No detention centres inside jail premises: Patna HC

Detention Centre Image Courtesy:news18.com

During the hearing on April 7, the Division bench of Justices Shivaji Pandey and Partha Sarthy of the Patna High Court asked the Centre to apprise the court of what measures are taken when the native country is not ready to take back illegal migrants. When the amicus curiae informed the bench that illegal migrants are supposed to be kept in detention centres, the court directed the state government to file an affidavit on whether any such detention centre has been created by the state government for illegal migrants.

Background

Two Bangladeshi migrants Marium Khatoon @ Mariyam Parveen and Ms. Mausmi Khatoon, were arrested from Patna Railway station a few years ago and have been kept in an After Care Home, without any criminal case being lodged against them.

The court was informed by Additional Solicitor General of India, Dr. KN Singh that a letter had been sent to the Bangladeshi Embassy for their repatriation, but no response was received. While the counsel for the State submitted to the court that the petitioners were being kept in After Care Home called Nari Niketan in proper manner and there is no such complaint that they are being kept in very bad manner, the counsel for the petitioners pointed out that he was not allowed to take Power (power of attorney) from the petitioner. Thus, the court found it necessary to ensure that the petitioners are treated in a good manner and constituted a team of three Advocates; one male Advocate and two female Advocates, to know about the fact that in what manner they are being kept in After Care Home.

The court directed them to visit the Home on April 10 and directed that during such interaction with the petitioners, there will be no intervention from any official or any person. The court emphasized that any intervention would be taken seriously and the court will issue contempt against any such person.

The amicus curiae, Ashish Giri, submitted to the court that such illegal migrants cannot be kept in the After Care Home for a longer but, they should be shifted in Holding Centre or Detention Centre. The court then directed the state government to inform whether any such detention centre has been set up to deal with illegal migrants found in Bihar. The court had also sought response from the Central government on the status of their communication with Bangladeshi Embassy for repatriation of the petitioners and also sought response on how illegal migrants are to be dealt with if the native country is not ready to accept them back.

The April 7 order may be read here:

During the hearing held on April 26, the committee of the three lawyers submitted their report, in which it was mentioned that the migrants did not raise any grievance of bad treatment and are being provided with basic right to food, cloth and shelter as well as medical assistance. The report also stated that with the exception of Marium Khatoon, the rest of them want to return to their homeland after proper assistance and approval from the government. Khatoon wishes to be rehabilitated in India itself.

About detention centres in the state, the government in its affidavit stated that in jail premises itself the migrants have been kept separately, so that should be treated as a Detention Centre and also an effort is being made to create a Detention Centre inside Beur Jail.

The court, dissatisfied with this response, said, “Detention Centre cannot be created inside the jail premises, rather it should be created in terms of the instruction given by the Central Government giving detail the manner the State has to create Detention Centre, so it is primary duty to create Detention Centre with that terms.” The court then sought a more detailed response from the state on this matter.

It is pertinent to note here that all the 6 detention camps in Assam which house ‘declared foreigners’ operate out of makeshift facilities in local prisons and function as per provisions laid down in the Assam jail manual. These are located in Goalpara, Tezpur, Kokrajhar, Dibrugarh, Silchar and Jorhat.

When the Ministry of Home Affairs (MHA) failed to respond to the court’s query, the court warned that if a proper affidavit is not filed, contempt will be issued against the concerned official.

While concluding the order, the court observed, “As it is a very serious matter that three Bangladeshi girls entered into India and they are being kept in Nari Niketan, not in Detention Centre. As the Government of Bihar has failed to create Detention Centre.”

Therefore the court ordered, “A detailed affidavit should be filed by the Union of India especially by the State of Bihar with respect to creation of Detention Centre for foreign national.”

The April 26 order may be read here:

It is pertinent to note here that in January 2019, the Ministry of Home Affairs (MHA) had issued “Model Detention Centre/ Holding Centre Manual” to all state governments and Union Territories for implementation and compliance. While the document has not been made public, the responses provided to the questions asked during Parliament sessions give insight into what this document entails.

On July 16, 2019, in response to questions raised by TN Prathapan, the MHA elaborated on the provisions of the ‘Model’ detention center manual saying, “The Ministry of Home Affairs has issued a ‘Model Detention Centre/Holding Centre/Camp Manual’ for implementation and compliance. The Model Detention Centre Manual, inter-alia, prescribes the amenities to be provided in the Detention Centres to maintain standards of living in consonance with human dignity including electricity with generator, drinking water, hygiene, accommodation with beds, sufficient toilets/baths with provisions of running water, communication and medical facilities, provisions for kitchen and recreational facilities.”

In another response on July 24, 2019 the MHA additionally stated that the manual “also provides for provision of properly segregated accommodation for male and female detainees, deployment of adequate lady security staff commensurate with the requirement of women detainees, special attention to the women/ nursing mother etc. It has also been provided that members of the same family should not be separated and all family members may be housed in the same detention centre.”