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Aftab Alam
Professor of Political Science, Aligarh Muslim University, Aligarh
The deporting of seven Rohingya to Myanmar on October 4 after the Supreme Court's rejection of a last-minute plea by seven lawyers to allow them to remain in India has again brought to fore the gaps and contradictions in our handling of the refugee crisis.
Though the main petition by two Rohingya refugees challenging the government's plan to deport them en masse is pending before the SC, the dismissal of the plea may adversely and dangerously affect the prospects of other Rohingya refugees living in India, who also the government wants to deport.
Home Minister Rajnath Singh has announced that the states have been ordered to collect information regarding the presence of Rohingya so that the process of their deportation to Myanmar could be initiated.
The deporting of these Rohingya not only amounts to a violation of the international law but also contravenes the constitutional principles and morality as they fear persecution in Myanmar. Rohingya staying at the Kalindi Kunj camp have also expressed apprehension that deported refugees would be killed.
The United Nations has repeatedly expressed concern over the plight of Rohingya in Myanmar and declared that forcing their return from India would amount to refoulement which violates international law.
The UN fact-finding committee, in a report in August, had found "patterns of gross human rights violations and abuses committed in Kachin, Rakhine and Shan state" by Myanmar's military leaders that amount to the crimes of genocide, crimes against humanity and war crimes which need to be investigated. It refuted the military’s assertions that it was merely responding to security challenges as "Military necessity would never justify killing indiscriminately, gangraping women, assaulting children, and burning entire villages."
The Rohingya are one of the most persecuted minorities in the world. They are concentrated in Myanmar's Rakhine state. The violence that erupted in Rakhine in August, 2017 after the emergence of the insurgent Rohingya army has caused them catastrophic suffering, including over 3,000 deaths.
Since the August, 2017 violence, more than 370,000 Rohingya have sought refuge in Bangladesh and some in India, Thailand, the Phillipines, Indonesia and Malaysia. There is no exact figure of the Rohingya living in India but it is estimated that around 40,000 Rohingya have taken refuge in various parts of India, out of which 15,000 are registered with the UN High Commissioner for Refugees.
The predicament of Rohingya started in 1977 when the Burmese government rendered them stateless through the process of registering citizens and screened out 'foreigners'. Despite the fact that the Rohingya ethnic group has lived in Rakhine since the seventh century, they were declared illegal Bangladeshi immigrants by the Government of Myanmar. Before the military coup of Ne Win, the Rohingya were generally considered and recognised as being a people and race belonging to the larger fabric of Burma.
The Nagamin operation launched by the Military Junta in 1978 led to forced evictions, rapes and massacres and about 200,000 Rohingya people fled to Bangladesh to escape persecution. The tens of thousands who could not flee were rounded up and taken to detention.
Over the last 40 years, the Myanmar Government has launched sustained and massive operations against Rohingya to wipe them completely out of the Arakan region to make it a purely Burmanised Buddhist state.
The Indian position on the Rohingya is contrary to the international understanding of the issue. While India considers them illegal immigrants who can be lawfully deported, the international community recognises them as refugees and maintains that their deportation would violate the principle of non-refoulement.
The principle of non-refoulement which prohibits a country from sending a refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion" constitutes a rule of international customary law binding on all states, including India.
India is neither party to the 1951 Refugee Convention or its 1967 Protocol nor does it have a national law on the status and treatment of refugees. However, it has granted asylum to a large number of refugees and is a member of the executive committee of the UNHCR and generally honours the holders of documentation provided by it to refugees in the context of non-refoulement.
In the absence of a national refugee framework, the judiciary has played a commendable role in protecting the rights of refugees in the country. It has, in fact, sought to fill the legal vacuum arising out of India being not a party to the refugee convention.
The SC in NHRC v State of Arunachal had held that refugees in India are entitled to protection under Articles 14 and 21 of the Constitution. In KA Habib v Union of India (1999), the Gujarat High Court ruled that the principle of non-refoulement is embedded under the meaning of right of life and personal liberty enshrined in Article 21.
The argument that the Rohingya have entered into India illegally and without any valid travel document seems to be ridiculous as in most cases refugees flee violence and persecution without such papers because the condition in which they are forced to leave does not allow them to arrange such documents.
Unfortunately, the issue of the Rohingya, which is a legal and humanitarian issue, has been turned into a political one, keeping eye on the upcoming assembly elections in several states. The refusal of the Supreme Court to intervene in the matter, at least at this stage, has further complicated the situation. The right of a country to deport illegal immigrants is unquestionable and inalienable, but if that action leads to their persecution, international law enjoins states to not do so. India has a constitutional obligation to respect the international law.