With the Rohingya refugee influx, India faces a litmus test on its commitment to international law in its domestic refugee policy implementation.
As India aggressively positions itself in a new global order, expecting a seat at the table in places of influence, like permanent membership of the UN Security Council, it must be cautioned that this prominence brings with it, increased international moral and political obligations. India has recently gained spotlight, in the midst of an international outcry on the brutal crackdown by the Myanmar armed forces, on the Rohingya, a largely Muslim ethnic minority group, in Western Rakhine province of Myanmar. The Indian government issued a circular in early August, directing all state governments to identify and take steps to expeditiously deport illegal immigrants such as the Rohingya. The announcement came at a time when the violence in Myanmar was only deepening, with tragic stories of widespread human suffering. This decision reflected a deeper malaise, pointing towards a governmental aversion in receiving these suffering Rohingya refugees – a striking contrast to India’s benevolent tradition of being a host state for centuries, to persecuted refugee populations from war torn neighbouring countries and beyond. With the Rohingya refugee influx, India faces a litmus test on its commitment to International law in its domestic refugee policy implementation.
The Rohingya have fled to neighbouring countries in waves over the past many years, escaping what has been described as “ethnic cleansing” at the hands of the armed forces. Successive special rapporteurs have reported patterns of serious human rights violations of the rights to life, liberty and security of the Rohingya, by the state security forces and other officials. Denied citizenship, Rohingya are stateless and excluded from positions of authority, facing restrictions in movement, education, marriage, occupation and religious freedoms, at the mercy of an ultra nationalist Buddhist government. The systematic human rights violations and lack of opportunities have triggered irregular migration flows of Rohingya from Rakhine state to neighbouring countries, including India, where an estimated 40,000 refugees currently reside, in make shift refugee camps.
Two Rohingya refugees in India moved the Indian Supreme Court seeking refugee protection for the Rohingyas settled in India. They replied on several landmark cases where the courts have upheld the rights of refugees against deportation in like circumstances, holding that, “the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise”. In reply to this petition, the government says that Rohingyas are illegal immigrants and enjoy no fundamental rights under the constitution and that the court has no authority to entertain a petition on their behalf. However, the Indian constitution guarantees certain fundamental rights to all persons residing in the country irrespective of nationality. These rights to equality and the right to life, protect the Rohingya refugees in India from arbitrary deportation, since they have fled their home country due to untold violence and bloodshed. Further the constitution of India under Article 51(c), a Directive Principle of State Policy also requires fostering respect for international law and treaty obligations.
Though India has not signed the Refugee Convention it has ratified and is a signatory to various international declarations and conventions that recognise the principle of non refoulement, that prohibits the deportation of refugees to a country where they face a fear of persecution. Recognised as a principle of customary international law its application protects life and liberty of a human being irrespective of nationality. The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation and would hence apply squarely to the deportation that is being proposed by the Indian government. Despite these constitutional and international obligations, the governments threat to identify and deport the Rohingya refugees is untenable and deeply disconcerting.
Also read: Modi Government Affidavit on Rohingya Refugees Reverses India’s Long-Held Stand on Non-Refoulement
India’s refugee protection guidelines from 2011 stipulates the standard operating procedure for issuing long term visas to those refugees who are fleeing persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion. The government in response to questions on refugee policy has reiterated this stand in statements made in the house of parliament, as the procedure for dealing with refugees fleeing persecution. This has been India’s stand in granting special status to refugees as distinct from its treatment of illegal immigrants. India has a strong track record of hosting refugees of different profiles and has the experience in extending humanitarian protection while balancing national security interests and the concerns of its citizens. In 2014 however, the BJP government led by Narendra Modi came to power in India. Since then the BJP and various organisations associated with it loosely called the Sangh Parivar, started asserting that India must be a Hindu state and began a strident campaign against Muslims in particular. In keeping with its anti-muslim stance, the present government issued a notification in 2015, providing an exemption to minority communities without valid travel documents, from neighbouring Pakistan and Bangladesh, from the provision of the Passport (entry into India) Rules 1950 and the Foreigners Order 1948. The absence of the Muslim community from the list of those communities exempted by this notification is conspicuous. Such a biased and discriminatory stand would close the door to the Rohingya who are largely a Muslim minority community even though they may be regarded as the worlds most persecuted ethnic minority.
Instead of choosing to fulfil its international humanitarian obligations, the Hindu fundamentalist political establishment has chosen to play to its base by vilifying this persecuted community, reinforcing their Muslim identity and with a broad stroke and little evidence painting them all terrorists and a threat to national security? Can they be ejected arbitrarily from the country, for being Muslim, with total disregard for the life threatening persecution they have fled, undertaking arduous journeys, losing family members on the way, malnourished, widowed, orphaned and destitute? Yet the government stresses a potential threat from this community when there is no evidence to show any sign of radicalisation or terror links. An orchestrated social media campaign led by the ring wing organisations is creating a communally charged rhetoric to exclude the Rohingya from refugee protection measures in India. Simultaneously the government is translating this false narrative into incoherent arguments and seeks to expel the Rohingya refugees on trumped up charges of terrorism.
In all this, it is interesting to note the striking dichotomy in India’s stand vis a vis refugee protection at international platforms especially at the United Nations and India’s domestic policy implementation. As a member of the Executive Committee of the UNHCR since 1995, India has reiterated its commitment to work with the UNHCR and the international community to address the international protection challenges of refugees. Indian ambassadors have made forceful submissions at general debates of the UNHCR Executive Committee, on “India’s assimilative civilisational heritage and inherent capabilities as a state with a good record of non refoulement, hosting and assimilating refugees”. India has a tradition of welcoming refugees and migrants from conflict countries, by extending a cooperative engagement. Indian representatives have even stressed India’s commitment to host refugees entirely using existing resources.
The Rohingya refugees being largely Muslim, fleeing a genocide like situation at the hands of a Buddhist majoritarian regime, taking refuge in India since 2011-2012, receive no acceptance from a right wing fundamentalist government. The present governments policy towards these refugees has been to whip up a communal frenzy by branding the Rohingya as Muslim refugees who pose a threat to law and order and national security. Whether the governments stated policy aims at refoulement of the Rohingya refugees in actual practice, is still uncertain. What is certain is the governments domestic political agenda of communal polarisation for political gains. A sad retreat for a country with a golden tradition of refugee and migrant protection, blown away for political vantage.
Prashant Bhushan is senior public interest advocate at the Supreme Court of India. Cheryl D’souza is an advocate and they are the Counsels for the petitioners in the case against the government of India’s proposed deportation of Rohingya Refugees.