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India and Rohingyas
Context:
A recent report by The Azadi Project and Refugees International has shed light on the plight of Rohingya refugees detained in India, exposing severe human rights violations and India’s alleged failure to uphold its international obligations.
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- Based on interviews with detainees, families, and legal representatives, the report reveals that many Rohingya refugees remain incarcerated even after completing their sentences, raising critical questions about their protection and rights under international and domestic law.
International Protections for Rohingya Refugees
- Rohingyas: The Rohingya, a stateless Muslim minority from Myanmar, face systemic persecution, including genocidal violence, forcing them to flee to various countries.
- With an estimated 2.8 million Rohingya worldwide, including nearly 22,500 in India, they constitute one of the world’s largest displaced populations.
- Refugee Convention and its Protocol: Under international law, the 1951 Refugee Convention and its 1967 Protocol establish the principle of non-refoulement, which prohibits states from returning individuals to places where they may face persecution, torture, or severe human rights abuses.
- Recognised as a cornerstone of refugee law, non-refoulement is binding on all states as customary international law, even those not party to the Refugee Convention.
- The United Nations has reiterated the absolute nature of this principle, underscoring its applicability to all nations.
India’s Position on Refugee Protection
- Not a Signatory: India is not a signatory to the Refugee Convention or related international treaties like the Convention Against Torture and the International Convention for the Protection of All Persons from Enforced Disappearance.
- Domestic Laws: It relies on domestic laws such as the Foreigners Act, 1946, and the Passport Act, 1967, which grant broad executive powers to regulate foreigners.
- These frameworks allow authorities to classify Rohingya refugees as “illegal migrants,” resulting in arbitrary detention and criminal imprisonment.
- Right to Life: In response to legal challenges, including a public interest litigation (PIL) seeking the release of detained Rohingya refugees, the Union government has asserted that while refugees are entitled to the right to life under Article 21 of the Constitution, they do not have a right to reside or settle in India.
- The Supreme Court upheld this position in 2021, citing national security concerns.
India’s International Obligations
- Despite not being party to the Refugee Convention, India’s obligations under other international treaties include implicit protections for refugees.
- The International Covenant on Civil and Political Rights, ratified by India, prohibits returning individuals to countries where they may face torture or degrading treatment, aligning with the principle of non-refoulement.
- Moreover, India’s Constitution under Article 51(c) encourages respect for international law, and the Supreme Court has affirmed in landmark rulings that international conventions must guide domestic courts in safeguarding human dignity.
- Following concerns about the Matia Transit Camp, the Supreme Court directed the Assam State Legal Services to conduct surprise inspections to assess the refugees’ living conditions.
- High Courts in Gujarat and Delhi have interpreted non-refoulement as intrinsic to Article 21, reinforcing India’s duty to protect refugees from deportation to places of harm.
Challenges in the Treatment of Rohingya Refugees
- No Uniform Policy: India lacks a uniform refugee policy, leading to inconsistent treatment of refugee populations.
- While groups such as Tibetans and Afghans receive support through refugee certificates or long-term visas, most Rohingya refugees, even those registered with the United Nations High Commissioner for Refugees (UNHCR), face detention and criminalisation.
- Citizenship Amendment Act, 2019: Which offers fast-track citizenship to persecuted religious minorities from neighbouring countries, explicitly excludes Muslim groups like the Rohingya, exacerbating their marginalisation.
- No Legal Representation: Additionally, the absence of legal representation and aid compounds the challenges faced by Rohingya refugees.
- FCRA: Civil society organisations advocating for their rights struggle with funding shortages due to revoked Foreign Contribution (Regulation) Act (FCRA) licenses, deterring lawyers from taking up their cases.
Way Forward
- India must address the plight of Rohingya refugees by adopting a comprehensive refugee policy aligned with international norms.
- Ensuring legal representation, improving detention conditions, and upholding the principle of non-refoulement are critical steps to safeguarding human rights.
The Rohingya crisis serves as a litmus test for India’s commitment to international humanitarian values. Balancing national security with the protection of vulnerable populations requires a humane and principled approach, one that reinforces India’s legacy as a refuge for the displaced.
