Explained: Indian Home Ministry's guidelines on migrant camps

Why is the government keen that States set up detention centres for illegal immigrants? Where should they come up?

August 04, 2019 12:02 am | Updated 02:19 pm IST

Silhouette hand extending to the sky with barbwire and sunlight, black and white

Silhouette hand extending to the sky with barbwire and sunlight, black and white

The story so far: On Wednesday, the Delhi Police told the Supreme Court that nearly 500 illegal Bangladeshi migrants have been deported from the capital in the past 28 months. Last month, the Minister of State for Home, Nityanand Rai, informed the Lok Sabha that State governments have been instructed from time to time to set up detention centres. The Ministry of Home Affairs (MHA) has also drawn up a manual for States and Union Territories. At present, there are six detention centres in Assam, the highest among the States. At least 10 more are set to come up before the final publication of the National Register of Citizens (NRC) on August 31.

What are detention centres?

Detention centres are set up to house illegal immigrants or foreigners who have completed their jail sentence but their deportation process to the country concerned has not been initiated or completed. It is also set up to accommodate foreign convicts in criminal cases who have completed their jail terms and await deportation. According to the MHA, these holding camps are also “to restrict the movement of foreigners staying back illegally and thereby ensure that they are physically available at all times for expeditious repatriation or deportation”.

What does the Home Ministry manual say?

The MHA framed a ‘Model Detention Centre/Holding Centre/Camp Manual’, which was circulated to all States and Union Territories on January 9. Mr. Nityanand Rai informed the Lok Sabha on July 2 that State governments have been instructed from time to time (2009, 2012, 2014 and 2018), to set up detention centres. Under Section 3(2)(c) of The Foreigners Act, 1946, the Central Government has the powers to deport foreign nationals staying illegally in the country. These powers have also been entrusted to State governments under Article 258(1) of the Constitution and under Article 239(1) for administrators of Union Territories.

Some centres already exist in some States and Union Territories. The intention is to standardise the camps, and the States and Union Territories have been asked to implement the orders.

What triggered the move?

On September 20, 2018 activist Harsh Mander filed a petition in the Supreme Court to highlight the plight of families languishing in six detention centres in Assam; members of the families who were declared foreigners were put in camps separated from each other.

The top court sent a notice to the Centre and Assam government seeking their response. In the petition, Mr. Mander compared the situation of these families with the family separation policy imposed on illegal immigrants in the U.S. by the Trump administration. The petition itself was based on a report submitted by Mr. Mander when he, as Minorities Monitor for the National Human Rights Commission, had visited detention centres in Assam from January 22-24 in 2018.

The first major finding of the mission led by Mr. Mander was that the “State does not make any distinction, for all practical purposes, between detention centres and jails; and thus between detainees and ordinary inmates”. It found there was no clear legal regime governing the rights and entitlements of detainees. The report said, “Consequently, the jail authorities appear to apply the Assam Jail Manual to them, but deny them even the benefits, like parole, waged work etc., that the inmates get under the jail rules.” It was in this context that the Home Ministry framed the guidelines for detention centres across the country; a manual for jail inmates was drafted in 2016.

The State government officials had also informed the mission that they were not aware of any “specific guidelines or instructions from the Central or State government to guide the treatment and rights of the detainees.” The detention centres are therefore de facto, if not de jure , administered under the Assam Jail Manual, and the detainees are treated in some ways as convicted prisoners, and in other ways are deprived even of the rights of convicted prisoners, it was found.

It was in the context of this petition that on November 5, 2018, the Centre informed the Supreme Court that it was framing new guidelines for keeping foreign nationals in detention centres across the country.

What are some of the guidelines?

There are 39 points in the manual. The manual says that States require “no specific approval” from the Home Ministry to set up “detention centres /holding centres/ camps”. It lays down that centres should be set up outside the jail premises and their numbers and size should be decided by the States keeping in view the actual number of foreigners to be housed as well as the progress in deportation proceedings.

The manual says: “On completion of the sentence of the foreigner, the jail authorities concerned may hand over the foreign national to the authority in charge of the detention centre.” There should also be a provision to facilitate the stay of such foreigners in “metro” cities during the waiting period between their interview with the embassy concerned and issuance of travel documents.

The MHA has said the detention centres should be designed for inmates to maintain standards of living in consonance with “human dignity”. Well-lit, airy rooms adhering to basic hygiene standards and equipped with electricity, water and communication facilities are to be provided at the centre. Other than CCTVs and round-the-clock security personnel, the manual adds, the centre’s boundary wall should be at least 10 feet high and ringed with barbed wires with strict access control measures. There should also be a periodic security audit by the appropriate authorities. The order says that detention centres should also have open spaces for detainees to move around and segregated accommodation for men and women. “It should be ensured that members of the same family are not separated and all family members are housed in same detention centre.” Mr. Mander’s report had highlighted how men, women and boys above six years lodged in detention centres in Assam were separated from members of their families. It says: “Many had not met their spouse for several years, several never once since their detention, since women and men were housed in different jails, and they were never given parole or permission to meet.” The MHA manual has addressed these concerns saying no restrictions shall be imposed to meet family members. It also asks States to pay special attention to the needs of women, nursing mothers, transgenders and open a crèche in the camp. The manual says, “Children lodged in [a] detention centre may be provided educational facilities by admitting them in local schools.”

How many detention centres are there?

Assam has six detention centres, the highest among the States. At least 10 more are to come up in the wake of the final publication of the NRC by August 31. The NRC is being updated as per directions of the Supreme Court to segregate Indian citizens living in Assam from those who had illegally entered the State after March 25, 1971. Nearly 41 lakh people were excluded from the final draft. Of these, 36 lakh have filed claims against the exclusion.

Since 1985, when Foreigners Tribunals (FTs) were first set up in Assam, till February 28 this year, as many as 63,959 persons were declared foreigners through ex-parte proceedings. The Assam government informed the State Assembly last week that 1,145 people declared foreigners by 100 FTs across the State were lodged in detention centres till July 9 this year. Of them, 335 people who have spent more than three years in these centres were to be released following a Supreme Court order. The Central government had informed the Supreme Court in February that of thousands of persons declared foreigners by the FTs in Assam, only 162 could be deported to Bangladesh. In 2016 and 2017, 39 Bangladeshi nationals were deported from detention camps in Assam, according to what the MHA informed Parliament in January 2018.

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