Guest post by Mannat Malhi. Mannat is a trainee solicitor, with her undergraduate degree in Jurisprudence from Wadham College, Oxford, and a Master of Laws from Harvard University. This post is part of our themed series on border control and Covid-19.

On 13 April 2020, the Supreme Court of India ordered that, 'declared foreigners’ detained for at least two years in the state of Assam would be eligible for conditional release in an effort to curb the spread of Covid-19 by preventing overcrowding in detention centres. In this blog post, I argue that although the outcome has been viewed as a positive step by some activists and has led to the release of 308 people from detention centres in Assam, the reasoning of the Court does not focus on risk factors of Covid-19 but instead highlights the ongoing demonisation of detainees.

Dark room with a window covered with bars

A history of unrest

The indefinite imprisonment of people in Assam’s 6 detention centres is the latest development in an ongoing project to rid the state of the 'grave danger' imposed by the influx of immigrants and refugees, many of whom are Bangladeshi Muslims.

The current animus toward these immigrants can be traced back to India pre-partition where the British brought labour forces from Bengal, Nepal and other regions to furnish colonial tea plantations in Assam. The partition of India in 1947, exacerbated the animus towards migration, with an estimated 250,000 migrants fleeing to the Assamese region.

The agitation in Assam however, reached its peak with an influx of Bangladeshi Muslim refugees during the Bangladesh Liberation War of 1971. Their arrival sparked violent anti-migration and anti-Muslim sentiment from students who mobilised the Assam Movement. The Movement led to the slaughter of approximately 1800 people and only ended after students signed the Assam Accord which states that people who arrived after March 24, 1971, are regarded as illegal immigrants.

Most recently, anti-Bengali animus has manifested in the publication of a citizenship list called the National Register of Citizens (NRC), prompted by an order from India’s Supreme Court in 2013. The finalised list excludes 1.9 million people, who must now prove their citizenship in quasi-judicial courts - known as Foreigner's Tribunals.

There are legitimate concerns that the Tribunals are not impartial and make arbitrary decisions which penalise the poor, women and those descended from refugees, all of whom are more likely to be unable to produce the specific documents that the Tribunals require.

Further, when an individual is unable to prove their citizenship they are detained in one of Assam’s detention centres, for seemingly indefinite periods of time. The legal framework that enables detention is the pre-partition Foreigners Act 1946, where section 3(2)(g) enables the governments to make an order to arrest, detain or confine ‘foreigners’ who the Act defines as those who are ‘not citizens of India.’

Whilst detention centres had been considered for a number of years and sanctioned by the Foreigners Act, they were implemented following the election of the right-wing union government, the Bharatiya Janata Party (BJP) - led by Prime Minister Narendra Modi.

Whilst the BJP has maintained that the party is not motivated by discriminatory intent,  it plans to build more detention centres and statements from the Minister of Home Affairs, Amit Shah, that the ‘foreigners’ in Assam are ‘termites’ undermines the credibility of the BJP’s claims.

Correctional tower of detention facility at sunset

A brief respite: The Court’s decision

On 16th March 2020, the Supreme Court started a legal process on its own (formally called suo moto cognizance) to consider the impact of the overcrowding of detention centres and outlined the importance of social distancing in order to curb the spread of Covid-19. On 23rd March, the Court issued a specific direction to state governments to reduce congestion.

Following these directives, two petitions were filed to challenge detention during the pandemic. The Justice and Liberty Initiative filed the first petition, which alleged that detainees are only held as civil prisoners and should therefore benefit from Section 59(3) of the Civil Procedure Code. The code recommends that release from civil prisons should be granted on the ground of the existence of any infectious or contagious disease. Further, the petition relied on a 2019 Supreme Court order that allowed for ‘declared foreigners’ detained for 3 years or more to be released under the following conditions: two sureties of 1 lakh rupees, a verifiable address of stay, biometric data of their irises and fingerprints, and commitment to weekly report to a police station specified by the Foreigner’s Tribunal.

The second petition was filed by a detainee, Raju Bala Das, who had been detained for two years and feared for his safety in the detention centre. The petition stated that detention centres have unhygienic and crowded living conditions which exacerbate the risk of Covid-19 transmission. The petition also emphasised that due to travel restrictions there was no reasonable prospect for deportation, and therefore detention was no longer justified.

In its decision, the Supreme Court declared that detainees would be eligible for conditional release and diluted the requirements for eligibility. Firstly, detainees are required to have been held for two years, rather than the previously specified three years, to be eligible for conditional release. Secondly, detainees now need to produce two sureties worth 5000 rupees (53.33 pounds) rather than 1 lakh rupees (1,066.53 pounds).

Whilst the decision has led to several detainees being released, the court approach actually belies a punitive stance to ongoing detention.

Firstly, the positive outcome is diluted by the requirements that individuals produce a verifiable address of stay, and report weekly to the police station. These requirements instil unending uncertainty and fear into former detainees who are still restricted from continuing with their lives and may face re-detention or deportation in the future. Moreover, whilst 5000 rupees seems like a small surety, the court failed to consider that detainees come from the most marginalised segments of society and may not be able to afford this amount.

Secondly, the requirement of having been detained for at least two years has no connection to individuals’ likelihood of contracting Covid-19. The court did not focus on the risk factors that lead to an increased likelihood of infection (such as age, asthma, or other pre-existing illnesses). Instead the reasoning implicitly belies the punitive motivation behind detention, by basing release on the amount of time ‘served’.

Finally, the court, by stating that only those who had been detained for two years could be subject to conditional release, legitimises the ceaseless detention of individuals created by the current legal lacunae. This criticism of the court is exacerbated by minimal chance of deportation (only 6 individuals of the 130,000 declared as ‘foreigners’ have been deported) and the announcement of the government’s plans to build bigger detention centres and potentially nationalise the endeavour. Bengali immigrants in Assam are therefore still highly vulnerable due to their ‘detainability’; a concept coined by Nicholas De Genova, which includes detention, and the prolonged threat of detention to a specific group. This threat serves to instill ongoing fear in the minds of Bengali immigrants who contemplate the possibility of unfathomable interruptions to their lives that exacerbate their precarity. Therefore, detention is better conceived of as a state-imposed mechanism designed to confine, demonise and dislocate India’s most vulnerable religious and economic groups.

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How to cite this blog post (Harvard style) 

Malhi, M. (2020). How Covid-19 Measures Reinforce the Indefinite Detention of India’s ‘Foreigners’. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/07/how-covid-19-0 [date]