Blog post by Bushra Ali Khan, Research Fellow at The Asia Foundation (USA) and IMPRI (India).
The geopolitical and historical relationship between Myanmar and India is deeply embedded in colonial legacies, post-colonial developments and regional challenges. This shared history plays a crucial role in understanding the contemporary migration patterns of the Rohingya refugees, a persecuted ethnic minority predominantly residing in Myanmar’s Rakhine State. The Rohingya’s forced migration towards India is not only a humanitarian crisis but also a legal issue that intersects with India’s national security, international human rights law and the evolving refugee protection framework in the region. This article examines this historical relationship between Myanmar and India, focusing on the implications of domestic and international law in the treatment of Rohingya refugees in India.
Colonial and Post-Colonial History: A Legal Context for Migration
The colonial period profoundly influenced the current relationship between Myanmar and India. British colonial policies, particularly those related to the division of land and labour, were instrumental in shaping the demographic makeup of Myanmar’s Rakhine State, where the Rohingya reside. Colonial administrative boundaries, drawn without regard for ethnic and cultural considerations, contributed to the marginalised status of the Rohingya and other ethnic minorities. From a legal standpoint, the British colonial administration in both Myanmar and India lacked formalised protections for minority groups, contributing to the absence of a legal framework for addressing ethnic conflicts. Post-independence, both India and Myanmar sought to define their national identities through legal and constitutional means, yet the legal rights of marginalised groups, such as the Rohingya, remained unprotected. In India, the post-colonial legal framework enshrined minority rights, especially in the form of protections for religious and ethnic minorities under the Indian Constitution. However, the absence of a specific legal framework for refugees, combined with India’s complex political and security considerations, has meant that the legal treatment of the Rohingya in India has remained inconsistent and often inadequate.
The legal status of the Rohingya refugees is crucial in understanding both their migration patterns and their treatment in India. Myanmar’s treatment of the Rohingya as a stateless population is a violation of international human rights law. The 1982 Citizenship Law in Myanmar, which excluded the Rohingya from the definition of “national races,” effectively rendered them stateless. This denial of citizenship is a fundamental violation of their right to nationality under international law, as guaranteed by the Universal Declaration of Human Rights (UDHR) and the 1961 Convention on the Reduction of Statelessness. India, as a signatory to key international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), is obligated to uphold refugee rights under international law. Although India has not ratified the 1951 Refugee Convention or its 1967 Protocol, its legal obligations arise from these human rights commitments and customary international law, which incorporate principles of refugee protection. However, India’s refusal to recognise the Rohingya as refugees poses serious human rights challenges. The ICCPR guarantees the right to life and security, while the CAT prohibits the deportation of individuals to countries where they face torture or ill-treatment – offering a legal basis to protect the Rohingya from refoulement (forced return) to Myanmar, where they face systemic violence and persecution.
India’s legal stance on migration and refugees is shaped by its domestic laws, particularly the Foreigners Act, 1946, which gives the government the authority to deport foreign nationals, including refugees. Under this law, the Rohingya, classified as “illegal migrants,” are denied refugee status, which leads to their marginalisation and precarious legal status in India. The Citizenship Amendment Act (CAA) of 2019, which grants citizenship to non-Muslim refugees from neighbouring countries, further compounds the situation for the Rohingya, as it explicitly excludes them from the protections offered to refugees of non-Muslim backgrounds.
From a national security perspective, India’s government has expressed concerns about the potential for the Rohingya refugees to be linked with Islamist militants or organised crime due to their perceived association with Bangladesh’s Muslim-majority population. These security concerns have informed India’s legal stance toward the Rohingyas, often resulting in their treatment as potential security threats rather than victims of persecution.
India’s Domestic Legal Challenges and Rohingya Rights
The legal treatment of Rohingya refugees in India is further complicated by the lack of a clear and consistent legal framework for refugees and asylum seekers. Unlike countries that have established refugee protection laws, such as Germany’s Asylum Act (1993) or Brazil’s Refugee Act (1997), India lacks a formal domestic law that governs asylum and refugee rights. This absence of comprehensive legal protections leaves refugees like the Rohingyas vulnerable to arbitrary detention, deportation, and exploitation. As a result, the Indian government often resorts to informal and ad hoc policies that fail to uphold the rights of refugees under international law.
The refugee crisis involving the Rohingya also has important regional and international legal dimensions. The Association of Southeast Asian Nations (ASEAN), to which Myanmar is a member, has failed to adopt a unified stance on the issue of Rohingya refugees, largely due to geopolitical considerations and Myanmar’s resistance to international intervention. Internationally, the United Nations High Commissioner for Refugees (UNHCR) has called on countries like India to uphold their international obligations toward the Rohingya by ensuring access to asylum, protection from refoulement, and basic humanitarian rights. While India has largely resisted such calls, citing national security and domestic political considerations, other countries in the region – most notably Malaysia – have taken tentative steps in response to international pressure and civil society advocacy. Although not a signatory to the 1951 Refugee Convention, Malaysia have at times allowed temporary shelter to Rohingya refugees arriving by sea, offered limited access to services, and cooperated with UNHCR to facilitate registration and basic protections. These examples, while imperfect and inconsistent, demonstrate how states operating outside the Refugee Convention framework can still adopt pragmatic, rights-based responses rooted in regional and humanitarian considerations.
For India, these regional practices offer important policy lessons in navigating the complex balance between humanitarian responsibility and national security. The measures taken by countries like Malaysia demonstrate that it is possible to implement basic protections for refugees without formal adherence to the 1951 Refugee Convention. By adopting minimal legal and procedural safeguards – such as upholding the principle of non-refoulement, facilitating access to identity registration through partnerships with UNHCR, and ensuring protection against arbitrary detention – India could take meaningful steps toward improving the conditions of Rohingya refugees within its borders. These measures would not require a complete overhaul of domestic refugee policy but rather a pragmatic alignment with existing international legal standards to ensure dignity and security for displaced populations. Crucially, such an approach would allow India to uphold its human rights commitments while maintaining control over security concerns, thereby reinforcing its regional leadership and moral credibility on refugee protection.
Moreover, regional platforms like the South Asian Association for Regional Cooperation (SAARC), offer a potentially valuable space for fostering shared norms and encouraging coordinated responses to refugee movements across South Asia. In a region where cross-border displacement is often shaped by common challenges, such as political instability, environmental degradation, and statelessness, a regional mechanism could help streamline policy approaches and promote a more consistent, humane response. Although SAARC has historically steered clear of sensitive political issues, its institutional structure and history of facilitating regional cooperation position it as a forum that could, if strategically revitalised, support constructive dialogue and norm-building around displacement. Reimagining SAARC in this way could ease the pressure on individual states by distributing responsibilities more equitably and fostering collaboration, ultimately contributing to a more stable and coordinated framework for refugee governance across South Asia.
Conclusion
The historical relationship between Myanmar and India plays a critical role in understanding the contemporary migration patterns of the Rohingya refugees towards India revealing the complex interaction between domestic laws, international human rights obligations, and national security concerns. While India has not signed the 1951 Refugee Convention, its human rights commitments under customary international law and the ICCPR compel it to extend protections to refugees like the Rohingya, particularly regarding the principle of non-refoulement.
The legal landscape for the Rohingya in India remains uncertain, and the absence of a coherent refugee policy leaves them vulnerable to exploitation and deportation. This legal ambiguity underscores the need for India to reconsider its approach to the Rohingya refugee issue, balancing its national security concerns with its international legal obligations and humanitarian responsibilities. The evolution of India’s legal framework on refugees will be crucial in determining the future of Rohingyas in India and shaping the broader regional response to the refugee crisis.
International advocacy, particularly from the UNHCR, has prompted some regional responses – such as limited protections offered by Malaysia – that India could learn from. While not without flaws, it highlights the potential for rights-based approaches even outside the Refugee Convention framework. Regional forums like SAARC, though underutilised, could also be mobilised to foster coordinated, humane responses. Together, these avenues offer India opportunities to strengthen its refugee protection regime and contribute to a more collaborative regional approach.
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