Noor Banoo, a Rohingya refugee in her 40s, living in Bengaluru, has met her three children only once since April 2017. Her husband, Mohammed Sultan, 43, and sons Nazrul*(20), Rizwan* (19) and Amir* (12), were detained by police at Thakurnagar railway station, nearly 70 km from Kolkata, for illegally entering India.
The family had crossed the Bangladesh border and were taking a train to Howrah, where they would take a train onward to Delhi, and then to Jammu. Had Noor Banoo not gone to the restroom at Bangaon station, and missed the train on that fateful April day, she too would have been in jail. It was on that train that the police detained her family.
Since her family’s arrest, she has run from pillar to post to collect money to set them free. The lawyer said that it would cost Rs 1 lakh to get her husband released, said Noor Banoo, a waste picker. “It took me three years to collect the money,” she said. “I begged and borrowed money from other Rohingya in Delhi, Hyderabad, Jammu and Bengaluru, but have not been able to release my children.”
Her husband, Sultan, was released from Dum Dum central jail after he got bail in May 2020, but their three children – who are in a childcare institution in West Bengal – are still not free because she cannot afford an additional Rs 30,000 demanded by the lawyer, she said.
Predominantly Muslim, Rohingya are an ethnic group who have not been officially recognised in Myanmar and have faced several waves of violence. Stateless Rohingya have been described as the “most persecuted minority in the world”. They fled “ethnic cleansing”, which has led to the creation of the largest refugee camp in the world, in Bangladesh’s Cox’s Bazar. On March 21, the US Department of State “determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya”.
Detention is not the only issue Rohingya face in India. On March 22, Hasina Begum, a Rohingya detained in March 2021 from Jammu’s Bathindi, was deported to Myanmar through the Moreh border in Manipur, leaving behind her husband Ali Johar and three young children aged 13, 11, and nine.
“I was not informed officially about her deportation, apart from a call I got from an unknown number asking me to go to Manipur with my children, if we wanted to meet her,” said Johar, a daily wage worker who cannot afford the travel and is now finding it hard to explain their mother’s absence to the children. They have no relatives in their village in Maungdaw, the home they left because of ethnic cleansing in Myanmar, and he fears the worst for Hasina.
On April 7, the Supreme Court agreed to hear a public interest litigation seeking direction to the Union government and others to detect, detain, and deport “illegal immigrants” including Rohingyas and Bangladesh nationals, The Hindu had reported.
“UNHCR [United Nations High Commissioner for Refugees] is aware of around 240 Rohingya who are in detention for immigration-related issues, which includes some minors, who are in child care institutions,” United Nations High Commissioner for Refugees India told IndiaSpend on April 11. “UNHCR continues to advocate for the non-penalisation of refugees and asylum-seekers for immigration-related issues and works together with relevant stakeholders to secure the immediate release of those arrested.”
As a stateless ethnic minority, nearly 10 lakh Rohingya have fled violence and death in Myanmar, and many have crossed over to India and Bangladesh. In 2021, at least 414 refugees from Myanmar including 354 Rohingya were arrested in India. The most arrests were reported in Jammu and Kashmir.
The UNHCR works with the support of the government of India in the protection of refugees and asylum-seekers, the UNHCR said in a statement to IndiaSpend. “There are over 47,000 refugees and asylum-seekers registered with the UNHCR, which includes over 20,000 Rohingya from Myanmar. Most refugees are able to access basic services such as health and education in India and often the documents issued by UNHCR facilitates their access to services.”
IndiaSpend had reported that the lack of a domestic policy on refugees and asylum-related legislation is an impediment for those seeking refuge in the country. Now, for many Rohingya, their lives are entangled in a web of inadequate legal protection and support, long detentions, and the constant fear of deportation.
Mohammed Sultan and his children were separated after they were detained by police in the train. The children were put in a childcare institution, he said. While the children have spent five years with their freedoms curtailed, Mohammed Hamid Rahman, 18, who was also in the train with them, was lucky to have spent “only 41 days” in the same shelter as Sultan’s and Bano’s children.
“My father was able to get me released after he got help from a local NGO,” said Rahman. His father Abdul Kalam, 38, who had come to India before Rahman, was grateful that he received support unexpectedly.
“I do not remember the name of the organisation, but I did not have to pay anything except for my travel to Kolkata,” said Kalam.
The Juvenile Justice Act, 2015 categorises children as “child in need of care and protection”, and “child in conflict with the law”.
At least 1,178 Rohingya immigrants were arrested, detained or rescued from trafficking by police in different states, over five years to 2021, according to a December 2021 report by the think-tank, Rights and Risks Analysis Group.
Responding to a Right To Information application filed by IndiaSpend on March 23, the Foreigners Division/Citizenship Wing of the Ministry of Home Affairs said that the information sought on the number of Rohingya in India, those in detention facilities, the deportation procedure, and the number of Rohingya deported to Myanmar and Bangladesh since 2017 was “not available”.
The application was transferred to the Central Public Information Officer of the Bureau of Immigration and the Central Public Information Officer of the Foreigners Wing. We will update the story when we receive a response.
At least 12 Rohingya refugees were detained in Jammu and Kashmir on March 31, according to a report in the Indian Express. In 2021, the United Nations High Commissioner for Refugees in India registered 5,873 new individual asylum applications for India, a 154% increase compared to 2020, due to the “situation in Myanmar and Afghanistan”, including applications from the Rohingya, IndiaSpend reported on March 14.
“If someone cannot stand bail or surety for you, then the person remains in jail even after they have completed their sentence,” said Ravi Nair, executive director of the South Asia Human Rights Documentation Centre, a human rights network. “There are many people [refugees who are detained] who are in jail or juvenile homes even after their sentence.”
Sultan and Noor Banoo had to wait in Kolkata for nearly three months before they could meet their children in November 2021 “for 15 or 20 minutes”. It is the only time Noor Banoo has met them in nearly five years, she said.
“When I met the lawyer when I was in jail, he told me that it would cost Rs 50,000, but he demanded double the amount from my wife [to get me out of jail]. And then he demanded an additional Rs 30,000 for the children,” said Sultan. IndiaSpend has not received a response from the lawyer despite multiple requests. We will update the story when we receive a response.
“It is not unusual to see the detained parents being released while their children remain in the shelter homes because their cases are not heard in the same court,” said Madhurima Dhanuka, programme head of the Prison Reforms Programme at the Commonwealth Human Rights Initiative, trying to ensure legal assistance for all persons in detention, including Rohingya.
Bodi Amin, 21, has gone through a similar ordeal as Banoo and Sultan have. His brother, 16, has been in “jail with older people for nearly five years”, said Amin. He is uncertain about his brother’s release, despite spending nearly Rs 70,000 till date, and he has never met the lawyer. Amin, like many other Rohingya in Bengaluru, earns around Rs 400 a day as a waste picker and transfers some money to his brother in jail once every two or three months.
India is one of the countries that file criminal cases against asylum seekers and refugees for crossing over without documentation, said Dhanuka. “Most countries place them in detention and deport them. Here, the violation of the Foreigners Act leads to prosecution and detention.”
Under the Foreigners Act 1946, travelling without valid documents can attract a sentence of up to eight years imprisonment. But it is not unusual for those who have been detained to remain in detention beyond the period of imprisonment, experts told IndiaSpend.
“.....when a foreigner is picked up, an FIR [First Information Report] has to be registered. Otherwise it is an illegal detention”, said Sahana Basavapatna, a Bengaluru-based lawyer. “After the Babul Khan case [on the procedure under the Foreigners Act for those who are to be deported] and treatment of ‘illegal migrants’ in Karnataka, a person who has been detained can be given bail at any stage [FIR, after chargesheet is filed, during investigation], but they have to be detained in a detention centre.”
The biggest problem is curtailing the freedom of foreigners without the adjudication of courts, said Suhas Chakma, director of Rights and Risks Analysis Group. “There are many asylum seekers and refugees including Rohingya who have been detained for more than their term under the Foreigners Act, which is not legal.”
IndiaSpend asked senior officials at the Ministry of Home Affairs for their comments on the deportation and prolonged detention of Rohingya refugees, legislation on asylum seekers and issues with the Foreigners Act. We will update the story when we receive a response.
In January 2022, a writ petition was filed in the Manipur High Court for the release of two Rohingya men who have been in jail since February 2012, despite a chief judicial magistrate ordering only six months of detention. A few others who were arrested at the same time have been deported, according to the petition. The return and deportation of people and communities at risk goes against the principle of non-refoulement, which protects refugees and asylum seekers from being sent to a country where they could face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.
“Although we filed a representation for the release of two Rohingya who have been detained since 2012, the state government did not consider it,” said Rakesh Meihoubam, director of the Human Rights Law Network in Manipur, who filed the petition. “After we filed a writ petition in Manipur, the High Court issued notice to the state and Union government in January 2022. The matter is pending in court.”
Hasina Begum, who was deported in March, had been in Hiranagar jail in Jammu for nearly a year prior to that, her husband Ali Johar told IndiaSpend. He had not been informed about the government’s decision, and there was no communication with the family except after she was taken to Manipur, as we said earlier. “I had spoken to her a couple of weeks before [the deportation]. I do not know why she has been deported and where she will go once she is in Burma.”
While repatriations usually happen when the nationality verification is confirmed, “deportations however are a grey area, and the process differs and often lacks clarity”, said Dhanuka.
On March 21, Babloo Loitongbam, executive director of the NGO Human Rights Alert in Manipur, requested the Manipur Human Rights Commission to intervene in stopping the deportation, considering that it “violates not only the Principle of Non-Refoulement” enshrined in Article 14 of the Universal Declaration of Human Rights, “but also the right to life which is a fundamental right guaranteed to all persons by Article 21 of the Constitution of India”.
In response to the request, the Manipur Human Rights Commission, on March 21, ordered government officials in Manipur including the Special Secretary (Home), Director General of Police, and Superintendent of Police of Tengnoupal, to “put on hold the alleged plan for deportation, if true”. Despite the Manipur Human Rights Commission order, Hasina Begum “was received by the District Immigration Officer, Tamu [Myanmar]” on March 22 according to a Manipur police report accessed by IndiaSpend.
“Although we were able to convince the Manipur Human Rights Commission, their decision is only a recommendation and not binding,” said Loitongbam. “The Manipur government follows the Union government’s orders obediently. We do not know the procedure of deportation, it is not clear.”
In a February 2021 judgement, the Madras High Court had said the recommendation of the State Human Rights Commission under Section 18 in The Protection of Human Rights Act, 1993 is “binding on the Government or Authority”. The court held that “the recommendation [of a state human rights commission is binding”, and that “the State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission.”
Not following State Human Rights Commission recommendations “is lack of respect”, said Chakma. Ideally, the state must challenge the order of the commission in the high court, which has been the usual practice, he said.
On August 9, 2017, the Union government said that there were “around 40,000 Rohingyas living illegally in the country”, and that the government had issued detailed instructions “for deportation of illegal foreign nationals including Rohingyas”, IndiaSpend had reported.
“It is important there is informed consent of the person, where they are made aware of the current circumstances in Myanmar and their possible fate upon their return,” said Dhanuka of the Commonwealth Human Rights Initiative. If they do not consent to be deported, the law must afford them ample protection, she added.
In December 2021, the government told Parliament that it has called for “the safe, speedy and sustainable repatriation of displaced persons from the Rakhine State of Myanmar”.
“On the issue of the return of the Rohingya woman, we are in touch with the authorities and the family on the same,” UNHCR India told IndiaSpend.
Detention and arrests
Although Hasina and Johar both have UNHCR cards, it provides little in terms of actual protection, experts say. The UNHCR card is not a legal document and “is not replacing the Indian visa – rather it is just a proof that UNHCR is aware of the individual being present in the country,” clarified officials in December 2019.
“The UNHCR cards do not provide protection from arrest or detention,” said Nair of South Asia Human Rights Documentation Centre. “It entitles refugees to apply for long-term visas given by Foreigner Registration Offices and Foreigners Regional Registration Offices, and very few Rohingya get long-term visas. UNHCR in India does not exercise its protection mandate.”
In March, Sabber Kyaw Min, co-founder and director, Rohingya Human Rights Initiative and country coordinator of the Free Rohingya Coalition, who has lived in India since 2005, was picked up by police and intelligence officials in Hyderabad.
“I was taken to Balapur police station and was abused and slapped despite my telling them that I had a UNHCR card and had travelled to Hyderabad from Delhi many times before to meet my relatives,” said Kyaw Min.
Luckily Kyaw Min, who was not given a reason for his detention, was able to leave the police station after five hours due to his network of lawyers and activists, he said.
IndiaSpend spoke to K Purushotham Reddy, Assistant Commissioner of Police, Vanasthalipuram, under whose jurisdiction Balapur police station falls. “It is far from the truth. [We] checked his credentials. Police will check whenever a person comes [there]. It is routine,” said Reddy, adding that it is a standard practice to conduct checks and keep record of new persons or illegal activities in the area.
The UNHCR refugee card is not a shield from detention and – at best limits – punitive action against Rohingyas, though this depends on the discretion of the local authorities, said a December 2020 analysis by Anubhav Dutt Tiwari and Jessica Field, researchers at the Australia-based Kaldor Centre for International Refugee Law.
The UNHCR carries out Refugee Status Determination in Delhi, to determine why a person seeking asylum cannot return to their country of origin or habitual residence. It is necessary for persecuted communities like the Rohingya.
But because Delhi is a long way from the eastern and northeastern borders of India, there is a possibility that asylum seekers are detained during travel due to the lack of documentation, say experts. “UNHCR has a limited mandate and cannot operate in the northeast,” said Loitongbam.
In January 2019, UNHCR sought clarifications about the Rohingya returning to Myanmar. “Despite repeated requests, UNHCR did not receive a response from the authorities in India regarding requests for access to individuals in detention to ascertain their circumstances and to assess the voluntariness of their decision to return,” said the UNHCR press release.
In April 2021, a Supreme Court order asked the government to follow due process for the deportation of detainees in Jammu and Kashmir; various High Court judgements have protected refugees and asylum seekers over the years, given the lack of legislation on asylum seekers.
“There have been court orders which have held that refugees or asylum seekers are special protective cases and rules cannot be applied as usual,” said Dhanuka. “The jurisprudence around it has been delivered by various courts in different states.”
Legislation needs update
In the absence of a legal framework, refugees and asylum seekers including Rohingya “face the constant threat of detention and being deported to the same countries, where they remain under the risk of being persecuted”, Tharoor told IndiaSpend. He added that a slew of domestic laws that prevail in India, such as the Foreigners Act, 1946, the Registration of Foreigners Act, 1939, the Passports Act (1967), the Extradition Act, 1962, the Citizenship Act, 1955 (including its controversial 2019 amendment) and the Foreigners Order, 1948 – all of them club refugees together with “aliens” and in the absence of an asylum policy, leave them vulnerable to mistreatment and deportation.
The Foreigners Act “is a pre-Independence Act, and the distinction of an economic and undocumented migrant, or refugee and asylum seeker or stateless person, was not clear”, said Dhanuka. “It has not been amended to address this, and it is the need of the hour that a Parliamentary Committee should be constituted to look into this aspect.”
It is up to the government to find a solution for the refugee crisis, said Chakma, who said if the government wanted to, it could have identified all refugees from Myanmar and taken the issue up with the Myanmar government. “If security is the concern, then the government should issue ID cards to all. India as a matter of policy and practice however discourages refugees to register.”
Noor Banoo and Sultan, who decided to come to India expecting a better life, continue to be hopeful about the release of their children. But if they had known what they would experience in India, they would perhaps have not come here, said Sultan.
*Names have been changed to protect their identity.
This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.