What makes the purported deportation of the Rohingya from India legally untenable is that the Indian government, like any other in the world, is bound by customary international law to respect the principle of non-refoulement. Illustration by C R Sasikumar
The recent statement by Minister of State for Home Affairs Kiren Rijiju that the Indian government will detect and deport the Rohingya back to Myanmar marks a low in India’s otherwise long-recognised impeccable track record in hosting asylum-seekers. His subsequent clarification that he merely wanted them “pushed back” — not thrown into the ocean or shot — further belies India’s image as a benevolent host. While such assurances from the minister might have come as a huge relief to the 40,000-odd beleaguered Rohingya currently in India, it does not portend well for an aspiring “major power”.
Rijiju’s wrath against all “illegal immigrants” — including 14,000 Rohingya who have been issued valid registration certificates by the UNHCR, New Delhi — is sought to be justified on the grounds that they are “susceptible” to recruitment by “terror” groups, and that they “not only infringe on the rights of Indian citizens but also pose grave security challenges”. Also, the junior minister forcefully argued that the Rohingya must be deported “to ensure the demographic pattern of India is not disturbed”. The minister’s avowed threat to do so notwithstanding, any proposal to deport them would not only be legally untenable and morally indefensible but also politically inexpedient.
The choice of the expression — “illegal immigrants” over “refugees” — by Rijiju appears deliberate and also in sync with the BJP’s long-held ideological stance on immigrants: They are illegal immigrants if Muslims and refugees when Hindus. For example, the Citizenship (Amendment) Bill 2016, whereby all groups of persecuted non-Muslim minorities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians — from neighbouring countries would be more than welcome to their “natural home”, clearly illustrates this bias towards Muslims.
What makes the purported deportation of the Rohingya from India legally untenable is that the Indian government, like any other in the world, is bound by customary international law to respect the principle of non-refoulement. No government, as per this law, can forcibly push back asylum-seekers to the country they have fled to escape violence, as it might endanger their very survival. Not being a signatory to the 1951 UN Refugee Convention and its 1967 Protocol is no excuse to abdicate India’s responsibility to provide much-needed succour to people under duress and in urgent need of humanitarian assistance.
India has for too long abstained from being a party to the 1951 international convention, despite the fact that the context has dramatically changed in the aftermath of the recent refugee crisis in Europe. Whether or not India chooses to ratify the 1951 convention, there are several Supreme Court verdicts which disallow the Indian government from arbitrarily and summarily deporting refugees from its territory. The courts in India have traditionally upheld the rights of refugees facing deportation or forced eviction in different contexts by taking recourse to what is called the “canon of construction” or a “shadow of refugee law”. For example, the Right to Life under Article 21 of the Indian Constitution has been so interpreted by the SC that it can be extended to anyone living in India irrespective of her nationality.
The apex court is scheduled to hear a petition on the Rohingya issue on September 18. It is unlikely to deviate from its own precedent.
On a moral plane, the Indian government can hardly hope to defend its stand given the fact that the Rohingya face an imminent threat to their lives in the wake of the ongoing “ethnic-cleansing” drives in the Rakhine State, Myanmar. The flight of nearly 3,00,000 Rohingya to neighbouring Bangladesh is a testimony to the wretchedness of their condition. Various reports — by the Office of the UN High Commissioner for Human Rights, Amnesty International, Human Rights Watch etc — point to the Rohingya undergoing gross human rights violations at the hands of Myanmar’s armed forces in the name of counter-insurgency operations. These suggest a genocide. Such operations are being carried out under the rubric of “Lockdown Zones” and “Clearance Operations”. Penny Green, a professor of law at Queen Mary University, London, concluded after a 12-month long investigation in the Rakhine State that since October 9, 2016, “the Rohingya are facing a terrifying new phase in the genocide: Mass killings, rapes, village clearings and the razing of whole communities, committed with impunity by the Myanmar military and security forces”.
Prime Minister Narendra Modi’s decision to underplay the impending refugee crisis by choosing instead to express solidarity with Myanmar’s “extremist concerns” on his maiden visit there could only be described as politically naïve. This is further evidenced by India’s refusal to sign the subsequent “Bali Declaration” which unequivocally condemned the unfolding refugee crisis in the Rakhine State. The preference for a studied silence by Asia’s most experienced democracy in the wake of a fast deteriorating humanitarian crisis does not bode well for the future of human rights in the region. It might only embolden the Myanmarese security forces to further intensify the crackdown on the hapless Rohingya. Further, this was clearly not the moment for PM Modi to give priority to trade ties with Naypyidaw in order to counter the growing Chinese influence in Myanmar. It is time India rises to the occasion by transcending the politics of pragmatism and embraces the Rohingya refugees.
