Rohingya crisis
Rohingya | by AK Rockefeller Rohingya | by AK Rockefeller

The Rohingya’s are one of the world’s most persecuted communities and are regarded as ‘stateless’ on account of Myanmar’s 1982  laws, which virtually excludes them from citizenship. UN Secretary-General Antonio Guterres recently described their situation as having “spiraled into the world’s fastest-developing refugee emergency, a humanitarian and human rights nightmare.” In the background of India’s decision to deport an estimated 40,000 Rohingya refugees, a petition was filed in the Indian Supreme Court challenging the same. This article expounds India’s Constitutional and legal framework in the context of the present refugee crisis, highlighting a particularly grim scenario for the Rohingya cause against deportation in India.

Conflicting Constitutional Guarantees and Statutory Framework

Constitutional guarantees of the Right to Equality (Article 14) and Right to Life (Article 21), being available to non-citizens and applicability of the principle of non-refoulement or non-return of refugees, when facing persecution in their home country, are the primary grounds being cited against deportation of Rohingya’s. However, India, not having a refugee policy, while also not being a signatory to the 1951 Convention Relating to the Status of Refugees nor to the 1967 Protocol Relating to the Status of Refugees, 1967 acts as a severe roadblock to the Rohingya cause against deportation. Interestingly, the word ‘Refugee’ has not been defined anywhere in any Indian legislation. By and large, the treatment of refugees falls under the Foreigners Act (FA), 1946, which fails to make any distinction between refugees, asylum seekers, and other foreigners. Section 2 (a) of  FA, 1946, defines a foreigner to be any person who is not a citizen of India, while section 3 (2) (c) empowers the Central Government to pass an order directing the removal of ‘Foreigners’ from the country. In the absence of a formal asylum policy, cases are decided on an ad-hoc or case-to-case basis. Since refugees are not categorized as a separate class, there exists significant elbow room for India to deport Rohingya’s by declaring them to be illegal immigrants.

This position has been further strengthened by two Constitutional bench judgments of the Indian Supreme Court (Hans Muller of Nuremberg and Louis De Raedt) where it was held that the power of the Government under the Foreigners Act to expel foreigners is absolute and unlimited; there is no provision in the Constitution restricting this power. Unfortunately, the applicability of Article 14 and 21 looses further steam on a bare reading of Article 19 (d) and19 (e) of the Indian Constitution, which provides the right to settle and reside in any part of India as well as the right to move freely across the territory of India only to Indian citizens and not foreigners. It is well established that Article 14 and 21 cannot be read in isolation of Article 19 (d) and 19 (e). A harmonious construction of the same unfolds a particularly grim scenario for the Rohingya’s.

Applicability of the Principle of Non- Refoulement

Particular reliance is placed upon the applicability of the principle of non- refoulement (an aspect of international customary law) in India. It is contended that since ICL is regarded as binding on countries irrespective of them signing particular conventions codifying the same; the principle of non-refoulement will have to be followed by virtue of it being an established percept of ICL. A 1996 case (NHRC vs. the State of AP), where the applicability of Article 14 and 21 on non-citizens was acknowledged, is also cited. This case is being viewed as a vindication of the applicability of non-refoulement in India. However, the petitioner fails to appreciate the fact that the issue, in that case, was pertaining to persecution faced by Chakma refugees from the indigenous population, and wasn’t an instance of forced deportation. The applicability of Article 14 and 21 on non-citizens is apparent and has not been a subject of dispute at any moment during this entire deportation controversy. The moot point is that in light of Articles 19 (d) and 19 (e) as well as Supreme Court Judgments, the exercise of deportation would in it itself not be an instance of violation of the said Articles. In no way would the deportation be an attack on either Article 14 or Article 21. As seen in the preceding section of the article, the Supreme Court’s denial of non- refoulement in India and acceptance of the validity of the Foreigners Act, 1946 has manifested itself in a crystal clear fashion. Hence, the applicability of non-refoulement, in this case, is highly doubtful.    

Ambiguous applicability of International Instruments

It is also contended that India is bound by obligations stemming from international treaties and conventions-like International Covenant’s on Civil and Political Rights (ICCPR), on Protection of all Persons against Enforced Disappearances and the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. However, the petitioner fails to appreciate the fact that ICCPR nowhere in its scheme of things expounds the principle of non-refoulement. With regard to the other two conventions, the petitioner fails to appreciate the true nature of applicability of international conventions in domestic law. Ratification of a convention is a prerequisite for its enforcement. India not having ratified either of those conventions cannot be made accountable for their enforcement. The relevance of mentioning these two conventions is also questionable in light of there not being a single reported instance of attacks against Rohingya’s within the territorial boundaries of India.

The way forward

An order of deportation would significantly increase the burden faced by Bangladesh when she has already shown tremendous grit by absorbing close to 9 lakh refugees with little to no support from international players. The buck regarding the genocide stops with the Myanmar Government. The International Community and SAARC, in particular, should explore options under the International law through the instrumentalities of the International Criminal Court as well as other devices against Myanmar. The SAARC should also work towards a regional refugee policy in order to ease the burden faced by Bangladesh.

Aditya Manubarwala is a Trainee Solicitor based in Mumbai. In the past, he has been an Attaché to the Office of the Speaker of the Lower House of the Indian Parliament. He is also one of the youngest Indian to have deposed before a committee of Parliament in Indian Legislative History. He has also been a Trainee Law Clerk to Justice F.M.I Kalifullah of the Supreme Court of India. In August 2016, Aditya represented India at the Harvard Asia Conference, Hong Kong, where he received the Chinese General Chambers of Commerce Scholarship in recognition of his efforts towards social empowerment in Asia”

The views expressed here are of the author and Kathmandu Tribune doesn’t endorse it.