Rohingya Refugee Faces Legal Hurdles After Rape in India

Despite the reported crime happening in India, she had to access medical assistance to terminate the pregnancy in Bangaldesh’s Cox’s Bazar region, which accommodates nearly a million stateless Rohingya refugees in an area smaller than ‘Lutyens Delhi’ and hosting nearly eight times its population.

The last seven months have been an ordeal for Sadia. “There was pressure from the community not to (terminate the pregnancy), but I went ahead,” said Sadia, who travelled 40 minutes from her camp to a private hospital for the procedure.

In February, she was jailed in Tripura for ‘illegally’ entering India, then bailed out of prison after three months, and reportedly raped on the day of her release in early June by an influential man in the community who had helped with her release, Sadia said.

More than a month after the reported crime, she filed a complaint with the police in Bengaluru, where she had moved after her release from jail. In her search for justice, she had to deal with an unfamiliar criminal justice system in a country that does not have a national protection framework for refugees and asylum seekers.

Early in September, Sadia–by then 14 weeks pregnant–and a relative were ‘pushed back’ into Bangladesh by the Assam police, who claimed that they were Bangladeshi infiltrators. All this while, she was awaiting a court order to terminate her pregnancy in Tripura, and was hoping that the accused, Shona Mia, would be arrested.

Sadia is registered as an asylum seeker with the United Nations High Commissioner for Refugees India (UNHCR India), and her refugee status was under consideration. Her relative is a registered refugee from Myanmar. Ideally, Sadia should not have faced issues to access a medical termination of pregnancy (MTP) in India as per existing law, but her status as an asylum seeker, the ongoing investigation into her rape case, and the lack of legal clarity on refugees–particularly in the background of the violent unrest in Bangladesh–made her case complicated.

“I want justice,” said Sadia, who is now back in Cox’s Bazar’s Kutupalong refugee camp. She had lived there earlier since her family escaped from Maungdaw, in west Myanmar’s Rakhine state, eight years ago, following violence and persecution. 

Rohingya Women’s Struggles in Refugee Camps

When Sadia, the youngest of four sisters, was smuggled into India in February, she and her elderly parents were hoping that she could escape the deteriorating security conditions in the camps where nearly 500,000 Rohingya women and girls live.

She was around 11 when her family was forced to seek refuge in Bangladesh. In 2017, the former UN human rights chief, Zeid Ra‘ad al-Hussein, said that the situation faced by the community seems to be a “textbook example of ethnic cleansing”. Predominantly Muslim, Rohingya are an ethnic group that has not been officially recognised in Myanmar, and have faced waves of violence for decades, making them the world’s largest stateless population.

According to UNHCR data, there are 22,500 stateless Rohingya refugees and asylum seekers in India, which is 2% of the Rohingya population hosted by Bangladesh.

Though India does not have a domestic law on refugees and asylum seekers and is not a signatory to the 1951 UN convention on refugees and its 1967 protocol, it is however a signatory to the Universal Declaration of Human Rights. Under its provisions, India is bound to provide asylum to those who seek protection from persecution. In addition, judicial orders have provided some relief and filled some of the gaps in legislation, IndiaSpend reported in March 2022.

A 2018 UN post said that there were, in the Cox’s Bazar region, possibly thousands of cases of pregnancies as a result of rape during the violent repressesion in Myanmar that is “a source of silent anguish among the mothers and likely stigma for the newborns”.

India too records a high number of crimes against women despite stringent laws on preventing sexual and gender-based violence (SGBV). In 2022, the latest year for which government data are available, India recorded 365,300 crimes against women, including 31,516 cases of rape–translating to nearly 86 rapes per day or nearly four every hour.

Sadia had been arrested in Tripura for illegally entering India along with W, a person from the community who had come to take her to Bengaluru where her aunt lived.

After more than three months, she was released on June 5 and W, a day later. It cost them nearly Rs 3 lakh–an amount that was collected by people in the community. Sadia reported that Shona Mia, who had helped with the release, had arranged a hotel room where she was raped and sexually assaulted.

“I was scared to meet a stranger and (he) took me to a hotel. (After the rape) he threatened me saying that I would be sent back to jail if I told anyone,” said Sadia, who had expected her aunt to have made the journey to Tripura from Bengaluru. She considered Shona Mia an elder, and had pleaded with him, she said.

During her time in jail, Sadia’s aunt arranged her marriage to a man from her community in Bengaluru whom she did not know. She used to speak to her aunt from jail, she said. It is not unusual to observe early marriages within the communities in South Asia including Rohingya. Around one in four young women in South Asia were first married or in union before their 18th birthday.

“The difficult circumstances in the camps may mean that parents push their daughters to get married earlier than they would have otherwise, because they cannot afford to provide for them,” said a 2017 profile by the Inter-sector Gender in Humanitarian Action Working Group, led by UN Women and UNHCR. It also added that marriage is very important for the women as it is “often the only way they will achieve a sense of social and economic security, given that they are discouraged from working”.

Sadia studied in a madrassa as a child in Myanmar, but had not received formal education since she moved to the refugee camp eight years ago. Her sisters, she said, are all married and her elderly parents were not working. They were surviving on rations and support provided in the refugee camp. Her family was also affected by seasonal monsoon rains, she said, an indicator of the impact of climate-related disasters that refugees and vulnerable groups in South Asia face.

A person from the community agreed to take her to the border and help her cross over into India, where she was hoping to find refuge from the violence. A 2019 brief by Mixed Migration Centre, a global network on mixed migration research and analysis, said that Bangladeshi smugglers advertise India to Rohingya in Bangladeshi camps, touting resettlement opportunities, and interested people are connected with a Rohingya smuggler who organises their journey. “While smugglers have a crucial role in facilitating cross-border migration, they are also involved as perpetrators of human rights violations against the community,” said the brief.

When Sadia reached Bengaluru after her release from jail in June, she did not tell anyone about the rape and assault. “I feared the wedding would be cancelled,” she said.

Soon, Sadia found out that she was pregnant. She revealed the rape by Shona Mia when her aunt noticed that she was experiencing nausea and discomfort, and coaxed her into sharing details, she said. The groom and the family called off the marriage when it was found that she was pregnant.

The potential social impact of rape is far-reaching, said a 2018 UNHCR review of the culture, context and mental health of these refugees. “For girl survivors of rape, the chances of marriage are much diminished, particularly of finding a ‘good husband’,” it said.

Sadia was not sure about terminating the pregnancy, at the time. There was strong opinion within the community on not aborting the pregnancy, and she was not receiving counselling for the trauma.

When IndiaSpend first met Sadia in Bengaluru in late July, it had already been a few weeks since she had filed a zero FIR–a first information report filed irrespective of territorial jurisdiction–because the reported crime happened in Tripura.

The FIRs in Tripura and Bengaluru were both ​​registered under Section 376 of the erstwhile Indian Penal Code (IPC) instead of the relevant section under the Bharatiya Nyay Sanhita, 2024 which has replaced the IPC since July.

By early August, she had already gone back to Tripura and spent more than two weeks offering her statement to the police. As per law, a medical check was done, in addition to the one conducted in Bengaluru. By then she had decided to terminate her pregnancy, which was in the 10th week. 

A Woman has Autonomy to Decide on Termination of Pregnancy

According to the The Medical Termination Of Pregnancy (Amendment) Act 2021, a pregnancy can be terminated with the opinion of a medical practitioner if it does not exceed 20 weeks. In cases of pregnancies between 20 and 24 weeks, the MTP Act allows abortions for specific categories including survivors of rape, victims of incest, and other vulnerable women such as those with disabilities and minors, with the opinion of two medical practitioners.

Sadia was well under the limit of 20 weeks when she decided to terminate.

“I do not want to deal with the pain and trauma. I am waiting to get permission from the court because police say it is needed (as evidence for investigation),” Sadia had told IndiaSpend through an interpreter in August.

If the survivor is above 18 years old, they can give consent for MTP and it should be completely the survivor’s decision to terminate, said Shaibya Saldanha, a medical practitioner who has trained police and medical personnel, and handled cases of SGBV.

“The police cannot really advise. The refugee status complicates things because it may create legal issues,” said Saldanha. “If the pregnancy is caused by rape, the MTP should be done at the earliest as it is a medical emergency which causes mental trauma.”

In 2023, in Nabal Thakur v The State, the Delhi High Court shared guidelines on medico-legal procedures (MLC) in cases of sexual violence. The court observed that in case of termination of pregnancy, the foetus must be preserved by the medical practitioner as it is “crucial evidence” in the investigation. It also said that all the hospitals concerned “will ensure that along with the original MLC as well as discharge summary of such victim, a typed copy of the same is also prepared by the concerned hospital and provided to the investigating officer within a period of one week”.

“The victim in this case seems to have had no access to legal aid,” said Sunitha Krishnan, co-founder of Prajwala, an anti-trafficking organisation working on the issue of sex trafficking and sex crimes. “Sadly, the foetus is an evidence of the reported crime she has been subjected to. The termination has an implication on the prosecution.”

When IndiaSpend spoke to investigating officer Sushmita Debnath on September 3, she said that court permission was needed for MTP. “We will need (the) foetus for a DNA test. Otherwise it will be difficult to determine (the accused), and we will need evidence.”

The medical check in Bengaluru was done in the second week of July, more than a month after the reported crime while in Tripura, and the checkup in Tripura was done a month after the one in Bengaluru. Evidence of assault was unlikely to be observed.

“…in many cases if they (survivors) have been physically assaulted it becomes difficult to determine assault if there is a significant delay in conducting an MLC. The survivor’s statement becomes vital,” said Saldanha.

Justice Systems Do Not Automatically Take Over

Over the last month, India’s news media has been covering the gruesome rape and murder of a doctor in Kolkata where the state government was forced to bring in measures to improve the safety of women in the workforce, and passed a bill making death penalty mandatory if the victim dies or is in a vegetative state. The Supreme Court slammed the delay in filing a FIR, according to news reports.

Even when Sadia, with the help of a relative and local activists, went to report the rape to the police in Bengaluru, they had to visit the station a few times. “They (police) were not clear about the procedure for refugees, and also the new criminal laws had become effective,” said R. Kaleemullah, a social activist. “She also did not have UNHCR documentation in India.”

IndiaSpend has reported (here and here) on the impact of the lack of documentation on the refugees and asylum seekers, including applying for residence proof such as Aadhaar cards, which are needed for healthcare and livelihood access.

Sadia did not have legal representation although refugees are entitled to legal aid. Private representation is expensive, prohibitively so for Rohingya refugees who mostly do informal, low paying jobs.

UNHCR India told IndiaSpend that they were not in a position to share details about individual cases. But like citizens of India, in principle, refugees and asylum seekers too have access to the legal systems in India, said UNHCR India in response to specific questions on this case and the issues faced by stateless Rohingya women. “However, lack of documentation poses significant challenges in accessing these avenues. UNHCR continues to advocate with authorities for access to documentation, thus enhancing their access to legal and other services including access to services specifically in place for victims of criminal act.”

On matters related to SGBV, it is to be noted that lack of documentation and legal status in India makes women and girls from refugee and asylum seeker communities more vulnerable to such incidents, said UNHCR India.

IndiaSpend also spoke to experts who work on refugee-related issues. According to an organisation working with survivors of SGBV in Delhi, ideally, the state support systems–legal aid, medical and psychosocial support–should be available irrespective of the survivor’s status. But these systems require documentation like Aadhaar which they do not have, and UNHCR cards may not be seen as valid documentation by courts or law enforcement, which can create challenges.

A 2023 report by The Azadi Project and Refugees International showed that the lack of legal status or income also limits access to sexual or reproductive health services, prenatal and postnatal care, or treatment or support for gender-based violence.

In July, the UN Committee on the Elimination of Racial Discrimination (CERD) urged the government to “end racial discrimination against the community and to remove restrictions preventing them from enjoying their rights without discrimination, in particular with regard to access to employment, health and education, especially by ensuring the issuance of long term visas and other identity documents”.

“In this case where there are legal complications, I made an appeal (to the police) based on humanitarian grounds (and) a lot of support was extended,” said Krishnan. “The justice system does not take over automatically and requires somebody to constantly follow up, which is a huge challenge.”

During the Tripura lower court’s hearing, the court recommended that Sadia stay in a government shelter home for the MTP and rehabilitation. Sadia, who was 14 weeks pregnant by then, panicked and decided to leave Tripura for Bengaluru, she claimed. Stateless Rohingya who cross over to India fleeing violence and ethnic cleansing run the risk of being picked up by police, detained indefinitely and deported to Myanmar, where their lives are at risk, as IndiaSpend reported in April 2022.

When the Tripura lower court pronounced its order on September 6, it directed that she be shifted to a shelter home. It also observed that Sadia, when asked during the hearing, had “clearly denied” wanting to be shifted to a government shelter home. The order directed that Sadia be produced before a medical superintendent of any government hospital to determine if she can undergo termination of pregnancy or not. If so, the foetus was to be preserved as evidence, it added.

“I was scared and wanted to return to Bengaluru. But it did not seem possible,” said Sadia, who added that her uncle was not with her inside the courtroom.

The order was considerate about her circumstances as a vulnerable asylum seeker and specifically mentioned, “Needless to say that the victim even if not being an Indian citizen has Article 21 of the Constitution of India in her favour and all concerned authorities shall ensure that her life is protected and secured,” the court said.

Pushed back into Bangladesh by Assam Police

CERD had called on India to end arbitrary detentions and deportations without due process, ensure that legislative guarantees against racial discrimination apply to non-citizens, and sensitise law enforcement on related matters. It urged the government “to combat the spread of racist hate speech in the media, on the Internet and in social media and to firmly condemn any form of hate speech and distance itself from racist hate speech expressed by politicians and public figures”.

It is an indicator of the problems faced by the community in India. IndiaSpend has reported on the impact on mental health due to the fear of detention and deportation, and the violence that Rohingyas have faced over years.

On September 23, Bangladesh registered a “strong protest” with the High Commission of India in Dhaka against allegations made by Home Minister Amit Shah during a speech in Jharkhand, according to a news report. He is reported to have said “In Pakur district, slogans are being raised asking Hindus and Adivasis to leave Jharkhand. Tell me, does this land belong to Adivasis or Rohingyas, Bangladeshi infiltrators?”

Early in September, as we said, Sadia and a relative were ‘pushed back’ into Bangladesh by Assam police, being termed as illegal infiltrators.

Sadia reported that after the court hearing in September and before the court pronounced its order, they decided to move out of the accommodation and return to Bengaluru, fearing that she would be put in a shelter home. As they were leaving, “we were taken by four people who abused us, snatched our phones, and took us in a vehicle.” While it is not clear who the people were, both Sadia and the relative were dumped on the border with Bangladesh, where they were apprehended and pushed across.

It is unclear why Sadia and her relative, despite being registered as an asylum seeker and a refugee, respectively, by UNHCR India, were categorised as infiltrators or Bangladeshis. According to Ipper Manchak Dnyanoba, Deputy Inspector General of Police, (Southern/Northern) Range, Tripura, the police could shed no light on the incident. “We have seen social media and media reports, but nothing officially has come to us,” Dnyanoba said.

The court order for MTP was received in the night, he said. “The court arranged for counselling before deciding, and informed her that due to the seriousness of the case she would have to be in the government rehabilitation centre. She was in a private accommodation at the time,” said Dnyanoba. When the police contacted her the next day, her mobile was switched off and Sadia was not present in the rented accommodation. The owners informed the police that Sadia and the relative had paid their dues left that night, he said.

The police chief said because the case was under police investigation and the observation of the court, it was mandatory to get the court’s permission for terminating the pregnancy.

Meanwhile their family in Bengaluru is worried that they are unable to contact him in Cox’s Bazar. There are threats from the accused who has networks in the camp, the family has alleged.

According to Krishnan, in case of trafficking or smuggling of humans, when it comes to stateless Rohingyas, the lack of legislation or proper guidelines is a problem due to concerns with repatriation, safety and deportation. “We need to have a humanitarian system where vulnerable communities can be supported instead of pushing them back into exploitation,” she said.

The accused, Shona Mia, had not been arrested when IndiaSpend spoke to Dnyanoba on September 23. The FIR had been filed on August 11. Sadia said that she is mentally disturbed by the events of the last seven months. “But I am happy that I have finally been able to terminate the pregnancy.”

Since the abortion took place in Bangladesh and the foetus is not available to the Indian police for evidentiary purposes, it is unclear whether and how the case against the accused will proceed.

The names of some individuals have been changed to protect their identity.

This story was first published on IndiaSpend, a data-driven, public-interest journalism non-profit.