The petition challenging Rohingya refugees’ ‘illegal detention’ in India | Explained

A writ petition in the Supreme Court alleges that India’s arrest and detention of the world’s most persecuted ethnic minority population is illegal and unconstitutional.

October 21, 2023 05:55 pm | Updated 06:55 pm IST

File photo: Rohingya refugees photographed in Kalindi Kunj, in New Delhi on October 5, 2018. (Image for representational purpose only.)

File photo: Rohingya refugees photographed in Kalindi Kunj, in New Delhi on October 5, 2018. (Image for representational purpose only.) | Photo Credit: The Hindu

The story so far: Shadiya, a 22-year-old, has spent three years detained in a ‘holding’ centre for Rohingya refugees; separated from her child, she lives in a closed space without sunlight, described as big enough to barely spread one’s mattress. She was arrested in 2020 for living in India ‘illegally’, despite holding a valid refugee card that signifies her status as a persecuted minority in her home country, Myanmar.

A writ petition in the Supreme Court on October 10 challenged the hostile and dehumanising conditions many Rohingya refugees like Shadiya face today, alleging that India’s arrest and detention of the “world’s most persecuted ethnic minority” population is illegal and unconstitutional. “Hundreds of Rohingya refugees including pregnant women and minors, have been detained unlawfully and indefinitely... They endure severe violations and dehumanising conditions within these detention facilities,” the petition stated. The Court has asked the Union Government to file a response within four weeks.

What does the petition say?

Priyali Sur, founder of the Azadi Project, an organisation working for women from refugee communities, petitioned the Supreme Court to release Rohingya refugees ‘illegally’ and ‘arbitrarily’ detained in jails across the country, “despite the United Nations Refugee Agency (UNHCR) recognising their status as refugees”.

About 240 people, who were forced to flee persecution, are now detained on charges of illegal entry— 39 in a ‘shelter’ in Delhi and 235 others in a holding centre in Jammu, according to the UNHCR. About 46% of them are women and girls, 36% are children. The largest refugee population resides in Hyderabad, Jammu, Nuh and Delhi, per an estimate from Refugees international.

Regions highlighted in dark blue house the highest number of Rohingya refugees. Source: Refugees International and the Azadi Project

Regions highlighted in dark blue house the highest number of Rohingya refugees. Source: Refugees International and the Azadi Project

Rohingya refugees fled oppression and violence under a Buddhist-majoritarian government and the Rakhine State’s military operations. The International Court of Justice in January 2020 in a landmark judgment averred the Rohingyas had faced ‘irreparable damage’ and genocide at the hands of the Myanmar government, ordering officials to take emergency measures to protect the Rohingya Muslims. Amnesty (and other human rights groups) have called it an apartheid because Rohingya Muslims are “trapped in a dehumanising system of state-sponsored discrimination and racial segregation. This is apartheid – a crime against humanity as defined by international law.” Escalating attacks have resulted in more than seven lakh refugees fleeing the country, seeking refuge in neighbouring countries like Bangladesh, Thailand, Nepal and India.

Recent estimates show almost 40,000 refugees live in India, and about 20,000 of them hold a legal refugee card. Still, Shadiya is one of hundreds, if not thousands, of Rohingya refugees held by Indian authorities under the Foreigners Act of 1946, for not possessing ‘valid’ documents such as passports and visas. The petition notes that people are arbitrarily arrested and detained “without assigning any reason or often under the Foreigners’ Act and with no access to legal aid,” sometimes beyond their sentences or the maximum period of detention stipulated under the law. Shadiya, for instance, was asked to visit the metro station to sign some papers and was picked up by the police and taken to a ‘seva kendra’ in New Delhi, according to a report co-authored by Ms. Sur and Daniel Sullivan. The latest crackdown happened in July this year, when Uttar Pradesh arrested and detained 74 Rohingyas for ‘crossing the border illegally’; those detained had been living in the area for almost a decade, per the Rohingya Human Rights Initiative.

Several accounts describe the ‘inhumane’ conditions of detention centres and jails: these ‘holding centres’ place restrictions on mobility, access to education, basic healthcare, employment opportunities or legal services to defend themselves; many also struggle to access UNHCR refugee cards. A report found that hundreds of Myanmarese refugees placed in Imphal’s Churachandpur jail were required to work for basic amenities like food.

The petition argues that inhumane treatment and “unconstitutional” detention violate their right to life and equality as guaranteed under Articles 21 and 14 of the Constitution. Moreover, pursuant to obligations under international refugee law, the government should be restrained from detaining refugees and treating them as “illegal migrants”. A Bench of Justices B.R. Gavai and Prashant Kumar Mishra issued a notice to the Centre; the next hearing is scheduled on November 20th this year, as per the Supreme Court website.

What do government guidelines say?

The petitioner argued that India’s continued detention of Rohingya refugees violates its own legal standard operating procedure for refugees (in the absence of a clear domestic law) as well as international human rights frameworks.

India’s Foreigners Act and Passport Act “lump refugees in with other foreigners,” requiring proof of documentation (many struggle to access UNHCR cards, the petition noted), failing which they are subject to detention and deportation, the report notes. As for foreign nationals claiming to be refugees, the Ministry of Home Affairs in 2011 said: “In cases in which diplomatic channels do not yield concrete results within a period of six months, the foreign national, who is not considered fit for grant of LTV (Long Term Visa), will be released from detention centre subject to collection of biometric details, with conditions of local surety, good behaviour and monthly police reporting as an interim measure till issuance of travel documents and deportation.”

Several reports show many refugees held in detention centres serve out indefinite sentences: a Rohingya man was arrested in 2018 at the India-Myanmar border, was convicted without access to legal representation, and has remained in detention for the last five years. “It is hell here in detention . . . We want to be free,” he told the group Fortify Rights. Lawyers and refugees quoted in Ms. Sur and Mr. Sullivan’s report suggested the arbitrary detention “was tied to political motivations to show toughness against Rohingya and, in at least one case, to fill the cells of a newly opened detention centre in Delhi.”

Moreover, while other countries like Canada and the U.S. have granted visas to refugees (as observed by the UNHCR), India has denied exit permissions to Rohingyas who may opt to resettle outside, per the petition.

India has a history of hosting refugees, including those from Tibet, Sri Lanka, Pakistan and Afghanistan; it also endorsed the 2018 Global Compact on Refugees, which the United Nations described as “a unique opportunity to strengthen the international response to large movements of refugees and protracted refugee situations.” The treatment of these groups, however has varied “depending on location, ethnicity, and the geopolitics of the time,” the petitioner’s report noted. Activists highlight the contentious Citizenship Amendment Act as an example, which offered rights to minorities fleeing persecution in neighbouring countries and visibly excluded Muslims.

“The Indian authorities are increasingly adopting discriminatory policies against religious minorities, especially Muslims, and their policy toward the Rohingya appears to reflect that bigotry. The Indian government should not abandon its long history of providing refuge to the persecuted to allow religious beliefs to dictate who deserves protection.”Meenakshi Ganguly, South Asia director at Human Rights Watch, in a statement

India is not a signatory to the 1951 Refugee Convention and the 1967 Protocol which acknowledge the right of refugees to seek asylum and protect themselves from returning to a place where their life and safety are at risk. India, however, has an international obligation to prevent genocide, the petition stated. India in 1948 approved the Convention on the Prevention and Punishment of the Crime of Genocide, which had established ‘genocide’ as an international crime and required signatory nations to take measures to “prevent and punish” such acts.

Moreover, India ratified the Convention on the Rights of the Child in 1992, Article 6 of which states that every child has an inherent right to life, survival and development. Children in detention facilities “are not permitted to play or be outdoors because of their identity of being a Rohingya refugee... denying them the freedom to access education or any other liberty is an absolute violation of this,” Ms. Sur previously wrote in The Hindu.

Rohingya refugees in India

Despite lacking a clear policy, India’s domestic laws, like the right to life guaranteed by the Constitution, extend to refugees and asylum seekers. Refugees recognised by the government are eligible to access education, healthcare, jobs, housing in camps and approach law enforcement and justice systems if need be.

Rohingya crisis | Should India’s refugee policy change?

However, as activists and the present petition notes, even those with valid refugee cards face violence, discrimination and struggle to access basic services. Identification remains a challenge, as even those with UNHCR cards struggle to get an Aadhaar card, required to access government subsidies and schemes. In refugee colonies of Delhi’s Kalindi Kunj and Shaheen Bagh, Rohingyas living in jhuggis or rented land face challenges in accessing healthcare due to poor quality of health services, financial barriers and discrimination. In 2018, after a fire blazed through a Rohingya settlement in Delhi, a Bharatiya Janata Party youth wing leader tweeted: “Well done by our heroes…Yes we burnt the houses of Rohingya terrorists.” Political leaders have referred to Rohingyas as “infiltrators,” “terrorists” and “termites”; Home Minister Amit Shah in 2019 vowed to throw illegal immigrants into the Bay of Bengal.

The “illegal immigrant” rhetoric has accelerated the ‘unconstitutional and inhumane’ detention of Rohingyas, many note. A viral video from July this year showcased a brutal fight for freedom at Jammu and Kashmir’s Hiranagar jail: police firing tear gas at 270 Rohingyas trying to escape— people who had been detained in a holding centre for more than two years. A five-year-old died after inhaling the gas.

“The Indian government must end its indefinite detention of refugees and investigate the violent crackdown and beatings of Rohingya refugees in detention,” Zaw Win, Human Rights Specialist at Fortify Rights, said in July this year. “No one should be imprisoned for being a refugee — a status no one willingly chooses.” ”

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