India’s dismal treatment of the Rohingya

By Harsh Mander 

In his historic address to the Parliament of the World’s Religions in Chicago in 1893, Swami Vivekananda declared, “I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth.” It is ironical that a political party which conspicuously proclaims its allegiance to Swami Vivekananda has restricted by law, about 127 years later, citizenship to people on the grounds of both religion and nation.

The Citizenship (Amendment) Act 2019, or CAA, 2019, passionately contested by people across the country, by placing these filters of religion and nation, reminds us urgently of the moral imperative of an expansive and humane refugee law. This must conform to what is finest in India’s civilisational ethos, and to the morality of India’s Constitution. This urgency is underlined further by the decision, in October 2018, of the Indian executive to send back seven Rohingya men — the Supreme Court of India refused to stop their deportation — who had been detained in Assam since 2012, to Myanmar.

Looking back, it is pertinent to ask why Jawaharlal Nehru, an international statesperson and a leading moral voice in the community of nations, refused to sign the 1951 Refugee Convention relating to the Status of Refugees. Scholars suggest that whereas he was committed to the principles enshrined in the Convention, he was unwilling to legally bind the country to its obligations.

The Convention first defines refugees as persons fleeing persecution on grounds of race, religion, nationality, social group or political opinion. Refugees get legal rights, most important of which are “non-refoulement”, which prevents states from sending back refugees to persecution in their home countries. They also get secondary rights, such as to education, work and property.

Policy and discrimination

India has long argued that even without signing the Convention, in practice it is one of the leading refugee-receiving countries. Refugees include Sri Lankan Tamils, Tibetans from China, Chin minorities from Burma/Myanmar, and Hindus from Bangladesh and Pakistan. It may be legitimately asked that if in practice India has been hospitable to refugees, why does it need a refugee law which conforms to the Refugee Convention?

The answer lies in discrimination in the recognition of refugees and the award of citizenship, embedded sometimes in laws and rules, and at other times in official practice. These include the morally indefensible, indeed shameful decision of the Indian government to send back Rohingyas to conditions which the International Court of Justice has recently deemed to be genocidal, and changes in passport rules even prior to the passage of the CAA which in effect discriminated between people on the basis of their religion.

There are many problems with Indian law relating to refugees. The first of these is that our law does not distinguish between “foreigners” and “refugees”. This means that refugees depend on state discretion, indeed “benevolence” rather than inherent rights. The second is that these assume that the executive will act on principles of humanism and non-discrimination. This may have been true of an India led by Nehru. Governments which followed his have had mixed records. It is certainly not true of a government as we have today which is driven by right-wing ideology, which is hostile to Muslims, and which believes that India should be the natural home of persecuted Hindus, but not Muslims.

The Rohingya case

In the absence of explicit recognition in Indian law of the category of refugees, or of their legally binding rights, even the guarantees of fundamental rights to equality and non-discrimination and humanitarian obligations did not prevent India from violating the core principle of non-refoulement, of not sending back a person to situations of persecution, such as those faced by Rohingyas. Let us rewind to the litigation in India’s Supreme Court, challenging the government’s proposed deportation of seven Rohingya in 2018. When seven repatriated Rohingya men were only hours away from the border with Myanmar, rights activists who has just come to know of this, made a dramatic urgent intervention in the Court, pleading that their being thrown mercilessly into a genocidal situation be stopped immediately.

The Supreme Court bench, which included the then Chief Justice of India, Ranjan Gogoi, refused to stay their deportation, basing its ruling primarily on a brief Union government affidavit which claimed that Myanmar had accepted the refugees as “citizens” and the men had orally agreed to be repatriated. The Court unconscionably refused to stop the deportation despite the transparent unreliability of these claims, since the men did not have access to legal counsel nor to the UNHCR to determine whether their consent was freely expressed. Also, that they may have chosen the risks only because the only option they were given to deportation was to indefinitely remain in detention. The media later reported that these men had been detained in Myanmar for “illegal entry” and had been given the controversial National Verification Cards (that does not recognise their religion or ethnicity), not citizenship. We do not know what happened to them since.

Message from the ICJ verdict

The moral culpability of these decisions, both of the Union government and the top court, are further illuminated by the recent unanimous judgment of the International Court of Justice on January 23 that concludes that the Rohingya face genocidal intent. The case against Myanmar was brought to the international court by a small west African Muslim nation, The Gambia. It rejected Myanmar’s civilian leader Aung San Suu Kyi’s testimony on behalf of her government, where she described the allegations brought by The Gambia as “an incomplete and misleading factual picture” of the prevailing conditions in Rakhine State.

The world court warned the Myanmar military against any conspiracy to commit genocide, and directed Myanmar authorities to take steps to protect its minority Rohingya population from genocide.

For the Indian government and the Supreme Court, this judgment should be a moment for both introspection and atonement. But this it will not be. The government has never referred to the Rohingya as refugees but as illegal immigrants, security threats and potential terror threats. They have not been included as eligible for citizenship under the 2019 amendment, because of their religion and country of origin. Instead, they are often the subject of communally charged political stigmatisation by the ruling party, amid calls for the expulsion from India of the desperately impoverished tiny population of around 40,000 Rohingyas; they are subsisting by picking rags and lowest-end labour in dismal shanties unsupported by the Indian state.

For a framework

India’s treatment of the Rohingya, and the discriminatory CAA must compel Indians committed to India as a humane inclusive country to fight not just for the abrogation of the CAA-NRIC-NPR trinity — CAA-National Register of Indian Citizens-National Population Register — but also for India to bring in a refugee law which conforms to international conventions. This would, first, recognise eligible undocumented immigrants as refugees, based on evidence determined by due process of their persecution in their home countries. This would also assure them a set of binding rights. The most important of these is the guarantee that they would not be forced to return to the conditions of persecution, threatening their lives and liberty, which they escaped. The second is that they would be assured lives of dignity within India, with education, health care and livelihoods. Only then would India become the country which Swami Vivekananda was so proud of: a haven to the persecuted of the world, untainted by discrimination based on religion or nation.

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Harsh Mander is a human rights worker, writer and teacher.