India’s biggest detention camp, located in Matia, in Goalpara district of Assam, opened its doors on Friday, 27 January 2023. A group of 68 persons, consisting of 45 men, 21 women, and 2 children were moved to the detention camp on that day.
The Matia 'transit camp' was sanctioned in 2018 by the Ministry of Home Affairs for 46 crore INR, and it can house up to 3000 persons. This camp would replace the six detention centres presently operating out of district and central jails in Goalpara, Kokrajhar, Silchar, Dibrugarh, Jorhat, and Tezpur.
Who Are Detainees In Assam?
Detainees in Assam fall within the following two categories: declared foreigners (DFN) and convicted foreigners (CFN).
CFNs are foreigners who have been convicted by criminal courts for specific immigration offences under the Foreigners Act and Passports Act (eg. entry without documents, use of forged documents) and have to undergo criminal sentences. DFNs are persons declared as foreigners by Foreigners Tribunals. Assam being the only state that has constituted Foreigner Tribunals till now, DFNs are a category specific only to Assam.
It should be noted that while a large majority of CFNs admit to being foreigners, DFNs are mostly resident in Assam, and the process by which they are declared to be foreigners has been widely criticised as being arbitrary and lacking due process safeguards.
The setting up of Matia was prompted by a September 2022 order of the Gauhati High Court. While hearing a batch of Habeas Corpus petitions that argued that DFNs and CFNs were being illegally detained, the Gauhati High Court, instead of releasing those in detention, observed that they needed to be shifted out of prisons into a detention camp at the earliest.
The camp at Matia, which was under construction at that time, was hastily opened up as a result, with the State Government indicating that CFNs and DFNs will be moved to Matia in a phased manner.
While the rate of incarceration of DFNs had seen a substantial decrease in the last few years, this trend is reversing according to data released in the Assam Legislative Assembly. Over 25 DFNs were detained in the period between October 2021 to September 2022, and the rate of incarceration will only increase with the setting up of Matia.
How Does Assam Determine Citizenship?
The convoluted history of detection and deportation of foreigners has led to the creation of multiple citizenship determination processes in Assam, thus broadening the use of carceral methods across the state.
The Foreigners (Tribunals) Order, 1964, passed in exercise of powers under the Foreigners Act became the basis for constituting the first Foreigners Tribunals in Assam. The existing mechanisms of reference cases by Assam’s Border Police were updated in pursuance of the mandate created by the Assam Accord, along with the introduction of newer mechanisms over the years.
These include the Doubtful (D) voter category introduced in Assam by the Election Commission of India in 1997 after the revision of electoral rolls, and the updating of National Register of Citizens (NRC) process. The Tribunals issue notices to those against whom a reference has been made by Border Police and to those marked as D voters by the Election Commission.
Is The Detention of Foreigners Legal?
In June 2009, the Government of Assam notified the setting up of detention centres for detaining foreigners, citing the need to impose restrictions on the movement of detected foreigners so that they do not remain untraced till their deportation. This decision was seen to be taken in light of growing protests against immigrants and sectarian violence, as well as multiple pronouncements by Courts describing “vanishing acts” by detected foreigners. The existing six detention centres were set up in December 2009 (Goalpara), April 2010 (Kokrajhar and Silchar), and September 2015 (Jorhat, Dibrugarh, Tezpur).
The Central Government has delegated powers under s.3(2)(a),(b),(c),(cc), (e), and (f) of the Foreigners Act, 1946 to the Government of Assam. This empowers them to inter alia, restrict movement, require a foreigner to reside in a particular place, and deport them.
It however, does not empower them to ‘arrest or detain or confine’ as has been specified under s.3(2)(g).
A division bench of the Telangana High Court in W.P. Nos 6047/2022 & batch, noting the difference in section 3(2)(e) and 3(2)(g) of the Foreigners Act, has held that without specific delegation of power under s.3(2)(g) of the Foreigners Act, the orders permitting the police to detain the deteainees is ex facie illegal. The Government of Assam and the Border Police have relied upon s.3(2)(e) instead of s.3(2)(g) in orders detaining declared foreigners.
The exercise of power to detain under the scope of the authority to restrict movement is illegal. However, these exceptions are commonly legitimised in Assam’s citizenship processes.
What Has The Supreme Court Said?
The Supreme Court’s directives for release of DFNs on bail, in 2019 and 2020 detailed the indefinite incarceration of detainees awaiting deportation, as well as issues pertaining to overcrowding.
According to a response in the Assam Legislative Assembly, till September 2022, 779 DFNs have been released on the basis of these two orders of the Supreme Court. The released detainees however have to adhere to the weekly reporting requirements before their nearest Border Police station and are thus unavailable to move out of their homes for earning a livelihood.
They also have to live with the stigma attached to being detainees out on bail, making it difficult to lead a dignified life. Many of them also spend a substantial amount of money travelling to their nearest Border Police station.
Apart from the 2019 and 2020 directives, there is no mechanism against indefinite detention in Assam.
It should be noted however that the detention of DFNs who are Indian citizens, without a possibility of deportation, is illegal and should be done away with entirely. With the setting up of the camp in Matia, over 1 lakh Indian nationals who have been declared foreigners in Assam are again at the risk of being indefinitely detained.
Due Process and Criminalising Immigration
The lack of due process norms in the functioning of Foreigners Tribunals, and the resultant challenges faced by litigants have been well documented.
Amnesty International in their report, note the lack of procedural safeguards and fair trial standards in Tribunals. These proceedings, largely devoid of due process norms, further accelerate the process of disenfranchisement, and inevitable statelessness, against the litigants. Once declared a foreigner, an individual is always at the risk of detention.
Detention pending deportation is an administrative exercise. However, it regularly includes the enforcement of punitive provisions as a part of immigration laws (including the Foreigners Act 1946, Foreigners Order 1948, Registration of Foreigners Act, 1939, the Passports Act 1967, Passport (Entry into India) Act, 1920) thus attributing criminality to the individual detected to be a foreigner.
The push towards criminalising immigration took another step when the Citizenship (Amendment) Act, 2003, introduced the category of “illegal migrants”, denoting criminality to persons who enter India without a valid passport or travel documents, or stayed beyond the permitted time frame after entering with the required documentation.
This provision has become the basis for discriminatorily targeting groups of non-citizens by terming them as “illegal”, while according multiple protections to the others.
One of the most glaring examples of convergence of such criminal and immigration regimes is the Assam Police Border Organization (APBO), an independent organisational branch of the Assam Police mandated with detecting and deporting foreigners from Assam and with prevention of infiltration. They have also been given discretionary powers to obtain fingerprints and photographs of suspected foreigners before or at the time of referring the case to the Foreigners Tribunals.
They are thus empowered to pursue persons, obtain biometrics and photographs, and register cases against ‘suspected foreigners’ without any laid down procedure regulating the process.
The Indian State thus has wide and discretionary powers in determining the conduct of “foreigners."
Dr Sujata Ramchandran argues that the key factors of this criminal-immigration (crimmigration) regime in India include “extraordinary discretionary powers to target selected non-citizen groups for control and exempt others; weak procedural safeguards that fail to protect against prolonged detention; few restrictions on deportation powers; and failure to exempt genuine refugees and asylum seekers from punitive measures.”
These can be observed recurringly in the enforcement of the detention machinery in Assam.
Rethinking the way ahead
The Indian Constitution offers certain safeguards in Article 14 (equality before law), Article 21 (protection of life and personal liberty), Article 22 (protection against arrest and detention in certain cases) to everyone, including immigrants.
However, it has almost become a salient feature of Courts in India to impose harsh punitive measures, while noting the absolute discretion of the State in expelling and dealing with foreigners.
Detention is only permissible after following the strict safeguards laid down under Article 22. These confer upon the individual the right to know the grounds of the arrest, to be produced before a magistrate, and legal representation. They also ensure that no one is detained beyond three months unless an advisory board has reported before the expiration of the period that such prolonged detention is necessary. These constitutional safeguards find no place for foreigners in Assam.
There is also an urgent need to reassess the classification of “declared foreigners”, Indian nationals who find themselves being arbitrarily deprived of the right to be in their own country.
A White Paper on Foreigners’ Issue released by the Government of Assam in 2012 acknowledges that declared foreigners who are not accepted by Bangladesh would be rendered “stateless” since there is no proper deportation policy in place.
Individuals subjected to a detention regime often experience high levels of anxiety, depression and multiple mental health disorders, as has been documented in detention centres across Assam.
There is no clarity on why individuals with no prospects of deportation are being detained.
DFNs from across the state will be housed in the detention camp in Matia. Detainees come from impoverished families that do not have the resources to travel long distances to meet incarcerated family members, making it almost impossible for family members to be in touch with them.
The Model Detention Manual 2019 does not provide for work or parole provisions for detainees, or address the concerns of indefinite detention — revealing the carceral framework it continues to follow.
Existing safeguards and the principles of necessity, proportionality, and reasonableness apply to all persons irrespective of their immigrant status, and need to be determined in each case. Citizens are being made to appear before Tribunals and prove their citizenship, and are subsequently being detained without any possibility of deportation existing. The architecture of immigration detention in Assam has to be reimagined in light of the failure of multiple substantive and procedural due process safeguards.
Alternatives-to-Detention need to be explored, while envisaging an inclusive system that contextualises the needs of all stakeholders and places them at the centre while framing an anti-carceral and non-punitive immigration policy.
(Shardul Gopujkar is a lawyer and a member of Parichay, a collaborative effort between law schools in India to provide legal aid to those filing appeals against their exclusion from the National Register of Citizens (NRC) in Assam. This is an opinion piece and the views expressed are the author’s own, The Quint neither endorses nor is responsible for them.
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