Refugee Survey Quarterly, 2017, 36, 126–145
doi: 10.1093/rsq/hdw021
Advance Access Publication Date: 1 February 2017
Article
Invisible People: Suspected LTTE Members in
the Special Refugee Camps of Tamil Nadu
Sreekumar Panicker Kodiyath* and Sheethal Padathu Veettil**
ABSTRACT
An often unseen population, a section of which exist in relative anonymity, are the
close to hundred thousand refugees from Sri Lanka in the South Indian State of Tamil
Nadu, residents of which share linguistic and ethnic attributes with these refugees. The
exodus of the ethnic Tamil population from Sri Lanka commenced in early 1980s and
continued more or less till 2013, even after the end of the war in 2009. The majority of
this refugee population is housed in 107 refugee camps across the State. However, it is
those Tamil refugees who are languishing in three highly guarded “special camps” as
suspected members of the Liberation Tigers of Tamil Eelam who are the focus of this
article. The inmates of these camps exist under a cloak of invisibility due to their
unique status, with even the basic rights enjoyed by the ordinary prisoners in other detention facilities denied to them. This article argues that the lack of international law
obligations and domestic policies have helped the Government of India to sustain a
state of limbo resulting in the said individuals being treated according to the whims of
the Government in power.
K E Y W O R D S : refugee, Sri Lanka, Tamil Nadu, special camps
1. INTRODUCTION
At 10:10 pm on 22 May 1991, Rajiv Gandhi, the sixth Prime Minister of India was
assassinated by a female suicide bomber belonging to the Liberation Tigers of Tamil
Eelam (LTTE) during an election rally near Madras (now Chennai), the capital city
of Tamil Nadu, a southern state of India which shares India’s maritime boundary
with the island nation of Sri Lanka. Whether the LTTE was behind the assassination
was not immediately known, as this organization denied responsibility. Nonetheless,
by the middle of June 1991, the LTTE involvement was divulged by the investigating
agencies to the public and the media.1
*
Sreekumar Panicker Kodiyath, Independent Researcher on refugee issues and LLM candidate, University
of Manitoba. Email: [email protected].
** Sheethal Padathu Veettil, LLM candidate, University of Saskatchewan; previously Access to Justice Fellow,
Tata Institute of Social Sciences, Mumbai, India.
1 See S. Gupta, A. Viswanathan & K. Shetty, “Assasination Probe: Fitting the Pieces”, India Today, 30 Jun.
1991 42, available at: http://indiatoday.intoday.in/story/ltte-key-suspect-in-rajiv-gandhi-assassinationprobe/1/319530.html (last visited 3 Dec. 2016). See also S. Swamy,Sri Lanka in Crisis: India’s Options,
New Delhi, Har Anand Publications, 2007, 129–130; “Rajiv Assassination ‘Deeply Regretted’: LTTE”, The
C Author(s) [2017]. All rights reserved. For Permissions, please email: [email protected]
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The immediate effect of this incident and the gradual revelation of LTTE’s role in
it were felt by the more than hundred thousand Sri Lankan refugees in Tamil Nadu
whose exodus from Sri Lanka had commenced as early as 1983. The Sri Lankan
Tamil identity of the suicide bomber, which was revealed about 10 days after the incident, resulted instantly in the refugees facing social ostracism and harassment, politicians demanding their immediate deportation to Sri Lanka, and increased
rounding up for questioning by the investigative agencies.2 It was in the preceding
months that the now infamous special refugee camps were set up to “intern” every
refugee whose identity was “under question”.3 Soon, the transit camp for the Sri
Lankan refugees arriving by boatloads at the coastal town of Mandapam became the
place for identifying suspected members of LTTE,4 who would be isolated and
packed off to the high security special camps. Other refugees would be allocated
spaces in the relatively open refugee camps in different parts of the State.
By 1992, almost 2000 suspected militants had been placed in these special camps
in Tamil Nadu.5 It is these facilities and the treatment of its inmates in law and policy
that form the focus of this article. Interviews with regular refugees, families of interned special refugees, lawyers, and government officials revealed to the authors of
the present articles that these special refugees are denied trial, medical facilities, legal
representation, contact with family members or any outsiders for that matter, and
are frequently subjected to torture by the police and intelligence agencies. Despite
their refugee status, they are kept insulated from the outside world through extraordinary security measures with inspection or visits to such camps generally denied to
everyone, including members of human rights institutions or organizations.
Frequently, these special refugees resort to fasting in protest and have even attempted committing suicide. The judiciary, apart from promulgating occasional insignificant orders, have mostly refrained from intervening in their cases, accepting the
“national security” argument of the State.6
This article develops its analysis in four main parts. Following an explanation of
the research methodology and data (Section 2), it provides a general overview of the
conflict in Sri Lanka, the origins of LTTE, and its connection with the Indian State
of Tamil Nadu (Section 3). It then proceeds to offer an analysis of India’s policy and
practice surrounding refugees, before focusing on the extraordinary legal situation of
2
3
4
5
6
Hindu, 28 Jun. 2006, available at: http://www.thehindu.com/todays-paper/rajiv-assassination-quotdeeplyregretted-ltte/article3125569.ece (last visited 3 Dec. 2016), reporting that it took almost 15 years for
LTTE to finally admit its responsibility for the incident when the Chief negotiator and ideologue of
LTTE, Anton Balasingham confessed and apologised for it to the Indian television channel NDTV.
See B.E. Weinrub, “Fear Grips Sri Lankans in South India”, The New York Times, 31 May 1991, available
at: http://www.nytimes.com/1991/05/31/world/fear-grips-sri-lankans-in-south-india.html (last visited 3
Dec. 2016).
A. Mitra, “The Web Widens”, India Today, 31 Aug. 1991, 30 and 31, available at: http://indiatoday.into
day.in/story/ltte-key-suspect-in-rajiv-gandhi-assassination-probe/1/319530.html (last visited 3 Dec. 2016)
Government of India, Ministry of Home Affairs, Annual Report 2004–2005, New Delhi, Government of
India, Ministry of Home Affairs, 2005, 143, para. 7.83, available at: http://www.mha.nic.in/hindi/sites/
upload_files/mhahindi/files/pdf/ar0405-Eng.pdf (last visited 3 Dec. 2016).
H. Raizada, “Sri Lankan Refugees in India: The Problem and the Uncertainty”, International Journal of
Peace and Development, 1(1), 2013, 29.
See generally, Madras High Court, G State v. G. Karunairaj, 2014 (1) CTC 113; and Madras High Court,
Kalavathy v. State of Tamil Nadu, 1995 (2) LW (Crl.) 690.
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Sri Lankan Tamil refugees deemed undesirable due to their suspected LTTE links
(Section 4). Finally, it provides a substantive analysis of the nature and evolution of
special camps in Tamil Nadu and the Sri Lankan Tamils interned there on the basis
of their suspected LTTE membership (Section 5). The conclusion (Section 6)
argues that the lack of a coherent legal framework in India pertaining to this group
of apparently undesirable refugees has resulted in the State getting a free hand in
how it treats such “special” refugees.
2. METHODOLOGY AND DATA
The analysis presented in this article draws on data from a number of sources. The
data concerning population statistics of regular and special camp refugees prior to
2011, due to its classified nature, are derived principally from secondary sources and,
wherever possible, from primary sources. Triangulation of data sources was undertaken and some reliance has been placed on reports published by governmental and
non-governmental agencies/organizations.
Data regarding the special refugees after 2011 has been collected through a fieldbased study that was conducted by the authors in the districts of Vellore, Trichy,
Tiruvannamalai, and Chennai in Tamil Nadu in late 2014. In-depth interviews were
arranged in secrecy outside the refugee camps with regular camp refugees who used
to be detained in the special camps in order to ascertain the living conditions in such
camps. Thirty interviews were conducted by the authors between August 2015 and
January 2016 in Madras, Vellore, Coimbatore, and Tiruchirappalli districts of Tamil
Nadu.
Of these 30 interviews, they included interviews in person with three refugees at
refugee camps in Vellore District and two former special camp refugees (including
their family members) in Madras. Two internees in special camps were contacted
through phone. Three senior police officers and six policemen were interviewed in
person in Vellore and Madras. Three journalists and two lawyers who frequently represent special camp and other refugees were interviewed in Madras. Interactions
took place with the staff of three non-governmental organizations and two heads of
political parties who are vocal in their support for the cause of special camp refugees.
Four government employees were interviewed in Madras. Most of the interviews
were conducted in Tamil, a rudimentary working knowledge of which both the authors possess. In the case of advocates, senior policemen, and journalists, interviews
were done in English.
After the initial research, six further interviews were conducted in April 2016 in
Colombo, Jaffna, Mullaitivu, and Kilinochchi (Sri Lanka) with former LTTE members, returned Sri Lankan refugees, and human rights activists.
3 . S R I L A N K A : C O N F L I C T , L T T E, A N D R E F U G EE S
A brief foray into the development of the Sri Lanka conflict is necessary in order to
provide context for the study of India’s treatment of Sri Lankan refugees, and particularly those suspected of being LTTE members on whom this article concentrates
its analysis. This not only illustrates the patterns of violence from which Sri Lankan
refugees flee but also the importance from the 1980s of the LTTE as a violent and
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organised insurgency in Sri Lanka, as well as the political connections and tensions
between Sri Lanka and India.
The Tamil-Sinhala conflict in Sri Lanka has its roots in English colonial policies
of selective patronage, the increasing ethnic and linguistic divisions developed into irresolvable antagonism after the island’s independence as Ceylon in 1948. Some of
the subsequent legislation that gradually stripped the minority Tamils of their citizenship, and official status for their language and in some cases their property, predictably united the Tamil-speaking minorities. This, in turn, equally strained the
relations between Sinhala and Tamil communities.7 A series of ethnic clashes took
place from late 1950s in the form of widespread violence against the Tamil population, resulting in the deaths of hundreds of Tamils, and there was a steady trickling
in of exclusionary policies against the minority Tamils. This gradually resulted in the
Tamil population, especially youngsters, losing their faith in peaceful means to secure
their rights.8
This change in attitude created fertile ground for the many extremist organizations that emerged in the 1970s, one of which was the precursor of LTTE: the
Tamil New Tigers (TNT) formed by Vellupillai Prabhakaran and Chelliah
Thanabalasingham. In May 1975, TNT was renamed LTTE. The LTTE’s first highprofile assassination is claimed to be that of Jaffna’s mayor, Alfred Duraiappah, by
Prabhakaran. The cycle of violence that commenced subsequently, with attacks and
counter-attacks between LTTE and security forces, also escalated ethnic violence in
the island with Tamil civilians being targeted as retaliation for attacks by the LTTE
and other militants.9
The incident, shockwaves of which resonated among the people of Tamil Nadu
and triggered off a series of developments that would prove crucial to LTTE’s
growth and proliferation, is the particularly bloody wave of riots targeting Tamil civilians in July 1983 (the Black July Riots) in Sri Lanka. Supposedly a reaction to the
killing of 13 Sinhalese soldiers by the LTTE, the target of this pogrom ended up
being the innocent Tamil population in Colombo and many other areas. Over 200
Tamils were killed, their businesses and homes burned down, and women raped. 10
This was the official start of the civil war and the beginning of the Tamil exodus
from the island nation. Desperate for retaliation and protection, Tamil youth joined
LTTE en masse, leading to a huge increase in its numbers.11
Significant in this context is the examination of the connection between Sri Lanka
and India, especially the southern state of Tamil Nadu which contains the largest majority of Tamil population in the world. Language has been a crucial factor in the
7 See generally N. DeVotta, “Control Democracy, Institutional Decay, and the Quest for Eelam: Explaining
Ethnic Conflict in Sri Lanka”, Pacific Affairs, 73(1), 2000, 55.
8 See J. Richards, An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE), Working Paper
No. 10, Geneva, Centre on Conflict, Development and Peacebuilding, Nov. 2014, 12, available at:
http://graduateinstitute.ch/files/live/sites/iheid/files/sites/ccdp/shared/Docs/Publications/CCDPWorking-Paper-10-LTTE-1.pdf (last visited 3 Dec. 2016).
9 See N. DeVotta, Blowback: Linguistic Nationalism, Institutional Decay, and Ethnic Conflict in Sri Lanka,
Redwood City, Stanford University Press, 2004, 169.
10 See N. DeVotta, “The Liberation Tigers of Tamil Eelam and the Lost Quest for Separatism in Sri Lanka”,
Asian Survey, 49 (6), 2009, 1021, 1028.
11 See Richards, An Institutional History of the Liberation Tigers of Tamil Eelam, 15.
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ethnic conflict that tore down Sri Lanka for half a century and it is this language
which united the Tamils of Tamil Nadu and Sri Lanka during the conflict.12
Although already aware of the oppressive atmosphere in Sri Lanka, the incoming
surge of refugees after the Black July riots brought with them stories that provoked
the Indian Tamil community to clamour for immediate Indian intervention in Sri
Lanka.13 Demands were even made for the deployment of a United Nations peacekeeping force in Sri Lanka by politicians in Tamil Nadu.14 During this time, the
Government of India also started training militants including the LTTE through its
intelligence agency, the Research and Analysis Wing.15 However, among the militant
groups, it was the LTTE that grew to become one of the most sophisticated and
structured militant organizations in the world, described by the US Federal Bureau
of Investigation at one point as “among the most dangerous and deadly extremists in
the world”.16
During this period, the Indian Prime Minister Indira Gandhi was assassinated and
her son, Rajiv Gandhi, was appointed to replace her. The following national elections
installed him in the position with a clear majority. One of Rajiv Gandhi’s biggest mistakes was the involvement in Sri Lankan affairs with the negotiation and signing of
Indo-Sri Lanka Accord in July 1987, which contained provisions for deployment of
the Indian Peace Keeping Force (IPKF) in Sri Lanka and the stipulation that the
militants would lay down arms and cease their activities.17
The negotiation and signing of the accord was done without consultation with
the LTTE, which was the strongest force during that time with a significant role in
the conflict and this proved to be a fatal mistake.18 IPKF, with its mandate of supervising the disarming of LTTE, soon faced a reluctant LTTE and it was not long before a bloody battle ensued between the LTTE and IPKF.19 Instances of large-scale
attacks and brutal torture, rape and massacre of civilians by the IPKF followed, with
12 See R.N. Kearney, “Language and the Rise of Tamil Separatism in Sri Lanka”, Asian Survey, 18(5), 1978,
521.
13 See “Indira’s Dilemma”, The Economist, 6 Aug. 1983, reporting that the state of Tamil Nadu closed down
completely on 2 August in sympathy with the beleaguered Tamils across the Palk Strait, which divides
India from Sri Lanka.
14 See A. Bandarage, The Separatist Conflict in Sri Lanka: Terrorism, Ethnicity and Political Economy, London,
Routledge, 2008, 111, claiming that on 31 July 1983 the Chief Minister of Tamil Nadu, Mr
Ramachandran, led an all-party delegation to Delhi demanding Indian intervention in Sri Lanka.
15 See S. Krishna, Postcolonial Insecurities: India, Sri Lanka, and the Question of Nationhood, Minneapolis,
University of Minnesota Press, 1999, 119.
16 United States, Federal Bureau of Investigation, Taming the Tamil Tigers from Here in the U.S, webpage, 1
Oct. 2008, available at: https://www.fbi.gov/news/stories/2008/january/tamil_tigers011008 (last visited
3 Dec. 2016).
17 Indo-Sri Lanka Peace Accord, 29 Jul. 1987, available at: http://peacemaker.un.org/sites/peacemaker.un.
org/files/IN%20LK_870729_Indo-Lanka%20Accord.pdf (last visited 3 Dec. 2016): “2.9 [. . .] All arms
presently held by militant groups will be surrendered in accordance with an agreed procedure to authorities to be designated by the Government of Sri Lanka. [. . .] 2.16 (b) The Indian navy/coast guard will
cooperate with the Sri Lankan navy in preventing Tamil militant activities from affecting Sri Lanka.”
18 D. Hellmann-Rajanayagam, “The Tamil Militants-Before the Accord and After”, Pacific Affairs, 61(4),
1989, 606.
19 M.E. Brown, The International Dimensions of Internal Conflict, Cambridge, MIT Press, 1996, 159.
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even refugee camps not being spared.20 IPKF in the subsequent years attracted animosity from every side to such a degree that later reports revealed instances the
LTTE receiving support in the form of arms and ammunitions from the Sri Lankan
Government for use against the IPKF.21
Although the IPKF was eventually withdrawn in March 1990, it left sufficient animosity within the LTTE to drive it to assassinate Rajiv Gandhi in 1991, a venture
that cost the LTTE its tacit official support in India and left the over 100,000 Sri
Lankan refugees in India in a sea of woes.22 The LTTE was declared an unlawful
organization by India in May 1992, a designation that continues to the present day.
23
It was during this time that special camps for Sri Lankan refugees suspected of
LTTE involvement were established and entered into the picture of the refugee response in India.
4. LEGAL CHAOS: REFUGEES AND INDIA
India’s treatment of Sri Lankan refugees deemed “undesirable” due to their suspected
membership of the violent and organised LTTE does not exist in a vacuum. Rather,
it might be taken as an extreme expression of the more general legal and policy approach displayed by India in its response to refugees entering its territory. This section thus begins by analysing the broader legal framework applicable to refugees in
India before narrowing down to consider the specific measures applied to those Sri
Lankan refugees viewed by the Indian State as undesirable on grounds of suspected
links with the LTTE.
4.1. Legal treatment of refugees in India
According to the office of the United Nations High Commissioner for Refugees
(UNHCR), India is host to over 200,000 refugees as of June 2015. This includes the
comparatively privileged category of refugees officially accepted by India, as well as
those recognized by the UNHCR as mandate refugees and also those staying without
recognition. Mandate refugees recognized by UNHCR are discretionally granted
long-term visas by India.24
For Indian laws, any non-citizen is viewed as falling in a broad category of persons
who are indiscriminately treated under one single head, i.e. “foreigner”. Thus, the
Foreigners Act of 1946 regulates the entry, presence, and departure of refugees, economic migrants, infiltrating terrorists, foreign tourists, foreign students, and anyone
who does not qualify as a citizen as specified under the Citizenship Act of 1955. To
date, India has not given any indication of either adopting a national law on refugees
20 See B.R. Rubin, Cycles of Violence: Human Rights in Sri Lanka Since the Indo-Sri Lanka Agreement,
Washington, DC, Asia Watch, 1987, 66; Hellmann-Rajanayagam, “The Tamil Militants”, 604.
21 M.R. Narayan Swamy, “Sri Lanka’s Arming of LTTE against IPKF: Mystery of Kobbekaduwa’s Death”,
Economic and Political Weekly, 33(40), 1998, 2577.
22 DeVotta, “The Liberation Tigers of Tamil Eelam”, 1041. See also R. Guha, “Tigers in the Alps”, World
Policy Journal, 20(4), 2003, 63–73.
23 Government of India, Ministry of Home Affairs, Annual Report 2004–2005, 50.
24 Government of India, Ministry of Home Affairs, Lok Sabha, Unstarred Question No. 739 to Be Answered
on 15.07.2014, 2014, available at: http://mha1.nic.in/par2013/par2014-pdfs/ls-150714/739.pdf (last visited 3 Dec. 2016).
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or becoming party to the 1951 Convention relating to the Status of Refugees and its
1967 Protocol. Absent any official clarification of its stance towards the Convention
and Protocol, India’s reluctance to ratify these treaties is attributed to various factors,
from financial constraints to the fear of its porous borders being susceptible to mass
refugee inflows causing political instability.25 Nevertheless, India remains one of the
largest refugee-receiving nations in South Asia.
While India’s reception and treatment of refugees is often praised, their de jure
status and protection is generally left to the benevolence of the state or central governments and its relationship with the refugees’ country of origin. Differential treatment by the State according to nationality or the origin of refugees is thus
unsurprising.26 The case of Tibetan refugees, towards whom India’s treatment has
been exceedingly generous, illustrates this claim. However, the lack of any legal obligations affords it the flexibility of changing its stance when it chooses, as is happening with the later wave of Tibetan refugees who were denied the same degree of
generous treatment.27
Curiously, the status of UNHCR in India is not so very different from some of
the refugee populations: invited on a whim of the Indian State and tolerated only
until it displeases the State. Indeed, UNHCR was allowed to establish a mission in
Delhi only in 1966 after intense negotiations and, even so, it is allowed to provide assistance only to individuals who can physically reach its mission in Delhi.28 Work in
its field office in Chennai is similarly restricted. In spite of being invited to become
involved in the issue of Sri Lankan refugees, UNHCR has been denied permission to
enter the refugee camps.29 Unable to act or intervene, UNHCR regularly attracts the
ire of special refugees’ families.30 UNHCR denied all knowledge of the special refugees or their conditions when approached by the authors.31
25 See S. Sen, “Understanding India’s Refusal to Accede to the 1951 Refugee Convention: Context and
Critique”, Refugee Review (Re-Conceptualizing Refugees & Forced Migration in the 21st Century), 2015, 131–
132, available at: https://refugeereview2.wordpress.com/opinion-pieces/understanding-indias-refusal-toaccede-to-the-1951-refugee-convention-context-and-critique-by-sreya-sen (last visited 3 Dec. 2016); M.
Katju, “India’s Perception of Refugee Law”, ISIL Yearbook of International Humanitarian and Refugee Law,
1, 2001, 251. See also S. Bhattacharjee, “India Needs a Refugee Law”, Economic and Political Weekly,
43(9), 2008, 71–72.
26 S. Sen, “Paradoxes of the International Regime of Care”, in R. Samaddar (ed.), Refugees and the State:
Practices of Asylum and Care in India, 1947–2000, New Delhi/Thousand Oaks/London, Sage
Publishers,2003,396, 398.
27 C. Artiles, “Tibetan Refugees’ Rights and Services in India”, Minority Rights, Human Rights & Human
Welfare Journal, 2011, 6. See also K. Thames, India’s Failure to Adequately Protect Refugees, undated, available at: https://www.wcl.american.edu/hrbrief/v7i1/india.htm (last visited 3 Dec. 2016).
28 Sen, “Paradoxes of the International Regime”, 399.
29 S. Sen, “Convention and Practice in South Asia”, in J. van Selm et al. (eds.) The Refugee Convention at
Fifty: A View from Forced Migration Studies, London, Lexington Books, 2003, 207; M. Sanderson, “The
Role of International Law in Defining the Protection of Refugees in India”, Wisconsin International Law
Review, 33(1), 2015, 101.
30 Interaction by authors with the wife of a former internee (special refugee camp), Madras, Jan. 2016, complaining that if it cannot do anything for special refugees, they should remove the “R” from “UNHCR”.
31 Interaction by authors with UNHCR official, Madras, Nov. 2015.
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UNHCR issues a “refugee ID card” to eligible refugees in India after scrutinising
their cases through its refugee status determination system.32 However, this card is
generally of no value when the State decides to invoke its powers under the
Foreigners Act.33 This has especially been the case with Afghan refugees in India.34
Indeed, the Foreigners Act of 1946 is an archaic piece of legislation that originated as
a more or less unmodified descendent of the Foreigners Act of 1864. This Act of 1864
was piece of colonial legislation that obliquely targeted native populations deemed undesirable and was used by the British as an instrument for “legitimising its right to exclude”.35 The Act of 1946, demonstrating the evolution of colonialism to nationalism,
retained every element of State control over “foreigners”.36
Despite widespread calls for its repeal and modification, this scanty legislation with
only 17 sections has withstood the test of time and reason simply due to the power that
it lavishes on the State. Section 3 of the Act provides unqualified and un-appealable
powers to the Central Government to prohibit the entry, departure, stay of any foreigner
or to impose conditions to his/her stay including arrest, detention, or confinement.
Numerous orders have been issued under the Act.37 Instances of the exercise of such
powers for deporting undesired foreigners are rife and beyond documentable limits.
Inviting displeasure of the Central Government by any means from drunken misbehaviour to speaking out against human rights violations will entail the prompt issuance of a
“Leave India Notice” for visa holders which simply tells the individual to leave India and
nothing more. In the case of refugees, this provision pays scant regard to the principle of
non-refoulement, which prohibits the return of a person to a persecuting State, despite its
crystallisation as a principle of customary international law and an element of numerous
international human rights instruments to which India is a party.38
A recent example, which unusually did not go unnoticed, is the case of Christine
Mehta, an American citizen of Indian origin who was working as a researcher with
Amnesty International India. She was suddenly served with a “Leave India Notice”
on 11 November 2014 presumably because her work was becoming critical of the
State, especially the abuses committed by Indian Army in Kashmir.39
32 Sen, “Paradoxes of the International Regime”, 398.
33 M. Ali, “An Uncertain Refuge: The Fate of the Rohingyas in India”, The Wire, 15 Nov. 2015, available at:
http://thewire.in/2015/11/15/an-uncertain-refuge-the-fate-of-the-rohingyas-in-india-15624 (last visited
3 Dec. 2016).
34 Sen, “Paradoxes of the International Regime”, 426–428. See also Human Rights Law Network (HRLN),
“Refugee Policy of the Indian Government”, in R. Trakroo Zutshi et al. (eds.), Refugees and the Law, New
Delhi, HRLN, 2011, 96.
35 P. Banerjee, Borders, Histories, Existences: Gender and Beyond, New Delhi, Sage India, 2010, 12–14.
36 See generally ibid., 27–29.
37 Foreigners Order, 1948; the Foreigners (Restriction on Movements) Order, 1960; the Foreigners
(Restriction on Activities) Order, 1962; the Foreigners (Internment) Order, 1962; the Internees
(Discipline and Offences) Order, 1963; the Foreigners (Tribunals) Order, 1964; the Foreigners
(Restriction on Pakistani National) Order, 1965; the Foreigners (Restriction on Pakistani Nationals)
Order, 1971; the Foreigners from Uganda Order, 1972.
38 T. Ananthachari, “Refugees in India: Legal Framework, Law Enforcement and Security”, ISIL Yearbook of
International Humanitarian and Refugee Law, 1, 2001, 124.
39 C. Mehta, “How I Was Deported from India”, The Hindu, 2 Jul. 2015, available at: http://www.thehindu.
com/opinion/op-ed/christine-mehta-writes-on-how-she-was-deported-from-india-for-her-report-onafspa/article7375878.ece (last visited 3 Dec. 2016)
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One can easily perceive incongruity in judicial attitudes and state practice with respect to deportation of refugees. A clear lack of consensus as to the applicability of
the principle of non-refoulement is visible if we analyse judicial interventions against
deportation orders made by the State. Courts have consistently held that the fundamental rights guaranteed by the Constitution of India are not available to foreigners,
with the exception of Article 21 that guarantees the right to life and personal liberty
(although it too has been held not to include a right to residence or settlement).40 In
one of the early cases involving a West German claiming to be a persecuted communist who was ordered to be deported from India, the Supreme Court of India
held that the Central Government had “absolute and unfettered discretion and, as
there is no provision fettering this discretion in the Constitution, an unrestricted
right to expel remains”.41
Although superior courts have at times made attempts to carve out a body refugee
law on their own,42 the usual inconsistency among courts, benches, and judicial attitudes means that they cannot be relied upon to deliver consistent decisions in such
matters. Some of the decisions remain merely recommendatory and refuse to lay
down the law in final terms such that the pattern of decisions generally remains ad
hoc.43
In a very recent decision involving a challenge to a government order directing
the deportation of two Chin refugees from Myanmar who were convicted of possessing pseudoephedrine tablets, the High Court of Delhi directed reconsideration of
their cases and the need to explore third-country options for their deportation.
Although the Court discussed the need for abiding by the principle of non-refoulement, it acknowledged the absolute and unlimited power of Indian Government to
expel foreigners.44
4.2. Special treatment for “special” refugees
For those refugees accused of being criminals, perpetual detention or the issuance of
deportation orders seem to be the standard policy response on the part of India. In
view of the foregoing analysis, it should be clear that the application of such measures to refugees suspected of links with the LTTE is not an anomaly within the
highly discretion-based Indian legal approach to refugees. Rather, they represent an
40 See Louis De Raedt v. Union of India [1991] 3 SCR 149. However, even Art. 21 rights have been held to
be applicable in a sort of diluted form in the case of foreigners. See Delhi High Court, Anand Swaroop
Verma & Sherab Shenga v. Union of India and Anr. 100 (2002) DLT 78, holding in the case of some
Nepali citizens hastily deported in 2002 that a brief question answer session held by the officials from the
ministry and a chance to just meet their lawyers would suffice for satisfying the requirements of Art. 21 as
applicable to foreigners.
41 See Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors AIR 1955 SC 367.
42 See Gujarat High Court, Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India (UOI) and Ors, 1999
CriLJ 919, stopping an Iraqi refugee’s deportation solely on the basis of the principle of non-refoulement.
See also Katju, “India’s Perception”, 2: “In particular, the Indian judiciary has introduced refugee law into
our legal system through the back door, as it were, since the front door has been shut by the executive.”
43 See Supreme Court, Dr. Malavika Karlekar Petitioner v. Union Of India and Anr., Criminal Writ Petition
No. 583 of 1992, although intervening to stop some refugees whose status determination by UNHCR
was pending, specifying that deportation post such determination would be still an open question.
44 High Court of Delhi, Dongh Lian Kham & Anr v. Union of India & Anr. (2015) Crl.M.A No. 12618/2015.
Refugee Survey Quarterly
135
extreme version of how this approach plays out in relation to those individual refugees deemed particularly “undesirable” by the Indian Government.
The case of the Sri Lankan refugee Chandrakumar serves to illustrate this point.
Chandrakumar, according to the Q-Branch, is one of the senior leaders of LTTE’s intelligence wing, the Tiger Organization Security Intelligence Service. While he was
staying with his wife and two children in Chennai, he was taken into custody by the
Q-Branch and confined in the Poonamallee special camp in June 2010 on the basis
of a government order.45 Pending trial in a case alleging him to have smuggled arms,
boats, and information to the LTTE from India, he continued to be confined to the
said special camp for about three years until he petitioned the Government to let
him be moved to a regular refugee camp in order to reunite with his family. In May
2013, the state Government of Tamil Nadu ordered him to be moved to a regular
refugee settlement at Gumminipondi.46 However, bizarrely claiming that
Chandrakumar had expressed a fear of staying outside the special camp, he was kept
confined by the Q-Branch at the Poonamallee special camp.47
In 2008, a suspected member of LTTE’s Karuna Faction by the name of Vasanth
was reportedly deported from India to Sri Lanka at the peak of the conflict.48
Similarly, refugees and former internees of special camps claim regular hasty deportation of accused militants by Government of India to Sri Lanka from 1992 against
their will.49
The case of Eela Nehru, a Sri Lankan refugee from Chavakachcheri reveals the
judicial-executive decisional deadlock over the question of deportation. He was directed to be lodged in the special camp at Trichy by an order dated 17 July 2012.50
On 19 August 2013, orders were issued by the Government to deport him to Sri
Lanka. On 23 August 2013, the Madras High Court stayed his deportation pending
the disposal of his case. With the case adjourned at the Government’s request and
matter going nowhere, he, along with 26 other internees of the Trichy special camp
started a protest by fasting on 15 November 2014 to demand their return to the
regular refugee camps. When this also was not paid any heed by the authorities, they
attempted suicide by consuming sleeping pills on 19 November 2014. Eela Nehru recovered after hospitalisation but was moved to a regular prison for attempting to
commit suicide on 22 November 2014. He has been released since but his fate hangs
in balance with the pending proceedings against him being used by the authorities to
prevent him from leaving to a third country. What is to be noted here is the fact that
judicial recourse provided a remedy to the deportee and the way that the judicial attitude towards non-refoulement principle remained at odds with the state policy.
Section 4 of the Foreigners Act expands on the order of detention or confinement
authorised by Section 3(2)(g) of persons termed by the Act as “internees”. Section 4
Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR III/1475-1/2010, 17 Jun. 2010.
Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR III/952-4/2013, 15 May 2013.
Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR.III/1916-4/2013, 12 Nov. 2013.
“Only One Sri Lankan Tamil Asked to Leave: Karunanidhi”, The Hindu, 26 Nov. 2008, available at:
http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/only-one-sri-lankan-tamil-asked-toleave-karunanidhi/article1382835.ece (last visited 3 Dec. 2016).
49 Interview conducted by authors, former internees (special refugee camp), Madras, Jan. 2016.
50 Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR III/1425-1/2012, 17 Jul. 2012.
45
46
47
48
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delegates determination of the place, manner, and conditions of detention or confinement entirely to the Central Government. This lays down the legal foundation
for the “special camps” and numerous government orders that were discussed above.
Section 4 has been challenged many times in the courts especially in the context
of the special camp refugees but to no avail. In a case of 2004, the Madras High
Court affirmed the continued detention of the individuals in the special camps with
an incredibly naı̈ve list of suggestions about improvements to the quality of inmates’
life, including arranging indoor/outdoor games, and yoga classes.51 Ludicrously, the
courts mostly treat internment in these camps as not involving imprisonment but rather questions of “reasonable restriction on the freedom of movement”. In 2013, in
the case of a Malaysian national confined in the special camp, the Madras High
Court held that pre-decisional hearing and principles of natural justice need not be
followed for the confinement of foreigners inside special camps and also unrealistically held that order directing person to stay in such special camps did not amount to
detention or confinement.52 This “duality between reality and legality” was strongly
criticised by the Peoples Union for Civil Liberties (PUCL) Report of 1999.53
From the foregoing brief analysis of the treatment meted out to special refugees
in India, it can be safely concluded that the Indian policy towards undesirable foreign
nationals, and particularly those Sri Lankans treated as “special” refugees, is generally
to attempt to deport them irrespective of the dangers awaiting them in the country
to which they are to be returned, or simply to detain them indefinitely. It is to the
latter measure to which we now turn.
5 . “U N D E S I R A B L E ” SR I L A N K A N R E F U G E E S A N D “S P E C I A L CA M P S ”
This section develops the analysis by zeroing in on those “undesirable” Sri Lankan
refugees detained in special camps in Tamil Nadu in order to provide further insight
into the “special” camp regime and the conditions of their detention therein. Even
though the Indian State generally possesses sufficient discretionary power to deport
anyone considered as undesirable, even to impending torture awaiting them, it is
noteworthy that these “special” refugees often seem to remain unreturnable, perhaps
as a result of their managing somehow to approach the courts before their deportation and stave off that eventuality.
5.1. Special camps for special refugees
Spread across the state of Tamil Nadu in India, there are many “regular” refugee
camps in which Sri Lankan refugees are housed. According to the most recent official
data from 2015, there are presently 107 regular camps, containing 64,329 refugees
(see Table 1). However, alongside these regular camps for Sri Lankan refugees, there
51 Madras High Court, Premavathy @ Rajathi w/o Kamalanathan, presently interned at Special Camp for Sri
Lankan Refugees, Chengalpattu and Other v. State of Tamil Nadu, 2004 (2) CTC 10.
52 Madras High Court, State v. G. Karunairaj.
53 See generally PUCL, PUCL Report on the Conditions in the Special Camp for Refugees at Tipu Mahal,
Vellore, South Asian Refugee Watch, Vol. 3 and 4, 2001 and 2002, 96, available at: http://www.calterna
tives.org/resource/pdf/PUCL%20REPORT%20ON%20THE%20CONDITIONS%20IN%20THE
%20SPECIAL%20CAMP%20FOR%20REFUGEES%20AT%20TIPPU%20MAHAL,%20VELLORE.pdf
(last visited 3 Dec. 2016).
Refugee Survey Quarterly
137
are also a number of special camps that are used for interning comparatively small
numbers of suspected or alleged members of LTTE. These special camps were established for this purpose only following the assassination of Rajiv Gandhi in 1991.
Ironically, prior to that event, the term “special camps” in India actually denoted
those training camps for militants who enjoyed state support.54
Table 1. Refugee camp data from 2011–201555
Year
Total No.
of regular
camps
Total No.
of special
camps
Total No.
of refugees
in regular camps
Total No.
of refugees
in special camps
2011
2012
2013
2014
2015
112
110
110
107
107
2
2
3
2
2
68,107
67,244
65,748
64,996
64,329
45
42
47
59
15
The data supplied by the Department of Rehabilitation (Government of Tamil
Nadu) on the numbers of regular refugees is more or less credible since they were
cross-checked with various agencies and the regular camps are comparably accessible.
However, any enquiry into anything beyond the number of refugees or families in
the regular camps, or any visit to the camp, invites the attention of the Q-Branch of
Tamil Nadu Police, which de facto runs these camps.
Set up to “monitor the activities of left wing/Sri Lankan extremists and counter
them”,56 the Q-Branch of the Criminal Investigations Department is a feared and
somewhat opaque organization that operates under the intelligence wing of Tamil
Nadu police. Although the refugee camps are administered by the Revenue
Department and the Police Department is in charge only of security, the pervasive
control and authority that the Q-Branch exercise over these camps makes any enquiry practically impossible.57 According to many activists and refugees who spoke
to the authors on the condition of anonymity, Q-Branch officials assume the role of
prosecutors and judges in disputes between the inmates of the regular camps.
Inviting their wrath by any refugee would entail the victim’s transfer to the “special
camp”.58 The curious discretionary nature of the “special refugee” determination
54 A. Hans, “Sri Lankan Refugees in India”, Refuge, 13(3), 1993, 30, claiming that these militant training
camps, however, were closed down post Rajiv Gandhi assassination.
55 This table has been drafted by the authors on the basis of the data supplied by the Department of
Rehabilitation, Government of Tamilnadu.
56 Tamil Nadu Police, Policy Note for 2001 – 2002, 2002, available at: http://eservices.tnpolice.gov.in/
CCTNSNICSDC/pdfs/policynote/home_police_2001_2002.pdf (last visited 3 Dec. 2016).
57 See also R.K. Radhakrishnan, “Now Here and Nowhere”, Frontline, 28 Oct. 2015, 44–46 available at:
http://www.frontline.in/the-nation/now-here-and-nowhere/article7809563.ece (last visited 3 Dec.
2016).
58 Interview conducted by authors, regular camp refugees, Vellore, Oct. 2015. One refugee recollecting an
instance of threatening by a Q-Branch official to shift him to a special camp when he demanded a borrowed cigarette lighter back.
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which is subject to review neither by the judiciary nor any quasi-judicial body makes
it an efficient tool in the hands of the Q-Branch officials to intimidate, harass, and enforce discipline inside these camps.59
According to the statements of refugees and others whom the authors interviewed,
a refugee could find himself/herself upgraded to the status of a “special refugee” in two
ways: “pre-determination” or “post-determination”. The first takes place during the
preliminary scrutiny of all arriving refugees at the transit camp in Mandapam, a small
town in the protruding lip of Tamil Nadu closest to Sri Lanka.60 Any suspicion regarding an individual’s antecedents results in him/her being quarantined for a month in a
secure separate camp at Mandapam. If the individual remains unable to dispel doubts
during that period, he/she would be transferred to a “special camp”.61 This stage has
been described by more than three interviewed refugees to be a sort of lucky draw,
with considerable possibilities existing for an individual to be categorised as a “special
refugee” according to his/her inability to “pay the officers”, the number and visibility
of scars on their bodies (termed “war scars” by the police), and many other factors.62
The second way to become a “special refugee” – i.e. “post-determination” – takes
place at a later stage when a regular refugee is suspected by the Q-Branch officials of
being involved in a crime or holding a membership in LTTE. However, this category
includes many camp refugees who simply displease the Q-Branch officials in any one
of a myriad of ways determined by the needs of such officials. Such reports are made
vertically from a Q-Branch inspector and no review procedure exists before or after
the final order directing the confinement of the individual to the “special camp” is
issued by the “Public (SC) Department” (an intelligence and security organization
under the Government of Tamil Nadu). This renders the designation arbitrary and
devoid of any possibility of reversal. It is also worth noting that the actions of “Public
(SC) Department” remain beyond the purview of the Right to Information Act,
which makes it impossible to obtain any details as to the procedure or policy adopted
in such cases.63 However, it is clear that the order is normally succinct and devoid of
reasons.64 An analysis of most of these orders reveal that they are made against the
59 D. Matas, Sri Lankan Refugees: Tamil Nadu, 2015, available at: http://www.i-tran.ca/I-TRAN-%20FINAL
%20INDIA%20REPORT%202015.pdf (last visited 3 Dec. 2016), expressing a similar concern while
working as the part of a delegation set up by I-Tran (International Tamil Refugee Advocacy Network) to
conduct a study on the refugee camps in Tamil Nadu.
60 Interview conducted by authors, regular camp refugees, Madras, Oct. 2015.
61 Director of Rehabilitation, Information Handbook under RTI Act-2005, Chepauk, Department of
Rehabilitation, Government of Tamil Nadu, 2010, available at: http://www.tn.gov.in/rti/proactive/pub
lic/handbook_rehabilitation.pdf (last visited 3 Dec. 2016).
62 See A. Kumar Acharya, “Ethnic Conflict and Refugees in Sri Lanka”, Revista de antropologıa experimental,
7(9), 2007, 118.
63 Public (ESTT.I & LEG.) Department, Government of Tamil Nadu, G.O.MS.NO.1045, 14 Oct. 2005.
64 Public (SC) Department, Government of Tamil Nadu, G.O.NO.SR III/1890-3/2013, 13 Sep. 2013: “In
exercise of the powers conferred by Section 3(2)(3) of Foreigners Act, 1946 (Central Act 31 of 1946),
read with the Notification of the Government of India, Ministry of Home Affairs, No.4/3/56 (1) F-1 Dt.
19th April 1958 for regulating the continued presence of the foreigner, [. . .] who is a Sri Lankan
National, the Governor of Tamilnadu hereby orders that the said [. . .], shall reside in the Special Camp
for Sri Lankan immigrants/refugees identified and located by the Collector of Trichy District at Trichy. 2.
The said Sri Lankan Tamil [. . .] shall not leave the boundaries of the special camp for Sri Lankan immigrants / refugees identified and located by the Collector, Kancheepuram District at Chengalpattu except
with the permission of the Collector.”
Refugee Survey Quarterly
139
individuals at the point in time when the criminal cases filed against them are dismissed, quashed, or in some other way disposed of by the courts and the individuals
are released to freedom or on bail.
While the regular refugee camps permit conditional entry and exit for the refugees, the special camps are virtual prisons, their internal arrangements sometimes
surpassing the security inside regular prisons.65 Administered generally by the
Revenue Department with extraordinarily high-level security cover provided by the
Q-Branch, the special camps have been insulated from external inspections since
1999. In that year, an inspection of the then three camps was conducted by a factfinding team from the PUCL. The resulting report exposed the actual state of the
“internees” in these camps and revealed how their conditions are worse than that of
regular prisoners.66
What makes these institutions so intriguing is their curious taxonomical inaccuracy.
The term “special camp” is used by the State merely as a façade to conceal its actual
prison-like nature. The Government of Tamil Nadu has consistently adopted the
stance that the special camps are not prisons and the internees therein are not prisoners or convicts. However, both the PUCL Report and an earlier One Man
Commission of Enquiry (set up by the Government of Tamil Nadu to investigate the
escape of 43 inmates from the Vellore special camp) note the elaborate security measures, which include watch towers, multiple stages for entry, focus lights, and machine
gun posts. Both reports acknowledge the absolute restrictions placed on movement of
inmates in the camp. Two out of the three remaining special camps seem to epitomise
this pretence, since they are simply parts of Cheyyar and Trichy sub-jails.
The authors made attempts to secure permission to visit these “camps” and had a
taste of the dilatory and forbidding tactics of the Q-Branch, which swiftly ensured
obstacles and delays at every levels of clearance rendering the whole effort useless.67
During a personal interview with one of the senior officers of Q-Branch, the evasive
reply to a question regarding the treatment of refugees inside the special camps was
that every right available to the regular prisoners was available to the special refugees
too. He refused to answer a question whether this meant that “special refugees” were
treated as prisoners. On being asked about the possibility of permitting the authors
to visit a special camp, the visibly irked officer claimed incredibly that “camps were
managed by the camp commanders” and he “had neither any power over them nor
any information about the camps”.68
A visit to the former camp at Vellore,69 which became infamous for the escape of
43 of its inmates in August 1995,70 revealed the elaborately secure and fortified nature of the special camps. The building was an actual fort dating back to 16th century
65 PUCL, PUCL Report on the Conditions in the Special Camp for Refugees, 96.
66 See generally ibid., 96–100.
67 Similar experiences are shared by many others including senior journalists. See Radhakrishnan, “Now
Here and Nowhere”.
68 Interview conducted by authors, Q-Branch Official, Madras, Nov. 2015.
69 Visit made by authors, Vellore Fort, Vellore (Tamil Nadu), Sep. 2015.
70 N. Subramanian, “Shocking Lapses”, India Today, 15 Sep. 1995 at available at: http://indiatoday.intoday.
in/story/tamil-nadu-govt-comes-under-fire-as-43-alleged-ltte-militants-escape/1/289372.html (last visited
3 Dec. 2016).
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with a moat surrounding it. There were dilapidated remains from its glory days as a
special camp, including the remnants of a tall all-electric metal wall inside, high watch
towers with gun emplacements, barbed wire fencing on top of the walls, and small
cells with metal barred doors. There was nothing to give an impression that it was
not a prison.71
5.2. Location and population of special camps
In 1992, the five special camps set up in Madras, Podukottai, Vellore, Chengalpttu,
and Salem together contained about 1,629 refugees. By 1998, the population of the
three remaining camps at Vellore, Chengalapttu, and Melur reportedly rose to 4,204
individuals.72
Since the authors’ research was concerned with details of the special camp refugees subsequent to the conclusion of war with LTTE in 2009, efforts were made to
obtain only official population statistics from 2009 to 2015. The Commissionerate of
Rehabilitation and Welfare of Non-resident Tamils (Government of Tamil Nadu),
which is in charge of the welfare of Sri Lankan refugees, collects and computes the
details of registered camp refugees in Tamil Nadu. However, this data is generally
supplied to it by the Revenue Department, which is officially in charge of the administration of the camps. With respect to the special refugee camps, however, the camp
population statistics are supplied by the Q-Branch to the Revenue Department which
in turn hands them over to the Commissionerate.
What is of significance here is the subjectivity of the data supplied by QBranch, as there exists no mechanism for verification. Even the official versions
vary from one document to the other. With respect to the special camp population for 2009, while the Q-Branch supplied data reproduced in Commissionarite
of Rehabilitation’s statistics referred to 53 persons,73 the Home, Prohibition, and
Excise Department of Tamil Nadu Police claimed the number of detainees to be
104 for the same year.74
Table 2 describes the camp population of special refugees from 2011 to 2015 according to official data supplied by Q-Branch. The authors are uncertain as to the
credibility of the data due to their lack of consistency with the testimony of former
inmates, their lawyers, and relevant organizations. Whereas these sources claimed the
latest estimate of the camp population to be around 54 persons, official sourced
claimed the figure was restricted to merely 15 persons.
71 Similar observations were made by the one man commission of enquiry which investigated the escape of
the inmates. See references to the one man commission of enquiry in PUCL, PUCL Report on the
Conditions in the Special Camps, 94.
72 Sri Lanka Project, Sri Lankan Refugees in the Indian State of Tamil Nadu, London, Refugee Council, 1999,
available at: http://repository.forcedmigration.org/pdf/?pid¼fmo:1940 (last visited 3 Dec. 2016).
73 Commissionarite of Rehabilitation & Welfare of Non-Resident Tamils, Population of Sri Lankan Tamil
Refugees in Camps in the State as on 01st October 2015, 2015.
74 Home, Prohibition & Exice Department – Tamil Nadu Police, Policy Note: 2009 – 2010, 2010, 7, available
at:
http://eservices.tnpolice.gov.in/CCTNSNICSDC/pdfs/policynote/home_police_2009_2010.pdf
(last visited 3 Dec. 2016).
Refugee Survey Quarterly
141
Table 2. Details of special camps between 2011 and 201575
Year
Districts
2011
Kancheepuram
Thiruvallur
Kancheepuram
Thiruvallur
Kancheepuram
Thiruvallur
Thiruchirapalli
Tiruvannamalai
Thiruchirapalli
Tiruvannamalai
Thiruchirapalli
Tiruvannamalai
Thiruchirapalli
2012
2013
2014
2015
2016
Camps and Code
Chengalpattu [SC1]
Ponnamallee [SC2]
Chengalpattu [SC1]
Ponnamallee [SC2]
Chengalpattu [SC1]
Ponnamallee [SC2]
Trichy [SC3]
Cheyyar [SC1]
Trichy [SC3]
Cheyyar [SC1]
Trichy [SC3]
Cheyyar [SC1]
Trichy [SC3]
Population
Total
41
4
35
7
32
8
7
27
32
2
13
4
9
45
42
47
59
15
13
The authors were also informed by various refugees of the presence of a special
camp inside the Mandapam campus with adult female interns and children.76 On further investigation the identities of these individuals were able to be verified. Remeka,
Udhyakala (physically handicapped), their husbands Thayaparaj and Suthakaran
with their five children had arrived by boat on 5 May 2014 from Sri Lanka. The Qbranch of Tamil Nadu police arrested them and charged with offences under the
Foreigners Act for illegal entry into the country. When they secured bail during the
proceedings, orders for their continued internment in special camps were issued.77
The two men were transferred to the special camps at Cheyyar and the women and
children were sent to the special camp inside the Mandapam facility where they were
detained. After a prolonged detention, they were finally released in March 2016
when they resorted to a protest by fasting for almost a week.78 This special facility or
the population interned in it, however, fails to be acknowledged in any of the data
issued by Government of Tamil Nadu.
5.3. Treatment of internees in special camps
According to some of the released inmates and advocates specialising on refugee
issues interviewed by the authors, it is almost impossible to secure permission to visit
the special camps in order to meet with internees.79 Even their lawyers and family
members are denied permission to meet or interact with the internees, with the
75 This table was drafted by the authors on the basis of the data supplied by the Department of
Rehabilitation of the Government of Tamilnadu.
76 Interview conducted by authors, former special camp refugee, Madras, Jan. 2016.
77 Public (SC) Department, Government of Tamil Nadu, G.O.NO.SR III/1120-1/2014, 30 Jun. 2014.
78 S. Vijay Kumar, “Sri Lankan Tamil Refugee’s Family Released”, The Hindu, 23. Mar. 2016, available at:
http://www.thehindu.com/news/national/tamil-nadu/refugees-family-released/article8386979.ece (last
visited 3 Dec. 2016).
79 Interview conducted by authors, advocate representing special camp refugee, Madras, Nov. 2015.
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Sreekumar Panicker Kodiyath and Sheethal Padathu Veettil | Invisible People
lawyers mostly communicating with their clients when they are produced in court
during hearings. Former internees and their lawyers also claimed a lack of medical
facilities in these camps,80 despite their claims that most internees were in a state
requiring medical attention or in the advanced stages of disability.81 Moreover,
charge sheets are frequently filed with substantial delays, or sometimes never filed at
all, for the people arrested and moved to these camps, which results in their incarceration in the camps for periods much longer than would be allowed by law as punishment for the offences with which they were charged.
Instances of internees resorting to indefinite fasts and attempting suicide are rife.
Often, the ones protesting are treated with utmost hostility by the administration,
which brands them as agitators and even directs them to be forcibly deported. The
case of Chenturan, a Sri Lankan national, is but one example.
Chenturan registered as a refugee after reaching Tamil Nadu with his wife
Mangayarkarasy in April 2011 and was allotted a place at a regular refugee camp in
Sivaganga District of Tamil Nadu. On 19 July 2011, under dubious grounds not yet
disclosed, an order of confinement was made against him under Section 3(2)(e) of
the Foreigners Act and he was lodged in the special camp at Chengalpattu.82
Upon protesting against his groundless confinement for almost a year, on 4
August 2012 he was directed to be moved from this camp to another special camp
on the allegation that he had “instigated the inmates [sic] and created problems”. 83
When he refused to let himself be transferred and fasted in protest for about 24 days,
he was arrested and sent to the central prison at Puzhal on 31 August 2012. After
about four or five instances of indefinite fasts in protest, consequent hospitalisation,
and return to the Puzhal prison, he was moved back to a special camp on 31
October 2012 in a deteriorated state of health. Finally, he was released after a week
into the regular refugee camp on 7 November 2012.
However, this did not stop the administration and the police from continuing to
harass him. In course of the next year, the Government of Tamil Nadu applied for
and obtained the permission to deport this registered refugee back to Sri Lanka and
received the approval for the same from Ministry of Home Affairs on 24 June
2013.84 Based on this determination, on 3 July 2013, the Public (Foreigners.II)
Department of the Government of Tamil Nadu ordered the deportation of
Chenthuran. The reasons were as follows:
[He] is instigating inmates of the special camps to [. . .] to agitate against the
State [. . .] and create Law and Order [sic] problems to disturb the peace and
80 Ibid.
81 See S. Balamugugan, “Letter Regarding Release of 7 Sri Lankan Tamils from Special Camp”, PUCL
Bulletin, XXXII(10), 2012, 1–20, available at: http://www.pucl.org/bulletins/2012/PUCLoct12.pdf (last
visited 3 Dec. 2016).
82 Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR III/1388-1/2011, 18 Jul. 2011.
83 Public (SC) Department, Government of Tamil Nadu, G.O.NO. SR.III/1541-3/2011, 2 Aug. 2012.
84 Public (SC) Department, Government of Tamil Nadu, G.O.NO. Letter No. 25019/15/2013-F.VII, 24 Jun.
2013.
Refugee Survey Quarterly
143
public tranquillity and internal security of the State [. . .] indulges in spreading
false information [. . .] criticizes the central and state administration [. . .]
activities are prejudicial to peace and public tranquillity[. . .]”85
The said order also noted that “Chenthuran is not wanted in any main case in Tamil
Nadu and therefore from that angle his continued presence is not required in the
State [. . .]”,86 which questions the very rationale for his detention in the special
camp in the first place.
Subsequently, he approached the Madras High Court to challenge the deportation order and secured the permission to make representations to the
Government. While a decision on the said representation was pending, the QBrach secured a petty complaint (allegedly fabricated by the police) from a
woman against him and arrested him once again on 27 February 2014. When he
secured a bail in that case, he was again taken into custody and moved to the special camp in Chengalpattu. When he began another protest by fasting at the special camp, he was arrested for attempting to commit suicide and moved to
Vellore prison. Finally, recent reports affirm the continuation of such discriminatory practices in these facilities.87 For instance, K. Thayaparaj, one of the detainees at the Tiruchi special camp threatened to commit suicide protesting
against his indefinite detention in June 2016.88
Attempts to conceal the true nature of these facilities as detention centres also
extends to the feeding of detainees. Instead of being supplied food as per the
norm inside regular prisons, these detainees are provided with a daily allowance
similar to refugees in regular camps who enjoy freedom of movement during daytime. But the restriction on movement of detainees in special camps means that
they have to depend on an “attender” to purchase food and groceries. Most detainees complain that they remain at the mercy of this attender, who cannot be
questioned on the cost of purchases made for them.89 A recently released English
translation of a book on the plight of the inmates of special camps by a former
special camp detainee, Tholar Balan, gives a disturbing account of these
conditions of incarceration since the establishment of the special camps in the
early 1990s.90
85 Public (SC) Department, Government of Tamil Nadu, G.O.NO. (Ms) No. 642, 3 Jul. 2013.
86 Ibid.
87 K.K. Shahina, “The Castaways: The Life of Sri Lankan Refugees”, Open, 16 Sep. 2016, available at:
http://www.openthemagazine.com/article/dispatch/the-castaways-the-life-of-sri-lankan-refugees (last visited 3 Dec. 2016).
88 S. Vijay Kumar, “Sri Lankan Refugee in Tiruchi Threatens Suicide”, The Hindu, 18 Jun. 2016, available at:
http://www.thehindu.com/news/cities/chennai/Sri-Lankan-refugee-in-Tiruchi-threatens-suicide/
article14429370.ece (last visited 3 Dec. 2016).
89 Shahina, “The Castaways”.
90 T. Balan, Concentration Camps of Tamilnadu: The So-called Special Camps, Dr. M.S.Thambirajah, tr,
Tholar Press, 2016.
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Sreekumar Panicker Kodiyath and Sheethal Padathu Veettil | Invisible People
Overall, in the Indian context, refugees (or any foreign national for that matter)
suspected of criminality are thus “undesirable but returnable unless the courts intervene”. However, even when the courts are approached, they are rarely inclined to
intervene and any halt to deportation ordered by the courts is usually only temporary
in nature. Thus, in a recent order on a Habeas Corpus Petition filed by the wife of
Thayaparaj (whose case was discussed in Section 5.2 and above), the Madras High
Court directed him to be shifted from the special camp to a house outside the camp
so that he could reunite with his family, pending deportation by the State.91 Hasty
deportations continue to occur in cases where the deportees do not get sufficient
time to access courts.92
For the relatively small number of Sri Lankan refugees deemed “undesirable” by
the Indian Government due to their suspected LTTE membership who have been
able to resist deportation, the foregoing analysis reveals a deep-rooted lack of clarity
on the part of both the executive and the judiciary with respect to their situation. In
essence, while the State persists in affirming its unfettered authority over foreign nationals, the judiciary is torn between the need for deference to State’s authority in
this area and the imperative of ensuring humane treatment of this small number of
Sri Lankan refugees suspected of LTTE links. In general, these “undesirable but
unreturnable” individuals are detained indefinitely in challenging conditions due to
the legal limbo in which they find themselves.
6. CONCLUSION
With a many-headed judiciary, an indolent legislature, and a manifestly corrupt policing system, the status and treatment of refugees accused of crimes remains highly
problematic in India. Moreover, the issue is not confined to the Sri Lankan refugees
in special camps who are the focus of this article; it equally affects the hundreds of
Rohingya refugees who remain incarcerated in various jails of India,93 Nepali migrants who are deported overnight,94 Burmese student activists ordered to be deported,95 and so on.
There is nothing wrong in making the Indian laws applicable to the refugees. But
it is the way that the law is enforced that puts the refugees in a thoroughly underprivileged state, with the state law bestowing no privileges upon them while the State itself remains in a privileged position over them. Specifically, Indian practice
demonstrates how, without closing the borders and being branded as a self-centred
nation, a State can still easily make refugees leave of their own will. Special Camp
91 Madras High Court, T. Udhayakala v. District Collector, Trichy and Ors, 2016 HCP(MD) No. 815.
92 A suspected member of LTTE was deported on 9 Sep. 2016 by the police in the state of Maharashtra
after he was picked up from the airport on the first day of the same month. Although it is not clear if he
had claimed refugee status, he had been staying in India since 2015. See A. Shaikh, “Sri Lanka National
with LTTE Links Deported”, The Times of India, 10 Sep. 2016, available at: http://timesofindia.india
times.com/city/pune/Sri-Lanka-national-with-LTTE-links-deported/articleshow/54259704.cms (last visited 3 Dec. 2016).
93 See generally Ali, “An Uncertain Refuge”.
94 See generally People’s Union for Democratic Rights (PUDR), “Quit India”: Ban, Deportation Rights of
Nepali People, New Delhi, PUDR, 2002, available at: http://www.pudr.org/?q¼content/%E2%80
%98quit-india%E2%80%99-ban-deportation-rights-nepali-people (last visited 3 Dec. 2016).
95 High Court of Calcutta, Ba Aung and Anr. v. Union of India and Ors, 2006 W.P. No. 9504.
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refugees do not even demand rights under the magnanimous international refugee
laws. They simply demand some legal- or policy-level certainty as to their status and
rights.
Given the sensitivity of the issue and the favourable changes taking place in Sri
Lanka, there exists the possibility that the special camps for Sri Lankan refugees may
eventually be closed down, although it is uncertain as to how long this could take.
However, as long as the legal and policy environment that nurtures such institutions
remains, nationals from one or the other country that produces refugees risk finding
themselves locked inside some new camp created by the State. India has found convenience in an arrangement in which it can enjoy praise for receiving refugees, even
when the same is specifically done to facilitate its diplomatic, geopolitical, and regional interests, while at the same time maintaining a tight control of the different
categories and profiles of refugees within its borders.
One place to begin making changes would be by reforming the Foreigners Act.
What is disheartening is that, keeping in tune with post-11 September global trend,
India has instead further reinforced the draconian aspects of this Act, citing the need
to strengthen surveillance and security. An amendment to the Act made in 2004 purportedly for stopping cross-border infiltration that inter alia enhanced the punishment for violation of its provisions reveals the predisposition of the State in this
regard.96 The next step would be to legally acknowledge its obligations under international laws to refugees or any foreign person stepping onto its soil for that matter.
The current practice of procrastination, dilution, and effete implementation, which it
uses as a strategy to bypass its obligations under international human rights instruments, should be discontinued.
96 The Foreigners (Amendment) Act, 2004.