A five-month-old infant born to a Rohingya refugee died in a detention or holding centre in Jammu in July. A viral video shows the police tear gassing a small congested area in the holding centre. Refugee women and children are also seen in the same space. As the explosion occurs, one can hear the shrieks of women and see children running in panic. The Senior Superintendent of Police, Kathua, admitted that tear gas shells were used in an enclosed space which is not ideal but denied that the infant’s death was caused by tear gas. What is important to note is that these people are not prisoners or criminals who are kept in jail-like conditions. The Rohingya of Myanmar are among the most persecuted people in the world.
Six years since they fled
August 25 marked six years since the Myanmar military launched a campaign of mass atrocities against the Rohingya in Rakhine State. These genocidal attacks, which began in August 2017, caused more than 7,70,000 Rohingya to flee. At least 20,000 of them are in India. In this particular holding centre in Jammu, which was a prison before, more than 250 Rohingya refugees including women and children have been confined there since March 2021. Most of them have UNHCR cards that validate their identity as ‘a refugee seeking safety’.
There are many troubling questions that arise from the Jammu incident. Why are refugees being treated as criminals? Why are they living in a prison-like facility? Why has their movement been restricted? Most troubling is why children are being holed up as prisoners in detention centres. These are children of an extremely vulnerable population that continues to fear ethnic cleansing. Globally, we have a shared responsibility to protect them, help them survive and thrive. Not imprison them, tear gas them and leave them to die.
Detention under the Foreigners Act
What lets the Indian authorities act in an unaccountable and undeterred way is the fact that India does not have a domestic law or consistent policy on refugees and asylum seekers. It is not a signatory to the 1951 Refugee Convention and its 1967 Protocol. Refugees are seen as illegal immigrants and lumped with other foreigners under the Foreigners Act, 1946. The Act provides for unchecked executive powers against foreigners and contains no exceptions for vulnerable populations such as asylum seekers and refugees.
This has meant that despite UNHCR recognition, registered refugees in India are at risk of administrative detention under the Foreigners Act such as Section 3(2)(e)), criminal imprisonment (Sections 14, 14.A., B., C.), and deportation (Section 3(2)(c)). Thus, hundreds of Rohingya refugees have been arbitrarily detained, many languishing indefinitely in India’s jails and detention centres. Many of them are children who do not even know of a world outside of the four walls of these places.
Article 6 of the UN Convention on the Rights of the Child (CRC) states that every child has an inherent right to life, survival and development. India ratified the CRC in December 1992; hence, holding children in detention facilities, denying them the freedom to access education or any other liberty is an absolute violation of this. We do not have to look as far as the UN conventions. The right to life and personal liberty is enshrined in the Constitution of India and is for all persons, whether citizens or foreigners.
Almost 500 Rohingya refugees are detained in various detention centres and jails across India. Many of them are children. In New Delhi, the Sarai Rohilla centre in New Delhi has four to five children who are below the age of five, with most in detention since infancy. They view the outside world, a dusty lane in front of the centre, through the iron rods of a window. They are not permitted to play or be outdoors because of their identity of being a Rohingya refugee.
While some children are living in the detention centres and jails with their parents, others have been separated and sent to juvenile justice homes under the Juvenile Justice Act. India’s Juvenile Justice (Care and Protection of Children) Act, 2015 is for children who are in conflict with the law. The Rohingya refugee children are not in conflict with the law. They seek safety after fleeing for their lives. To treat them as anything else is a grave injustice.
Follow guidelines
To ensure that no other Rohingya refugee child dies in a detention centre in India and that refugee children are treated in a manner that upholds their right to life and development; it is imperative that all Rohingya children and their primary caregivers are released immediately from detention. For all the other Rohingya, the authorities should follow the Government of India’s internal guidelines (2011) on the detention and treatment of refugees, which states that they should be released from detention within six months subject to collection of biometric details, with conditions of local surety, good behaviour and reporting to the police every month. In the meantime, the National Human Rights Commission, India should work with the Office of the United Nations High Commissioner for Human Rights to appoint an ombudsman whose sole responsibility should be to investigate refugee detention centres in India.
Priyali Sur is the Founder and the Executive Director of The Azadi Project, an organisation that works for women from marginalised and refugee communities. She was a former news anchor for CNN-IBN in India, and has consulted as a social development expert for the World Bank in Washington DC
