The Supreme Court bench of Justices B.R.Gavai and Prashant Kumar Mishra issued notice to the Union government on a petition filed by Priyali Sur, an independent multimedia journalist and an international development professional, seeking the release of illegally detained Rohingya refugees in India.
The petition states that international refugee law prohibits states from treating refugees and asylum seekers on the same footing as economic migrants. Despite this, the petition has alleged Rohingya detained for being “illegal immigrants” have been held beyond their sentences or the maximum period of detention of foreign nationals as per India’s own internal policy.
The petition cites the 2011 Ministry of Home Affairs (MHA) standard operating procedure to deal with foreign nationals who claim to be refugees as stating that:
“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.”
The petition alleges that this guideline was not adhered to with respect to the Rohingya refugees and the 2019 SOP has also done away with this provision of release from detention when deportation is not possible or taking an unreasonable amount of time.
Despite their refugee status, the detention of Rohingya refugees is done under the Foreigners Act, 1946, which regulates immigration, the petition alleges. The Act provides for unchecked executive powers against foreigners and contains no special provisions for statutory exceptions for vulnerable populations like asylum seekers and refugees.
The absence of special protections for refugees in the Act has been used by the government to penalise refugees for lack of documentation like passports and visas, the petition has alleged. “This has resulted in a situation where despite UNHCR recognition, registered Rohingya refugees in India are still at risk of administrative detention criminal imprisonment and deportation,” the petition claims.
The petition sources its data from a UNHCR factsheet dated November 2022, according to which 312 Rohingya refugees remain in immigration detention, 263 in a holding centre in Jammu and 22 at a welfare centre in Delhi.
The petitioner has submitted that based on interviews conducted with family members of detainees, Rohingya community leaders and lawyers, the numbers far exceed 312. The petition claims that the approximate number of Rohingya refugees detained across India is above 500, with almost 50% of them women and children, many of whom are detained with their mothers/partners in detention, where they have no access to education. Older children are forcibly separated from their parents and kept in juvenile detention or homes, the petition has alleged. “They rarely get an opportunity to see their parents and spend years without any interaction with them,” the petition adds.
The petition has given graphic details of living conditions in detention centres in Delhi, Jammu, Assam, West Bengal and other jails across the country, in Hyderabad, Bengaluru, Chennai, Kochi and in states like Uttar Pradesh and Bihar.
Estimates of the number of Rohingya refugees detained in India are complicated by a lack of clarity on what constitutes detention. The petition says what Indian authorities call “holding centres” act effectively as detention centres.
A report, co-authored by Daniel Sullivan and the petitioner, states specific reasons for detention are often arbitrary. In one case currently before the Delhi high court, a Rohingya woman describes being called by her local Rohingya leader early in the morning to a remote location to fill out some paperwork. Upon arrival, she was detained by the police and has been in detention ever since.
Representative image. Photo: Tum Hufner/Unsplash
Many refugees interviewed for the report mentioned that police often use local leaders as informers or have a quid pro quo arrangement of not detaining them if they can assist in getting other Rohingya detained. As one camp leader in Hyderabad told the team, local police pressured him to report who visits the settlement and threatened him with detention if he did not. If a new refugee is reported within a locality, they are vulnerable to detention. This leads to refugees in need of services, particularly new arrivals, staying in hiding unable to access hospitals or report crimes.
One interviewee who had been detained for several months reported that people were held in rooms so tightly packed that detainees needed to take turns lying down to sleep. Other former detainees said the food given to them was watery and full of dirt and dead insects. Most previously detained refugees complained of the lack of sunlight in the holding detention area. These living conditions have raised the question of the right to live with dignity, guaranteed by Article 21 of the constitution to all – including foreigners.
The writ petition, filed under Article 32 of the constitution, seeks a writ of mandamus directing the Union of India to release Rohingya refugees who have been illegally and arbitrarily detained in jails and detention centres across the country, in order to protect their right to life and equality before law under Article 21 and 14 respectively.
The Rohingya are an ethnic minority originating from the Rakhine state in Myanmar. They have been described by the United Nations as the world’s most persecuted ethnic minority. They have a history of statelessness since 1980, primarily as a consequence of the 1982 Citizenship Law enacted in Myanmar, which effectively stripped them of their citizenship. Escalated genocidal attacks at the hands of the Myanmar military in August 2017 caused more than 7,70,000 Rohingya to flee the country.
In January 2020, the International Court of Justice (ICJ) gave a landmark judgment of grave significance in the context of the ethnic atrocities against the Rohingya community in Myanmar. The ICJ found that the Rohingya community in Myanmar had suffered genocide and ordered the government in Myanmar to restrain its military forces from continuing with the oppression.
The petition before the Supreme Court submits that India has an obligation to prevent genocide. India had in 1948 approved the Convention on the Prevention and Punishment of the Crime of Genocide which established ‘genocide’ as an international crime, which signatory nations “undertake to prevent and punish”. India, along with Panama and Canada, was the force behind the adoption of the Genocide Convention on December 9, 1948.
Despite not being a party to the 1951 Convention on the Status of Refugees, India continues to host a large population of refugees and passed domestic laws on the right to life that apply to them.
India has also served on UNHCR’s executive committee since 1995 and supported the 2018 Global Compact on Refugees, a non-binding framework described by the UN as “a unique opportunity to strengthen the international response to large movements of refugees and protracted refugee situations”.
The petition alleges that the Indian government denies exit permissions to those Rohingya who opt to resettle in other countries such as Canada and the US after obtaining visas from them. The government allows UNHCR mandate refugees to apply for visas. Refugees and asylum seekers have also been provided access to basic government services such as healthcare and education as well as to law enforcement and justice systems.
Estimates of the number of Rohingya living in India vary widely. The last public estimators by the Indian government in 2017 put the number at 40,000. The Rohingya population in India is a mix of those who arrived following earlier periods of persecution and those who have arrived more recently from the camps in Bangladesh. According to the UNHCR factsheet dated November 2022, 29,052 Rohingya are registered with the UNHCR as of November 2022.
International refugee law regards the asylum seeker as a presumptive refugee. A bonafide asylum seeker is to be given the benefit of the doubt and afforded all the rights of a refugee until their refugee claim is conclusively rejected by a competent authority.
The petition claims that many Rohingya have not been able to access UNHCR refugee cards yet. Some have been detained while on their way from other states to Delhi to approach the UNHCR and some have even been detained from outside the UNHCR office, the petition adds.
Rohingya are recognised as refugees, and it is an established principle of international refugee law that they should not be returned or expelled to a state where they fear for their life and safety, the petition avers.
