THROUGHOUT its history,
India has accepted refugees, including Jews escaping persecution, Sri Lankan
Tamils, Tibetans, and Afghans, all escaping violence. However, India’s
treatment of the Rohingya has been conspicuously different. The country is now
home to approximately 40,000
Rohingya, of whom only around 16,500 have been registered with
the United Nations High Commissioner for Refugees (UNHCR).
Last week, ten Rohingya who had been lodged at the Tezpur
Central Jail in Assam appealed to the Gauhati High Court to either give them
refugee status or to send them back to Myanmar. Arrested and jailed in 2014 for
entering the country without valid documents, they have remained imprisoned for
the last seven years. Saidur Rahman, Mahmadullah, and their respective families
are from the Coundang village in Rakhine state, Myanmar.
While hearing the plea, Justices
Kotiswar Singh and Malasri Nandy observed:
“It
has been submitted that the present petitioners are admittedly citizens of
Myanmar who have been convicted for entering this country without proper
documentation, and had served out sentences imposed by the competent court, and
have been languishing in jail for the last seven years.”
The high court further said that “the
authorities are not taking any decision in this regard and the petitioners are
languishing in jail.”
The petition before the Gauhati High
Court was first brought in 2017, at which time the counsel for the State were directed to
inform the Court as to what they propose to do with the petitioners. In March
2020, the counsel for the State submitted that the Myanmar embassy was only able
to identify the addresses of a few of the petitioners, and that it has
requested that India provide new personal data forms with accurate information.
Any repatriation can occur only following nationality verification by the
Embassy of Myanmar.
Also read: India pushing back Rohingyas at its borders is a gross
violation of rights
The Rohingya crisis
The Rohingya are a stateless Muslim
Community originating from the Rakhine state in Myanmar. The heritage of the
community traces back to East Bengal, now in Bangladesh. In the early 1990s, a
quarter of a million people fled Bangladesh to Rakhine, in an event now called
the “second exodus”. Myanmar does not recognize them as citizens or as one of
135 ethnic groups in the country, and treats them as illegal immigrants. UN
Secretary General Antonio Guterres has on several occasions confirmed that
the Rohingya are among the most persecuted ethnic groups in the world.
The Rohingya have been fleeing in waves as a result of
ongoing violence by the military regime, which has faced allegations of
genocide in a case at the International Court of Justice. In 1982, it enacted a
law that denies the Rohingya the right to hold citizenship in Myanmar, even if
their families have lived there for generations.
Violence against the community began
in 2012, when a group of Rohingya men were accused of the rape and murder of a
Buddhist woman. In retaliation, Buddhist nationalists killed and burned
Rohingya homes. As violence against the Rohingya increased, hundreds of
thousands of Rohingya refugees began flooding to Bangladesh. As of August 2021,
Bangladesh was hosting more
than 890,000 Rohingya refugees.
The situation has been aggravated
further by the military coup that took place in the country in
February this year.
Also read: Rohingyas: Genocide in the backyard
The principle of non-refoulement
In March, following the coup, the
UNHCR called
on Myanmar’s neighbours to protect and offer refuge to people
fleeing violence. The principle of non-refoulment prohibits States from
removing individuals from their jurisdiction when there are substantial grounds
to indicate that the person would be at risk of persecution, torture, or other
serious human rights violations, upon return. It is an important protection,
not only in human rights, humanitarian, and refugee laws, but is also
recognized as part of customary international law, making it binding on States,
independent of specific assent. The Office of the United Nations High
Commissioner for Human Rights (OHCHR) has iterated that
“the
principle is characterised by its absolute nature without any exception.”
Article 31(1) of the 1951 Refugee
Convention states that:
“The asylum state shall not return any refugee to a territory where
his life or freedom is endangered due to his race, religion, nationality, or
political alignment or opinion.”
Given that India is not a signatory
to the Refugee Convention or the Convention
on the Reduction of Statelessness, and since it has not ratified
instruments such as the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that
stipulate conditions for non-refoulment, it maintains that it has no obligation
to provide asylum or be bound by the principle of non-refoulment. However, as a
signatory to the International
Covenant on Civil and Political Rights (ICCPR) and the Universal
Declaration of Human Rights (UDHR), it owes obligations to uphold
human rights principles nonetheless.
Also read: International Law Omissions in Rohingya Deportation Order
The need for a refugee law in India
In the absence of a legal or administrative framework for
the protection of refugees, persons from different countries are treated and
protected differently. A dual system exists, wherein refugee status
determination is divided between the government and the UNHCR. While the
government determines the status of asylum seekers from neighbouring countries,
the UNHCR conducts status determination for those from non-neighbouring
countries and Myanmar at a single office in Delhi, as the body is not permitted
to set up centres at the borders.
The Rohingya are a stateless
Muslim Community originating from the Rakhine state in Myanmar. Myanmar does
not recognize them as citizens or as one of 135 ethnic groups in the country,
and treats them as illegal immigrants. The Rohingya have been fleeing in waves
as a result of ongoing violence by the military regime, which has faced allegations
of genocide in a case at the International Court of Justice.
UNHCR registrations afford refugees
some protection against refoulement, arbitrary arrest, and detention, and
allows them to access basic rights, services, and assistance. Countries that
are not party to the Refugee Convention also often do not official recognise
refugees registered with the UNHCR and exclude them from social security
infrastructures. Refugees in India do
not have a legal right to work, lack necessary documentation,
and often work in the informal sector for low wages due to restrictions placed
on employment without government-issued documentation.
Under Section
3 of the Foreigners Act, 1946, the government has the authority to
prohibit, regulate, or restrict the entry of a class or description of
foreigners. In the case of Mohammed
Salimullah v. Union of India (2021) before the Supreme Court, using the provisions of this section,
the government justified its decision to deport around 160 Rohingya who had
been detained in Jammu. It argued that these persons were a threat to national
security, without providing evidence to substantiate these claims. Despite
observing that persons similarly placed as those being deported have been
housed in refugee camps in many states in India, the Supreme Court accepted the
grounds of national security and non-application of the non-refoulement
principle, and allowed the government to deport the individuals, albeit under
the condition that procedure prescribed for such deportation is followed. In
doing so, the Court overlooked Article
51(c) of the Indian Constitution, which states that the State
must endeavour to foster respect for international law and treaty obligations.
The judgement is also contrary to
precedent involving jus cogens. Many past judgements of the
Supreme Court, including those in Vishaka (1997) and NALSA (2014), emphasise that in the absence of a domestic law on a subject,
international conventions and norms must be applied by municipal courts to
ensure the dignity of human life. India’s lack of a domestic refugee law
creates a void that must be addressed through international human rights and
humanitarian law principles.
Also read: Supreme
Court’s Rohingya deportation order illegally flawed, ignores principles of
natural justice
The Supreme Court has long acknowledged that
the right to life under Article
21 of the Constitution is available to all persons living in
the territory of India, and not just to citizens. It has on occasion also held
that refugees cannot be repatriated until the situation in their home countries
stabilises. In pursuance of the same, the non-refoulement principle has been recognised as
a part of Article 21 by some high courts in India. In National
Human Rights Commission vs. State of Arunachal Pradesh (1996), the Supreme Court extended, to a limited extent, the right to
life and liberty to refugees.
The principle of non-refoulment
prohibits States from removing individuals from their jurisdiction when there
are substantial grounds to indicate that the person would be at risk of
persecution, torture, or other serious human rights violations, upon return. It
is an important protection, not only in human rights, humanitarian, and refugee
laws, but is also recognized as part of customary international law, making it
binding on States, independent of specific assent.
The State’s use of vague assertions of national security
concerns to override accepted norms and principles to get its way and
subjectively apply executive discretion is a matter of concern, especially when
such action has the potential to deprive someone of their life.
Also read: Why the Afghanistan crisis underscores the need for a
refugee law
Saidur and Mahmadullah’s right to liberty
Indefinite imprisonment goes against
the right to liberty as a human right, extending beyond the boundaries of
citizenship. Furthermore, the courts have acknowledged that
Articles 19 and
21 are not watertight compartments, and that in “the vast sphere of personal liberty, the substantive as well as
procedural laws made to cover them must satisfy the requirements of both
Articles 14 and
19 of the Constitution.” The use of arbitrary and
uncertain procedures to deprive a person of his life and liberty fails the
tests of due process and does not fulfil the requirements of Article 21.
If India does not intend to grant refugee status to these
Rohingya, it must undertake the administrative procedure to deport them, given
that they have served out their sentences after being convicted of illegally
entering India. It appears the sole purpose of the continued imprisonment of
Saidur, Mahmadullah, and their families is administrative, and not punitive.
Due process principles mandate that the nature and duration of
punishment/detention/imprisonment be reasonably connected to the purpose of
confinement; it is high time they were released.
The Supreme Court has
long acknowledged that the right to life under Article
21 of the Constitution is available to all persons living in the territory
of India, and not just to citizens. It has on occasion also held that refugees
cannot be repatriated until the situation in their home countries stabilises.
With Myanmar maintaining that
Rohingya are not citizens and Bangladesh claiming they are under no
obligation to accept refugees sent by India, the deportation of
these stateless persons has dangerous implications, especially given the
military coup in Myanmar. That these individuals have had to submit a plea
before the Court wherein they face the possibility of deportation, despite
significant uncertainty about their future and grave risk to their lives, is a
scathing indictment of the ineffectiveness of India’s internal administrative
frameworks and commitment to human rights.
(Gauri Anand is an environmental lawyer and part of the research
and editorial team at The Leaflet. The views expressed are personal.)
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