Refugee law imperative

Sanjeev Tripathi 

ON October 13, in the Rohingya deportation case, the Supreme Court sought the right balance between national interests, including security concerns, and humanitarian considerations of asylum seekers. However, it refrained from passing any interim order to stay the process.   

This has provided a breather and an opportunity to the government to re-examine the issue in a holistic manner and come out with a solution which is practical, legally sustainable and internationally acceptable.   

Government estimates put the number of illegal Rohingya immigrants at 40,000, of which around 16,000 are registered with the UNHCR. Their unhindered movement, including in sensitive areas like J&K, is a grave security risk which India can ill afford to take. The intelligence reports in this regard should not be ignored. Further, global jihadi terrorist groups like the IS and Al-Qaeda target Muslim groups who feel persecuted and the Rohingya are certainly a soft target for them. At a time when Indian Muslims are also being targeted by the IS and the Al-Qaeda, and some of them have actually fallen prey to such overtures, India cannot afford the presence of a large foreign vulnerable group. 

Moreover, a majority of the Rohingya entering India have not come here directly from Myanmar, but via Bangladesh. Therefore, India is not the “first country of refuge” and as such is not bound to give them refugee status. It is therefore heartening to note that the government has acted without undue delay to address the issue. While it will take time to repatriate those who have already entered, the government’s resolve to deport them has certainly put a brake on their further influx.  

India has been receiving refugees and illegal immigrants from almost all neighbouring countries for over five decades. However, it has not yet developed a national refugee law nor has it signed the 1951 UN Refugee Convention or its 1967 Protocol. In the absence of that, there is no legal distinction in India between an illegal immigrant and a refugee. 

Dealing with the refugee issues through administrative orders, rather than an enacted law, has made government action on the issue an open-ended case before a court of law. Otherwise, the court would have to examine it within the purview of an existing law. 

There seems to be no valid reason for various governments to refrain so far from enacting a national refugee law taking into consideration national security concerns, interests of local population or any other issue. 

As per the generally accepted international norms, refugees are people who leave their country of origin to take shelter in another country because of persecution on religious, ethnic, political or any other ground. Leaving a country for any other reason, including economic reasons, does not come within the definition of refugee. While suitably incorporating it in the proposed law and defining rights and privileges of refugees, provisions can also be made for restricting their movement. They can be kept either in designated camps/areas or barred from sensitive areas like the Northeast, J&K and districts adjoining international borders. 

The proposed law should also include the concept of “first country of refuge”, leaving discretion with the government to give refugee status in cases where India is not the first country of refuge. Further, the failure of an asylum seeker to report at the designated centres within a specified period may render him ineligible for the refugee status. 

Once a national refugee law is in place, all illegal immigrants seeking asylum in India, including the Rohingya, should be asked to apply at designated centres within a specified period. Those who fail to apply and those whose asylum request is rejected will come in the category of illegal immigrants. 

Since the enactment of law would ensure a legal distinction between refugees and illegal immigrants, the government may formulate separate guidelines and instructions to deal with the two distinct categories.  

In the case of refugees, the generally accepted international norms should be followed. Return of refugees to their country of origin is the preferred option for which the UNHCR and various countries work. They do so by engaging with the country of origin and encouraging it to create conditions conducive for safe return of refugees. Even though the 1951 Refugee Convention envisages “voluntary” repatriation, India, in the proposed law, should provide for “safe” rather than “voluntary” return as some refugees might be reluctant to return after the situation normalises in their country of origin.  

Other options for refugees are a third country settlement or the grant of citizenship. While the proposed law should have provisions for that, the government should have full discretion as to when and how to go for these options. 

India should ask the UNHCR to provide the list of Rohingya registered with them along with their biometric details, if recorded by it. They, along with other Rohingya asylum seekers, should be kept in designated camps pending their repatriation. Since a majority has entered India through Bangladesh, efforts should be made to shift them to refugee camps in Bangladesh with UNHCR's assistance and India should undertake to provide financial and other humanitarian assistance to those refugee camps.  

Those Rohingya who are neither registered with the UNHCR nor seek asylum in India will come in the category of illegal immigrants. They need to be identified and deported to Myanmar. India has friendly relations with Myanmar and should try to persuade them to take back their illegal immigrants. In fact, India can play a much larger role in resolving the Rohingya problem and should take initiative for that too, in consultation with Myanmar, Bangladesh and the UNHCR.  

The next hearing of the Rohingya deportation case in the Supreme Court is on November 21 and the government could inform the court about its intentions to frame a national refugee law and proceed further as per that law.  

Moreover, once it is in place, the government could even consider not going ahead with the Citizenship Amendment Bill, 2016. All the cases envisaged in that Bill will be covered in the refugee law and the government will meet its desired objective without coming in for criticism for alleged communal bias.  

The writer is a former chief of R&AW