INDIA: ARBITRARY DETENTION OF ROHINGYA MOHAMMAD ARFAT

The International League Against Arbitrary Detention urges the Government of India to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 58/2024 concerning Mohammad Arfat, asking the Government of India to immediately and unconditionally release Mohammad Arfat and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Mohammad Arfat (India): Opinion No. 58/2024.

ARREST OF A HUMAN RIGHTS DEFENDER

Mr. Mohammad Arfat, a Rohingya Muslim national originally from Myanmar and born on 1 January 1993, is a human rights defender and humanitarian worker. He has been granted refugee status by the Office of the United Nations High Commissioner for Refugees. He fled Myanmar in 2012 following military attacks on the Rohingya population, during which his father was killed. After facing insecurity and threats from militant groups in Bangladesh’s refugee camps, he moved to India in 2013. Following renewed threats in Bangladesh in 2019, he attempted to return to India to rejoin his family.

On 23 December 2020, Mr. Arfat, together with Rohingya individuals, was arrested by the Assam police while attempting to return to India from Bangladesh. After his arrest, he was taken into police custody, during which he was allegedly subjected to physical violence during interrogation. Police authorities informed him that UNHCR documents were not recognized in India and that he was therefore violating immigration laws. He was transferred to Karimganj District Prison three days later, until May 2022.

In May 2022, Mr. Arfat was convicted under the Foreigners Act 1946 and the Passport (Entry into India), receiving two concurrent one-year sentences and a fine of 1,000 rupees. These sentences were ordered to be set off against the time already spent in detention. Despite this, Mr. Arfat was first transferred to Silchar Central Jail and then transferred on 12 March 2023 to the Goalpara Matia Detention Centre, where he has remained in custody to date.

His continued detention has been petitioned, and according to official affidavits, it is justified pending verification of his nationality by Myanmar and potential deportation. The proceedings in the Guwahati High Court have, however, been adjourned on multiple occasions.

The Government of India responded to the Working Group on Arbitrary Detention transmission on 13 August 2024, denying allegations of arbitrary detention.

ARRESTED WITHOUT A WARRANT AND CONDEMNED FOR A CRIME THAT NO LONGER EXIST

The source alleged that Mr. Arfat, along with other Rohingya individuals, was arrested by the Assam police without presenting a warrant or providing a proper legal basis for his arrest. The source mentioned that the Foreigners Act 1946, under which he was prosecuted, is contrary to international law as it allows the criminalisation of illegal entry and stay in India by migrants and refugees. The Working Group on Arbitrary Detention stated that the provisions of the Foreigners Act 1946, criminalizing irregular entry and stay in a country by migrants, contravene international norms. The Working Group has previously held that for deprivation of liberty to have a legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must not only invoke that legal basis but also apply it to the circumstances of the case. The Working Group on Arbitrary Detention stated that the provisions of the Foreigners Act 1946, criminalizing irregular entry and stay in a country by migrants, contravene international norms. In the absence of information provided on this matter by the Government, the Working Group on Arbitrary Detention found that the arrest was carried out in violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant.

Additionally, the source mentioned that Mr. Arfat had already served his sentence under Rule 6 of the Passport Rules 1950, an offense no longer recognized under Indian law, as it was omitted in the Passport Rules 1980. The Working Group concurred that Mr. Arfat’s conviction was based on a repealed legal provision. Therefore, the Working Group found that Mr. Arfat was sentenced for an offense that no longer exists under Indian law.

Considering all the above, the Working Group on Arbitrary Detention found that Mr. Arfat’s arrest was unlawful, rendering his deprivation of liberty arbitrary under Category I.

DETAINED FOR EXERCISING RIGHT OF FREEDOM OF MOVEMENT AND TO SEEK ASYLUM FROM PERSECUTION

The source mentioned that Mr. Arfat’s arrest and detention reportedly followed the exercise of his right to seek and enjoy asylum from persecution. The Working Group on Arbitrary Detention explained that asylum seekers are likely to enter a territory without valid papers. The Working Group noted that Mr. Arfat was in possession of his UNHCR refugee card, he was entitled to freedom of movement between India and Bangladesh and equal application of immigration laws in line with international standards. Thus, the Working Group on Arbitrary Detention found that this situation amounted to a violation of article 14 of the Universal Declaration of Human Rights.

Therefore, it concluded that Mr. Arfat’s detention was arbitrary under Category II.

DENIED FAIR TRIAL GUARANTEES AND DUE PROCESS

The source alleged that Mr. Arfat has been deprived of the chance to appeal to a higher court or to a legitimate court. While his family has been launching proceedings on his behalf, the Guwahati High Court has reportedly deferred hearings, waiting for a reply from Myanmar authorities to provide his nationality, which may never happen since Rohingya individuals are deprived of their right to nationality in that country. The Working Group confirmed that it was very unlikely for the authorities of Myanmar to verify Mr. Arfat’s nationality due to the practices of the authorities of Myanmar to expel Rohingya Muslims from its territory. It also found that the Guwahati High Court has deferred the petition from Mr. Arfat’s family a total of 13 times, constituting a violation of his due process rights and fair trial rights as established in article 8 of the Universal Declaration of Human Rights and article 14 of the Covenant.

Furthermore, the source stated that the deportation of Mr. Arfat to Myanmar would constitute a violation of international law. The Working Group recalled that deportations should only be made in cases where it is satisfied that individuals would not be at risk or that they would be in danger of being subjected to torture or other ill-treatment. Additionally, the Working Group noted that in this situation, if Mr. Arfat were to be deported to Myanmar, this situation would violate the principle of non-refoulement.   

The Working Group concluded that Mr. Arfat’s detention violated his fair trial rights and was arbitrary under Category III.

REFUGEE SUBJECTED TO PROLONGED ADMINISTRATIVE CUSTODY

The Source alleged that Mr. Arfat’s detention constitutes unreasonable and prolonged administrative detention, without evidence that he poses any risk of absconding or a threat to public safety. The Working Group recalled that indefinite detention of persons in an irregular situation from the territory becomes arbitrary when obstacles to deportation, such as non-cooperation by the country of origin or application of the principle of non-refoulement, are not attributable to the detainee. The Working Group further noted that since the government of India is detaining Mr. Arfat on the basis that they are waiting for the authorities of Myanmar to verify his nationality, his indefinite detention is directly linked to his status as a refugee and asylum-seeker. Therefore, the Working Group found a violation of article 8 of the Universal Declaration of Human Rights and of article 2 (3) of the Covenant.

The Working Group concluded that Mr. Arfat’s detention was subjected to prolonged administrative custody and arbitrary under Category IV.

DETENTION BASED ON NATIONAL AND ETHNIC GROUNDS

The source alleged that Mr. Arfat’s detention was solely based on his ethnic and religious identity as a Rohingya Muslim. The Working Group on Arbitrary Detention, after reminding the discrimination faced by the Rohingya, determined that his deprivation of liberty was based on discriminatory grounds, particularly due to his status as a Rohingya Muslim asylum-seeker and refugee. Therefore, his deprivation of liberty constituted a violation of articles 2 and 7 of the Universal Declaration of Human Rights and article 26 of the Covenant.

The Working Group, therefore, concluded that Mr. Arfat’s detention was arbitrary under Category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Mr. Mohammad Arfat was arbitrary and fell under categories I, II, III, IV and V because the deprivation of liberty of Mr. Mohammad Arfat was in contravention of articles 2, 3, 7, 8, 9 and 14 of the Universal Declaration of Human Rights and articles 2 (3), 9 (1), 14 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of India take the steps necessary to remedy the situation of Mr. Mohammad Arfat without delay and bring it into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

It also expressed broader concern over the inhumane detention conditions faced by other Rohingya refugees in India and reiterated its request to conduct a country visit.