Date of the decision: 11.05.21 and 19.05.21.
Court: Gauhati High Court
Judges: Chief Justice Sudhanshu Dhulia and Justice Manash Ranjan Pathak
Summary: The Gauhati High Court sought details of declared ‘foreigner’ mothers whose children had been detained inside the jails along with them. In a subsequent order, the High Court directed for the list of such female inmates to be forwarded to the High Powered Committee for them to examine whether they were eligible to be released or not.
Facts: Reviving its suo motu petition on the management of the second wave of COVID-19, the Gauhati High Court sought details from the jail authorities about the children residing in the different jails of Assam. This development came as a consequence of the Court taking notice of children among the list of total inmates. The jail authorities informed the High Court that these children, all aged less than six years old, were not juveniles in conflict with the law but were lodged in the jails with their mothers who have been declared as ‘foreigners’. As per the Jail Manual, children below the age of six are allowed to stay with their mothers who are in jail.
Holding: In the order dated 11.05.21, the High Court directed the State Government to furnish the details of all female inmates who have been declared as ‘foreigners’ and are living with their children in jail, and the period for which they have been detained. In addition, the Court asked the Assam Government to give details of all such persons who are eligible to be released from jails in view of the COVID-19 pandemic as per the guidelines laid down by the High Court as well as the Supreme Court. The guidelines state that the detenues who have completed two years in detention are entitled to be released subject to the fulfillment of certain conditions, such as on a personal bond of Rs. 5000 with a like amount of one surety.
In a subsequent order dated 19.05.2021, the High Court directed that the list of such female inmates should be forwarded “to the said High Powered Committee which shall look into this aspect and examine whether any of the inmates who are in the list can be released under these special circumstances of COVID-19 pandemic (2nd wave)” (paragraph 5). Thus, the High Court directed for this list to be placed before the High Powered Committee to decide which female inmates are eligible for release.
Significance: This order is significant because it acknowledges that children should not be in detention centers. Not only the international law but also Indian statutes provide for the protection of children whose parents are in detention. The children of ‘foreigner’ mothers who are widowed or whose relatives refuse to look after them usually spend their formative years with their mothers in detention. Some of them even attain majority in detention. The lack of counseling and age-appropriate diet takes away a healthy environment important for children to grow to their full potential. The Supreme Court has held that the right to life is secured only when a human being is assured of all facilities to develop himself and is freed from restrictions that inhibit his growth. During the time spent in the detention centers, they are deprived of not only this fundamental right to liberty and life, but also the right to free and compulsory education, right to food, right to health, the right against prolonged and arbitrary detention, the right to be heard and the right to care and protection. In light of COVID-19, the Supreme Court, in a previous decision, had noted that “there is a serious concern about the spread of Covid19 in overcrowded prisons where there is lack of proper sanitation, hygiene and medical facilities” (paragraph 5). The impact of these conditions put particularly children at a greater risk of contracting COVID-19 in jails. However, while the detention of children with their parents in prisons is contrary to international human rights standards, the separation from their parents is unjust as well. Therefore, releasing these ‘foreigner’ mothers along with their children is a welcome step.
The order, however, falters in overlooking the presence of children above the age of 6 years lodged with their detained mothers. The Jail Manual has provisions against children above 6 years being kept inside jails. In practice, however, children above the age of 6 are allowed to stay with their parents. If the child above 6 years is female, she is kept with the mother and if the child above 6 years is a male, then he is kept with the father. The State Home Minister maintains that there are 20 children in the 0-14 age group and 2 children above 14 years of age. The distress of children above the age of 6 years is similar, but unresolvable due to a lack of legal provisions accounting for them.
A point to be noted is that instead of ordering the release of all children, the present order directed the High Powered Committee to determine the same on a case-to-case basis. The rationale of the Committee behind deciding the eligibility for release on a case-to-case basis is flawed and perpetuates the carceral logic adopted by detention centers. The issue with this is evident in the fact that in an order dated 01.06.21, only seven women with children were found to be eligible for release by the High Powered Committee.
The new detention center in Matia in Assam, which is near completion, also seemingly imagines children as being part of the detention center. The center is being built exclusively for ‘declared foreigners’ and its functioning will be governed by the 2019 Model Detention Center Manual released by the Central Government. Although the manual is not entirely public, parts of it available suggest that the detention center may have educational facilities and creches for children in detention centers. While the manual promises special attention towards children, studies show that detention has a profound and negative impact on the health and development of children regardless of the conditions in which they are held. It remains to be seen whether these orders will have any impact on excluding children from the new detention center.
Table of Authorities:
- In Re: Contagion Of Covid 19 Virus in Prisons, Suo Motu W.P.(C) No.1/2020.
- Samsul Hoque v. Union of India, Case No. W.P.(C)/6056/2019.
- Nupur Thapliyal, COVID: Gauhati HC Seeks Details Of Female Foreigners Staying In Jails With Children Below 6 Years, Eligible Persons To Be Released From Jails, LiveLaw, 16th May 2021.
- Gauhati HC seeks info on female declared foreigners and their children in Detention Camps, Sabrang, 18th May 2021.
- Suchita Shukla, Gau HC | Court directs High Powered Committee to consider temporary release of female jail inmates with children, SCCOnline, 25th May 2021.
- Meera Emmanuel, Gauhati High Court asks HPC to consider interim release of women prisoners declared “foreigners” with children aged less than 6, Bar and Bench, 25th May 2021.
- Excerpt: Rights of Child Detainees, Parichay, 20th November, 2020.
- HAQ: Center for Child Rights & the Action North-east Trust (The Ant), Fracturing Childhoods, Wounding Children’s Futures Impacts of the NRC on Children in Assam, April 2020.
- Sumir Karmakar, Children of foreigners languishing in Assam jails, Deccan Herald, 20th February, 2019.
- Harsh Mander, The dark side of humanity and legality: A glimpse inside Assam’s detention centers for ‘foreigners’, Scroll.in, 26th June, 2018.
- Report on NHRC Mission to Assam’s Detention Centers from 22 to 24 January, 2018.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Khushi Singh.