The government is unable to deport them to Myanmar and unwilling to allow them to stay, thus condemning Rohingya refugees to endless and arbitrary detention. An investigation.
Jammu: I met Abu Alam in Jammu on a Friday afternoon in August this year. A Rohingya Muslim from Maungdaw Township in Myanmar’s Rakhine State, Alam fled the country in 2010 – two years before sectarian attacks on the minority community by radical Buddhist groups led to a flood of Rohingyas seeking refuge across South and Southeast Asia.
He made his way to Jammu but was arrested for entering India illegally and without a passport. He was jailed along with two other Rohingyas, Mohammad Salim (20) and Mohammad Farooq (19).
Alam says he is now 20-years old, which means he would have been 15 at the time of his arrest.
Our meeting took place in the office of Neeraj Choudhary, the Station House Officer of the Government Railway Police Station, Jammu. Choudhary was present throughout and requested me not to ask Alam, Salim, and Farooq “sensitive” and “security-related” questions. I wanted to inquire about the condition in which they were being held and see the room where they were kept. I wanted to know what they felt about their situation – of having fled persecution in their country only to end up in jail in the country where they sought refuge. I didn’t ask; it seemed safer to talk about Myanmar.
Abu Alam was the last to speak. He recalled an incident that was a turning point for him, when he decided that he had to leave Myanmar at any cost:
“One time, the police came to our house and told us that my elder brother and I had to give sentry (night patrol). I was 13-years old and studying at a madarsa. My brother was out. I didn’t want to give sentry. I told my mother I wouldn’t go. That night the police came to our house and beat up my father, who is aged and unwell. They took him and kept him in jail that night.”
In 2011, the sessions court in Jammu sentenced Alam, Salim, and Farooq to two years imprisonment. They were charged under Section 3 of the Passports (Entry into India) Act, 1920 for entering and travelling in India without a passport and under section 14-A of the Foreigners Act, 1946 for illegal entry into the country. They were sent to District Jail, Kathua, where they had already spent nearly a year waiting for the court’s judgment – since no one came forward to offer bail, set at Rs 20,000 each.
In its judgment, the court set off the time the three had spent in custody against their two-year sentence. It also ruled that, as per the Foreigners Act, once they had served their sentence, they were to be “pushed back to their country.”
Their sentence ended on November 21, 2012 and the Ministry of Home Affairs (MHA) ordered their deportation.
But Alam, Salim, and Farooq could not be deported to Myanmar because they are stateless.
In 1982, Myanmar passed a new citizenship law that did not recognize Rohingyas as “one of the national races” and required them, as well as anyone else who sought citizenship, to submit “conclusive evidence” of their ancestral links to the country. This put the onus of proof on the applicant and left the decision entirely in the hands of government authorities.
“Few Rohingyas [were] in possession of the necessary documents that … could establish the necessary bloodlines as required by law,” says Laura Haigh, a Myanmar expert with Amnesty International.
The Rohingyas thus came to be recognised as de jure stateless, meaning that neither Myanmar nor any other country in the world recognises them as citizens, under its domestic laws.
This is the reason the MHA did not get a response from the Myanmar embassy in New Delhi regarding Alam, Salim, and Farooq. That the embassy was contacted was confirmed by Suram Singh, Superintendent of Police, Railways Jammu, who said that the J&K government had contacted the Central government, which, in turn, was waiting for a response from the embassy about the three Rohingyas.
Under the Foreigners Act, a person has to be held in detention until the time that his or her deportation is complete. But the three Rohingyas could not be deported until the MHA received a response from the embassy, and the latter would not respond since Myanmar does not recognise them to be its citizens.
So Abu Alam, Mohammad Salim, and Mohammad Farooq were detained – for a further 15 months and 18 days – in Kathua Jail.
Finally, on March 4, 2014, Zahid Hussein, Abu Alam’s uncle, filed a habeas corpus petition in the Jammu High Court along with two other Rohingya refugees. They argued that the J&K Home Department, Kathua Jail In-charge and the SSP had a “constitutional and statutory obligation” to release the detainees as they had completed their sentence and were therefore being held in “illegal custody.” They asked that the detainees be granted refugee status upon their release.
As if prompted by this challenge, the J&K Home Department formalised Alam, Salim, and Farooq’s detention five months later through an order under the Public Safety Act (PSA), 1978.
Under the PSA, a person, including a foreigner, can be detained for up to two years. In the case of the three Rohingyas, the government set their detention at six months or until their deportation to Myanmar, whichever came first.
It was after their detention under the PSA ended in January this year that they were transferred to the GRP Police Station, Jammu. Singh said it was because Kathua Jail was overcrowded. However, a source who did not want to be named said that their transfer had to do with a deportation order issued against them soon after their detention expired. The source said that they were detained in the railway police station so that they could be put on a train to New Delhi as soon as Singh got word from J&K Home that the MHA had approved their deportation. From New Delhi they were meant to be deported to Myanmar – a scenario that may have only entailed their continued detention in Delhi since Myanmar did not accept them as its citizens.
When their relatives found out about the order, they met with Surinder Kumar Gupta, then-DIG-CID of Jammu to stop the deportation.
A source, on condition of anonymity, said that the UN High Commission for Refugees office in Delhi at this time also sent a letter to the MHA asking it to stop their deportation, on the grounds that the three were asylum seekers.
An asylum seeker is a person who, having fled persecution in his or her country, applies for refugee status in another through the UNHCR. Once they pass the UNHCR’s rigorous status determination interview, they are recognised as refugees and given a refugee card.
But though the MHA stopped their deportation, it did not order their release. So the three continued to remain in detention.
Then in May this year, the Jammu High Court responded to Zahid Hussein’s habeas corpus petition, allowing Alam, Salim, and Farooq to go to New Delhi so that the UNHCR could interview them and make a determination about their status.
In July, the three men were given refugee status by the UNHCR and by August had received their refugee cards too.
It was while they were waiting to receive their cards that I met them at the GRP Police Station, Jammu. Hussein, Alam’s uncle, had told me that the High Court had stated that they would be released once they got their refugee cards. This was before I had a chance to consult with legal experts or see the High Court judgment. In this context, I asked them what their hopes were for the future but none of them spoke in great detail about that; only about how important it was for them to be free.
Abu Alam kept glancing at the SHO as he said this:
“Kisi bhi haal mein main yahaan se nikalna chahta hoon … azad hona chahta hoon bus. Apni marzi se kaam karke zindagi guzaarna chahta hoon. Bus aap jo kar sake hamare liye yahee kaam kareeye … aur kuch nahin chahunga. Zindagi jeene ke liye ek mauqa chahiye bus.”
(I want to get out of here at all costs. I want to be free. I want to find work and live my life on my terms. If you can do anything for us, please do this, I don’t want anything else. I just need to have one opportunity to live my life.)
I left Jammu two days later. Hussein told me that they were transferred back to Kathua Jail soon after.
On November 20, Alam, Salim, and Farooq will complete two years in detention. It’s been two months since they were recognised as refugees by the UNHCR.
A case of arbitrary detention
Ravi Hemadri, director of the Development and Justice Initiative, UNHCR’s implementing partner in Jammu, says that the three have been punished for their crime of entering India illegally, have served their sentence, and been awarded refugee status by the UNHCR. “Now there is no basis either to keep them in detention or deport them,” he says.
“Whether you detain a refugee or asylum seeker, it is a violation of international refugee protection principles,” says Sengupta.
When asked whether their detention is illegal, Ravi Nair, the director of South Asia Human Rights Documentation Centre, says he can’t call it that as he hasn’t looked at the case files but adds: “You could make a case that it is arbitrary detention.”
A detention becomes arbitrary when no legal basis can be invoked to justify the “deprivation of liberty” of a person, according to the UN Working Group on Arbitrary Detention.
Arbitrary detention is both a violation of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). It is also a violation of Article 21 of the Constitution which guarantees all persons, not just citizens, the right to life and liberty.
In addition, by arresting and detaining Abu Alam in Kathua Jail, where adults are interned, India has also violated theConvention on the Rights of the Child. Alam was 15-16 years old at the time of his arrest, as was confirmed by him during his interview and by his uncle Zahid Hussein.
“Lihaza, main yeh sochta hoon ki UNHCR ka card milne ka kya fayda,” said Hussein at our last meeting in Jammu. (For this reason I think, what is the point of getting a UNHCR card?) He was referring to the fact that despite having a refugee card, his nephew has not been released.
He is not the only one.
There are another five Rohingya refugees – Noor ul-Amin, Saif-Ul-Islam, Shabir Ahmed, Noor Ul-Ameen, and Mohammad Saleem – who are being detained under the PSA in Amphalla Jail, Jammu. Not only that, in July this year, a lower court ordered their deportation, despite the fact that it is a violation of the international law principle of non-refoulement, which prohibits countries from sending back a refugee or an asylum seeker to a territory where there is a possibility of threat to their life or freedom.
These five Rohingyas were transferred from the jail to Trikuta Nagar police station near the Jammu Tawi railway station. They were held there for 15 days until Shafiq Ahmed Wani, one of their lawyers, told the SHO that they could not be held there indefinitely and that it amounted to “illegal confinement.”
The deportation order against them has still not been quashed, despite the fact that it has been eight months since they were recognised as refugees by the UNHCR.
There are another four Rohingya refugees and four asylum seekers who have been booked for illegal entry under the Foreigners Act and are being held in correctional homes in West Bengal, Ipshita Sengupta, a policy associate at the UNHCR, confirmed
She also confirmed that there are more than 300 people who claim to be Rohingyas who are being held in jails across India, especially in West Bengal. This is because Rohingyas, more than any other refugee group, enter India via the land border with Bangladesh, says Mrinal Sharma, Project Officer for Prisons Reform Programme with the Commonwealth Human Rights Initiative. As they are stateless, they do not have documents that prove their Myanmarese citizenship. This is unlike other refugees, such as the Afghans, who enter India by air and with valid documents, points out Sengupta.
It is ironic that legislation that is responsible for the detention of Rohingyas does not apply to other refugee groups. In September 2015, the MHA announced that from this year on minorities from Pakistan and Bangladesh will be exempted from prosecution under the Foreigners Act, 1946 and the Passports Act, 1920.
Nair says that this order – by not extending this protection to minorities from other countries – not only violates Article 14 (Right to Equality) of the Constitution, but is also a violation “of every single tenet available both in national and international law.”
Yet it is this very ad-hoc approach towards refugees that is the core reason that there is no domestic law on refugees in India – it works to India’s benefit and is guided by its “geopolitical considerations,” he says.
No domestic law
The reason that Rohingya refugees and asylum seekers are and will continue to be detained is that there is “no corrective mechanism,” as Nair puts it. India still does not have a domestic law on refugees nor is it a signatory to the 1951 UN Refugee Convention and its 1967 Protocol.
If there were a refugee law in India, the most important protection that refugees and asylum seekers would receive is from being prosecuted for illegal entry under the Foreigners Act and for entering India without valid documents under the Passports Act, 1920. Syrian refugees who manage to cross into a European country, for example, are not charged with illegal entry.
A domestic law would also ensure that persons who claim to be refugees have the right to get their claims verified. This function of refugee status determination is currently carried out by the UNHCR, which has been allowed to operate in India for nearly three decades – despite the fact, as Sengupta points out, that the country is not a party to the Refugee Convention.
The fallout of this arrangement – India not being bound by the Convention but still allowing the UNHCR to function – has been that the organisation’s access to asylum seekers remains tenuous.
Calling the issue of Rohingya detentions “sensitive”, a UNHCR official advised me to use my discretion while writing about the problem and said, “We don’t want some information used in a manner that access is no longer available.”
In fact, this is the very reason that Alam, Salim, and Farooq continued to be detained for over a year even after they had completed their sentence in 2012 – they did not have access to the UNHCR, until, of course, Hussein filed a habeas corpuspetition in court.
On its part, the Ministry of Home Affairs has not said a word about their detention.
G K Dwivedi, Joint Secretary (Foreigners) in the MHA is the UNHCR’s “government counterpart on refugee issues, including the Rohingya,” confirmed Sengupta. The Wire asked him the reason for the continued detention of the three Rohingyas and how long the MHA planned on holding them. He was also asked what the MHA planned to do about the deportation order that was issued against the other five Rohingyas before they were detained under the PSA. He has not responded.
Braj Raj Sharma was the Principal Secretary, J&K Home when the eight Rohingya refugees were arrested. He was also asked the reason for their detention and his opinion on the conditions under which they could be released.
Raj Kumar Goyal was asked what he planned to do as the new Principal Secretary of J&K Home about Alam, Salim, and Farooq’s illegal detention.
Neither Sharma nor Goyal has responded.
When asked what the UNHCR is doing with regard to the arbitrary detention of the three Rohingya refugees, Sengupta said she was unable to comment on the specific case as such information is kept confidential for protection reasons. She added, however, that the UNHCR was “aware of some Rohingya refugees in detention in Jammu” and, along with its partners, was “following up on detention cases, providing legal support, and advocating with the concerned authorities to secure their release.”
Aziz and the way forward
Nair calls the continued detention of the Rohingyas a “failure of the UNHCR.”
He says that the UNHCR should look at third country resettlement for them given the fact that it has recognised them as refugees, and yet they continue to be detained in India and are, of course, not acknowledged by Myanmar as its citizens.
“It is incumbent on the UNHCR to exercise its protection mandate,” he says.
Yet, Nair also admits that there is growing “refugee fatigue” in receiving countries and they have become increasingly wary of refugees who are “Muslims and people of colour.” Additionally, the UNHCR’s data shows that “less than one percent” of the world’s 14.4 million refugees get resettled. At this time, those who do are from countries where conflict is at its peak, such as Syria and Iraq.
Another way out, Nair suggests, is that petitioners approach the UN Working Group on Arbitrary Detention, which investigates individual complaints of arbitrary detention. Its decision, including the concerned government’s response, is published and reported to the Human Rights Council. However, it is not legally binding on governments.
So are the circumstances of the three Rohingyas truly extraordinary or has the Indian state dealt with such cases before?
Indeed it has.
Both Nair and Sahana Basavapatna, a lawyer and researcher whose work focuses on refugee law in India, cite the 2014 Delhi High Court verdict on Sheikh Abdul Aziz versus State NCT of Delhi.
Aziz was arrested under the Foreigners Act in Jammu and Kashmir and transferred to Tihar Jail after completing his sentence. He was detained there for seven years as the government had not been able to determine his nationality; Saudi Arabia had rejected his claim of being its citizen. As with the Rohingyas, since J&K Home didn’t receive a response from the MHA, it continued to issue detention orders against him until he moved the Delhi High Court.
The court directed the government to use its authority under Section 8 of the Foreigners Act to determine his nationality. The government found him to be stateless.
The court then ruled that Aziz was to be issued an identity certificate on the basis of which he could apply for a Long Term Visa so as to legally reside in India. It also ordered the J&K government and the central government to give him Rs 2 lakhs as compensation for causing his illegal detention.
Experts on refugee law see this case as important for the fact that the Delhi High Court ruled on asylum for a stateless person. Basavapatna says that it can also be used to argue against illegal detention and for the Rohingyas’ release, even though a Delhi High Court ruling is not legally binding on the Jammu High Court.
She says the petitioners now need to file another habeas corpus petition in the court. This time they need to ask for Alam, Salim, and Farooq’s release on the grounds that they are refugees.
The argument would be that unlike Sheikh Abdul Aziz, who was stateless and therefore did not have documents to prove his status in the country, the three have UNHCR-issued refugee cards that confirm their refugee status and their right to legal residence in India.
“So their case is more straightforward,” she says.
For Hemadri, the Rohingyas’ case presents an opportunity to “take refugee law practices forward”: if the court releases them on the basis of their refugee cards, it sets a precedent and can be used to argue for the release of asylum seekers and refugees such as Alam, Salim, and Farooq.