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Refoulement, Rohingya and a Refugee Policy for India

India may continue to take cover under the fact that it is not a signatory to the 1951 Refugee Convention of the UN. But, at a time when it seeks to be a major global power, it cannot shy away from the humanitarian responsibility.

On March 31, 2021, the United Nations High Commissioner for Refugees (UNHCR) issued a statement calling all countries neighbouring Myanmar to offer refuge and protection to all those fleeing the country for their safety. This came in response to the escalation in violence towards protestors in Myanmar since the coup led by the Myanmar military overthrew the democratically elected government.

Since the coup, the country has been witnessing extreme violence and indiscriminate use of force against peaceful protestors, arbitrary arrests and enforced disappearances. Apart from this, the military government has also made different amendments to the country’s legal provisions which have been called out by various human rights agencies as being arbitrary and interfering with basic human rights each individual is guaranteed under international law.

India was quick to issue a statement expressing concern over the situation in Myanmar. With the socio-political situation worsening, as many as 700 persons have crossed over to India from Myanmar particularly into the state of Mizoram which shares its borders with Myanmar.

Representational image. A South Sudan refugee in Uganda. Photo: Reuters/James Akena.

In response to this anticipated influx, a Standard Operating Procedure (SOP) was compiled by the Mizoram government on “the facilitation of refugees and migrants from Myanmar”. This was followed by the Union home ministry issuing instructions to the four north-eastern states of Mizoram, Nagaland, Manipur and Arunachal Pradesh to “take appropriate action as per law” and “maintain a strict vigil at the border” to prevent an influx of people from Myanmar. In the same instructions, the states were also reminded that they didn’t have the authority to declare anyone as “refugees” as India is not a signatory to the 1951 Refugee Convention.

The state of Mizoram, however, expressed its concerns over this course of action and the chief minister of the state even went on to say that  “the people of his state, who share ethnic ties with the refugees from Chin communities, can’t remain indifferent to their plight” and that they “couldn’t ignore this humanitarian crisis”.

The reasoning behind Mizoram’s stance does not only lie in the ethnic ties between the Mizo and Chins traced back to the Indo-Chin hills but can also be justified under the international law principle of non-refoulement. The principle of non-refoulement prohibits any state from deporting an individual back to where they would face threat to their life or freedom.

Although laid down formally under the 1951 Refugee Convention, the principle today has been implicitly understood to be part of customary international law to be followed by states despite not signing or acceding to any convention or treaty.

Additionally, India is a signatory of the UN Convention Against Torture (UNCAT) which contains a clear provision against return or extradition of a person “to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Article 3).

The International Covenant on Civil and Political Rights (ICCPR), which India has ratified, also contains the provision on the “right to be free from torture or other cruel, inhuman or degrading treatment or punishment” (Article 7), which has been interpreted by the Human Rights Committee in its General Comment No.20 to include protection against refoulement. While international law stands clear on non-refoulement, Indian courts have also not shied away from interpreting non-refoulement to be very much part of Article 21 of the Indian Constitution (as reflected in the cases of Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) and Dongh Lian Kham v. Union of India(2015)).

Over the past few decades, numerous refugees from Myanmar have found respite within the borders of India, many of whom are registered with the UNHCR. Interestingly, in 1988 during the pro-democracy movement, India was more than welcoming to those fleeing into the country from then Burma, and even opened refugee camps for student activists in Mizoram and Manipur.

This does make one wonder why India has since taken such a strict stance when it comes to refugees from Myanmar, particularly now when the country is facing another major humanitarian crisis and those fleeing are of utmost need for protection.

Protesters run during a crackdown of anti-coup protests at Hlaing Township in Yangon, Myanmar March 17, 2021. Photo: Reuters/Stringer.

One of the reasons we could allude to is the lack of a refugee policy or law laid down in India. The legal status of any “foreigner” in the country is governed by two critical pieces of legislation, the Foreigners Act 1946 and Passports (Entry into India) Act 1920 and the rules issued subsequently under these acts.

Much of the litigation and advocacy work on the rights of refugees has been around creating an exception under these laws when it comes to arrest and detention and advocating for the protection of basic human rights of refugees under the constitution.

While much progress has been made, in courtrooms, the safety and security of a refugee in the country still remain precarious with no clear law and policy, leaving them to search for space to survive between judicial interpretation and ad-hoc policy changes.

Rohingya

At the centre of this are persons from the Rohingya community who have been described as the “most persecuted minority” by the United Nations given the atrocities faced by them in Myanmar. Early last year, in a landmark move, the International Court of Justice also ordered Myanmar to prevent genocidal acts against the Rohingya Muslims shedding light on the extreme situation faced by the stateless minority in the country.

While people from the Rohingya community have been fleeing Myanmar for a few years, the 2017 exodus was perhaps the biggest wave of displacement. Around the same time, in 2017, the ministry of home affairs issued an advisory to “identify”, “monitor” and “initiate deportation proceedings against all illegal immigrants from Rakhine state, also known as Rohingyas”.

The order has been challenged in the Supreme Court of India and was condemned by human rights organisations both within India and outside. While the adjudication on this matter remains pending, arrests and detention of Rohingya persons have continued leading up to the recent events of the past month.

Over the past month, multiple reports have surfaced of arrests and detention of close to 300 Rohingya persons across the country. At least 160 have been detained from Jammu where, following a biometric verification organised by the local administration, some Rohingya never returned to the camps and were later found to be incarcerated.

Meanwhile, arrests have also taken place in Delhi, even from outside the premises of the office of UNHCR in the capital.  In an urgent plea before the Supreme Court challenging the arrests in Jammu, the court, without staying the deportations per se, ordered that those who have been arrested should not be deported unless the procedure prescribed for such deportation is followed.

Over the years, while there have been successful attempts by human rights lawyers and the UNHCR to push for the release of refugees in detention, especially for those recognised by UNHCR, there have been some conflicting judgments from the courts in this regard. Additionally, when it comes to deportation, the challenge seems much harder, albeit it being in defiance of the principle of non-refoulement.

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People belonging to the Rohingya Muslim community sit outside their makeshift houses on the outskirts of Jammu May 5, 2017. Photo: Reuters/Mukesh Gupta/Files

Over the past month, whether it be the sealing of borders and strict vigil against those coming in from Myanmar or the arrests and detention of Rohingya living in the country, both events equally point towards the need for much more legal stability and predictability when it comes to the protection of those fleeing into the country fearing persecution.

Refugee policy

Perhaps best described in the words of refugee law expert, B.S. Chimini, India’s asylum and refugee policy is nothing short of a “strategic ambiguity”. It seems to be a policy which on the one hand embodies the principle of ‘Vasudeva Kutumbakam’ and welcomed Tibetan refugees and Tamil refugees from Sri Lanka, providing them with shelter and support but seems to be averse to the prospect of safety and security of those fleeing from other countries, like the Rohingya from Myanmar.

Chimini argues for clear legislation on refugees, pointing towards the need for a rights-based approach rather than a charity-based approach. Legislation, he argues, would allow the country to prevent refoulement and arbitrary detention of refugees. Additionally, a clear law with clear definitions of a ‘migrant’ and a ‘refugee’ will also help identify actual ‘illegal immigrants’, ensuring the security and safety of the country without breaching international law.

An unambiguous policy would also help establish a stronger relationship with the UNHCR in the country. Like many countries, India could take advantage of the expertise of the UNHCR with regards to Refugee Status Determination and collaboratively work on the socio-economic protection of refugees, thereby reducing the financial and administrative burden on the state’s exchequers. National law may also cover refugees from South Asia, who are currently outside the ambit of the UNHCR in India.

While the push for accession to the 1951 Refugee Convention is a critical ask in the eyes of International Refugee Law, it is without denial a very far ask. However, in the short term, the need is for clarity and due process – which is only possible with a clear refugee policy.

Arguments supporting the maintenance of the status quo for geopolitical or nationalistic reasons fall short in the face of the humanitarian crisis Myanmar faces today. When the world is grappling with a global pandemic that has only pushed the marginalised further into poverty, the humanitarian agenda is the only agenda that secures a seat at the table.   

Devika Nair is the founder and director at NyāyaSarathy Foundation, an organisation working towards increasing access to justice for marginalised communities. She has been associated with the UNHCR in the past, however, the opinions expressed here are strictly personal.  

Sangram Chinnappa is a practising lawyer at the Bombay high court. He is also one of the founders at NyāyaSarathy Foundation.