Srinagar: Lodged in a district jail in Jammu for the last three years, Adil, Abdul Salam and Abdul Khaliq have yearned for asylum and freedom from incarceration for what seems like forever.
The three Uyghur Muslim brothers ran away from the town of Kargilik in Xinjiang, China to escape an “impoverished life mired with persecution”. Their destiny hangs on the outcome of a petition currently pending before the Jammu and Kashmir high court.
The trio have been kept in detention under the Public Safety Act (PSA) since 2015 after they completed a one-and-a-half year sentence for entering Indian territory without proper documentation. Citing the persecution of Uyghur Muslims under the Chinese government, the three have said that they do not wish to go back to their native country.
Arrest and trial
Official records accessed by The Wire reveal that the brothers were apprehended by the army’s Five Ladakh Scouts regiment on June 12, 2013, near the Line of Actual Control (LAC) dividing India and China.
A day later, they were handed over to paramilitary force Indo Tibetan Border Police (ITBP) which is primarily responsible for guarding the 3,488 km-long LAC with China which runs along the new Union territory of Ladakh and the states of Arunachal Pradesh, Uttarakhand, Sikkim and Himachal Pradesh.
After remaining in the custody of the ITBP for more than two months at the Murgo forward post, the three brothers were handed over to the police at the Nobra Police Station on August 28, 2018, which subsequently registered an FIR 10/2013 under section 14 of The Foreigners Act, Section 3 of Passport Entry into India Act and Section 30 of the Arms Act.
They were charged with committing offences under the Arms Act for possession of knives at the time of their arrest.
During a hearing of the case, the court of chief judicial magistrate Nobra observed that the three were unable to understand Urdu or any other language and directed the state government to provide an interpreter for the Ughyur language.
On July 22, 2014, counsel for the trio, advocate Stanzin Dawa, submitted an application before the court that stated that after the detainees had spent time in the Leh district jail, they had learnt Urdu and Hindi to an extent that they were able to understand the nature of their crime and wanted to confess voluntarily.
Passing the order, the chief judicial magistrate Nobra sentenced them to imprisonment for one-and-a-half years after being convinced that the accused persons were able to understand Urdu and Hindi to the degree that they were able to understand the nature of the crime and the charges levelled against them.
Pleas for asylum
Nearly a year after completing their sentence, the three brothers dispatched separate applications to the Union home secretary seeking asylum or temporary refugee status in India.
Their pleas were forwarded by the superintendent of the district jail in Leh to the home ministry on February 28, 2016.
In their applications, the three sought asylum and submitted that they could face execution or life imprisonment if they were handed over to the Chinese authorities. They also pointed out that the Ughyur Muslim community in China was being subjected to severe atrocities.
At the same time, a writ petition against their repatriation was filed in the Jammu and Kashmir high court by Muhammad Abdullah, who is also an ethnic Ughyur. Abdullah, whose father had settled in Leh somewhere between 1930 and 1940 after migrating to India from Xinjiang, had been frequently called upon by the police to act as an Uyghur interpreter for the three brothers.
On March 3, 2016, the high court directed the government that any steps for deportation shall not be taken until further orders from the court. “Till objections are filed and steps, if any, taken shall await till further orders of the court,” read an order passed by the single bench headed by Justice Muhammad Yaqoob.
Government response and detention of the trio
In its response, the Jammu and Kashmir government in 2016 told the court that the Union home ministry had decided to deport or repatriate the three Chinese nationals to their native country.
“This has reference to the Superintendent, District Jail, Leh Ladakh’s letter NO. ESSST/DJL/2016/ 1780, dated 29-2-2016 on the subject cited above. The matter has been considered by this ministry and it has been decided to deport/ repatriate three Chinese nationals Adil/ Abdul Khaliq and Abdul Salam sons of Thursum R/0 Xinjiang, China (Uighur) presently lodged in district Jail Leh to their native country,” read the MHA under secretary’s letter to the principal secretary of Jammu and Kashmir government’s home department.
“You are therefore requested to complete the deportation process of the above China (Uighur) nationals in consultation with Ministry of External Affairs (South East Asia division) for issuance of travel documents for deportation to their native country at the earliest provided that there is no pending court case against them and they are not required in any other case,” the letter further stated.
The government informed the court that it had written to the MEA, asking it to consult the Chinese embassy in connection with the issuance of travel documents for the three detainees.
The Jammu and Kashmir government also submitted that plea of the petitioners for granting of asylum or temporary refuge did not fall within its jurisdiction.
Advocate Sachin Gupta, who is a lawyer for the three detainees, told The Wire that the government of India is yet to file its response in the matter.
A senior official from the Jammu and Kashmir prisons department, on the condition of anonymity, said that the three detainees have been lodged at the district jail at Amphalla, Jammu since December 2017 after being shifted from the district jail in Leh.
Since the three completed their sentence in 2015, they have been detained under the controversial Public Safety Act, which has been used to keep foreigners under custody until their repatriation to their native countries.
The Uyghurs are a minority ethnic group living in the Xinjiang Uyghur Autonomous Region in Northwest China. The Muslim community regards itself as being culturally and ethnically similar to those in Central Asian nations. Many Uyghurs refer to Xinjiang as East Turkestan, because the region had come under Chinese control following two short-lived East Turkestan republics in the 1930s and 1940s.
A few Uyghur families settled in the erstwhile princely state of Jammu and Kashmir before 1947. In 1949, hundreds of Uyghurs migrated to Kashmir following the communist takeover of China. However, it is understood that many had to resettle in other countries, including Turkey, in 1954 due to what is largely conceived as diplomatic pressure from Beijing on New Delhi.