Earlier this month, the Indian Minister of State for Home Affairs announced the decision to send Rohingya Muslims in India back to Myanmar. In this article, Nafees Ahmad discusses the rationale for the move and outlines how it contravenes both international and Indian constitutional law.
Despite the efforts of civil society, domestic NGOs and international organisations, the persecution of peoples based on their caste, creed, ethnicity, gender, social origin, race, religion, region, and political opinion continue to be exacerbated. One group which has particularly suffered is the Rohingya Muslims, 40,000 of whom have moved to India as refugees in order to escape persecution in Myanmar (formerly Burma) since 2008. Although India is home to thousands of refugees from across Asia, the Middle East and Africa, the Government of India has taken the decision to target and deport Rohingya Muslim refugees, despite the evidence that it is dangerous for them to return. On August 9, 2017, Kiren Rijiju, Minister of State for Home Affairs, made a statement in the Parliament of India that central government had directed the provincial governments in India to identify and expel all the Rohingya refugees residing illegally in India. This will include the estimated 16,500 who are registered with the United Nations High Commissioner for Refugees (UNHCR).
India’s international legal commitments
Displacement and migration are not new issues and there are international frameworks in place which commit signatories to accommodating refugees, or else granting them a safe passage. As a modern liberal democracy, India should be honouring its international legal commitments and obligations, as well as its own constitution: if it deports the Rohingya refugees without evaluating their legitimate claims for refugee status determination it will contravene refugee jurisprudence evolved by the Supreme Court of India under Article 21.
The central government asserts that tens of thousands of Rohingya refugees are not registered with the UNHCR and further justifies India’s stand on the basis that it’s not party to the UN Convention Relating to the Status of Refugees of 1951 (UNCSR) with its 1967 Additional Protocol. Therefore, India considers all Rohingyas as illegal migrants who are liable to be deported. However, this rationale fails to appreciate the fact that India is still bound to protect their human rights under the core principles of Customary International Law (CIL) and normative framework outlined in the UDHR (Universal Declaration of Human Rights) that cast a legal obligation upon India not to forcibly repatriate thse whose personal life and liberty will be imperiled if they return to their homeland. Amnesty International India in particular has made a strong case against the deportation of Rohingya refugees to Myanmar and criticised India for showing a blatant disregard for its duties and obligations international law.
The forced deportation of the Rohingya refugees has not yet been challenged before the Supreme Court and High Courts in India but there have been decisions on deportation, expulsion and repatriation of refugees where the Supreme Court of India has applied the principle of non-refoulement (no forced deportation or expulsion) in the past and stayed the deportation decisions.
Are Rohingya Muslims stateless?
The UN has dubbed the Rohingya Muslims as “perhaps the most persecuted minority group in the world”. They have been systematically denied and deprived of citizenship and flagrantly classified as illegal immigrants in their homeland despite the fact that they have been living in Rakhine State in the west of Myanmar for centuries. The Rohingya are subject to abuses such as arson attacks, rape and murder committed by the Burmese military. As a result thousands have sought refuge in the neighboring states, including Bangladesh and India, or else head to Southeast Asia on rickety boats steered by human traffickers.
Rohingya refugees have been living in Delhi, Haryana, Rajasthan, Jammu & Kashmir (J&K), UP and Telangana, etc. But even in India they have not had a warm reception: the state does nothing to protect their rights, and they face blatant discrimination on the ground of their religion. This has been made worse by the upsurge of far-right politics based on the notion of autochthony contrary to the equality constitutionalism of India. In J&K, right-wing political groups have been demanding their eviction and deportation, resorting to violence in some cases.
The road map
The Rohingya Muslim issue highlights that the contemporary international refugee protection framework is confronted with a two-fold challenge in many countries today. Firstly, Islamist terrorism is viewed as a major threat to national security. This is particularly the case in India due to periodic attacks since the 1990s, to the extent that it has been pushing for an international convention on terrorism (albeit unsuccessfully). At present the incumbent government views Muslim refugees as a potential risk and are consequentially reluctant to extend support to them even in the name of international responsibility. Secondly, given how vulnerable refugees are, their human rights have to be actively upheld and protected by the host nations. But again, the Indian government is not ready to acknowledge the genuine claims of Rohingyas for refugee status, nor is it willing to be seen to be extending support to this group.
India’s national borders are patrolled day and night. Despite this human trafficking remains rampant and operates as an industry, in a significant part due to the desperation of those who lack basic safety and security in their home countries. They have the right to leave and seek refuge elsewhere under international law. The Government of India must halt its discriminatory Rohingya deportation programme. Instead it should focus on evaluating their refugee status claims and realising their rights as oulined by domestic and international law. In addition, it should put pressure on Myanmar’s government to grant the Rohigya Muslims citizenship and end the persecution of its minorities in order to stem to flow of migrants.
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About the Author
Nafees Ahmad Ph.D, LL.M is Assistant Professor, at Faculty of Legal Studies in the South Asian University, New Delhi. He holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights and has conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India. He has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program, part of the WL’s School for International Training (SIT Study Abroad) for US students. He can be contacted at firstname.lastname@example.org