By Ashit Kumar Srivastava & Sahil Agrawal
Recently, the Assam government was criticized by the Gauhati High Court for the transit camp where males accused of child marriage were being detained. That was preceded by a group of attorneys and activists petitioning for more humane detention of people in 2020, with the help of Studio Nilima (a research collective). The Assam government started moving detainees to the Matia Transit Camp in January 2023. The Camp is the nation’s largest detention facility to imprison illegal foreigners. The procedure began with the transfer of the first batch of 68 people to the Matia Camp. The Camp was created following the Union government guidelines on 2.5 hectares of land and can shelter 3,000 people.
On February 20, 2023, the government of Assam launched a campaign to arrest persons accused of child marriage under harsh provisions of the Protection of Children from Sexual Offences Act (POSCO), 2012, and the Prohibition of Child Marriage Act. According to sources, at that time, the state police filed 4,074 cases and arrested 2,510 people. Due to a lack of capacity in conventional jails, the government has decided to transform two of its detention centres for foreigners into temporary prisons. The Gauhati High court flayed the Assam government over its step to convert the detention centre into a temporary Jail.
The bench, which included Chief Justice Sandeep Mehta and Justice Soumitra Saikia, deemed the state’s move to convert the Matia Transit Camp into a temporary prison odd and, on the surface, invalid. The bench also remarked on the government: “If you want to enhance your prison capacity, do it in the place where the prisons are constructed. Why do you need to convert this detention centre into a prison?”
The government tried to support its argument by stating that the detention centre and the proposed jail have been divided, ostensibly to prevent commingling, and that the decision to turn the transit camp into a temporary prison was made in response to the transit camp’s underutilization. It presented the facts to the Court, showing that while the transit camp can accommodate 3,000 people, only 200 people currently live there.
Referring to the argument presented by the state government, the Court stated: “If you want to do capacity building exercise, you do for the prisons. You can’t encroach upon an institution which is meant only for persons who are not convicts or offenders. They may be in the wrong place at the wrong time, maybe because of the number of circumstances, but you can’t keep them with ordinary criminals.”
Yet, as we examine the arguments and counterarguments in the current case, the major issue is: Can detention centres or camps be turned into prisons? The answer is obviously “No” while considering the Indian constitution as well as international law—they both govern the conditions in detention facilities. Under Article 21 of the Constitution, it is stated that everyone has the fundamental right to life and liberty, including those who are not citizens. Thus, those who are being held in detention facilities also have the right to dignity as protected by the Constitution. As a result, the government violates Article 21 of the Constitution by converting transit camps or detention centres into temporary jails. The right of detainees to live in dignity is being violated by the government by turning a portion of the detention centre into a temporary jail, thus accommodating common criminals and foreigners together, knowing that foreigners have not committed any offence.
These are two classes of people. Though, Article 14 (right to equality) is not a right which can be claimed by a foreigner, yet its presence has to be felt at the policy-making level and the executive has to reflect sensitivity and an alignment with the tenets of reasonable classification while framing its policies. However, the government claims that the area has been partitioned into the proposed jail and detention centre which will ensure no mixing of the two, yet how far it is pragmatically possible needs to be seen.
On September 20, 2018, activist Harsh Mander had petitioned the Supreme Court to draw attention to the suffering of those being held in the detention facilities of Assam. The Court issued a notice at that time to the central government and the Assam government, asking for a response. The petition was founded on a report that Mander provided. As a Minorities Monitor for the National Human Rights Commission from January 22 to 24, 2018, Mander had visited detention facilities in Assam and collected data that he used to produce his report. One of the report’s key findings is that the state treats jails and detention facilities the same way and detainees and regular convicts are treated on the same terms. The treatment and rights of detainees are not said to be governed by any explicit rules or directives from the federal or state governments, according to officials. The Assam jail manual, according to officials, is used to run or direct incarceration facilities.
Reading the numerous acts and statutes, the central government has a responsibility to specify the legal standing and rights of the detainees since, without such a clarification, officials will treat detainees and criminals on an equal footing. The central government informed the apex court that it was drafting new rules for detaining foreign nationals in detention facilities across the nation in consideration of the petition indicated above. There are 39 recommendations in the document that explicitly state that detention centres must be built outside jail premises.
In Santanu Borthakur vs Union of India, 2020, the Gauhati High Court made it clear that detention centres or transit camps should be established outside the jail premises because they cannot coexist. It further stated that the detainees should be treated with respect.
Under the Constitution, certain fundamental rights are granted to citizens to protect them from the arbitrary actions of the State, and under the fundamental rights, Article 21 is the most crucial right that talks about the right to personal liberty and the right to live with dignity. Therefore, by treating detainees and criminals similarly and converting transit camps or detention centres into temporary prisons or jails, the government is not only violating the fundamental rights of detainees, but also the Constitution’s core, which must be nurtured by the State and its institutions because it is the responsibility of the State to defend the Constitution at all costs.
The authorities must understand that detention facilities are only for detainees, not criminals. To create humane conditions for detainees, states should be motivated by other nations that have adequate legal framework for detention facilities. States also need to draft or introduce clear-cut regulations for detention facilities or transit camps to prevent any type of ambiguity brought on by the absence of a unified legal framework governing detention facilities.
—Ashit Kumar Srivastava is Assistant Professor of Law at Dharmashastra National Law University, Jabalpur, and Sahil Agrawal is a student at Dharmashastra National Law University, Jabalpur