New Delhi: Seventy-one Myanmarese citizens arrested by Manipur police did not enter India as “illegal immigrants” but as “refugees” who had “no option to return to their country for the time being”, a magistrate’s court in the state observed as it granted their judicial custody in an order last month.
The court, while extending their judicial custody by 15 days on 10 February, sent the accused to the Foreigner Detention Centre (FDC) at Sajiwa jail in Imphal East district.
According to the court’s previous order seen by ThePrint, on 27 January, Manipur Police arrested 71 Myanmarese nationals from Moreh sub-division in the border district of Tengnoupal. The group had allegedly settled in New Salbung village in Moreh, with some of them living there for months. The government had sought 15-day judicial custody for all 71 accused in connection with an FIR filed under Foreigners Act 1946, the order added.
In the order passed on the intervening night of 27 and 28 January, judicial magistrate Surungbam Mangaleibi noted that since the February 2021 coup by the military in Myanmar, which unseated Nobel laureate Aung San Suu Kyi’s elected government, several Myanmarese nationals have fled their country and crossed the border into India.
Foreign nationals who enter the country without valid travel documents are treated as illegal immigrants, according to the Union Ministry of Home Affairs.
The court order noted that on enquiry, some of the accused told the court that they were compelled to leave the country after their homes and villages were bombed.
The court then quoted the definition of ‘refugees’ from the 1951 Refugee Convention or the UN Convention Relating to the Status of Refugees, which defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”.
Relying on this definition and a 2021 judgment of the Manipur High Court, the magistrate’s court noted, “It can be stated that all the 71 accused persons who are Myanmarese have entered Indian territory at Moreh not as ‘illegal immigrants’ but as ‘refugees’ with no option to return to their country for the time being”.
The court then directed detaining authorities that the accused, being “foreign nationals fleeing persecution, being asylum seekers and refugees”, should not be accommodated together with people accused or convicted of criminal offences.
The court also directed regular medical examinations to be conducted for all the accused, and for the six senior citizens among them to be given “special treatment”.
It had asked the authorities to submit reports of medical examination when they were produced in court next on 10 February, at the end of their 15-day judicial custody.
The court allowed their remand to judicial custody for 15 days, saying this was necessary for smooth investigation “to unearth the true facts and circumstances leading to the arrest of the 71 Myanmar nationals… and also the possibility of involvement of any other individuals who must have facilitated their settlement by evading the notice of the law enforcement agencies in this international border town”.
The court asserted that “this being a very peculiar case involving the arrest and detention of the mass foreigners of Myanmar nationals”, it has taken into account the municipal law of India, Article 51 (promotion of international peace and security) of the Constitution as well as international standards to be adopted while detaining foreign nationals.
While acknowledging that India is not a signatory to the 1951 Refugee Convention, the court pointed out that “India is very much a party to the UDHR (Universal Declaration of Human Rights, 1948) particularly Article 14 which declared that everyone has a right to seek and to enjoy in other countries asylum from persecution”.
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‘Free legal aid, special treatment for elderly’
According to the order, the entire exercise of conducting the (judicial) remand began at 7:10 pm on 27 January and concluded at about 12:40 am on 28 January.
During the hearing last month, the state government informed the court that earlier that day (27 January), the Manipur home department issued a notification declaring the whole premise of the newly-constructed unused building at the southern side of Sajiwa complex as a ‘Foreigner Detention Centre’ for detaining illegal immigrants. The court was assured that the 71 people arrested by them will not be mixed with the general prison crowd and would be kept at the newly-set-up detention centre for foreigners instead.
Additionally, the court noted that the 71 people arrested included a few elderly people who, it said, “require special care and assistance owing to their age, vulnerability, reduced mobility, psychological and physical health”. It then ordered the authorities “to ensure that special treatment be afforded to this special group of elderly detainees with all possible assistance considering” their needs.
The court had also directed detaining authorities to provide access to those arrested to contact the office of United Nations High Commissioner for Refugees (UNHCR), India and other bodies such as the Manipur State Human Rights Commission or NGOs, who may assist the accused with the legal procedures to apply for documentation.
The authorities were also asked to provide access for free legal aid — a lawyer to interact with the accused, for counseling them and giving them any other assistance. The court further asked the authorities to submit the status report of the newly-designated detention centre, with photographs detailing the maximum capacity of detainees that it can house at a given point, as well as showing the hygienic conditions of the centre.
The court directed the status report to be submitted on 10 February.
At present, there are over 160 Myanmarese nationals lodged in different jails in Imphal and Churachandpur, according to official sources quoted in a report by Northeast Now.
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Myanmarese ‘didn’t try for legal protection’
During the hearing last month, the state government pointed out that some of the accused had been staying in Moreh for at least six months. Therefore, the accused could have approached the concerned authorities in India or could have applied for their refugee status determination (RSD) during this time.
The court then said that it is the states that have the primary responsibility to conduct RSD. However, in cases where a country is not a party to the 1951 Refugee Convention or does not have a fair and efficient national asylum procedure in place, the UNHCR may conduct RSD under its mandate.
It therefore said that India would fall under the second category, since it is neither a signatory to the Convention, nor has a national refugee protection framework. “However, it continues to grant asylum to a large number of refugees from neighboring states and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar,” it added.
The court also explained that registration is the first step towards application for the RSD process in India through the UNHCR. It then pointed out that the interviews for RSD are being held remotely through video calls since the pandemic, so “all the 71 accused persons could have approached the concerned authority for seeking assistance and protection under the UNHCR without much difficulty”.
“But they continued to stay in the Indian territory at Moreh with no attempt on their part for legal protection since the time they entered India till date,” it added, while sending them to judicial custody.
(Edited by Anumeha Saxena)
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