Blog post by Sreekar Aechuri who is currently pursuing a bachelor’s degree in law at National Academy of Legal Studies And Research (NALSAR), India. He is interested in the field of human rights and is a member of the NALSAR Legal Aid Group (N-LAG).*

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Introduction

There are roughly 2,07,848 refugees in India from different ethnic groups and different regions like Somalia, Afghanistan, Pakistan, Bangladesh, Myanmar etc. Historically, there were clear differences in the treatment afforded to refugees of different countries based on their religion and ethnicity by the Indian government but there was never an aggressive pursuance of deportation of such refugees. There is thus a marked change in the foreign policy on refugees, observed by the Modi government’s active efforts to deport Rohingya refugees.

The general public and media outlets often misconstrue the term refugees with foreigners, asylum seekers, migrants etc. As per Convention relating to the Status of Refugees, 1951 a person is a refugee if

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.

Rohingyas are minority Muslims from the state of Rakhine in Myanmar and are victims of genocide. The United Nations has called them the most persecuted minority in the world. Rohingyas should be considered as refugees because they have a well-founded fear of persecution based on their religion. There are roughly 40,000 Rohingya refugees in India with only 18,000 registered with the UNHCR.

Though India is not a signatory to the Refugee Convention, its past actions of providing refuge to Sri Lankan refugees through shelter, allowances, social security benefits etc. and Tibetan refugees through passports, provision for settlements, integrated development plan etc. creates a legitimate expectation that it would replicate the same treatment towards Rohingyas. To the contrary, India has categorically denied refugee status to Rohingyas despite their situation being labelled as the ‘textbook example of ethnic cleansing’.

The Indian government has not only denied refugee status to Rohingyas but also actively deported them. In August 2018, the Union Home Ministry has communicated through a letter that Rohingyas pose a threat to national security and hence every state should take steps to identify and initiate the deportation process. Consequently, the government has deported seven Rohingya refugees on the charge of illegal entry into India. Another family of five have been deported in January and roughly 1300 Rohingyas have fled to Bangladesh in the fear of deportation to Myanmar. The fear of rampant arrests by the Police and Border Security Force as happened in Assam and Tripura could also be a factor for the exodus. The following sections will show how India is ignoring international legal principles and conventions in the name of national security (exemplified by the Hindi catchphrase border pe jawaan lad rahe hai – ‘soldiers are fighting at the borders’ used as a reason come defence for every action by the Hindu nationalists).

Violation of National and International Legal principles

The actions by the Indian government violate the international legal principle of non-refoulement which stipulates that a person cannot be forced to return to his/her home country from the host country ‘where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm’. This principle is prescribed under Article 33 of the 1951 Refugee Convention. Although India is not a party to the Convention, non-refoulement is considered to be a principle of customary international law and therefore India continues to be bound by it. UNHCR’s Advisory Opinion looked at the state practices of important non-signatories like Thailand, India, and Pakistan and opinio juris and concluded that the principle of non-refoulement fulfills the two cardinal elements of achieving the status of a custom prescribed under Article 38 (1) International Court of Justice Statute i.e. State Practice and Opinio Juris. In the past, courts in India have respected non-refoulement as a cardinal principle under Article 21 of the Indian Constitution, and the Supreme Court in an earlier issue has asked for detainees to be referred to UNHCR for looking into their refugee status and refused their deportation by recognizing the principle of non-refoulement. Similar decisions have been delivered in Andhra Pradesh High Court and Gujarat High Court.

India’s obligation to follow the principle of non-refoulement arises out of various important International Human Rights treaties as well. This principle is expressed under Article 3 of the United Nations Convention against Torture. Though India has not ratified this Convention, it is still prohibited from taking actions in derogation with the object and purpose of the Convention because it remains a signatory. This principle is also encapsulated under Articles 6 and 7 r/w 4 of International Covenant on Civil and Political Rights (ICCPR) which was ratified by India. India also has an obligation to prevent genocide under Article 1 of Genocide Convention, 1948 after it ratified this Convention in 1959. International Court of Justice in Bosnia/Serbia Genocide Case, 2007 held that an obligation to prevent genocide cannot be prevented by territory and hence, all the states have an obligation to employ means reasonably available to them to prevent such a genocide. Hence the Indian government, at the very least, should be discouraging deportation and respecting the idea of voluntary repatriation instead of aggressively advocating for deportation.

By deporting Rohingya refugees, the government has breached many internal and international human rights obligations with no perceivable sanctions. This highlights why some legal positivists especially the Austinian School have expressed their concerns regarding International law’s character as ‘law’ because there is no sovereign commanding the Parliaments of all the states and there are rarely any sanctions, especially for the powerful states. The only sanctions would be criticisms levied by civil society and international organizations like Human Rights Watch, UNHCR, Amnesty International etc. in the case of India which rarely deters states from acting in the manner they fashion.

Regressive Foreign Policy and the so-called threat to national security

This regression in the government’s foreign policy on refugees which was in the past applauded by many (including the current UN Secretary General) for its humanitarian conscience is a cause for concern. The Union Home Minister has called illegal immigrants (referring to Rohingyas and Bangladeshi migrants in Assam) as ‘termites’ who should be thrown into the Bay of Bengal. The government gave a 15-day ultimatum to 120 Rohingya families in Jaipur in August 2017 to leave the country which led to the Public Interest Litigation regarding refugee status/deportation of 40,000 Rohingyas before the Supreme Court of India (a matter which is still pending). The Indian government argued in the Supreme Court that Rohingyas are a threat to national security with some of them having links to Pakistan-based terrorist organizations and extremist groups. They have also alleged that these refugees have involvement with the Islamic State of Iraq and Levant (‘ISIL’ or ‘ISIS’) without sufficient evidence. The Government has not only named Rohingyas as ‘terrorists’ but has also taken some extreme measures such as the use of force (chilli sprays and stun grenades) and increased surveillance on them. Furthermore, news channels such as Republic TV and News18 have added fuel to the fire by framing that ‘we’ (citizens) need to be safeguarded from ‘them’ (Rohingyas) for the sake of national security.

This aggressive right-wing Hindu nationalist agenda of the Indian government towards refugees raises grave concerns on the international platform. Anti-Muslim policies always had a place in Indian politics but it has become the hallmark of the present administration. This aggressive Hindu nationalism towards Rohingya refugees comes at a time when the minorities are getting smothered not only in India but the entire world. From the United States of America to India, aggressive right-wing nationalism has become a crucial factor of governance (especially foreign policy). In USA, post 9/11 attack, national security (we’re at war for Christ’s sake!) has become the excuse for the administration to act in the manner they desire discounting internationally recognized human rights through measures such as The Patriot Act, 2001; human rights violations at Guantanamo Bay; War on Terror in Iraq and Afghanistan; travel ban on Muslim-majority countries etc.

The Modi government emulating the standards set by the United States has taken controversial decisions such as: the portrayal of private issues like marriage into the ‘love jihad case’; the aggressive pursuit of National Register for Citizens (NRC) by declaring almost 1.9 million people as illegal immigrants; The Surrogacy (Regulation) Bill, 2019 and its dangerous effects on single mothers and LGBTQ community; the beef ban and the lynching of minorities. The Citizenship Amendment Act 2019 (CAA) which indiscriminately provides for citizenship to migrants/refugees of every religion except Islam from Pakistan, Afghanistan and Bangladesh with no reasonable explanation manifestly violates the constitutional principles of equality. This idea of citizenship (jus sanguinis) is exactly what the Indian constitutional makers have consciously avoided adopting for independent India. The only aim for such an act would be to advocate for aggressive right-wing Hindu nationalism in the foreign policy.

Conclusion

Subscribing to aggressive right-wing Hindu nationalism in every administrative and legislative action has become a daily affair for the Indian government and national security (border pe jawan lad rahe hai {soldiers are fighting at the borders} is a general catchphrase used as a reason come defence for every action by the Hindu nationalists) has become their panacea for all issues surrounding Rohingya refugees. Majoritarian government’s oppression on minority institutions without the support of the guardian and protector of the minorities (the Judiciary) causes grave concerns to basic human rights especially for the most vulnerable of these minorities (refugees). All that we can hope for is that the Supreme Court of India in the Public Interest Litigation on the deportation of 40,000 Rohingyas can look past the garb of national security and deal with the important national and international legal principles that India as the world’s largest democracy is obliged to hold high regard to and protect the rights of Rohingya refugees.

*He can be contacted at sreekaraechuri@nalsar.ac.in

Photograph ©Flickr

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