Blog post by Rongeet Poddar, LL.M. graduate in International & Comparative Law and a doctoral candidate at the West Bengal National University of Juridical Sciences in Kolkata, India. The blog piece is based on his LL.M. dissertation research.
The Minister of Housing & Urban Affairs in India, Hardeep Singh Puri, has recently announced that government accommodation will be provided to Rohingya refugees, in addition to identity cards issued by the United Nations High Commissioner for Refugees. However, the Ministry of Home Affairs (‘Home Ministry’), which oversees immigration, later clarified that the Rohingya will remain at their present location in New Delhi and await deportation procedures. While Mr. Puri referred to the Rohingya as ‘refugees’, the statement issued by the Home Ministry unequivocally classified the Rohingyas as ‘illegal foreigners.’ Thus, it is evident that the Home Ministry is not inclined towards affirming refugee status for the Rohingya domestically, with India not being a party to the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’) or the subsequent 1967 Protocol. The dissonance between the views expressed by the two Ministries is symbolic of the state’s calculated ambivalence on the question of refugee policies.
The territorial administration in Delhi (‘Delhi Territorial Government’), governing the National Capital Region, has also taken a hostile view to the prospect of settling Rohingya Muslims in flats reserved for the economically weaker segment of the population in the capital. Interestingly, the question of providing government shelter to Rohingya refugees has emerged at the time when the Minister of Home Affairs has assured that the Citizenship (Amendment) Act (‘CAA’) rules, pending since the enactment of the legislation in December, 2019, would be issued.
The announcement pertaining to the CAA rules comes after a prolonged phase during which the Central Government had sought multiple extensions for framing the rules over the past years. The object of the CAA is to enable a fast-track route for members of non-Muslim religious minorities from Pakistan, Bangladesh and Afghanistan, who entered India on or before the 13st of December 2014, to obtain Indian citizenship without the burden of proving persecution, but this new legislation is deeply unpopular with large segments of the population due to perceptions that it is discriminatory.
Majoritarianism in the garb of humanitarian protection
Even as the widespread protests against the contentious law lost steam owing to a pandemic-induced lockdown, the government has adopted a cautious approach fearing a repeat of anti-CAA agitations. At the same time, the Supreme Court of India is set to hear pleas challenging the constitutionality of the legislation.
The recent reversal in stance pertaining to the Rohingya refugees is indicative of a larger problem that is endemic to India’s refugee policy. It signifies a pronounced tilt towards majoritarianism even as a long-term visa scheme, couched in secular terms, remains firmly entrenched as a smokescreen devised by the executive. The CAA demonstrates a clear executive predilection towards favouring the settlement of select refugee communities, to the exclusion of others.
As the spectre of the CAA looms large, the north-eastern states in India witnessed a surge of involuntary migration from Myanmar following its military coup. The Mizoram state government has been particularly receptive to the concerns of refugees entering the state from Myanmar. Despite being embroiled in a tussle with the Central Government over the settlement of refugees in the state initially, the government at the state level in Mizoram appears to have now worked out a compromise. The state government has also recently issued identity cards to the Myanmar citizens. While the card has been disseminated with the goal of barring voter list infiltration, it also clearly underlines that a card-holder is being offered protection on a ‘humanitarian’ basis.
Yet it must also be noted that Mizoram’s neighbouring state Manipur invited controversy for its initial resistance to offering food and shelter to asylum-seekers from Myanmar. Civil society organizations representing indigenous communities in Manipur also appear to be opposed to the settlement of refugees and have called for a citizenship determination exercise to be carried out. What makes Mizoram’s case different from Manipur is that Mizos share a cultural affinity with the asylum-seekers from Myanmar owing to historical ties—it is believed that the ethnic ties between Myanmar and Mizoram suffered a rupture owing to the imposition of post-colonial international borders.
Parallels may be found with the rationale advanced by the Central Government to defend the discriminatory CAA, considered as a part of an ‘ideology-driven’ refugee policy. The CAA has been weaponized to float the narrative of homecoming for Hindus who found themselves on the wrong side of the border in the aftermath of the Indian subcontinent’s partition along religious lines, as Muslim-majority Pakistan was carved out. Muslim asylum-seekers such as Rohingya are painted as outsiders or as ‘illegal foreigners’ in contrast. The historical baggage of Partition means that contested questions of national belonging come to the fore when the Indian state has to grapple with the issue of sheltering refugees.
As demonstrated by recent events, whether in localized geographical spaces or at the national level, humanitarianism is often clearly tempered by majoritarian sentiments and whether the integration of the refugee is considered to be desirable by local populations. In this light, Hardeep Singh Puri’s recent announcement is a notable exception, as the Central Government and the Delhi Territorial Government have demonstrated a symmetry in their respective approaches. The Central Government’s recent emergency visa scheme for Afghan asylum-seekers following the Taliban takeover, albeit subjected to criticism owing to its limited coverage, could be regarded as another aberration.
Absence of a refugee law
Last year, the Supreme Court had passed an order in favour of deporting the Rohingya lodged in Jammu detention centres. The concerns raised by the Central Government pertaining to internal security and porous land borders found favour with the court. Yet, neither were the ‘serious allegations’ raised by the government delved into with sufficient rigour, nor was any evidence recorded in the court’s decision highlighting the veracity of such claims. Not only did the court refuse to take cognisance of the atrocities committed against the Rohingya in Myanmar, a right of non-refoulement was denied.
Prior judgements of Indian High Courts which recognize a right of non-refoulement as a part of the right to life in Article 21 of the Constitution were overlooked. Instead, the apex court traced the claims of the Rohingya against involuntary repatriation to Article 19(1)(e). Under this constitutional provision, the right to reside or settle in any part of Indian territory is limited to citizens. Consequently, the Supreme Court decision became the subject of stringent criticism since it brushed the non-refoulement question under the carpet – it was even described as an abdication of the court’s responsibility as a custodian of the Indian Constitution.
The decision of the court could be contrasted with a recent Manipur High Court judgement which upheld the right to non-refoulement. The Manipur High Court affirmed the right of Myanmar asylum-seekers against forced return and permitted them to travel to New Delhi to seek UNHCR protection. By reading India’s international obligations (based on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights) into the right to life under Article 21 of the Constitution, the right against involuntary return was recognized.
Even though India does not have a specific legislation addressing the plight of asylum seekers or refugees, the Home Ministry had, long before the enactment of the CAA, issued a Standard Operating Procedure (‘SOP’) for engaging with foreign nationals who sought refugee status in India. Issued in December 2011, the procedure adopted by the government sought to address the legal vacuum that had arisen in the national sphere owing to India’s non-signature of the Refugee Convention. As per the terms of the SOP, long-term visas could be granted to foreign nationals by furnishing proof of persecution on specific grounds, including religion, with a clear bar being imposed on those considered to be ‘economic immigrants.’
Contrary to the CAA’s selective approach, the SOP issued by the Home Ministry does not make the grant of refugee status solely contingent on religious identity. It may be said that the visa policy, which remains operational in the present-date, does not privilege religion-based refugee status claims over others.
However, the recent trends underscore the fact that majoritarian sentiments and the influence of localized pressure-groups are likely to play an overarching role in shaping executive or even judicial response when confronted with refugee influx.
In the absence of a refugee law, no distinction is recognized between refugees and foreigners under the Foreigners Act 1946, and refugees are not perceived as rights-bearers. The plight of asylum seekers is thus subject to the benevolence of the executive. India has historically demonstrated a firm commitment towards sheltering many refugees from its neighbouring countries, even though political expediency has continued to play a pivotal role in determining which group of refugees is deserving of the state’s protection.
What is new is that even ad-hoc policies are increasingly being shaped by the refugee’s religious or ethnic identity and whether such assimilation is likely to be perceived to be a demographic threat. The presence of asylum seekers is being looked at favourably through a humanitarian lens only on account of identity-based affinity. The Central Government’s reversal of housing provisions announced for the Rohingya, and the benevolent approach of the Mizoram government towards refugees from Myanmar at the other end of the spectrum, signal what lies ahead in times to come – at a time when the CAA has offered a dent to India’s secular fabric in prevalent refugee law discourse, it is likely that executive policies at the national and regional levels will be shaped by the asylum-seeker’s religious or ethnic affiliation to the host communities.
Even though India may have its reasons for not acceding to the Refugee Convention, the ensuing reluctance of the state to not enact a refugee law translates into exclusionary asylum policies and condemns distressed refugee groups to the prospect of forced deportation. As religious or ethnic ties become implicated with the larger question of whether an outsider-foreigner is deserving of state protection as an insider ‘refugee’, humanitarianism takes a backseat.
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