Shahzada Bagh and is managed by Foreigners Regional Registration Office in West Delhi and exclusively holds Bangladeshi unauthorized immigrants.

According to the data of Global Detention Project, a Geneva-based human rights organisation, the union territory of Delhi has had five other detention centres which are not publicly known. These are 1) Human Resources Department Cell at Hauz Khas which was in use at least till 2005 housing adult unauthorized immigrant men; 2) a detention site at Daryaganj which was in use at least till 2005, housing adult unauthorized immigrant men; 3) Alipur Road detention house managed by Foreigners Regional Registration Office which was in use at least till 2008; 4) Daya Basti Ren Basera which was in use at least till 2005 housing adult unauthorized immigrant men; and 5) Old Delhi Seva Kutir which was in use at least till 2005 housing adult unauthorized immigrant men. The current status of these five sites is unknown.

Punjab:

Punjab currently houses unauthorized immigrants at Central Jail, Amritsar. These are individuals who are declared foreigners.

Rajasthan:

Rajasthan holds unauthorized immigrants on jail premises in Alwar. These are individuals who are declared foreigners.

Gujarat:

One detention centre in Gujarat is located at Bhuj. Another one which was at least in use till 2009 was located at a Special Operations Group (SOG) Office which was a criminal police station in Ahmedabad that housed both immigrant men, women and accompanied minors.

Goa:

Goa has had a detention centre since early 2019 where it houses convicted immigrants who are declared foreigners. It is located at Mapusa sub-jail in North Goa.

Tamil Nadu:

In Tamil Nadu, an intermediate camp has been made that used to earlier be a women’s prison in the city of Trichy. At present, it houses around 60 foreigners, most of whom are Sri Lankans. The site is guarded by Tamil Nadu Special Police commandos and is handled by the state revenue department. Because it is the revenue department that manages this site, the nature of the site also differs. In the case of Tamil Nadu, it means that the location is maintained to supervise offenders who are neither under the usual restrictions of probation nor fully incarcerated because all the detenues are undertrials and are allowed to meet family members. Many of these detenues also await deportation.

West Bengal:

West Bengal maintains its own correctional homes at different locations segregated on the basis of gender. There has also been a Border Security Force camp which was last documented to be in use in 2005. Earlier, the West Bengal government had also agreed to build new detention centres at New Town and Bongaon but these plans have been halted recently.

Bihar:

Bihar has a military camp, which according to the sources of Global Detention Project, that houses unauthorized immigrants. It was at least in use until 2005.

Karnataka:

Under the Model Detention Manual 2019, Karnataka has opened its first detention centre at Nelamangala Taluk, Banglore which will be administered by the state Social Welfare Department.

Maharashtra:

Under the Model Detention Manual 2019, Maharashtra was to set up its first detention centre in Nerul, Navi Mumbai which was an erstwhile women’s shelter home run by the local police station. But since the change of the state government and the clash between Shiv Sena and Bharatiya Janata Party, the plans have been put on halt.

Uttar Pradesh:

Uttar Pradesh was supposed to have its first detention centre in Ghaziabad’s Nandgram at an erstwhile SC/ST hostel whose plans were cancelled after protests. Since the state government is ruled by the same party in power in the central government, it is very likely that another location will be soon selected for starting a detention centre in the state.

Usually, when one files an RTI application with the Ministry of Home Affairs (Foreigners Division) to find out details about these detention centres in the country, the Central Public Information Officer responds that this information is not centrally maintained. In many cases of RTI application, a copy of the RTI application is transferred to the Central Public Information Officer of the Bureau of Immigration for providing any details they have. However, the Bureau of Immigration responds and has a precedent of responding that they are exempted from the Second Schedule of the RTI Act, 2005 as a body from providing information that has the importance of national security. There is hardly any legal provision available to know more about these detention centres since the central government has the power to regulate access to the places in India where internees or persons on parole are detained or restricted under Section 4(4) of the Foreigners Act, 1946. This was confirmed by a personal RTI that I had made and keeping a track of the results of other similar RTIs.

Under UNHCR guidelines, detention cannot be used arbitrarily, and any decision to detain must be based on an assessment of the individual’s particular circumstances. This is hardly followed by authorities in India and routine flouting of due process is commonplace. Secondly, according to UNHCR guideline 4.3, detention can be used to protect public order, public health, and national security. However, as is clear from Indian state’s official narrative premised on securitization, almost all unauthorized and undocumented immigration constitutes “infiltration” and the polititicians consistently have called it a threat to India’s national security which can be used to justify indefinite detention for foreigners, particularly for those coming from Bengali or Bangladeshi backgrounds.

All of this proves the absolute lack of transparency in the matter of immigration detention centres in India. While harrowing tales are common in case of American immigration system or European Union’s gated community with regards to immigrants, there is little knowledge of countries in the Global South, including India. Such lack of transparency only adds to this effect where the public due to its lack of information fails to make a significant intervention in the question of justice and due process when it pertains to immigrants.

The Rise of the Indian Detention Regime

This is the first in a three-part series of guest posts by Paresh Hate. Paresh Hate is a PhD candidate at Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. Their work revolves around critically engaging with the discourse of ‘Bangladeshi infiltrator’ in Indian politics by looking at immigration detention and immigration law as sites of its cultivation, deployment and legitimization. Paresh is the digital editor for Migrant Solidarity Network – India and is a founding member of Hasratein: a queer collective, LGBTQIA+ resource group and political organisation based in New Delhi, India.

After the news of the National Register of Citizens (NRC) in Assam was published in 2019 and the proposal for an all-India National Register of Citizens by the Home Minister of India was announced, detention centres had finally become a part of the resistant imaginary of civil society groups and activist circles. Until then, this sensitization and recognition was limited to groups in Assam fighting for the civil liberties of people languishing in the detention centres for prolonged periods and some organisations in other metropolitan areas trying to produce data on it. With the passing of Citizenship (Amendment) Act, 2019 and the promise of NRC, there were widespread protests across India that foregrounded the demand that detention centres must go.

While the ruling party and the opposition have continued their debates about the who and when of detention centres, much misinformation has been spread. There is now substantial information in the public domain with regard to the six detention centres in Assam. This is because of the report on the National Human Rights Commission Mission to Assam’s Detention Centres, carried out by Harsh Mander and others, which was subsequently also submitted as a petition in the Supreme Court to ameliorate the conditions of detention centres there. However, neither is immigration detention exclusive to the current fascist government employing it in some extra-judicial realm, nor are the detention centres only operational in Assam. Detention, as a strategy to govern unauthorized migrants, goes to the heart of our immigration law system and has been in place for decades.

Notwithstanding the fact that the first de facto detention centres were built in the state of Assam under High Court’s orders of 2008 for detaining declared foreigners, many confinement centres for immigrants preceded this time period. Some or the other form of such confinement centres for unauthorized migrants has been in place since at least mid-2000s and have been employed for both punitive and non-punitive purposes.

In countries of the Global South such as India, the criminalisation of irregular migration as a measure, like its other politico-legal institutions, is undoubtedly and obviously enmeshed in a history of colonialism and power that goes beyond a simplistic framing of rule of law. There are two distinct points about the trajectory of immigration control that demonstrate its relation with modern colonial history. The first is that the techniques of law that India currently employs have been cultivated during British colonialism in India itself. This is true for three of the four major acts that constitute immigration law in India. These are the Passport (Entry into India) Act (1920), the Registration of Foreigners Act (1939), and the Foreigners Act (1946). All three of them have been argued as “acts of Empire” whose original function was to regulate the migration of colonised subjects across the various colonies and Dominions and thereby restrict their ability to migrate into privileged geographies of the colonising powers.

The second point about regulation of migration is tied to post-World War 2 period and subsequent globalization, where cultures of penalty such as immigration detention travelled like other things across the world. What is now clear is that the inception of detention took place primarily during the late 19^th century in the United States. Contemporary scholars are today certain that the creation of modern immigration detention begins with the normalization of regulated borders in America and the United Kingdom. Prior to this, the routine method to deal with foreigners were preventive exclusions through often racist laws that disallowed people from certain racialized communities and nations to enter the country. In cases where such foreigners were found to be residing in the nation without adequate documents, they would be expelled through measures such as deportation or push-back. The establishment of the border as a site of political control grew alongside both centralization and monopolization of power over mobility. In the late 19^th century, immigrant detention was used for the first time as a legal exception treated as a temporary administrative check-point until the final decision regarding the fate of the immigrant foreigner was made. Over time, with the growing number of immigrants in the United States, detention started acting as an administrative strategy deployed for longer periods, often against racialized migrants until it became a common response during World War 1 to treat foreigners fleeing their country and foreigner soldiers. This later conflation was much more prevalent in the United Kingdom where anti-alien sentiment demanded substantive politico-legal moves to create some system to permanently control foreigners. Until then, immigration detention used was neither seen as penal nor as any form of imprisonment. Since World War 2, however, immigration detention across most countries has become a legislative policy and a permanent bureaucratic enterprise.

This period where immigration control and defining citizenship became of paramount importance was the period in which many erstwhile colonies were transitioning into sovereign nation-states. Both in Asian and African countries, but also in erstwhile colonizing metropoles which were becoming proper nation-states now, the question of the self and the other of the political community was essential and urgent. Yet, the political logic that was inherent to many of these decolonizing movements prioritized autochthony, which is to say that the original inhabitants of the land who were the natives of that region had the right to self-determine its own political future. This kind of political context necessitated, as it still does, differentiating between a foreigner and a citizen.

In Global South countries such as India, because of the political and economic conditions, this has meant the focus is on the informal movement of low-wage migrants across spatially contiguous states and within the region which is particularly vigilant–due to the suspicion generated by the history of partition–of Muslims from the neighbouring countries (particularly erstwhile East Pakistan and now Bangladesh), who are treated as “infiltrators” as far as popular psyche, dominant nationalist political ideologies, and state institutions are concerned.

One year before the independence, laws were put in place to decide the conditions under which a movement is legitimate. After the independence, the connotations of British rule were dropped while keeping the entire law as it is. With the Foreigners Act, 1946 enacted, there were provisions for punitive measures to employ in case of transgressors to this law and this penalty included detention also. The politico-legal powers of the state that legitimized detention centres are authorized under the Foreigners Act, 1946, and the Foreigners Order, 1948. Section 3(2)(e) of the Foreigners Act, 1946 states that the foreigner:

“[S]hall comply with such conditions as may be prescribed or specified— (i) requiring him to reside in a particular place; (ii) imposing any restrictions on his movements;”

In addition to this, para 11(2) of The Foreigners Order, 1948 allows the civil authority to impose restrictions on the foreigners’ movement.

While until the early 21^st century, detention centres have meant makeshift spaces which are otherwise typical prisons, there has been a rise of many sites since early 2000s which are used as functional detention centres, managed by Border Security Force stations, shelter homes looked after by state governments, Foreigners Regional Registration Office sites, etc. What the criminalisation of irregular migration and use of detention as a punitive strategy since the inception of immigration law shows is that nowhere in the last hundred years at least have the detention centres been used simply as temporary administrative check-points, but instead have been an integral part of the criminal immigration (or crimmigration) system. Here, detention centres are spaces that thwart mobility and control the perceived “excessive mobility” of the unauthorized migrants by responding with total confinement and putting a stop to their movement itself.

Today as well, migrants who have been detained for immigration-related transgressions face severe legal adversities and their troubles have only increased after the NRC has been announced. With the regime in power attempting to build more detention centres qua detention centres across the country for “illegal infiltrators”, and with a relative absence of proper repatriation treaties with  neighbouring countries, the Indian immigration system is perhaps most likely to deal with migrant foreigners, among others, with detention as one of the preferred modes of penalty. While detention centres began in India as instruments peripheral to immigration control, they have now, under the current regime, transformed into a bureaucratic enterprise that is central to the state apparatus’ program of governance over Bengali-speaking, Muslim and migrant populations, and will give rise to a new detention regime that will be initiated now with the project of NRC.