Supreme Court must do much more to save prisoners in Assam’s detention centres from Covid-19

An invisible, disregarded fraction of the Indian population is rendered even more vulnerable by the spread of Covid-19. I speak of the 802 individuals trapped in the limbo of Assam’s detention centres, disenfranchised by a state which arbitrarily identified them as “foreigners”.

It needs no reinforcement that Covid-19 cases multiply through close proximity. Preventive norms and policy decisions in India, where one lockdown was imposed upon another, are all hinged on the premise of social distancing and reducing physical contact to a bare minimum. With an occupancy rate of 117%, prisons in India could become fertile grounds for the spread of the pandemic.

A recent Supreme Court ruling ordered the release of “declared foreigners” who had spent more than two years in detention centres. But this order is inadequate for several reasons.

‘Twilight zone of legality’

On March 11, the ministry of home affairs admitted before the Rajya Sabha that Assam’s six detention centres currently houses 802 individuals declared foreigners by the state’s Foreigners’ Tribunals – quasi-judicial bodies tasked with deciding on matters of disputed nationality.

These detention centres where such individuals are confined are physically embedded within the structure of jails. Within these narrow confines, detainees lead a fractured, stateless existence, in what has been described as “the twilight zone of legality”.

In theory, those declared foreigners by the tribunals are to be deported to Bangladesh, presumed to be their country of origin. But Bangladesh does not recognise as its citizens these idividuals, most of whom have been stripped of Indian citizenship on technicalities or because of flaws in the process. This has condemned them to the fate of being imprisoned in detention centres, without having committed a crime.

With no authoritative directions on how detainees should be treated, living conditions inside these spaces are tantamount to human rights violations – inadequate food, bedding, medical facilities. Most troubling in the face of the burgeoning health crisis is the crisis of space. Recent reports have delved into the subject in detail, pointing out that in some instances there were as many as 40 people confined to one room. These conditions have had tangible consequences – as many as 30 people have died in detention since 2009.

The Supreme Court order

Back in March, the Guwahati-based Justice and Liberty Initiative, a body of lawyers working to support vulnerable populations at risk of being declared stateless, flagged the grave threat of infection faced by those in detention centres

The lawyers’ body filed a petition in the Supreme Court, arguing that such detainees were only held as civil prisoners so they should benefit from Section 59(3) of the Civil Procedure Code, which recommends that release from civil prisons should be granted “on the ground of the existence of any infectious or contagious disease.”

The petition cited an order passed by the Supreme Court last year, granting release to those trapped in indefinite detention for more than three years. Among other conditions, two Indian citizens had to provide a surety of Rs 1 lakh each for the detainee being released. The petition pleaded that declared foreigners in detention centres should be released immediately, even if this condition could not be met.

The Supreme Court recognised this urgency, acknowledging the “bitter truth” of India’s overcrowded prisons. On April 13, the court delivered orders in response to the petition. It barred the release of prisoners even if they suffered from Covid-19. Detainees who have been imprisoned for two years – instead of three, as specified earlier – would now be released. The surety amount has been reduced to Rs. 5,000 each.

Is not enough

These measures reflect both a wilful ignorance of the reality of Covid-19’s exponential growth, as well as a distressing lack of concern with the fates of India’s detainees.

The two-year detention period is untenable – detention is only intended as a stop-gap measure for deportation, and the number of people being deported is extremely low. According to Aman Wadud, a human rights lawyer and one of the founders of the Justice and Liberty Initiative, “In the last seven years, only four declared foreigners have been deported. If deportation is not foreseeable, two years of detention is not reasonable.”

The risk of keeping people under detention is far too high and can be mitigated by their immediate release. Given the existing lacunae in the law governing detainees, the Supreme Court has the authority to order a conditional release. Almost all detainees locked up as “declared foreigners” have family members who are Indian citizens and can act as guarantors on their behalf.

The level of financial obligations imposed on each detainee also comes in the way of release. Reducing the surety amount by a great margin is a good idea in principle, but it does not acknowledge that those languishing in detention centres come from the most marginalised segments of society. They will find it an uphill task to furnish even this amount.

Learn from example

Countries like Iran, Turkey, the United States and Britain, to name a few, have already taken measures to contain the rapid spread of infection and even the death of detainees during the coronavirus pandemic.

The virus itself cannot be easily contained and if there is a serious outbreak, it is only a matter of time before it spreads among the population not behind bars. It remains a mystery why India – a country where authorities have taken pride in their incisive action against the pandemic – is refusing to learn from example before it is too late.

Perhaps the half-heartedness of these measures, taken in the face of a crisis, should not be surprising. These detainees, after all, are reviled as “Bangladeshis” who deserve no protection under the law. But pandemics have a strange way of raising the hope that the state will step up to protect even those it has indifferently cast aside on flimsy grounds – in the interest of public good, if nothing else.

Padmini Baruah is a graduate student at the Fletcher School of Law and Diplomacy in Boston.