New Delhi: On the one day of the month when three-year-old Sulaiman is allowed to visit his mother at an Indian government detention centre in west Delhi, he starts crying and does not stop until the next day.
“Day in, day out, he asks about his mother [in normal times],” said Sabera Khatoon, 29, the child’s maternal aunt at her makeshift cloth-tarpaulin-and-bamboo home near the Kalindi Kunj metro station in southeast Delhi. “But the day we visit her is the worst.”
“He keeps wailing all night,” said Khatoon, who visits her 24-year-old sister at the centre run by the home ministry in west Delhi’s Shahzada Bagh Inderlok area. “He will neither eat nor sleep that night. Imagine, a three-year-old child growing up without his parents.”
Sulaiman’s father left for Myanmar in 2017, and his incarcerated mother remarried. His mother and stepfather were among 14 Rohingya detained from southeast Delhi in March 2021, despite having United Nations High Commissioner for Refugees (UNHCR) refugee cards, which allow them to remain in India but not relocate to another state without police permission.
The Rohingya, or Ruáingga, who speak a language related to Bengali, are among the most persecuted minorities in the world and have been fleeing Myanmar since 2016 to escape genocide there.
A report called “India: The Status of Refugees-2021” (the report is not online, but Article 14 has a copy) by Rights and Risks Analysis Group, a think tank, said at least 98 Rohingya were arrested and detained in Delhi between 2017-2021. A source involved with contesting the detention said up to 300 may have been detained, including more than 150 Rohingya in Jammu sent to a detention camp, the month of the Delhi raids. According to Rohingya representatives in the refugee camps, 73 are currently detained in Delhi.
After nearly 10 months in detention, the legal status of those detained was unclear. Of the 14 detained in Delhi, four were released and the rest continue to be in detention.
Detention Must Not Be ‘Arbitrary’: UN
UNHCR detention guidelines say that detention must not be “discriminatory” or “arbitrary” and that there are various ways for governments to address irregular migration other than detention, including deposit or surrender of documents and creating reporting conditions. The guidelines also observe there is no evidence that detention has any deterrent effect on irregular migration.
From our reporting, it was apparent the reasons for arrest, release and detention were unclear, and no pattern was evident for the detentions.
Many of those we spoke to said their kin had UNHCR cards. Some were detained despite having UNHCR cards and not relocating out of state.
Article 14 sought comment from the Foreigners Regional Registration Office (FRRO)—which runs detention centres—first over the phone on 23 December. The officer responding did not give him name, but asked for this reporter’s nationality, if she wanted details on the Rohingya and questioned the “motive” for such an article. He said the FRRO was not obligated to respond but said he would forward an email to the “concerned officials”. We sent the email on 29 December. There has been no response.
Flashing a mobile-phone torch on her sister’s UNHCR card at a refugee camp in Kanchan Kunj, a squalid slum with garbage heaps and no toilets, Khatoon’s demeanour remained calm as she spoke about her everyday struggles in Delhi, her fears of an uncertain future, and her father lodged in a prison in Myanmar.
She said they were “taken aback” when they heard the police had taken her sister and brother-in-law for questioning, and seized their refugee cards while sending them to detention after an early morning raid in neighbouring Shram Vihar, where her sister lived.
The UNHCR renewed her sister’s card in July, but her husband did not have one. Refugees have little access to lawyers, except those who offer pro-bono services.
“All we want is to know the reason why they were detained,” said Khatoon. “We have nobody on our side to fight this battle.”
After Providing Shelter, India’s Hard About Turn
The UNHCR has previously documented about 40,000 Rohingya refugees in India, but many are unregistered because of official hostility, in particular towards Muslim refugees, and the prospect of deportation. There were 18,013 Rohingyas registered with the UNHCR in India till November 2021, a UNHCR source told Article 14.
While India has sheltered many Rohingya, potentially saved from being hacked to death—about 24,000 were brutalised during systemic episodes of bloodletting in their homeland—the lack of rights as unrecognised refugees is a constant threat.
The exclusion of the Rohingya from India’s civil documentation process deprives them of access to basic services, such as health and education, said a November 2020 report from the Institute on Statelessness and Inclusion, an advocacy group based in the Netherlands, in association with UN Special Rapporteur Tendayi Achiume.
These exclusions are in contrast to inclusions and protections that India has offered non-Muslim migrant groups from Afghanistan, Pakistan and Bangladesh through the Citizenship (Amendment) Act (CAA), 2019.
Since India is not party to the Convention Relating to the Status of Refugees (1951) and its 1967 protocol, its refugee protection obligations are limited, as lawyer Malvika Prasad wrote in Article 14 in February 2020, although Article 21 of the Constitution ensures the right to life to non-citizens as well.
That right to life was not defended by the Supreme Court in April 2021, when the consequences of deportation of the Rohingya arose.
“Possibly that is the fear that if they go back to Myanmar, they will be slaughtered,” observed former Supreme Court Chief Justice Sharad Arvind Bobde. “But we cannot control all that. . . We are not called upon to condemn or condone genocide.”
The Kerala High Court ruled in 2013 that refugees and foreigners were not the same: refugees were forced to leave their countries.
According to the Foreigners Act 1946, anyone not an Indian citizen is considered a foreigner, and the foreigner must carry Indian government-issued documentation, said experts. Without such documents, the individual is subject to the provisions of section 14 of the Foreigners Act, dealing with punishment, which can extend to five years and a fine. The Act also allows the government to detain and deport foreign nationals staying illegally in India.
The government has argued that since India has not signed the 1951 Refugee Convention, UNHCR identity cards are not legal documents. Yet, India has asserted at several UNHCR executive committee meetings (here and here) that refugees are protected by the Constitution.
As we reported in January 2020, India excludes refugees from essential identity documents, such as Aadhaar, the national identity number, but collects biometric data from refugees to aid surveillance and possible deportation.
Refugees who lacked documents were, after getting UNHCR cards, provided long-term visas (LTVs) to live in India, but since 2016-17 the government stopped issuing or renewing such visas to the Rohingya, worsening their already vulnerable situation.
The disregard for refugees, the report said, “puts most refugees and asylum seekers residing in India, including Rohingyas, at risk of arrest and deportation”.
‘We Have Lost Everything. We Cannot Lose Our Children’
“I am always in fear—of the police, of a fire bringing down our shelters,” said Khatoon, a mother of three daughters aged four, six and eight. “We have lost everything. We cannot lose our children.”
“I am responsible for my kids and my sister’s son,” said Khatoon, drawing Sulaiman close to her, as her daughter climbed atop a bamboo pole holding their shelter together. “I keep getting nightmares that something will happen to my children. So I barely sleep at night.”
Khatoon’s husband was an itinerant construction and daily wage worker, but the Covid-19 pandemic first and rising air pollution later reduced construction work. Her daughters currently struggle to attend online classes—the timings of which clash—on the family’s single smartphone.
The family struggles with food and water, the only supply of which comes once a day from a visiting tanker. While the Kanchan Kunj refugee camp houses more than 50 Rohingya families, there are around 100 families in Shram Vihar.
Those living in the camps report frequent power cuts. They often cook and do household chores by candlelight. The shacks are close together, and there are no toilets. The families defecate in the open.
Article 14 spoke to three families whose immediate family members were detained and several neighbours and community leaders who said around 14 people were taken for questioning in late March from these two refugee camps and later sent to detention, where they continue to be.
The accounts of the families, neighbours were similar: refugees taken for questioning by police; a process they thought would last a few minutes turned into hours, days and months.
Eventually they were sent to the Inderlok detention centre, more than 30 km away. Each visit costs families about Rs 500.
“The civilisational values in our country, which has always provided shelter to refugees, are collapsing,” Suhas Chakma, director at the Rights and Risks Analysis Group, a Delhi think tank, told Article 14, describing the government’s approach to the Rohingya as “discriminatory”.
The Identity Documents That The Police Ignore
In 2017, the government of Prime Minister Narendra Modi said that all Rohingya would be deported, whether they were registered with UNHCR or not.
Rohingya community leader MD Salim Ullah, who uses one name and lives in the Kanchan Kunj camp, said those being detained were told they were taken into custody because a family member was living in Hyderabad or Jammu. A UNHCR source, speaking on condition of anonymity, said refugees only needed to inform the local police station if they were relocating.
“How can these be valid grounds when a person with a UNHCR refugee card has informed local authorities about their movement?” asked Salim Ullah. “A UNHCR refugee card should be a valid document to live anywhere in India without being harassed by police.”
Article 14 sought official comment from the UNHCR’s New Delhi office on the status of the Rohingya detained in March 2020, but there was no response. We will update this story if they do respond.
We also sought comment from the National Human Rights Commission, which had sent a notice to the central government over the deportation, urging a “humanitarian response”. We will update this story if they respond.
As Modi’s government has turned increasingly hostile, pressure from the police has increased.
Hostility From India’s Ruling Party
When the CAA was passed on 9 December 2019, union home minister Amit Shah said in Parliament that Rohingyas would “never” get Indian citizenship. In 2018, then minister of state for home affairs, Kiren Rijju, without offering proof, alleged in Parliament that the Rohingya were involved in “illegal activities”.
In January 2021, West Bengal BJP leader Dilip Ghosh claimed, with no evidence, that names of Rohingyas were added to the electoral rolls ahead of West Bengal state elections.
Senior Supreme Court advocate Prashant Bhushan alleged the government was reinforcing its anti-Muslim narrative by detaining the Rohingya.
“Why is the government so keen on evicting or victimising or harassing them?” said Bhushan. “The reason is they are Muslims, and this government is waging a war against Muslims, and trying to create communal hatred against Muslims in India.”
Bhushan argued the government was putting out two messages: that the Rohingya are Muslims and that they were “eating into” India’s resources.
In August 2017, the government suddenly ordered the Rohingya to be identified and deported from all states, “in contravention of the Indian Constitution”, said lawyer Fazal Abdali, who has worked with the Rohingya for nearly a decade and is a petitioner in the Supreme Court in a case seeking release of imprisoned Rohingya. The 2017 order, he said, “instantaneously” changed the status of the Rohingya from refugees to illegal immigrants .
The Limited Influence Of The United Nations
Asmira Begum’s eyes welled with tears as she spoke about her sister Ayesha, picked up from Shram Vihar. The tears escalated into sobs, as she spoke of her sister’s worsening health at the Inderlok detention centre.
Ayesha, who married a Rohingya man who lives in Hyderabad—her sister speculated this could be a reason for her detention—has kidney stones, has twice had typhoid and had lost weight, said Asmira, breastfeeding her daughter, as she talked.
“My mother visits her at the centre once a month,” said Asmira, the frail wife of a daily wage labourer. She has seven daughters and has given one to a neighbour because she cannot feed them all. Afflicted with kidney stones, Asmira was breastfeeding a five-month old as we spoke.
“Have you seen how we live?” said Asmira. “It is difficult for us to even manage the transport fare to the detention centre.”
Asmira and Ayesha’s brother, Abdullah, who goes by one name, said the UNHCR should play “a more active role” and intervene on behalf of those detained.
“We ask the UNHCR, ‘how come you are not taking responsibility for us?’” said Abdullah. “They give us assurances that they are talking to the government. We thought we were safe here. Why do we not go back to Myanmar, if we are to be put in detention centres here?”
Nurul Amin, a Rohingya community leader at Shram Vihar, said they had “repeatedly” asked the UNHCR about the status of those detained.
“It (UNHCR) tells us every time that it is asking the same questions to the government,” said Amin. “It tells us that the government is still making decisions.”
“The Supreme Court has said people should be deported after due procedure is followed,” said Chakma, the director of the Rights and Risks Analysis Group quoted earlier. “The prescribed procedure only includes notifying the government of Myanmar that they accept them as citizens.”
No Pattern To The Detentions
If the police sweeps were targeting refugees without UNHCR cards, Mohammad Noor said his brother, niece and neighbour should not have been detained.
All three, he said, not only had refugee cards but also received renewed cards from the UNHCR.
“They had not made any movement even between states,” said Noor. “We know we have to inform the local police station [which they do not have to, as we mentioned earlier].”
Noor’s brother is a maulana, who teaches religious studies to children and leads namaz at the local mosque. His niece, he said, did “household chores”. His neighbour survived by doing daily labour.
“He has nobody,” said Noor of his neighbour. “We do not understand why they were detained.”
Like others, Noor complained of “not receiving help” from the UNHCR. “When we call them,” he said, “They say they are dealing with the cases.”
Detaining people who flee a country for fear of persecution is another form of persecution, said Abdali, the lawyer quoted previously.
“A Rohingya is not a tourist in this country,” said Abdali. “He is not an economic migrant. He sought asylum in this country out of fear of persecution and ought to be granted it (sic). Detaining them constitutes another form of persecutory action.”
“Refugee detention should be a last option,” said Abdali, who added the government should look at alternatives. “The government is spending taxpayers' money to detain people earning their living peacefully and reporting to authorities regularly."
(Ritwika Mitra is an independent journalist based in New Delhi.)