Navigating the murky terrain of arrests, detention, and deportation in India
By: Samanwita Paul
In the absence of adequate legal protection measures, refugees in India are vulnerable to arbitrary arrest, detention, and deportation. Families are broken up, very often leaving women and children in dire poverty. This article aims to examine recent instances of arrests, detention, and deportation among the Rohingya refugees in India and its impact on women. India needs a uniform and intersectional regulatory framework when it comes to refugees.
India is not a signatory of the 1951 Refugee Convention or the 1967 Protocol and is therefore not bound by conventions in its handling of refugee crises. The decisions of the United Nations High Commissioner for Refugees (UNHCR) are not acknowledged in India and only about one-fourth of the two-lakh refugees currently sheltered in India receive formal protection from the UNHCR.
There are about 18,000 registered Rohingya refugees currently residing in India. Most had left Myanmar following a wave of extremist violence in 2012. Even though they were not formally recognized as ‘refugees’ by the Indian government, their presence in the country was tolerated. Between 2012-2017 Long Term Visas (LTVs) were even granted to refugees with UNHCR cards. The LTVs were crucial in ensuring protection from detention and deportation as “illegal immigrants”. However, since August 2017, the situation of the Rohingyas in India started deteriorating when the Minister of State for Home Affairs issued a directive to state governments asking them to identify all “illegal immigrants” within their respective borders and prepare them for deportation. Across the country there were calls for Rohingyas to be deported, forcefully if needed. By the 2019 elections, the Rohingya refugee crisis had made headways into national political rhetoric. However, the narrative surrounding the refugee issue was one of ‘save ourselves’ instead of ‘save them’, wherein the Rohingya community was portrayed as a potential threat to the internal security of India.
The gradually worsening situation of the Rohingya, came to a head when in March 2021, almost 168 Rohingya refugees were rounded up and detained in the Hira Nagar sub-jail by the Jammu and Kashmir police. It was claimed that the identity cards issued by the UNHCR were invalid. The arbitrariness of such an action was evident since the identity cards that were declared invalid were copies of those issued to other refugees who were not detained. A year later in April 2022, Hasina Begum who had been detained in Kashmir, was deported to Myanmar. In August 2022, the state’s plans to provide housing support to the Rohingya refugees were met with massive online hate campaigns. This prompted the Ministry of Home Affairs (MHA) to reject such claims and reinstate its earlier position on the deportation of Rohingya refugees to their home countries. The separation of families has given rise to additional hardships and fear in this already-persecuted community. It has led to the breaking up of families which has again put women in charge of caring for their families. There is also the added burden of caring for the dependents of those detained. Take for example the case of Amina (name changed) who, at 28 years old, looks after her sister’s children after the parents were detained in March 2021. Amina says the reason for detention is still unknown to them. Her sister possessed the UNHCR cards and did not travel anywhere recently. However, they were picked up by the police for questioning and later sent to the Inderlok detention centre where they are currently detained. Travelling to the detention centre and providing for the detaineesinvolves significant costs and Amina’s husband has been out of work since the pandemic (as revealed in an interview in May 2022). Without access to humanitarian support, it is becoming increasingly difficult for them to survive. The UNHCR’s response has been largely unsatisfactory for these families. In the absence of legal support and a definitive trial date, Amina fears that her sister will spend the rest of her life in detention centres.
Noor Begum, who is sixty-five years old, also faces similar complications. Her four grandchildren, aged two to ten years old, have been left in her care. With her son and daughter-in-law detained, there was none other than Noor to care for the children. Her son’s detention has left them without an earning member and as a result, her grandchildren have had to drop out of school. Visits to their parents involve a cumbersome and expensive process of obtaining permission that is sometimes not granted. There is heightened insecurity and fear in the community following these instances. The fear of separation from their families has unnerved the community and triggered reverse migration wherein they are attempting to cross over to Bangladesh in a bid to leave India.
While there are risks associated with migration for everyone, migration experiences are extremely gender sensitive. Very often women and girls are found to have sustained severe injuries due to sexual assault. Brokers, security personnel, and border guards are all alleged to be involved in this system, therefore granting them complete impunity. Additionally, the fear of stigma often forces these women and girls to withhold reporting such instances.
Faced with such challenges, Rohingya women have decided to collectively handle these issues by travelling to detention facilities in groups, carrying food and clothing for one another, taking care of each other’s children, etc. In the absence of legal and humanitarian support, they have urged the local Rohingya leaders to take action, approach the concerned authorities, and write petitions on their behalf. Restrictions on access to legal services for the detained have made these women the only link between the detained with the outside world. They take their pleas, demands and needs to the concerned officials and approach legal counsels on behalf of them. Some women have even managed to file for Public Interest Litigation in favour of the release of the detained Rohingyas.
Rohingyas are the most persecuted minority in the world and a drive away from India would mean further marginalization. The absence of a national regime for refugee protection and care has resulted in arbitrary and unfair treatment towards them which depends largely on the identity of the groups concerned and the discretionary authorities. The lack of a national legal refugee framework gives rise to a legal vacuum wherein refugees and stateless persons are considered under the category of ‘foreigners’ and conflated with undocumented migrants. Denying such distressed groups access to asylum and government-issued documentation often pushes them towards further disenfranchisement. The Indian state needs to be mindful of its obligations under international human rights and humanitarian law (including, but not limited to, the Convention on the Elimination of All Forms of Discrimination Against Women, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic Social and Cultural Rights and the Convention on the Rights of the Child). A national refugee law which takes into account the heightened vulnerability of refugees to various forms of violence and discrimination is necessary. It must adopt an intersectional approach in extending effective forms of protection to refugee groups and demands immediate implementation.
Samanwita Paul is a PhD research scholar at Jawaharlal Nehru University in New Delhi, India.
The views expressed in publications are those of the authors.