Does India Need a National Refugee Framework?
"If Myanmar gives us citizenship and recognizes our Rohingya identity we will return."
-A young Rohingya refugee ( Human Rights Watch)
Recently, the Supreme Court of India rejected the plea for the release of Rohingya refugees detained illegally and asked the government to follow the due procedure which could lead to their deportation to Myanmar. Myanmar is not just grappling with the most violent military coup in its history but is infamous for launching clearance campaigns in the Rakhine state which is home to the Rohingya community. UNHCR declared the Rohingya as the most persecuted minority in the world. The decision by the Indian State has disrespected international law and obligations it has signed previously. More than that, it lacks basic human compassion. The government has given the age-old excuse of security concerns which is backed by no evidence. This was also confirmed by Colin Gonsalves in a press conference held in the capital city of India. He is a prominent human rights lawyer in India and has represented the community's case at the Supreme Court.
A Rohingya Muslim man prepares to walk through a full-body sanitization tunnel installed at COVID-19 dedicated Government Medical College hospital, in Jammu, Sunday, April 19, 2020. Photo: PTI
In a unanimous decision, the international court of justice (ICJ) imposed emergency “provisional measures” on Myanmar in January 2020: intervening in its domestic affairs by instructing the government of Aung San Suu Kyi to respect the requirements of the 1948 genocide convention. Dalveer Bhandari was representing India as part of the panel which decided in favour of the Rohingya minority at the International Court of Justice. However, the politicians in India are unwilling to accept that crimes against humanity are taking place against the Rohingya minority in Myanmar and continue to term them "illegal migrants".
India is one of the most prominent refugee receiving countries in the world and has treated Tibetans and Sri Lankan Tamils who sought refuge fairly well by providing them social security benefits, shelter and allowances. With the help of UNHCR, the government provided them protection and support. It is hypocritical of the Indian Government to treat Rohingyas in such an indecorous manner which allows the media to propagate the dangerous "we versus them" narrative. The reason behind this horrible treatment is the extremely xenophobic hyper nationalist agenda of the present political party at the centre. Anti muslim policies and remarks have become its trademark and the stateless Rohingya refugees are bearing the brunt of it.
A refugee train in Punjab, during Partition. Photo: The Print
The differential treatment of Rohingya refugees highlights the ambiguous nature of India’s refugee law and its reluctance to define refugees as a class of persons entitled to rights. This strategic flexibility has its own problems. It creates uncertainty and worry among the refugees as it makes their fates dependent on the whims of the changing political dispensation at the Centre. Moreover, it allows the government to use the umbrella term, "illegal immigrant" which builds a negative public perception of the people who are fleeing genocide and war. This makes one wonder about the status of India's humanitarian obligations.
Image of Rohingya Refugees Photo: Reuters
First of all, India is not a signatory of the United Nations' Convention on the Status of Refugees 1951, along with the Protocol of 1967. Some sections of the population believe that the reason behind not signing the convention was that the country was dealing with its own economic and political struggles like any other newly decolonized nation. Some leaders were also of the view that there was no need to set up a new organization whose sole motive would be to give refugees legal protection. That might have been the case seventy years ago but it's definitely not the case in today's world where one percent of the world’s population have fled their homes.
This does not mean that the Indian State can refuse to accept refugees. However, in the past India has detained several people who were fleeing ruthless regimes under the provisions of the ill-defined and colonial Foreigners Act of 1946, which paints all ‘foreigners’ with the same brush. At the same time, it is important to note that several provisions within the basic structure of the Indian Constitution guarantees freedoms like right to live a dignified life, equality before law, right to a fair trial and freedom to practice one's own religion to all persons, not just Indian citizens.
India is also a signatory to several international agreements and the international customary law has the fundamental principle of non-refoulement that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion. India is party to agreements which have provisions dedicated to providing protection to asylum seekers such as Universal Declaration on Human Rights (1948), Convention on Civil and Political Rights (1966), United Nations Convention against Torture (1984) and Convention on the Elimination of all forms of Racial Discrimination (1965). Furthermore, there is a special article in the Indian constitution which urges the Indian State to respect international treaties and obligations.
India needs a national refugee framework because the Indian law has not defined refugees as a distinct group and can deny protection to them when it so chooses. This is not in coherence with India's commitment to international humanitarian obligations. At the same time, the existing laws do offer them protection and have rightly been used to this end in several past cases. However, these interventions have been case specific. It makes the refugees vulnerable to the different interpretations of the Indian constitution. Whereas, the first step to living a dignified life is entitlement of rights. While the international community urges India to develop its Refugee Framework, it should also consider that the rise in the number of asylum seekers and refugees in India has not been accompanied by an increase in resources. So, it would require support and assistance from early industrialised nations.
Bhattacharjee, S. (2008). India Needs Refugee Law. Economic & Political Weekly, 43(9), 71-75.
Bowcott, O. (2020, January 23). UN's top court orders Myanmar to protect Rohingya from genocide. The Guardian. https://www.theguardian.com/world/2020/jan/23/international-court-to-rule-on-rohingya-genocide-safeguards
Manuvie, R. (2019, December 27). Why India is home to millions of refugees but doesn’t have a policy for them. The Print. https://theprint.in/opinion/why-india-is-home-to-millions-of-refugees-but-doesnt-have-a-policy-for-them/341301/
Sareen, P. (2021, March 7). Nearly 150 immigrant Rohingya Muslims who escaped persecution in Myanmar and were living in Jammu have been detained and sent to a ‘holding centre’. The Wire. https://m.thewire.in/article/rights/nearly-150-rohingya-detained-in-jammu-raising-spectre-of-deportation
Subaramaniam, N. (2021, April 13). Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with circumstances. Indian Express. https://indianexpress.com/article/explained/on-refugees-and-illegal-immigrants-how-indias-stance-changes-with-circumstances-7270883/
Supreme Court must rethink its order on deportation of Rohingya Refugees. (2021, April 26). Indian Express. https://indianexpress.com/article/opinion/columns/rohingya-refugees-crisis-india-supreme-court-7288913/
About the Author
Navya is a student of Political Science and History from New Delhi, India. She has volunteered with organizations which work with refugees since 2019. She continues to work as a student volunteer at various peacebuilding projects in India. She loves interacting with children to raise awareness about the negative consequences of hate speech in India and across the world.