Delhi: On 12 October 2022, Article 14 published my report on the inhuman and degrading conditions faced by the Rohingya refugees detained at the Shahzada Bagh detention centre in northwest Delhi.
When I visited the detention centre with a three-year-old child and his aunt—Sabera Khatoon, whose sister, Shadiya Akhtar, was detained for nearly three years, we were not allowed to meet her because I, a lawyer, accompanied them. The child and his aunt left the detention centre in tears.
Khatoon became the Petitioner in the case I filed before the Delhi High Court.
Everything about the detention centre not only deserved media attention, but I felt it was necessary to initiate strategic legal interventions against such abuse of human rights.
In February 2023, my colleague T. Mayura Priyan and I filed the writ petition Sabera Khatoon v FRRO and Ors before the Delhi High Court. Our main prayer was for the release of Akhtar.
As an interim relief, we prayed for adequate winter essentials, including clothing, bed, mattress, blanket, pillows and warm water in the detention centre as per the Model Detention Centre Manual, 2019.
We also prayed for the medical records of Shadiya and her immediate hospitalisation for a complete health checkup and dietary assessment.
In the first hearing, a single Bench of the Delhi High Court ordered a joint inspection of the Shahzada Bagh detention centre the very next day by the respondents—Union of India through the ministry of home affairs, the Foreign Regional Registration Office (FRRO) and the Delhi urban shelter improvement board (DUSIB).
Justice Pratibha Singh also called for Shadiya’s medical records.
The Petitioner
Khatoon is the elder sister of Akhtar, both of whom are Rohingya refugees in India.
Having witnessed the worst humanitarian crises, torture, rape, trafficking and brutality, they fled Myanmar to reach India in search of asylum.
Shadiya Akhtar reached India in 2016.
After a rigorous procedure of Refugee Status Determination, Akhtar received her UNHCR refugee ID card in 2016. She continued to live in the refugee camp Shram Vihar in southeast Delhi with her infant son, who was born later.
In 2021, when she was a nursing mother to her infant, Akhtar was called at six in the morning by the FRRO to meet them near a metro station to sign papers.
Shadiya left quickly, leaving the water boiling on the stove. However, on the pretext of signing the papers, Shadiya was detained by the FRRO officials. She was not served any prior notice and was not allowed to present her case in any way whatsoever.
When the neighbours informed her sister Sabera, she rushed to Shadiya’s refugee camp and found her baby crying and boiling water over the stove.
Shadiya was detained for nearly three years at the Shahzada Bagh detention centre when I tried meeting her last year with her sister and son.
We learnt that Shadiya’s health deteriorated substantially, but had almost no medical care or healthy food at the detention centre. The bathrooms in detention were dirty, the families of detainees told me.
The Inspection Report
The inspection report submitted on 23 February 2023 confirmed the poor conditions inside the detention centre at Shahzada Bagh, admitting the quality of bedding, bedsheets, and mattresses had to be changed.
There was no purification system for water or geyser for detainees.
We argued extensively based on the inspection report and Shadiya’s medical records submitted by the respondents, which reflected her poor health and inadequate diet.
The Court ordered that the toilets of the detention centre must be repaired and reconstructed within a week. Photographs of the renovated toilets were shared with us.
The petitioner learnt from her sister that detainees received blankets, mattresses and pillows following the petition.
The court ordered that Shadiya be admitted to the Deen Dayal Upadhyay Hospital for a few days for a thorough check-up and the provision of a diet chart for her.
Shadiya was admitted to the hospital and allowed to meet her family and me. She was given nutritious food during her stay in the hospital.
The court called a status report regarding Shadiya’s health. Her medical reports diagnosed her with Hepatitis C and prescribed direct antiviral agents.
The Litigation
The litigation needed to be done with utmost care and caution because a single adverse order could impact the entire community, adversely affecting them.
After consulting with my senior, under whom I trained as an advocate, former additional solicitor general Indira Jaising, we carefully drafted our writ petition.
Our case was straightforward.
Shadiya was detained without due process.
Even though India is not a party to the 1951 Refugee Convention, India has rules in the form of standard operating procedures and the constitutional provisions of the right to life and personal liberty (Article 21) and the right to equality before the law (Article 14) which apply to everyone in the territory of India including non-citizens.
Shadiya has no criminal charges against her, nor does she have any criminal antecedents. Her detention was a civil administrative issue because, according to the FRRO, Shadiya was an illegal migrant from Myanmar and must be deported to her country of origin.
As per submissions, the FRRO does not accept the refugee card as a valid document against deportation.
As per India's laws, Shadiya, a stateless person, can only be deported to Myanmar once Myanmar accepts her as their citizen and arranges for her travel documents including a passport. The state submitted that they have received a reply from Myanmar stating that Shadiya is not their citizen, substantiating our point that she is stateless and confined to indefinite detention.
There is no such provision for indefinite detention in India.
With no semblance of legal sanction for Shadiya’s detention, this was an obvious case of habeas corpus, a right against illegal detention available to everyone, including non-citizens in India.
The Question Of Release
Concerning the prayer for Shadiya’s release, the Delhi High Court on 14 March 2023 asked the ministry of external affairs to respond to whether there is any objection to her being released subject to certain conditions that may be imposed on her, considering that she has a three-year-old son living with her aunt.
The ministry of external affairs contended that they would not release Shadiya Akhtar even with certain conditions because it may result in more petitioners seeking similar relief.
I responded to this contention in my final submissions for the release of Shadiya Akhtar.
I argued that Shadiya Akhtar resided peacefully in India for over five years, married, and delivered her son. She regularly reported to the FRRO, who already has her biometrics.
As the respondent claims, she has been detained under section 3(2) (e) of the Foreigners Act, 1946, and this is the same provision that lays down the conditions upon which a foreigner can be released from closed detention. If more people have been detained illegally, they must indeed file more applications against such illegalities.
As I finished my submissions and the court was on the verge of passing a final order, the DUSIB said that per the Delhi High Court rules, all matters of personal liberty must be heard by a division bench.
The matter was transferred to a division bench of the Delhi High Court.
The Obstacle
The obstacle we encountered was the case of Salimullah & Anr vs Union of India & Ors (2017), which challenged the deportation of Rohingyas in Jammu and prayed that Rohingyas be given protection from being deported. The division bench of Justice Siddharth Mridul and Justice Gaurav Kant were of the opinion that the issues in our petition were the same as those raised in the 2017 writ petition.
The prayer to stop deportation as an interim relief in the Salimullah case was rejected in 2021, but the apex court said that Rohingyas in Jammu should not be deported unless the procedure prescribed for such deportation is followed.
The interim application also had a prayer for the release of the detained Rohingya refugees immediately.
According to Section 141 of the Indian Constitution, only final orders of the Supreme Court of India shall be treated as a precedent. The adverse order in the case of Salimullah was only an interim order.
Yet, this order became an impediment in most litigations against the indefinite detentions of Rohingyas across India.
To distinguish ourselves from the case of Salimullah at the very outset, we mentioned that “the case of the petitioner was not against the deportation of her sister but to challenge the indefinite detention, which is in contravention of the due process established by law”.
But the Delhi High Court dismissed the writ petition on 4 July 2023 and allowed us to approach the Supreme Court.
What We Argued?
Our case was that this case was a clear violation of the due legal process, which comprises the Standard Operating procedure (SoP) for cases of foreigners claiming to be refugees as circulated by the Union of India, provisions of the Foreigners Act, 1946, judgements that form precedent, etc.
The latest SoP issued on 20 March 2019 describes that any foreigner claiming to be a refugee must first be assessed based on any available documents with them, whether issued in India or abroad. If the foreigner’s claim is valid, they shall be issued long-term visas in India.
One of the main factors to be seen shall be the perceived condition in the home country of the people belonging to the community of the foreigner in question.
Shadiya had a very strong prima facie case for her refugee claim. Yet, she was never allowed to present her case of being a stateless Rohingya refugee with a UNHCR ID card. One of the accepted documents for a stay visa for refugees in India, as declared by the Bureau of Immigration, India, is a UNHCR refugee identification card.
Even an illegal migrant, as per the SoP, must be immediately deported or resettled in a third country through diplomatic channels if it is unsafe or improbable for them to return to their country.
In the State of Assam And Anr. vs Moslem Mondal And Ors, the Gauhati High Court said illegal immigrants must be deported within a maximum of two months and only for such a period can any person be detained.
India is a party to several international law instruments, including the International Covenant of Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Child Rights Convention, and the Universal Declaration of Human Rights, and a signatory to the New York Declaration for Refugees and Migrants.
All of these bind India, aside from the Constitution of India, against indefinite detention.
The Supreme Court of India heard the matter immediately.
The additional solicitor general of India, Aishwarya Bhati, argued for the matter to be tagged with Salimullah. In a 40-minute argument, I convinced the Court that our issues differed from Salimullah's.
We got an order that said the key contentions in our petition were the process followed in detaining Shadiya and the medical facilities available to her.
“Counsel appearing on behalf of the petitioner has specifically stated during the course of her submissions that the validity of the proposed deportation does not form the subject matter of these proceedings,” noted a three-judge bench of the Supreme Court led by the Chief Justice of India D Y Chandrachud.
The Supreme Court set aside the Delhi High Court order and revived our case before the High Court.
This Order validated our stand that the case against indefinite detention is distinct from the case of deportation. It is relevant for other similar cases pending before the High Courts that are facing a barrier due to the case of Salimullah. In other words, it is a step toward recovering from the setback of the Salimullah order.
The Delhi High Court division bench revived the Sabera Khatoon v FRRO & Ors case.
The next date of hearing is 31 October 2023.
(Ujjaini Chatterji and T. Mayura Priyan are lawyers based in New Delhi.)
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