India’s Rohingya Dilemma; All We Need To Know

The Mayanmar crisis, a cause for serious global concern has seen India conflicting in its priorities. National security concerns versus international humanitarian obligation, has led to slew of cases at the doors of the Apex Court , with who’s who of the Legal Fraternity representing the Rohingya Cause, including Fali Nariman, Kapil Sibal, Rajeev Dhawan, Colin Gonsalves, Ashwani Kumar and Prashant Bhushan.
While Senior Advocate Indira Jaising has been appointed by the United Nations Human Rights Council as the head of a three member team including Sri Lanka’s former human rights chief Radhika Coomaraswamy and Australian human rights advocate Christopher Dominic Sidoti to investigate atrocities against Rohingya Muslims in Myanmar’s Rakhine State.

The first Petition against deportation of Rohingyas filed by Mohammad Salimullah and Mohammad Shaqir, under Article 32 of the Constitution of India, came up for hearing before a Supreme Court Bench comprising of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud. Represented by Counsel Prashant Bhushan, the Petitioners relied on Article 14 , Article 21 and Article 51(c) of the Constitution of India which provides equal rights and liberty to every ‘person’. Contending further that the Petitioners have been registered and recognized by the UNHCR in India and have been granted refugee I-cards and their deportation would also be in contradiction with the principle of ‘Non-Refoulement’, recognized as a principle of Customary International Law (A principle that stops a country from returning a person to a place where they would be at risk of persecution). The Petition relied on Treatise and Conventions India ratified on Human Rights and Elimination of all Forms of Racial Discrimination amongst others.

International Refugee Convention, Role of UNHCR,Legislations Governing Refugees In India:

India claims serious security concerns behind its resolution to deport Rohingyas/Illegal immigrants and denies violating any international law as it is not a signatory to the UN Refugees Convention 1951.

UN Refugees Convention 1951: UN Multilateral Treaty which relates to the Status of refugees and defines who a refugee is, also defining the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum.
United Nations High Commissioner for Refugees ( UNHCR) : Although India is not signatory to the said Refugee Convention , It has allowed the UNHCR to have an official presence in New Delhi and Chennai. UNHCR issues ‘Refugee Certificates’ , which are recognized by the government as proof of a refugee’s status and holders of documentation provided by UNHCR are able to obtain temporary residence permits from the authorities.
Legislations Governing Refugees In India : Since India is not signatory to International Refugee Conventions, Refugees in India are subject to the control of domestic legislation such as The Passports Act of 1967, The Registration of Foreigners Act of 1939 and The Foreigners Act of 1946. As per these legislations, a person of non-Indian nationality including a Refugee is a ‘foreigner’, without specific legal status of a citizen.

India’s Refusal To Sign International Refugee Convention:
Although India has been generous and is abode to innumerable refugees having one of the biggest refugee populations in South Asia, yet India’s stand irrespective of different Ruling Parties down the decades has been firmly against signing the 1951 United Nations Refugee Convention and its 1967 Protocol. For which it faces severe global criticism. .

Reasons For Refusal:
Most vital on the list is India’s highly permeable borders, a cause of serious security concern. India today is placed third after Iraq and Afghanistan in terms of terror attacks. The harsh reality is that India is in permanent danger of terror attacks and state of war exists between India and the state sponsored massive terror industry in neighboring nation with extremist ideology of establishing Islamic state. Sadly, China with expansionist agenda, unabashedly has been teaming up with such nations against India and although China is harsh on its own muslim citizens, it actively promotes and sponsors extremist groups in India’s neighboring nations and funds, trains and arms them against India. Within it’s boundaries too, India has had a tough job preventing gullible minds from being brainwashed into terrorism and preserve its truly heterogeneous sentiments.

Another reason is India’s huge population problem and its inability to adequately address poverty and provide basic needs and requirements to all citizens. Hence, although India has always hosted refugees quite willingly and has allowed the UNHCR to have an official presence, it favors bi-lateral rather than multilateral decisions on migration and refugee issues.

Further, India faces many hurdles against smooth internal security functions. Huge financial and infrastructure requirement , large population, inadequate technological advancement and co-ordination issues in federal system with different regional and center party system, imposes many constraint in identifying and preventing security threats. Thus , for a nation like India the rights that are incorporated for refugees in the international convention for refugees becomes entirely impractical as it struggles with basic needs and security concerns of its own citizens.

India’s added woe is it’s inability to prevent influx of illegal migrants , who through unscrupulous means in the corrupt system easily avail valid identity card and indulge in anti Indian activities further worsening the security situations. Illegal migrants are a cause of big pain for India, The National Register of Citizens (NRC) investigation has found that there are 27,000 illegal immigrants living in just a single district of Assam, an indicator of how big the problem is!

The Centre Government in it’s reply to the said Petition in Supreme Court , stated , deporting Rohingyas is a policy decision of the Govt. and that court should not interfere in the matter.It claimed intelligence inputs of links between some Rohingya Muslims and Pakistan’s ISI and the Islamic State and these militant elements among the Rohingya are active in Delhi, Hyderabad, Mewar and Jammu , making them “a serious security threat to the country. All intelligence inputs in a sealed envelope are to be put before the Supreme Court on October 3. Center further added that right to residence is available to citizens and not illegal migrants.

Although the current Indian Govt’s tough stance against terrorism and intensive security operations have been successful in tightening the noose around terror operatives active within nation and fouling any possible terror attacks in interiors , yet the task has been daunting in preventing terror attacks in bordering areas, where the terror machinery has been successful in horrifying attacks.

The voices of concern for Rohingyas insist that non-return of refugees has become customary international law and thus it’s binding on India. In their humanitarian concerns and quest, they have been outright dismissive of allegation of Rohingyas connection with terror-related activities.

Ideal solution on humanitarian grounds demands repatriation of the Rohingyas only in a peaceful and safe Myanmar. It’s a tough decision for Supreme Court ahead, nation’s international humanitarian obligations or safety and security of its own citizens first!