The Supreme Court recently directed the Centre to take a decision on the repatriation of Sonia Sebastian @Ayisha, a woman from Kerala who allegedly left India to be a part of the Islamic State in Khorasan, Afghanistan. While some countries have undertaken the process of repatriating and prosecuting their nationals facing similar allegation, Indian authorities have been unable to arrive at a consensus on the matter. The challenge of balancing national security against human rights and humanitarian concerns is one which has to be faced, writes GAURI ANAND.
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IN August 2021, VJ Sebastian Francis, a 65-year old from Kochi, Kerala, moved the Supreme Court for the extradition of his daughter, Sonia Sebastian @Ayisha and her seven year-old daughter, who had been detained in Kabul’s Pul-e-Charkhi prison.
The petition states that, “subsequent to the withdrawal of the American Forces there may be violent face-off and war between Islamic Government and Taliban. Hence there is an imminent threat to the life of the detenues, or that they may be put to trial in Afghanistan and executed there itself.” Francis has alleged that India’s failure so far to extradite them to India is a violation of the fundamental rights of Ayisha and her daughter.
Ayisha, 32, was among 600 Islamic State (IS) fighters and affiliates, who surrendered to Afghan authorities in November 2019. According to a 2017 National Investigation Agency (NIA) chargesheet, she left India in May 2016 with her husband Abdul Rashid Abdulla, to join the Islamic State in Khorasan Province (ISKP), and crossed into Afghanistan by foot through Iran. Allegedly, in 2015, they had been conducting secret classes in support of the IS and jihad in Padanna and Kasargod in Kerala.
Also read: SC dismisses NIA appeal against bail granted to man accused of being an ISIS recruit
Francis’ petition was disposed of on January 3 by a Supreme Court bench of Justices L.Nageswara Rao B.R. Gavai in early January, and the Centre has been directed to take a decision on the extradition request within a period of eight weeks. If aggrieved by the decision of the Centre, the petitioner has been granted liberty to approach the concerned High Court.
States are often reluctant to repatriate these individuals for a number of reasons including a lack of a legal framework adequate for such circumstances, difficulty in evidence collection and prosecution, and the risk of continued extremist involvement after acquittal or release of such persons.
Francis’ petition raised substantial questions of law that remain open, given the Supreme Court’s disposal of the matter. The first is whether the non-extension of consular assistance and diplomatic protection to the detenu constitutes a violation of the fundamental rights guaranteed under Part III of the Indian Constitution as well as various obligations under the Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations, 1963. The second is whether the act of deprivation of extradition as a counter-terrorism method is violative of Part III of the Constitution, especially Article 21. And the third is whether the State is bound to exercise its parens patriae jurisdiction by seeking extradition of Ayisha’s daughter, especially when the child should be seen as a victim of wrongful actions of negligent parents.
Foreign Terrorist Fighters
Resolution 2178 of the UN Security Council describes foreign terrorist fighters as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.” Partners and children who accompany such individuals fall within the categorisation ‘foreign fighters and their families’.
States are often reluctant to repatriate these individuals for a number of reasons including a lack of a legal framework adequate for such circumstances, difficulty in evidence collection and prosecution, and the risk of continued extremist involvement after acquittal or release of such persons.
India’s Unlawful Activities (Prevention) Act, 1967 gives effect to numerous UN Security Council resolutions on terrorism. Section 188 of the Indian Penal Code, 1860, provides for the investigation of crimes committed by Indian citizens while overseas. Many individuals have returned to India after fighting for ISIS and have been arrested by the NIA and charged under Indian law.
Challenges of repatriation
Ayisha is not alone in this situation. Three other women who surrendered at the same time as her, Reffeala, Merrin Jacob @Mariyam and Nimisha @Fathima Isa, also face a similar dilemma. Mariyam and Fathima Isa converted with their husbands after they were married to brothers, Bestin and Bexon Vincent. Their husbands have since been killed in Afghanistan.
StratNews Global released a documentary on Indian women who had left the country to join ISKP between 2016 and 2018, and were now widowed. According to the strategic affairs website, of the 60 individuals who arrived in batches during that time, 24 had been killed, and 10 women and 21 children surrendered to Afghan forces in November 2019.
Also read: On the legal recognition of the new Taliban government in Afghanistan within international order
In her interview, Ayisha describes her motivation for going to Afghanistan as the desire to live an Islamic life. She goes on to say she largely remained home with her daughter, and they were not involved in or exposed to any of the brutality. Her husband was killed in Afghanistan and she now wishes to cut herself off from everything that has happened and from the Islamic State, and return to India to be near her husband’s family. She does not, however, express regret for her actions, and reiterates that she would have followed her husband anywhere.
Merar states that it is the duty of the State to separate children from their FTF parents to protect them from radicalisation.
Fathima Isa, in her interview, states that she cannot admit that what she did was completely wrong, given the comfortable life she had been leading in Afghanistan. She says, “..at the same time, I cannot say that when there was a Khilafat, we shouldn’t do hijrat.” Hijrat is an Arabic word, derived from ‘hijr’, which means ‘to depart’, ‘to shift’, or ‘abandonment’. It is often used in Islam to describe the act of giving up one’s land for the sake of faith and Allah. She maintained she was happy in Khorasan, before she was forced to flee with her three year old daughter, and said she would be open to going back to India only if she was not ‘imprisoned and oppressed’. As to the death of some of her women companions and how she felt about the fate of other women under the Khilafat, she said, “one day, we all will die definitely.” Through the course of the interview, she remained committed to the values with which she was associated and those that her daughter would be imparted with in Khorasan.
While speaking to The Leaflet, Advocate Renjith Merar, who represented Francis at the Supreme Court, said that it would be a violation of the fundamental rights of not just the women who have travelled to Afghanistan, but also the children who are in their custody, if India refuses to repatriate them, especially as there has been a unified effort since the Taliban took over, to transport these girls to neighbouring countries as sex slaves.
In his petition, Francis states that he is aggrieved by the violation of the fundamental rights of his daughter and grandchild under Articles 14, 19, and 21 of the Constitution. To this end, he argues that the failure of the State to take responsibility of its nationals is a violation of Article 21. He further states that his grandchild cannot be tried under Afghanistan’s laws and that her rehabilitation and reintegration into society would be in line with India’s obligations under the UN Convention on the Rights of the Child. He also claims in his petition that she must be treated as a victim of an armed conflict.
Merar is of the view that the primary concern for the Indian State must be security within its territory. Given that these individuals were recruited in India, extraditing, questioning, charging, and trying those who left to be a part of the Islamic State will provide valuable information necessary to tackle the problem domestically, at its root. The risk that these individuals might further radicalise others while in prison is one that the State must bear and prepare for, in order to collect valuable information. He explains, “The larger risk in these situations is people who continue to be part of the problem here at home. Kerala, for instance, does not give parole to persons who are a threat to the nation. Bring them back, question them, and identify other persons who are at risk. Ultimately, the root cause must eradicated.”
Children born to foreign terrorist fighters and their families may obtain Indian citizenship by descent under Section 3 of the Citizenship Act, 1955. Merar states that it is the duty of the State to separate these children from their parents to protect them from radicalisation.
In 2017, Interpol had issued a red notice for all Indians who had left to join the Islamic State. The notice was issued at the request of India, based on the assurance that extradition would be sought upon the arrests of such persons under applicable national laws or bilateral/multilateral treaties. The Afghanistan government had commenced talks with the home countries of those who surrendered, to facilitate their deportation. The women and their children were interviewed by Indian security agencies in Kabul in December 2019, but there was no consensus amongst the government agencies as to the question of their return. In March 2021, India and Afghanistan had also concluded an extradition treaty to formalise such procedures.
Since the fall of the Afghanistan government, and the take-over by the Taliban, many prisons and detainment centres have been demolished and the whereabouts of these individuals remain unknown. Merar reiterated that Francis is unaware of his daughter’s location, but unofficial sources suggest it is possible they are at a border between Pakistan and Afghanistan, where they may or may not have been detained once again.
Despite the fact that diplomatic relations between the Indian Government and the newly formed Islamic Emirate of Afghanistan appear to be good, the extradition treaty was entered into with the erstwhile government, complicating the matter further.
Despite the fact that diplomatic relations between the Indian Government and the newly formed Islamic Emirate of Afghanistan appear to be good, the extradition treaty was entered into with the erstwhile government, complicating the matter further.
The Citizenship Act, 1955
Under Section 8 of the Citizenship Act, if an Indian citizen of full age and capacity, makes a declaration renouncing his citizenship in the manner prescribed, the declaration shall be registered by the prescribed authority. Upon such registration, the person ceases to be an Indian citizen, and any minor child of that person shall also thereupon cease to be an Indian citizen.
Also read: ‘Operation Enduring Slavery’: Afghan women betrayed and shunned by UN, ICC
Section 9, on the other hand, discusses the power of the Central Government to deprive an individual of her citizenship. Under Section 9(b), the Central Government can, by an order, deprive an individual of her citizenship if she has shown herself by act or speech to be disloyal or disaffected towards the Constitution of India.
If the Centre decides to revoke the citizenship of an individual, it effectively renders her stateless, as Indians are not permitted to hold dual citizenship.
Decisions of other governments
Resolution 2396 of the UN Security Council instructs States to rehabilitate and reintegrate foreign terrorist fighters and their families. In pursuance of the same, and based on their obligations under the Convention of the Rights of the Child (to which India is a signatory), States like France, Germany, Denmark, Sweden, Austria, and the Netherlands have repatriated children of foreign terrorist fighters.. The United States, for its part, has been repatriating Americans of all ages to face prosecution under American law. Russia and Central Asian States, too, have been repatriating hundreds of their nationals.
The women and their children were interviewed by Indian security agencies in Kabul in December 2019, but there was no consensus amongst the government agencies as to the question of their return.
Shamima Begum, a woman who left the United Kingdom at the age of 15 in 2015 to become an ISIS bride, and attempted to return to the United Kingdom in 2019, was stripped of her citizenship on national security grounds. This decision was upheld by the UK Supreme Court. France, too, has been denying requests by ISIS brides, regarding their repatriation.
Balancing risk and humanitarian obligations
Human rights and humanitarian considerations overwhelmingly indicate the need for individuals, especially families of foreign fighters suspected of being associated with terror outfits, to be repatriated. At the same time, if India chooses to repatriate/offer amnesty to returning foreign fighters accused of terrorism or their families, it takes upon itself the risk of these individuals playing a role in radicalisation within its territory. It will have to choose between counter-terrorism related repercussions, and the possibility that these individuals may be rehabilitated so as to enable them to rejoin the mainstream of the society. The country will also have to weigh these against the benefits of gaining information from such returnees to potentially address terrorist and recruitment cells within India.
As of November, there were 66 known Indian-origin fighters affiliated with the Islamic State. The Centre’s decision on Sonia Sebastian @Ayisha’s repatriation will play a crucial role in determining the future of other foreign fighters and their family members suspected or alleged to have abetted terrorism abroad, but who wish to return to India after being arrested or detained by foreign governments.
