Authorities in Uttar Pradesh have launched a crackdown on Rohingya refugees, leading to the arrest and detention of dozens of people apprehended during raids at camps. The arrests are part of a wider, nationwide policy targeting refugees from Myanmar. With no legal limits on detention, refugees can be held indefinitely. Recently, when a group who […]
India: Covid-19 and Detention
As a second wave of COVID-19 has swept across India, infection and death rates have skyrocketed across the country. On 1 May, some 392,488 new cases were reported–the largest one-day increase on record for any country–as well as 3,689 deaths, although observers suggest that real figures may be significantly higher. Despite COVID rates surging since […]
India: Covid-19 and Detention
In mid-April, India’s Supreme Court directed the government to release “illegal foreigners” detained in Assam for more than two years in order to avoid overcrowding. Assam has become a hotspot for immigration detention in India, as scholar Sujata Ramachandran reported in a 2019 Working Paper for the Global Detention Project: “The country’s detention and deportation […]
India: Covid-19 and Detention
In the Indian state of Assam, more than 800 persons are being held indefinitely in six detention centers within prisons. Defined by Indian authorities as “foreigners,” these detainees – many of whom are Indian citizens who have been declared “illegal immigrants” by the Foreigners Tribunal on account of poor documentation or poor legal assistance and […]
Last updated: March 2022
INDIA: Joint Submission to the Universal Periodic Review
31 March 2022
41st Session of the UPR Working Group, 7-18 November 2022
Issues Related to Immigration-Related Detention and Asylum
INTRODUCTION (read full submission here)
This submission for the third cycle of the Universal Periodic Review (UPR) of India has been prepared by the Global Detention Project (GDP), a non-profit organisation based in Geneva that promotes the human rights of people who have been detained for reasons related to their non-citizen status; the World Organisation against Torture (OMCT), a network of more than 200 member organisations that works to end torture and ill-treatment, assist victims, and protect human rights defenders at risk wherever they are; and the Asia Pacific Refugee Rights Network (APRRN), a network consisting of more than 450 civil society organisations and individuals from 38 countries committed to advancing the rights of refugees in the Asia Pacific region.
This submission focuses on human rights concerns with respect to migration-related detention in India and the treatment of refugees and asylum seekers.
CONTEXT
India has been an important host for asylum seekers and refugees from neighbouring Pakistan, Bangladesh, and Myanmar, as well as from Afghanistan, Somalia, Democratic Republic of Congo, Ethiopia, et. al.
The asylum system in India operates on a dual recognition model whereby refugees from neighbouring countries, except Myanmar, fall under the Government’s mandate while those from Myanmar and non-neighbouring countries fall under the UNHCR’s mandate.
According to UNHCR India hosts over 215,000 refugees. Successive humanitarian crises, including the expulsion of Rohingyas from Myanmar and the Taliban takeover of Afghanistan, have led to a steady rise in numbers of asylum seekers. The suspension of international flights between Afghanistan and India as well as the ad-hoc nature of influx of refugees from Myanmar across India’s porous eastern borders, combined with the impact of COVID-19, have helped slow the numbers of new arrivals.
India’s refusal to ratify the 1951 Convention relating to the Status of Refugees and its 1967 Optional Protocol has led to a regime of ad-hoc policies operating as stop gap measures to govern the rights of asylum seekers and refugees instead of securing the welfare of the population through the implementation of a national asylum law. Despite the introduction of Asylum Bills in the Parliament, most notably by Member of Parliament, Dr. Shashi Tharoor in 2015, and most recently in 2022, there is no indication that the legislative body will follow through on this and enact a law.
Contrary to India’s traditional humanitarian approach towards forcibly displaced populations as evidenced by its approach towards Tibetan refugees, the Bharatiya Janata Party led Indian government has responded to recent crises by implementing strict border control policies, introducing a comprehensive detention regime, cracking down on the widely persecuted Rohingya Muslim population who are deemed to be a threat to national security, shirking from its commitments under the customary international law principle of non-refoulement, amending the citizenship legislation to render minority populations stateless, and undertaking public information campaigns which negatively impact the public perception of refugee populations.
There has been a sharp increase in the detention of refugees, in particular of Rohingyas, recognised under the UNHCR’s mandate. This ill treatment of asylum seekers, refugees, and migrants is abetted by the Foreigners Act 1946, part of a set of archaic laws that regulates immigration in India. The Act, a colonial era law, was enacted to address war-time exigencies and therefore, provides for nearly unchecked executive powers against foreigners and no special provisions or statutory exceptions for vulnerable populations like asylum seekers and refugees.
This has resulted in a situation where despite UNHCR recognition and the temporary protection they offer, recognized refugees are still at risk of administrative detention (Section 3(2)(e)), criminal imprisonment (Section 14, 14ABC), and deportation (Section 3(2)(c)).
The lack of judicial intervention, and the extent of judicial deference to government powers to order the detention and deportation of certain sections of the refugee population, has further contributed to a weakening refugee protection regime in India.
DETENTION STATISTICS
DETAINEE DATA
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
SOCIO-ECONOMIC DATA & POLLS
LEGAL & REGULATORY FRAMEWORK
Detention-Related Legislation
Regulations, Standards, Guidelines
Guidelines for the Transfer of Sentenced Persons Under the Repatriation of Prisoners Act, 2003
(2015)
GROUNDS FOR DETENTION
Immigration-Status-Related Grounds
Children & Other Vulnerable Groups
LENGTH OF DETENTION
DETENTION INSTITUTIONS
Custodial Authorities
Child Welfare Committee, West Bengal
(Department of Women & Child Development and Social Welfare & West Bengal)
Regional Authority-Social Affairs
Apprehending Authorities
National Investigation Agency
(Law enforcement, border control and national security)
Interior or Home Affairs
PROCEDURAL STANDARDS & SAFEGUARDS
COSTS & OUTSOURCING
COVID-19 DATA
TRANSPARENCY
MONITORING
Insitutions that Can Make Unannounced Visits
1. National Human Rights Commission of India [National Human Rights Institution (or Ombudsperson) (NHRI)]
2. Human Rights Law Network (SLIC), Commonwealth Human Rights Initiative, Project 39A, NLU, Delhi [Non-Governmental Organizations (NGO)]
3. Police Accountability Commission [Internal Inspection Agency (IIA)]
4. United Nations High Commissioner for Refugees in India [International or Regional Bodies (IRBs)]
NATIONAL HUMAN RIGHTS MONITORING BODIES
NHRI Monitoring Reports
National Human Rights Commission of India, Annual Report 2021-2022
(2022)
National Human Rights Commission of India, Annual Report 2019-2020
(2020)
National Human Rights Commission of India, Annual Report 2018-2019
(2019)
National Human Rights Commission of India, India Comments on AINNI Report
(2018)
Report on NHRC Mission to Assam’s Detention Centres from 22 to 24 January 2018
(2018)
NATIONAL PREVENTIVE MECHANISMS (OPTIONAL PROTOCOL TO UN CONVENTION AGAINST TORTURE)
NPM Monitoring Reports
NA
NON-GOVERNMENTAL ORGANISATIONS (NGOs)
NGO Immigration Detention Monitoring Reports
Monitoring Prisons: A Visitor’s Guide, 2017
(2018)
Refugees and the Law
(2011)
GOVERNMENTAL MONITORING BODIES
INTERNATIONAL DETENTION MONITORING
INTERNATIONAL TREATIES & TREATY BODIES
International Treaties Ratified
Ratification Year
Observation Date
CTOCTP, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
2011
2011
CTOCSP, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime
2011
2011
Ratio of relevant international treaties ratified
Ratio: 9/19
Relevant Recommendations or Observations Issued by Treaty Bodies
Recommendation Year
Observation Date
Human Rights Committee
Treatment of aliens, including refugees and asylum-seekers
41. The Committee is concerned about deportations to Myanmar, as well as the plans to deport more than 5,000 asylum-seekers from the Kuki and Chin communities (arts. 7, 9, 13 and 24).
(c) Refrain from criminalizing the irregular entry or stay of migrants and persons in need of international protection and uphold the principle of non-refoulement;
(d) Ensure that immigration detention is used only as a measure of last resort and for the shortest possible period of time, increase the use of alternatives to detention that are respectful of human rights and ensure that those in detention have access to legal aid services and language interpretation and that their living conditions and treatment are in conformity with international standards;
(e) Condemn and combat hate speech against migrants, asylum-seekers and refugees, including by public officials and politicians;
2024
2024
2024
Committee on the Right of Persons with Disabilities
§ 39 (b) Ensure respect for and the protection of all human rights of persons with disabilities rendered stateless, including those in detention camps, urgently adopting measures to allow the reacquisition of nationality, and ratify or accede to the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961).
2019
2019
2019
Committee on the Rights of the Child
§78 (c) Release asylum-seeking and refugee children held in detention and enable them to access the Office of the United Nations High Commissioner for Refugees (UNHCR); ensure that unaccompanied and separated children, refugee and asylum-seeking children are not detained because of illegal entry/stay in the State party; and grant them the right to seek asylum and to stay in the State party until the completion of asylum procedures;
(d) Establish a proper referral system under the Ministry of Home Affairs to refer refugee and asylum-seeking children to UNHCR, and develop standard operating procedures to facilitate the prompt identification and referral of such children;
(e) Consider acceding to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
2014
2014
2014
Committee on the Elimination of Racial Discrimination
§16-The Committee recommends that the State party consider acceding to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and enact a comprehensive legal framework governing the treatment of refugees.
2007
2007
2007
Committee on the Rights of the Child
§71- In light of article 22 of the Convention, the Committee recommends that the
State party consider acceding to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and adopt comprehensive legislation to ensure adequate protection of refugee and asylum-seeking children, including in the fields of physical safety, health, education and social welfare, and to facilitate family reunification.
2004
2004
2004
Global Detention Project and Partner Submissions to Treaty Bodies
> UN Special Procedures
Visits by Special Procedures of the UN Human Rights Council
Year of Visit
Observation Date
Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance
2016
2016
2017
Relevant Recommendations or Observations by UN Special Procedures
Recommendation Year
Observation Date
Special Rapporteur on violence against women, its causes and consequences
Para 78(o): "Take appropriate measures to address the situation of irregular and domestic migrant women, including women refugees and asylum seekers; strengthen temporary special measures, including by ensuring that they are included in governmental and National Commission for Women programmes and projects, to enable them to better access services and improve their participation and representation in public life; strengthen and expand the services of the women protection clinics across the country;"
2014
2014
2014
Special Rapporteur on violence against women, its causes and consequences
Para 160. "In cases of trafficking victims who are foreign nationals, the Governments of the region must work towards facilitating their voluntary return, if that is appropriate, rather than detain them for long periods in government homes."
2001
2001
2001
> UN Universal Periodic Review
Global Detention Project and Partner Submissions to Universal Periodic Review
Date of Submission
Observation Date
2022
https://www.globaldetentionproject.org/wp-content/uploads/2022/04/INDIA-Submission-to-the-Universal-Periodic-Review-41ST-session.pdf
Global Detention Project (GDP); World Organisation against Torture (OMCT); Asia Pacific Refugee Rights Network (APRRN)
3rd
Partially
The submission focuses on human rights concerns with respect to migration-related detention in India and the treatment of refugees and asylum seekers.
2022
2022
REGIONAL HUMAN RIGHTS MECHANISMS
Regional Legal Instruments
HEALTH CARE PROVISION
HEALTH IMPACTS
COVID-19
Country Updates
As a second wave of COVID-19 has swept across India, infection and death rates have skyrocketed across the country. On 1 May, some 392,488 new cases were reported--the largest one-day increase on record for any country--as well as 3,689 deaths, although observers suggest that real figures may be significantly higher.
Despite COVID rates surging since March, authorities have continued to arrest and detain non-nationals. In early March, an estimated 170 Rohingya refugees were detained in the city of Jammu (Kashmir), after police conducted raids in camps and summoned others to a “verification” exercise. Placed in a “holding centre” in Hiranagar (the Hiranagar Jail, which was reportedly converted into an immigration detention facility that same month), the group were subsequently informed of plans to deport them to Myanmar. Despite several Rohingya refugees challenging the deportation order, on 8 April the Supreme Court rejected an application to stay the deportation of the group, even as violent unrest in Myanmar surged following the 1 February coup. During the hearing, the Chief Justice of India (CJI) commented, “Possibly that is the fear that if they go back to Myanmar, they will be slaughtered. But we cannot control all that. . . We are not called upon to condemn or condone genocide.” The court also accepted the government’s claim that Rohingya refugees constitute a threat to internal security, while also failing to consider the applicability of non-refoulement. Members of the Rohingya community have called the decision a “death warrant.” (To-date, the GDP has been unable to confirm whether the planned deportation has been conducted.)
This case is part of a wider set of restrictions targeting Muslim communities in India since the Modi government came to power in 2014. In 2017, local BJP leaders in Jammu launched a campaign demanding the expulsion of all Rohingya from the region. In West Bengal, where elections are currently being held, the BJP has vowed to deport all Rohingya if the party wins.
Elsewhere in Assam, authorities have been detaining purported “illegal foreigners” (largely Bengali-speaking Muslims) in six detention centres. As previously reported on this platform, in April 2020 the country’s supreme court called for the release of people who had been detained for more than two years--and if they were able to produce two sureties worth 5000 rupees (approximately 53.33 GBP). However, as one observer commented, the court’s decision was not influenced by the dangers posed by COVID to detained populations, “Instead the reasoning implicitly belies the punitive motivation behind detention, by basing release on the amount of time ‘served’.”
In mid-April, India’s Supreme Court directed the government to release “illegal foreigners” detained in Assam for more than two years in order to avoid overcrowding.
Assam has become a hotspot for immigration detention in India, as scholar Sujata Ramachandran reported in a 2019 Working Paper for the Global Detention Project: “The country’s detention and deportation policies have begun to receive widespread international attention in the wake of a recent crackdown on purported “illegal” residents in the Indian state of Assam, which is located in the far northeastern corner of the country. Sharing borders with Bhutan, Bangladesh, Myanmar, and a few other small Indian states, Assam is connected to the rest of the Indian mainland only by a narrow strip of land. Here, the process of identifying and removing ‘irregular Bangladeshis’ has gained considerable momentum as the state updates its ‘National Registry of Citizens,’ which threatens millions of Assam residents with imminent statelessness, in particular Bengali-speaking Muslims who have been targeted as part of a Bharatiya Janata Party (BJP)-led campaign against Muslim-majority and Bengali-speaking Bangladeshis, including many who were born in India but lack documentation.” (For more on detention in Assam during the pandemic, see our 10 April update.)
Indian law does not distinguish between refugees and illegal immigrants and the central government grants asylum and provides assistance only for certain refugee populations. India is nonetheless host to a large population of refugees and the Government allows UNHCR recognised refugees to apply for visas.
The country has set up quarantine facilities for those returning from abroad. However, it has been reported that these facilities have poor hygiene levels and limited access to healthcare. People who arrived at New Delhi airport in March reported that after being screened at the airport, they were loaded into a bus packed with other passengers who had travelled from abroad and sent to an isolation facility in Dwarka. In that facility, more than 40 people were held with only three washrooms and three bedrooms. Similar reports arose from quarantine facilities in Kashmir where around 1,800 people were placed in similar facilities. One person who was quarantined in Kashmir stated that authorities had not provided them with liquid soaps and sanitisers and that they were forced to use a dirty washroom.
People detained in prisons, correctional homes, or immigration detention centres are at high risk owing to the closed setting and proximity in common living space. In India, this risk was acknowledged by the Supreme Court on 16 March: “The bitter truth is that our prisons are overcrowded, making it difficult for prisoners to maintain social distancing. … like any other viral diseases susceptibility of Covid-19 is greater in over-crowded places, mass gatherings, etc. Studies indicate that contagious viruses like Covid-19 proliferate in closed spaces such as prisons. Studies also suggest that prison inmates are highly prone to contagious viruses. The rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenues etc.) are brought to the prison on a daily basis. Apart from them, several correctional officers and other prison staff enter the prison regularly, and so do visitors (kith and kin of prisoners) and lawyers. Therefore there is a high risk of transmission of Covid-19 virus to the prison inmates… we are of the opinion that there is an imminent need to take steps on an urgent basis to prevent contagion of Covid-19 virus in our prisons.”
On 11 May 2020, the National Commission for women announced that more than 1,700 women on remand had been released since 25 March. On the next day, the High Power Committee appointed for the emergency release on parole or bail of prison inmates, decided to release around 17,000 out of 35,239 prisoners from prisons in the state of Maharashtra. In the whole of India, 61,100 prisoners have been released. However, these releases have not necessarily included detained foreign nationals - rising numbers of whom are being held in Indian prisons. In the state of Odisha for example, where almost one thousand prison inmates have been released, the group of persons denied release include those convicted for rape and sexual offences, and foreign nationals. Similar guidelines are also in place in Jammu and Kashmir.
As of 19 May 2020, 388 positive cases of Covid-19 have been identified among prisoners and three prisoners have died from the disease.
In the Indian state of Assam, more than 800 persons are being held indefinitely in six detention centres within prisons. Defined by Indian authorities as “foreigners,” these detainees - many of whom are Indian citizens who have been declared “illegal immigrants” by the Foreigners Tribunal on account of poor documentation or poor legal assistance and lack of resources - are forced to live in overcrowded facilities that lack appropriate medical and sanitary facilities. Since 2016, 29 detainees have died due to various ailments - ten of them between 1 March 2019 and 20 February 2020.
On 23 March, India’s Supreme Court ordered all states to release “convicts and undertrials [remand prisoners] awaiting trial for offences entailing a maximum sentence of seven years.” While Assam state took steps to release over 700 prisoners, no such steps seem to have been taken to release or protect detained “declared foreigners”. Speaking to Al Jazeera, the deputy commissioner of Assam’s Sonitpur district stated, “We have stopped taking in new inmates. Everyone is being screened by the doctors on a regular basis and there does not seem to be any such possibility of a virus outbreak.” However, reports from detainees’ families suggest otherwise: according to the daughter of one detainee, at least 50 people are kept in one room.
Some families have sought to secure bail for detainees, but with courts suspending operations in March, there is uncertainty regarding options. On 7 April, the country’s Supreme Court heard a petition filed by a detainee in Assam, which sought the release of people who have spent more than two years in detention. The court also heard pleas by the Justice and Liberty Initiative (JLI), which urged authorities to extend the prisoner release to declared foreigners. Further hearings are scheduled for 13 April. “As human beings, they also have at least basic human rights to live and not to die of COVID-19 in the precincts of a prison, which has despicable living conditions,” said a JLI advocate.
Concerns have also been raised concerning persons confined in India’s network of prisons, where measures such as the cancellation of visits prompted some prisoners to riot. Although some have been released since the Supreme Court’s order on 23 March, others remain in facilities renowned for their poor living conditions. Foreigners are amongst those detained inside Indian prisons, however the GDP has not been able to determine whether they were amongst those released. Arundhati Roy, Professor Gilbert Achcar, and other leading intellectual figures signed an appeal urging for authorities to release political prisoners, who were not included in the 23 March order. They note that many persons who have been arbitrarily detained have been in prison for years awaiting trial and, as a result of prolonged confinement, suffer from a wide array of health conditions which leave them particularly vulnerable to the virus. Similar concerns could be expressed for immigration detainees, many of whom have been subjected to lengthy detention.
Government Agencies
Bureau of Immigration: http://boi.gov.in/#
Ministry of Home Affairs: http://mha.nic.in
UNHCR: http://www.unhcr.org.in/
Media
The Indian Express: http://indianexpress.com/
Press Trust of India: http://www.ptinews.com/
NGOs and Research Institutions
Human Rights Law Network: http://www.hrln.org/hrln/
Centre for Development and Human Rights: http://www.cdhr.org.in
