Rohingya Refugee Crisis: An Indian Legal Perspective

    In a recent petition, before the Hon’ble Supreme Court of India, Mohammed Salimullah, a Rohingya – had prayed for the release of the people from his community detained in Jammu and Kashmir and asked the court to issue a direction to the Centre not to deport them to Myanmar. He contended that they will be subjected to genocide if deported back to Myanmar. However, this petition was dismissed by the Apex Court. This is not the first time that such a petition is filed before the court[1].

    Earlier in 2018, a similar petition was filed in the court to restrain the deportation of the Rohingya Muslims detained in Assam. Then too, the court had dismissed the petition. Such petitions point towards some serious issues in the Indian policy to tackle with the refugee crisis.  It is important to understand the contentions that were raised in the case. Prashant Bhushan was the advocate representing the petitioners. He had submitted before the court that Article 14 and Article 21 of the Indian Constitution are available to all persons and not just citizens. He further contended that the non-refoulement policy is implied from Article 21 of the Constitution of India. However, the Apex Court ordered the deportation of the Rohingya Muslims under the Foreigners Act, 1946[2].

    The larger issue in the Indian context is that though India has been accepting refugees in the past as well, it has no legislation or any binding authority to deal with the situation of refugees. India is neither a signatory to the UN Convention of Status of Refugees nor has any domestic refugee law or a strict policy in this regard. This creates a legal lacuna in the entire process.

    Non-refoulement Policy And Scope Of Deportation

    Non-refoulement policy is one of the principles of the international refugee law that is concerned with asylum. This principle follows from the right to seek and enjoy in other countries from the persecution that refugees may face in their native country. This principle is set forth in Article 14 of the Universal Declaration of Human Rights and reflects the commitment of the international community to ensure the enjoyment of human rights, including the rights to life, to freedom from torture or cruelty, inhuman, or degrading treatment or punishment, and to liberty and security of person to all persons[3]. These rights coupled with other rights are threatened when a refugee is returned to persecution or danger. In the Rohingyan Muslims context, it is known that they were persecuted in Myanmar at the hands of the elected government as well. Now with the military coup taking over Myanmar, India saw yet another influx of people from Myanmar to Mizoram and Manipur because they fear that the army of Myanmar will kill them if they stay in Myanmar. Most of the new entrants are democratic activists.

    It is to be taken into consideration that according to the United Nations Convention on Status of Refugees, 1951 and the following 1967 protocol defines ‘refugees’ as “any person who is outside their country of origin and unable or unwilling to return owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.” But India does not recognize Rohingyas as refugees. The Centre has, on various occasions termed them as “illegal immigrants.”[4] The Hon’ble Solicitor General of India, Tushar Mehta has called Rohingyan Muslims illegal immigrants before the Hon’ble Supreme Court. Another instance of the use of the term “illegal immigrants” is while answering a question in Parliament on August 9, 2017, the then Minister of State for Home Affairs, Kiren Rijiju said the government was planning to deport Rohingyas from India because they are “illegal immigrants.”[5]

    The use of this term has been quite ambiguous. The Centre has been guilty of not taking a firm stance on the status of the Rohingya Muslims. On one hand, the Home Minister, Amit Shah has been seen campaigning to “weed out illegal immigrants” and on the other hand, in a recent visit to Bangladesh, Prime Minister Narendra Modi was seen expressing appreciation at the generosity of Bangladesh in providing humanitarian assistance to the 1.1 million Rohingya Muslims and sheltering them in Cox Bazar who were forcibly displaced from the Rakhine State of Myanmar. According to the joint statement which was released during the visit by both the leaders, the term “refugees” and not “illegal immigrants” was used for the Rohingya Muslims. Though officially, India in the domestic sphere, uses “displaced persons” to refer to the Rohingya Muslims in Bangladesh, but those in India are referred to as “illegal immigrants” which implies India’s conscious denial to recognize them as refugees and grant them adequate rights. This also points to the hypocrisy that India exhibits with regards to its stance in Rohingyas in India and Rohingyas in Bangladesh.

    India’s Liability Towards Rohingya Muslims

    As mentioned earlier, India does not have a strict refugee law or policy nor is it a signatory to the Refugee Convention of the United Nations. Thus, it becomes very convenient for the government to shift a “refugee” status to that of “illegal immigrants”. Even after the UNHCR had issued identity cards to over 15,000 Rohingya Muslims, it is easy for India to shift options. India has been denying its liability towards Rohingya Muslims. In the year 2017, India had reportedly deported as many as 40,000 Rohingya Muslims back in Myanmar who had fled to India due to well-founded fear of genocide in their native land. India cited that it is not a signatory to the Convention and the subsequent 1967 Protocol and hence is not bound by the non-refoulement policy. In a significant move, the budget for the year 2020 had reduced the budgetary allocation for Relief and Rehabilitation for migrants and repatriates by as much as three times than what it was before[6]. The 2020 budget has also significantly increased the budgetary outlay for Census 2021, emphasizing the focus on the National Population Register.

    However, this stand is misplaced because even if India is not a signatory to that convention, it is still bound as a signatory to other international treaties such as the International Covenant on Civil and Political Rights which implies the principle of the non-refoulement[7].

    https://legalreadings.com/miscarriage-bereavement-legal-position/

    But India has not been following the non-refoulement principle to its letter and spirit. The absence of any definition of refugee in the domestic law of the country has made Indian policy towards the refugees an arbitrary selection of granting asylum to the persecuted people. A renowned academic and legal expert on Indian refugee law and international law, B.S. Chimni[8] has termed the arbitrary Indian asylum policy as “strategic ambiguity.”  For instance, while Tibetan refugees were allowed to form an exile government in India, the Tamilians that came in during the Sri Lankan civil war were put in strict, heavily monitored camps and India is presently in the process of deporting thousands of Rohingya Muslims originally from Myanmar.

    Impact Of Citizenship Amendment Act On Rohingyas

    The Citizenship Amendment Act that was passed in December 2019 is presented by the Home Minister of India, Amit Shah as a refugee policy. However, it is far from true. The amendment to the Citizenship Act fails to include Muslims, implying the exclusion of the Rohingya refugees. The newly enacted Citizenship Amendment Act quickens the citizenship process of some of the persecuted minorities from Afghanistan, Bangladesh, and Pakistan[9]. It states that whosoever entered India before 31st December, 2014 and belongs to one of the six religious communities, namely, Hindu, Sikh, Buddhist, Jain, Parsi, or Christian Community, will be granted citizenship in six years as opposed to the general requirement of 11 years in the Act.

    The exclusion of the Rohingya Muslims from this procedure was explicitly affirmed by the Home Affairs Ministry of India. Dr. Jitendra Singh, the Union Minister of State in the Prime Minister’s Office had expressed in a statement that the Union Government was ‘considering ways’ for the deportation of the Rohingya Muslims. He further added that this step is being considered by the government because the Citizenship Amendment Act does not grant citizenship to the Muslim persecuted minorities or the Muslim asylum-seekers. As a result of this amendment, the deportation of the Rohingya Muslims to Myanmar is reaffirmed[10]. He further stated that the amendment is applicable in the Union Territory of Jammu and Kashmir which holds a significant number of the Rohingya population. 

    Hence, even when new laws or amendments to laws are brought forth by the Indian government and advertised as “refugee policies”, they fail to be comprehensive in nature and exclude a serious refugee crisis at hand. 

    Conclusion

    It is apparent that India needs a strong legal framework for the handling of the refugee crisis that it has been seeing regularly. Without a concrete legal framework, it is not only spoiling its own image in an international sphere which can be detrimental to its diplomatic endeavours but is also ignoring significant and basic human rights of the persecuted minorities who have no option but to come to India and seek asylum. Further, a legal framework in this regard will also reduce the scope of arbitrary shifting of “refugees” to the status of “illegal immigrants”. All in all, a domestic refugee policy for India is a need of the hour to tackle significant issues that it faces regularly.

    Endnotes:

    [1] Express News Service, “SC rejects petition against any move to deport Rohingya detained in Jammu”, Indian Express, April 9, 2021.

    [2] Id.

    [3] UNHCR Note on the Principle of Non-Refoulement, available at, https://www.refworld.org/docid/438c6d972.html (last visited on April 11, 2021).

    [4] Nirupama Subramanian, “Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with circumstances”, Indian Express, April 13, 2021.

    [5] Examining India’s stance on the Rohingya crisis, available at, https://www.orfonline.org/research/examining-indias-stance-on-the-rohingya-crisis/ (last visited on April 8, 2021).

    [6] India’s Refugee Policy: From Strategic Ambiguity to Exclusion, available at, https://thediplomat.com/2020/02/indian-refugee-policy-from-strategic-ambiguity-to-exclusion/ (last visited on April 9, 2021).

    [7] Nirupama Subramanian, “Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with circumstances”, Indian Express, April 13, 2021.

    [8] Id.

    [9] Rohingyas in India, available at, https://www.ohchr.org/Documents/Issues/Religion/Islamophobia-AntiMuslim/Civil%20Society%20or%20Individuals/RitumbraM1.pdf (last visited on April 9, 2021).

    [10] Id.


    BY PRIYANSHI BHAGARIA | Dr. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

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