By Adnan Bhat | Photographs by Marta Tucci
When a Buddhist mob came rampaging through a neighborhood in Ngapúra village of Myanmar and set it on fire, twenty-five-year old Dilafroz Jan was still in the house. She, however, managed to escape unhurt. Soon after the incident in 2012, Jan fled Myanmar with a group of twelve other Rohingyas and sneaked into India via Bangladesh.
Traveling mostly by foot for the first three days through rough mountain terrain to reach the Myanmar border, it took them ten days. Then from the border, they boarded a boat operated by smugglers to reach the Bangladesh border. A day later, the group was stowed in a truck to be finally dropped near the West Bengal border.
Just a month after arriving in India, Jan married Shabbir Ahmed, a Rohingya who had fled Myanmar a couple of months ago and settled in a slum in Jammu and Kashmir. Separated from her family, for Jan this was her opportunity to start a new life. But only a few days after their marriage, Jammu police arrested Ahmed for having entered illegally into India.
Ahmed and two other Rohingyas, Noor-ul-Amin and Mohammed Saleem, living in a makeshift camp of shanties in Kargil Colony, Jammu, were arrested in July 2012 for same reasons. They were charged under Section 3 of the Passports (Entry into India) Act, 1920 for entering and traveling in India without a passport and under section 14-A of the Foreigners Act, 1946 for illegal entry into the country. All three men were sentenced to two years in jail. But despite having completed their sentences, they continue to remain in detention.
The court also ruled, as per the Foreigners Act, that once they had served their sentence, they were to be “pushed back to their country.” Their sentence ended on 15 July 2015 and the Ministry of Home Affairs (MHA) ordered their deportation. But Ahmed, Noor and Saleem could not be deported to Myanmar because they are stateless.
Under the Foreigners Act, a person has to be held in detention until the time that his or her deportation is complete. But the three Rohingyas could not be deported until the MHA received a response from the Myanmar embassy, and the latter would not respond since it does not recognize them as its citizens.
Jan filed a habeas corpus petition in the Jammu High Court along with the relatives of two other Rohingya refugees. Their lawyer argued that the J&K Home Department had a “constitutional and statutory obligation” to release the detainees as they had completed their sentence and were therefore being held in “illegal custody.”
But instead, J&K Home Department formalized Ahmed, Saleem, and Noor’s detention through an order under the Public Safety Act (PSA), 1978.
Under the PSA, a person, including a foreigner, can be detained for up to two years, without a trial. In the trio’s case, the government set their detention at six months or until their deportation to Myanmar, whichever came first.
According to the Common Wealth Human Rights Initiative (CHRI), which works in coordination with the United Nations High Commissioner for Refugees, over 1,000 Rohingya asylum seekers are being held in various prisons in West Bengal alone for having entered the country illegally.
Denied citizenship in Myanmar, the 1.3 million Muslim minority Rohingyas have been facing systematic persecution in Myanmar for decades. But in 2012, things turned worst when hundreds were killed in ethnic violence led by Buddhist mobs. An estimated 140,000 Rohingyas have since been forced to live in squalid camps in the Rakhine state. Over 100,000 Rohingya Muslims have since fled the country, who are rendered stateless and considered illegal immigrants by the government.
India shares porous borders with neighboring Bangladesh in the Northeast. Like Jan and Ahmed thousands of Rohingyas fearing persecution in Myanmar have settled in India which to many fleeing their country is a less dangerous option and they opt it.
Usually large groups of Rohingya, crossing the borders, are detained at the time of entering into India and booked under Section 14 A of the Foreigners Act of India. Men and women are separated from each other and kept in different detention centers while children are sent to shelter homes.
“There are about 105 being held in two prisons alone,” said Mrinal Sharma, a Project officer at the CHRI. “At least five of them have completed their sentence but there is no decision being taken for their release. Most of them are intercepted while making a run into India from Bangladesh.”
According to the estimates there are some 40,000 Rohingya Muslims living in India currently.They are scattered in several Indian states, including Jammu and Kashmir, Andhra Pradesh, Delhi, Rajasthan, Haryana, Uttar Pradesh and West Bengal. Thousands more are expected to make the treacherous journey. But in the absence of a transparent policy on refugees in India, they are living in misery and facing an uncertain future.
Indian government doesn’t officially recognize Rohingya’s as refugees: neither do they have any legal status. So, those entering India pin their hopes on UNHCR office in Delhi for help. As per the UNHCR, there are 8,836 Rohingya refugees and 2,434 Rohingya asylum-seekers registered with UNHCR in India. But their efforts are proving inadequate.
More than 15,000 Rohingyas who were displaced from Myanmar are living in Jammu alone but only half of them have UNHCR refugee cards, says Development and Justice Initiative (DAJI), an NGO working with UNHCR for Rohingyas in Jammu.
“Every month we are registering 5 to 7 new members of the community that have travelled from Myanmar,” said Mamta, a legal protection officer at the DAJI. “The influx of Rohingya members is very high and thousands are unaccounted. It is a precarious situation. If a Rohingya gets caught before getting registered with the UNHCR, they could be at risk of ending up in jail for having entered into India illegally. But we have held a meeting with the police administration to avoid more cases of arrest.”
The reality is that getting refugee cards from the UNHCR Office in New Delhi is a longand tedious process.It can go on for as long as six months to a few years. The UNHCR is responsible to gather information about the asylum seekers. This process requires the asylum seeker to travel to Delhi with all the details and after the UNHCR accepts their refugee status they are given a refugee card.
For the last two years, Jan had been meeting Ahmed in Jammu central jail. Every day, she packs a box of food for him. She was hopeful once he completes his sentence they could finally start their life together, but her wait seems to be unending. She along with other members of the detained Rohingyas in Jammu even hired a lawyer for their release, but despite all the efforts from the families no decision has been taken. According to the jail authorities, the matter rests with the Home department and until they make a decision all three men will be kept in detention.
“He had just returned home. He was outside talking to someone when police came and started asking him questions. A few other men were rounded up too and all of them were taken to Trikuta Nagar police station,” said Jan at Kargil Colony, an assortment of hundreds of shanties that house some 120 Rohingya families in Jammu district. “My parents are still in Myanmar, but I can’t go there. I don’t know what to do now.”
There are many such cases of Rohingyas being detained in different parts of the country. Just next to Jan’s shanty lives 52-year old Shafqat Ara. She has been living in India with her family 0f five for two years now. All of her family members have received UNHCR cards, except her 18-year old niece Fatima, who according to Ara was arrested by police in Guwahati, Assam while travelling to Jammu in a train.
The UNHCR in India says it’s aware of some Rohingya asylum-seekers being detained in some locations. “It is a complex situation, however, we are in touch with the Ministry of Home Affairs about the issue,” said Suchita Mehta, an Information Officer at the UNHCR New Delhi. “We also have in place a multi-pronged strategy to address this issue, with support from partner NGOs. UNHCR through its partners provides legal support to asylum-seekers in detention. We are hopeful things will improve but it’s going to take time.”
India is one of the few democratic countries in the world that has not signed the 1951 United Nations Refugee Convention or its 1967 Protocol that governs how nations should treat refugees. However, India is home to one of the biggest refugee population in South Asia. But without any legal setup in place, India chooses to treat people seeking asylum on the basis of political consideration or it’s relation with country of their origin. While on one hand it provides certain rights to Tibetan and Sri-Lankan Tamil refugees, it has not taken the same route for Rohingyas. The reasons are many and mostly political.
In the context of geopolitics and economics, India sees Myanmar as an important ally. The Indian government has been strengthening its ties with the Myanmar for decades. In November 2014, Prime Minister Narendra Modi visited Myanmar to show his countries commitment towards its neighbor. In June 2015 Indian Army carried out a military operation inside Myanmar targeting ‘rebels’ following a visit by the commander-in-chief of Myanmar’s Armed Forces, Senior General Min Aung Hlaing to New Delhi. In such atmosphere, any sympathetic approach towards Rohingyas whom Myanmar government sees as immigrants could jeopardize this new bond.
Another factor that has blocked Rohingyas from being given refugees rights is the religious politics of the country. On 7 Sept 2015, Modi government issued a notice to exempt Bangladeshi and Pakistani nationals belonging to minority communities who have entered into India on or before 31st December, 2014 “due to religious persecution or fear of religious persecution” allowing them to stay in India. The release went on to explain that there were “reports that a number of Bangladeshi and Pakistani nationals belonging to minority communities in those countries, such as Hindus, Sikhs, Christians, Jains, Parsis and Buddhists, were compelled to seek shelter in India due to religious persecution or fear of religious persecution”. But the glaring omission from the list was: Muslims
In November 2014, National Investigation Agency arrested Khalid Mohammed, a Rohingya Muslim from Hyderabad in connection with the Burdwan blast. This event irreversibly cast the entire Rohingya community under a shadow of suspicion. The discourse on Rohingyas in India has since followed the predictable course of being a cannon fodder for terrorist organizations that want to attack India and is thus perceived as a security threat.
But the community members refute all such claims. “We don’t have water, food, or any other basic facility. We were thrown out from our homes. We just want to start our lives again,” said Mohammed Younus, 62, who has been appointed headman by 145 Rohingya families living in Beru Plot, another Rohingya camp in Jammu.
For Jan the wait for Ahmed’s release seems never ending. Without any source of income, she doesn’t know how long she can live on the help of the community members. But she doesn’t want to return to Myanmar and remains hopeful that Ahmed will be released soon.