Guwahati: For two years and eight months, Asgar Ali saw his family on Saturdays through a mesh, standing 4 ft away against a railing, where visitors to the Goalpara district jail in western Assam gathered to see families incarcerated on the other side of the wall.
Asgar Ali’s nephew, Zishan Ali, 30, said that some 20 to 30 visitors clustered together at one time, each trying to outdo the other as they shouted out conversations. Depending on the number of visitors, they were granted between 20 and 45 minutes to talk.
Before he was declared an “illegal foreigner” by Assam’s quasi-judicial courts, the Foreigners’ Tribunals, in July 2017, Asgar Ali, 55, was a handyman at a furniture shop in Paltan Bazaar here in Assam’s capital. He said he migrated to the state some 40 years ago from a Park Circus slum in south Kolkata, where the rest of his family lives. Zishan Ali joined his uncle in 2005.
Foreigners’ Tribunals, or FTs, were set up in 1964 to end “harassment being caused to bona fide Indian persons”, as a 2012 paper on the contentious foreigners’ issue in Assam put it. These 100 tribunals—another 200 have not yet started hearing cases—appoint a member of the judiciary or administration to examine evidence of Indian citizenship.
Although the deadly Covid-19 pandemic this year split many families, it has been an odd blessing in disguise for detainees declared illegal foreigners in Assam. Over the past few weeks, many have been released on bail by a Supreme Court order or through successful petitions in the Gauhati High Court.
Dasarath Das, Assam’s Inspector General of Prisons (IGP), told Article 14 that since 27 March, 4,300 prisoners in the state have been released on bail and personal bond, parole or annual leave. Of these, 339 had been held as illegal foreigners in various detention camps.
On 21 April, Asgar Ali was released on a bail bond of Rs 5,000 and a surety after a 13 April Supreme Court order, which imposed a two-year limit, down from three earlier, on how long people could be held in detention camps.
“I cannot find the words to tell you how I felt that day,” said Zishan Ali.
If not for the pandemic, Asgar Ali would have come home only in July after completing three years in detention. Under the older order passed in May 2019, he would also have had to pay a bond of Rs 100,000.
“As soon as he got out of the prison premises, I forgot all about social distancing and rushed to hug him,” Zishan Ali told me over the phone. The two men broke down and held each other in a strong embrace and for a while just stood there.
Back at his rented house in old Guwahati, there was a crush of journalists waiting to meet Asgar Ali. His wife and five-year-old child had moved to Kolkata in 2019 to live and take care of Asgar Ali’s aged parents. Now they were back home to receive him. Zishan Ali said that his uncle had forbidden them from visiting him in jail.
Given the strict lockdown at the time, their landlord barred visitors. This was fine by the family: Zishan Ali said it would give his uncle time to acclimatize to the familiar spaces of his home.
“A bit disoriented initially, he’d forget little things here and there, so had to keep refreshing his memory. We didn’t want to put any pressure on him,” Zishan Ali said. “My uncle can’t hear as clearly anymore. But slowly, he’s coming back to us.”
Detention Centres In Assam Continue To Operate ‘Illegally’
From 2009 to December 2019, around 3,200 people like Ali have, according to a Border Police official, been sent to detention centres situated within jail premises. This is a temporary measure, until they are deported to their “countries of origin”, the official, who asked not to be named, told Article 14.
Foreigner’s Tribunals have declared most illegal immigrants to be from Bangladesh, which has said it will accept such people only if India proves they are Bangladeshi.
Out of 129,000 declared foreigners in Assam over 35 years to 2019, only four have been deported to Bangladesh. But more than 2,000 of 29,663 of those declared illegals were “pushed back”—as the process of unofficial forced repatriation is called—into Bangladesh.
The release of 339 declared foreigners until 10 June in detention camps was widely welcomed by lawyers and activists in the state, who have been vocal against conditions in detention centres.
Cramped quarters, poor nutrition, absence of routine medical health checks, mental health care, work opportunities and legal aid were only some of the issues raised by former bureaucrat and activist, Harsh Mander appointed a special monitor for the National Human Rights Commission. Months after his visit, Mander resigned from his position when the commission took no action on his report.
Soon after Mander’s resignation, Amnesty International India, a human rights advocacy group, criticised the Assam government for not following the Assam Prison Manual, since detention centres are located within prisons.
“Unlike convicts, detainees do not get work inside the prisons nor are they eligible for parole,” said the Amnesty report. “They hang in a limbo within the prison and are subject to various unwritten rules created by the prison authorities.”
Detainees like Ali “failed to discharge their burden under section 9 of the Foreigners Act, 1946”, ruled the presiding FT member. In other words, Ali had failed to prove that he had been in Assam before 25 March 1971, as required by the tripartite agreement of the Assam Accord of 1985.
Neither the state prosecutor nor tribunal members need offer proof of how and when they illegally crossed the border or where they came from in Bangladesh. The burden of proof is on the accused.
Over the years, 30 detainees have died while serving their time at Assam’s six detention centres. The controversy following the suspicious death in October 2019 of Dulal Paul, a detainee who was held in a detention centre in Tezpur Central jail, led to the formation of a committee to look into the conditions of detention centres. Paul’s family initially refused to accept his body and conduct last rites, saying it should be sent to Bangladesh since he had been declared an illegal.
An official from the Assam Police Border Organisation, privy to the matter, told Article 14 that the report, submitted in January and still pending release by the Chief Minister’s office, made several suggestions to improve health facilities. The Border Police are responsible for identifying, arresting and releasing foreigners.
Already two detainees have died this year, including 60-year-old Rabeda Begum at the Kokrajhar detention centre in April during the first phase of the lockdown. She was the 30th declared foreigner to die in detention. Soon after, her daughter, who was detained along with her, was released after completing two years in detention.
In May, a batch of habeas corpus petitions, challenging the illegal detention of foreigners in jail premises, was filed in the Gauhati High Court by three petitioners—Shantanu Borthakur on behalf of women declared foreigners; Dipika Sarkar on behalf of a convicted foreign national who completed his sentence; and Nurut Zaman Dewan on behalf of two incarcerated individuals, who were neither adjudged foreigners by Foreigners’ Tribunals nor convicted under any law.
The petitioners have relied on two official orders from the home ministry. The first is a circular from 10 September 2014 to the Assam government making it mandatory to segregate foreign nationals pending deportation from convicted prisoners and undertrials. Apart from ensuring basic amenities to be provided in the segregated spaces, the circular said that the detainees should be allowed to meet their family members.
The second is a ministry-circulated “model detention centre/holding centre/camp manual” to all states and union territories on 9 January 2019 to ensure basic amenities for detainees including beds, provisions for kitchen facilities and special attention to women and nursing mothers with children. The petitioners contend that these provisions are yet to be implemented and “such non-citizens continue to be segregated from their family members”.
Senior advocate Niloy Dutta will argue that existing detention centres run contrary to central government notifications and Supreme Court judgment, said Aman Wadud, one of the lawyers who helped file the petitions.
He said that although detainees like Ali were not criminals, they were being treated worse than convicts and undertrial prisoners.
“Detainees don’t have the right to parole and were detained indefinitely before the Supreme Court put a limitation of three years of detention and then reduced it to two years,” Wadud told Article 14.
Detaining people who are ‘declared foreigners’ for two years without any prospect of deportation or parole is not reasonable, Wadud added.
An Assam Police official, formerly with the border division, told Article 14 that there was no doubt that the existing detention centres were illegal. “If you look at the Foreigners Act, it only says that they should be held in a particular place; not necessarily in detention,” he said, asking not to be named since he is not authorised to speak to the media.
However, as per a 2009 notification, the state government said it was authorised to set up detention centres under the laws dating to 1946 and 1948.
The petitions, however, do not contest the legality or the duration of detention itself. The upcoming detention centre in Goalpara district, with a capacity of 3,000, will reportedly follow the model detention centre manual, which provides for “all basic amenities like electricity with generators, drinking water (including water coolers), hygiene, accommodation with beds, sufficient toilets/baths with provision of water, communication facilities, provision for kitchens etc…”.
Supreme Court lawyer Prashant Bhushan, who had argued a 2018 public interest litigation filed by Mander against the indefinite detention of those declared foreigners by tribunals, said it made little difference whether the detention centre was within or outside of jail premises. “The conditions of detention should be reasonable and you cannot detain people who have served out their sentence,” he told Article 14.
“You can’t detain people for more than six months or so, unless the state can have them extradited,” said Bhushan. Beyond that the right to life and liberty as enshrined in Article 21 of the Indian Constitution is infringed.
In Anowar Ali v State of Assam (2014), the Gauhati High Court held that people should be deported from India “within two months from the date of their detection as foreigners, within the meaning of 1946 Act”.
“Persons detected to be foreigners shall be taken into custody immediately and kept in detention camp(s) till they are deported from India within the aforesaid time-frame,” said the court.
The government told the Lok Sabha in December 2019 that 181 “declared foreigners” and 44 “convicted foreigners” had completed more than three years in detention. During the lockdown until June, officials in the Assam Police Border Organisation told Article 14, 302 people were released following the Supreme Court directions and six others were granted bail by the Gauhati High Court. However, 491 remain in detention centres.
The case was scheduled to be heard on 18 June, but the government counsel asked for more time for a response and was granted until 17 July.
Surviving The World’s Longest Lockdown After Detention
Narayan Das and his wife, Amari Biswas have been home for the past two months ever since their release from the detention centre in Goalpara jail.
“Baba has been down with a severe cold with his body frequently breaking into bouts of sweat,” said their 18-year-old daughter, Jhuma Das, who dropped out of school after her parents were taken away in June 2017.
Her mother Amari was diagnosed with blood dysentery in March, a month before their release. “I had a good life until I was put away in the detention camp,” said Amari. “The food inside was inedible. The vegetables would be cooked only with salt and served with burnt rotis.”
The doctor they consulted since their release said there was “nothing to worry about”, that they were fine. But their symptoms recur, and Amari worries she and her husband might have contracted the coronavirus while in detention, although Narayan reminded her they tested negative before release.
Like all detainees released, they were only thermally screened before their release, Das, the IG Prisons, told Article 14. “They were asked to quarantine at home and follow all the guidelines released by the health ministry and report to the station every week,” he said.
The family has been struggling to survive, with their 25-year-old son Amrit, the sole bread earner, unable to find work during the lockdown. “He’ll get work for one day and then nothing for the next three,” said Jhuma.
In a post-Covid world, the fate of these declared foreigners hangs in limbo. While the pandemic might have come to their aid by hastening their release, their citizenship status is unclear, especially after the passage of the controversial Citizenship (Amendment) Act, 2019. Many are apprehensive about their freedom.
Despite the strict lockdown restrictions on movement, detainees released on bail must report once every week to the nearest thana with a border branch. “We just have to go and sign,” said Amari. “They don’t ask us any questions.”
The future looks bleak to Amari. She said they had spent nearly Rs 400,000 fighting their case and filing appeals. Now, they have nothing to fall back on.
“Unless the government steps in, we are totally helpless,” she said. “We are surviving on whatever little our son manages to earn now with even greater difficulty.”
Although the Gauhati High Court sent their case to the Foreigners Tribunal for review, they could not produce any new evidence to prove their Indian citizenship.
Because of a hearing difficulty that he developed in detention, it was hard to speak to Asgar Ali over the phone or in person because his landlord prohibited visitors.
So, it was not possible to ask about his time in detention, his thoughts on being tagged a bidexi (foreigner), a historically loaded slur in Assam or what it meant to be free in a world under lockdown.
Ali was hopeful that the lockdown would be lifted soon. He was anxious to meet his aged father, Mohammad Jarif back home in Kolkata. But the first time that they could actually see each after a gap of more than two years was on a phone screen.
“Everyone was shocked when his father, who was bedridden for months, somehow managed to utter three words to him,” said Zishan Ali.
‘Bhalo bhashish tu?’ (Are you well?)
With quarantine rules in force, Asgar Ali could not travel to Kolkata, where his father’s health deteriorated. On 30 April, his father died.
Asgar Ali did not make it for his father’s final rites.