Rohingya case brings India’s refugee policy under scrutiny

Luv Puri
Ex-member of UN Secy-General’s Good Offices on Myanmar

THE Central Government told the Supreme Court last month that illegal Rohingyas did not have the fundamental right to reside and settle in India and that New Delhi did not recognise refugee cards issued by the United Nations High Commissioner for Refugees. Rohingya settlements are in the spotlight in several Indian states. In Uttar Pradesh, the police had reportedly detained 74 Rohingya Muslims — 55 men, 14 women, and five minors — in 2023. The Rohingya case cannot be divorced from the community’s institutionalised victimisation. This aspect is critical to the ongoing litigation and will clarify India’s refugee policy, which will have international consequences as well.

Immigrants are vilified even in the Global North and blamed for the rise in crime and a drop in wage rates. They are dehumanised and subjected to dog-whistle tactics of mainstream politicians to induce mass anxiety. While there is no universal definition of migrants, as per the UN, refugees are people who have fled their countries to escape conflict, violence or persecution and have sought safety in another country. In line with the universally acknowledged ‘refugee protection regime’, the authorities as well as civil society should ensure that xenophobia is avoided with respect to the Rohingyas.

The trigger for the migration of the Rohingyas is persecution. Myanmar’s version is that the Rohingyas came from Bangladesh to Rakhine and their language is Chittagonian, which has similarities with Bengali. Myanmar calls Rohingyas ‘Bengalis’, which goes against the universally agreed right of the community to ‘self-identify’. It is said that the British, when they gained control of Rakhine, facilitated the flight of the Rohingyas as sharecroppers. The community contests this version. Its members affirm that they are native to Rakhine and have a distinct language. In this battle of versions, little attention is paid to the fact that till the British empire imploded in 1947-48 in Myanmar and India and new nation-states were created, including Myanmar and East Pakistan (which became Bangladesh in 1971), the border between the coastal Rakhine and neighbouring Bangladesh’s Chittagong district was porous.

As per the Arakan Project, in 2019-20, the approximate number of Rohingyas living in Bangladesh, Saudi Arabia, Pakistan, India, the UAE and Malaysia was 9.47 lakh, 5 lakh, 3.5 lakh, 40,000, 50,000 and 1.5 lakh, respectively. Except India, all countries which have hosted Rohingyas in large numbers are Muslim-majority. In India, the popular narrative around the Rohingyas seems to be a continuation from the 1990s, when illegal migration from Bangladesh was the norm. As Bangladesh’s per capita income surpassed India’s, illegal immigration ceased. Thus, this narrative doesn’t factor in the specificities of the Rohingyas.

In the ongoing case of Mohammad Salimullah vs Union of India, the apex court has to decide whether the deportation of Rohingyas will violate the right to equality under Article 14 and also Article 21 of the Constitution, which upholds the right to life. It also has to decide whether India is bound by the ‘non-refoulement’ principle, which is considered a part of customary international law, despite not having signed the 1951 Refugee Convention. Importantly, in an interim order, the SC said in April 2021 that Articles 14 and 21 were guaranteed to all, irrespective of citizenship. However, the court added: “The right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” This meant that Article 19(1)(e) only applied to Indian citizens. The court further ordered that unless the procedure prescribed for such deportation is followed, it cannot be undertaken.

International norms dictate that no one can be deported without informed consent. The Centre has stated that the deportation process will follow the procedure of notifying the government of the country of origin of the foreigners and the deportation will be ordered only when confirmed by that government that the persons concerned are citizens/nationals of that country and that they are entitled to come back. Practically, the same procedure is being followed for non-Rohingya Myanmar refugees living in Manipur, who escaped after the 2021 coup. The first batch was deported from India last month. For all practical purposes, even if this procedure is adhered to, the Rohingya deportation is subject to the Myanmar Government’s consent, which is an unlikely scenario. The ongoing case also cannot be delinked from the litigation on the Citizenship Amendment Act (CAA). Except the clause on religion, the Rohingyas fulfil the criterion of persecution mentioned in the CAA. The apex court will also have to reconcile Article 21 and Article 19(1)(e) in its final order. This will determine whether refugees coming to India will have legal recourse like they do in some Western democracies or their stay/deportation will solely depend on the executive’s discretionary powers.

Rohingyas are usually employed as daily labourers. In India, some contractors hire them for government-funded projects and other work as they charge lower wages compared to the locals. A key argument in support of their deportation is that their stay in India may endanger national security. However, there is no evidence to this effect, a fact underlined by security officials.

To sum up, the intent to deport the Rohingyas is empty rhetoric. With the forcible deportation of a community universally recognised as one of the most persecuted an unlikely prospect, India should take the lead in constituting a consortium of host countries to address the challenges facing the Rohingyas, including formulating innovative solutions for the community members. This would enable them to work legally and also address the concerns of law enforcement authorities in the host countries. Saudi Arabia has mooted proposals like the issuance of permanent residency. Some of the Gulf countries concerned may be willing to join India to fund this consortium, and this can provide a template for similarly persecuted refugees and their host countries elsewhere.

#Supreme Court