Persons Identified As Foreigners By Assam’s Foreigners Tribunals Shouldn’t Be In Detention Centres Unless They Can Be Deported

Detention Centres in Assam and the authority to detain

Assam has six detention centres housed within six different jails of the state. There is no dedicated detention centre yet and a new detention centre with a capacity of holding 3000 persons is coming up at Matia in Goalpara district of the state. The construction of such a nature and the exclusion of millions from the National Register of Citizens in Assam brings with it the possibility of a rapid increase in the number of persons who will get detained in the state. 

The law from which the authority to detain foreigners emanates is contained in Sections 3(2)(e) & 3(2)(g) of the Foreigners Act, 1946 read with Order 11 of the Foreigners Order, 1948. The power of the Central Government in this regard has been delegated to the State Governments and in exercise of such power, the Government of Assam had issued a notification on 17th of June, 2009, wherein it was ordered that the movement of persons declared as foreigners by the Foreigners Tribunals (hereinafter referred to as declared foreigners) shall be restricted and they shall be required to reside in the Detention Centres till they are deported to their place of origin. The detection by Foreigners Tribunals of foreigners was almost exclusively of foreigners from Bangladesh from where there is a history of migration into Assam from a pre-Independence period which has significantly shaped the political culture of the state. 

Notification of the Assam Government regarding detention of declared foreigners

The burden of proof of citizenship in Foreigners Tribunals:

In the Foreigners Tribunals, a person is required to prove his citizenship only when a reference has been made against the person by the Superintendent of Police (Border) of the concerned district. The reference is made to the Foreigners Tribunal to seek its opinion whether the person is a foreigner or not. Prior to the reference, an inquiry has to be carried out by the officials of Assam’s Border Police Department into the suspected person’s citizenship and the reference is required to be made if the inquiry throws up doubts about the suspect’s Indian citizenship. In many cases, it is found that there was no elaborate inquiry conducted.

Nevertheless, when a reference is made and the Tribunal comes to an opinion that there is sufficient ground to proceed against the person to ascertain whether he is a foreigner or not, a notice is issued to such person to appear in the Tribunal and produce documents to prove that he is an Indian citizen. Hereon, the burden of proof lies upon the suspected citizen/foreigner (hereinafter proceedee). 

The documentation process is often cumbersome requiring the proceedee to find out old relevant documents. Voters’ lists are important documents whose certified copies have to be procured from a Government office (Election Branch) and the presence of names in each of chronological sequence of voters’ lists have to be such that they elaborately project lineage and citizenship. As easy as it may sound, it is quite often difficult for the proceedees who mostly come from poor and illiterate backgrounds and due to subtle discrepancies in the voters’ lists.

Even after some or many documents are presented in the Tribunal projecting citizenship, the Members of the Tribunals often disbelieve the proceedee’s narrative finding discrepancies. But the strangest aspect is that the State usually does not adduce any evidence and that is quite the norm. It means there is no rebuttal of the proceedee’s evidence.

Resultantly, a person is declared a foreigner in a Foreigners Tribunal without the state having any evidence to corroborate the same. The problem for the State arises not then but later in the deportation process when a second country gets involved. Without any evidence that a declared foreigner is actually a Bangladeshi citizen and when such citizen has been claiming to be Indian, Bangladesh would not be able to verify its citizenship and deportation cannot happen.

The number of declared foreigners and the number of deportations:

According to the answer to an unstarred question put up by Hon’ble Member of Parliament Sri Asaduddin Owaisi in the Lok Sabha, 1,29,009 persons were declared as foreigners by Foreigners Tribunals in Assam as of October, 2019. Out of these 1,29,009 declared foreigners, a mere 4 number of persons could be deported to Bangladesh. These numbers reflect the difficulty or impossibility in deporting foreigners who have been identified as so by the Foreigners Tribunals. 

Part of Reply in the Lok Sabha to question put up by Sri Asaduddin Owaisi regarding number of declared foreigners and deportations in Assam

Indefinite detention of declared foreigners:

As already mentioned, the State Government notified in 2009 that those declared foreigners by Foreigners Tribunals would have to remain in detention centres until they are deported to their country of origin. This makes the 1.3 Lakh declared foreigners liable to be detained. With mere 4 deportations, this would mean that Assam’s jails would brim with lakhs of foreigners. But do Assam’s jails have the capacity to accommodate such numbers? 

Assam has a total of 31 jails with a capacity of 8888. These jails are obviously meant for those accused of or convicted for committing criminal acts. Even without declared foreigners, the jails of Assam as per official data have a total population of 8946 as on 15.05.2018 meaning the jails are anyway overburdened.

6 of Assam’s 31 jails, Tezpur, Silchar, Dibrugarh and Jorhat Central Jails and Kokrajhar and Goalpara District Jails, were designated as Detention Centres in addition to being regular jails. This put additional burden on the already overburdened jails. Considering their existing burden, putting lakhs of declared foreigners in these 6 detention centres is an impossible task. Even the dedicated new centre with a capacity of 3000 would not be enough.

Assam Prison Population as on 15.05.2018

The Supreme Court of India’s intervention:

Until mid-2019, the period of detention was indefinite and would continue till deportation. The Supreme Court first intervened to provide relief to those who were lying in detention centres for indefinite periods when it passed an order on 10.05.2019 for release of people who had spent more than three years in the detention centres subject to certain conditions including the execution of bond with two sureties of Rs. 1,00,000/- each of Indian citizens. 

The second intervention came after the outbreak of the COVID-19 pandemic when the Supreme Court reduced the period of three years to two years after which a person may be released from detention centre and the bond amount was reduced to Rs. 5000/- from Rs. 1,00,000/-. 

Following the outbreak of the second wave of Covid-19 pandemic, the Gauhati High Court further relaxed the release conditions by reducing the number of sureties from two to one and requiring a personal bond of Rs. 5000/-.

Does detention without the likelihood of deportation amount to arbitrary detention?

As mentioned above, the number of deportations of declared foreigners is abysmally low. Still, until the Supreme Court intervened in May, 2019, declared foreigners were detained for indefinitely long periods and there was no provision for their release. After the Supreme Court’s latest intervention, a declared foreigner would still be detained for a minimum period of two years and maybe more if the foreigner is unable to furnish the required sureties. Does this detention amount to arbitrary detention in violation of a person’s fundamental right to life and personal liberty? 

Detention has to be objective. It is not a part of criminal procedure whereby a person is arrested to conduct investigation or to ensure presence during trial or to punish upon conviction. It is rather a civil act whose intent primarily is to ensure smooth deportation. 

But in case of declared foreigners, as there is no evidence to show that such person is a Bangladeshi national, the credible possibility of deporting such person in the near future is absent. And thereby their detention is rather purposeless and it is more like a punishment/sentencing of 2 years’ confinement.

In The State of Assam & Anr. Vs. Moslem Mondal & Ors., a three judges’ bench of the Gauhati High Court had directed the State to deport persons within two months from the date of their detection as foreigners. It also directed that the persons detected to be foreigners must be taken into custody immediately and kept in detention camps until their deportation within the two month time-frame. This decision filled a legislative and executive void by laying down a timeline for deportation of foreigners but the direction regarding the period of detention is unclear about whether the detention can just be for those two months or it can extend for a further period if deportation is not effected within this period.

In the United States, the period for removal of an alien after a final order of removal has been passed is 90 days and on failure to do so within this period, an alien is entitled to apply for release and may be released subject to certain conditions for their supervision. If the alien is someone who is inadmissible into the USA or who has been involved in criminal activities or is considered to be a risk to the community, then they may be detained for more than 90 days but not for more than six months unless there is significant likelihood of their deportation in the reasonably foreseeable future. This period of six months has been laid down by the United States Supreme Court in Zadvydas Vs. Davis.

In Assam, without any possibility of deportation in the foreseeable future, declared foreigners ought not to be detained as it impinges upon their right to life and personal liberty and adversely affects their families too. Instead, to ensure supervision over them, they can be required to furnish sureties and fulfil the same conditions as is now required for release from detention centres. In case a person is detained but could not be deported within 2 months, such person may be released unless there is plausible proof of possible deportation in the reasonably foreseeable future. When personal liberty and freedom is most revered in Indian jurisprudence, long periods of detention of the declared foreigners who claim to be Indians and against whom there is no evidence of being Bangladeshi nationals amounts to arbitrary and unreasonable detention. 

A question of this nature has been posed before the Supreme Court of India in Rajubala Das Vs. The Union of India & Ors [W.P.(Crl.) No. 234/2020] .

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Sauradeep Dey Written by:

Sauradeep is a lawyer based in Guwahati.He is associated with the Human Rights Law Network.

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