The Supreme Court recently asked the government to explain why it wants to deport Rohingya Muslim refugees who have arrived in India after fleeing persecution and violence in Myanmar. Minister of state for home Kiren Rijiju called them “illegal immigrants” who stand to be “deported”, whether they are registered with the United Nations High Commissioner for Refugees or not. Around 14,000 Rohingyas living in India are registered, and an estimated 40,000 are said to be illegal. India has given refuge to Sri Lankan Tamils, Tibetans, Afghans, and the Bangladeshi Chakmas. Why are the Rohingya Muslim refugees considered a threat?
Are the Rohingya Muslim refugees a security threat? Can India deport them? We ask experts.
Conditions are not conducive in Myanmar, the Rohingyas shouldn’t be forcibly deported.
Prashant Bhushan, lawyer who has filed a petition in the Supreme Court on behalf of two Rohingya refugees.
About 40,000 of Rohingya refugees came to India, mostly around 2012, and they have been living in different parts of the country. But there has been no evidence or no credible report that they have been involved in any act of terrorism or that they pose any kind of security threat. On the other hand, they have been subjected to a lot of attacks by communal forces.
Every principle of international law, including four international treaties which India has signed, require that these refugees cannot be sent back to Myanmar till their life and liberty would be assured there. Conditions are certainly not conducive there, that is why they have fled Myanmar and come to India. The Indian government’s policy for refugees has always been that those who are seriously threatened in their home countries are welcomed to stay here as refugees, which is also the principle of international law.
Kiren Rijiju in 2015 said that all Hindus, Buddhists, Sikhs, Christian refugees are welcome in India. Now for Rohingyas, he is saying that they will have to be deported. This is in tune with this government’s communal policy and communal actions. Our Constitution does not permit discrimination on the basis of religion.
In our petition, we have said that the international law prohibits the Indian government from sending them back to Myanmar. They should not be forcibly deported.
We have not signed a refugee convention but we have signed 4 other international UN conventions: UN convention on human rights, UN convention on civil& political rights, UN convention against enforced disappearance, UN convention against torture. Each one of them mentions this principle of non refoulement, which means that you cannot send back refugees to a place where their lives and liberty would be seriously threatened.
India’s refugee protection regime is riddled with ambiguity and arbitrariness
Roshni Shanker, Executive Director, The Ara Trust, Centre for Refugee Law & Forced Migration Studies
The government’s recent move to deport 40,000 Rohingyas has once again put the spotlight on India’s ad hoc refugee management practices. The government appears to have taken the position that in the absence of a law, Rohingyas are illegal immigrants who pose a threat to national security as they are likely to be more vulnerable to radicalization. Further, the government has relied on The Foreigners Act, 1946, that gives the state wide powers to detect and deport illegal immigrants.
However, it is important to note that Indian courts have long recognised refugees as a distinct category and have extended protection under Articles 14 and 21 of the Constitution. Further, India is bound by the principle of customary international law called non-refoulement, which lays down that no country can deport a person to a place where s/he may face persecution. While the ‘threat to national security’ is an exception even to the principle of non-refoulement, the threat must be factually established on a case-by-case basis and supported by credible material. An entire community cannot be a threat to national security and be deported en masse.
The real issue is the lack of a uniform asylum law in India. This has resulted in the adoption of multiple approaches towards different refugee groups that has created a protection regime that is riddled with ambiguity and arbitrariness which, all too often, results in injustice to a highly vulnerable populace. With the matter now before the Supreme Court, it is to be seen if the court will go beyond the scope of the issue at hand and accord some clarity on the rights and protections available to refugees in India.
In a strategic scenario analysis, it is always the worst case that determines the policies of the security establishment
Rajat Sethi, Research Fellow, India Foundation
The Rohingyas crisis deepened by the recent violent acts of the insurgents acting under the banner of Arakan Rohingya Salvation Army. The subsequent military crackdown resulted in the deaths of hundreds of insurgents and exodus of a fresh wave of Rohingyas into the neighboring Bangladesh. This has opened a new and complicated dimension to the already vexed issue of the Rohingyas.
The security establishment is wary of the susceptibility of ARSA type homegrown militants falling prey to grander Islamic jihadist forces. The vulnerability of the Rohingya migrants to radicalisation from forces inimical to India can pose a security threat. The strategic apprehensions of an orchestrated and well-designed settlement of Rohingyas in vulnerable regions like the Jammu and Kashmir, and Hyderabad needs to be studied. In a strategic scenario analysis, it is always the worst case that determines the policies of the security establishment. It is in this regard that the Indian state should be careful in dealing with the issue of Rohingya migrants.
As per the government internal assessment, there are roughly 40,000 Rohingyas migrants that have settled in India illegally. While India has held high humanitarian standards in dealing with politically persecuted refugees, it needs a robust refugee policy to systematically settle the migrants in a way that it does not stress the incumbent population.
The social fabric of the Northeast India was torn apart by the disproportionate illegal migration of Bangladeshi Muslims. Any fresh wave of Rohingya migrants sneaking from Bangladesh into the Northeast region, for example, will throw the society into disarray. This has the potential to pose serious threats to internal security.
Even if India is not a party to the refugee convention, it is bound by customary international law
Priya Pillai, an international law expert and consultant based in Manila
India’s international legal obligations to protect the Rohingya are found not only in refugee law, but also in other relevant international laws and norms.
The 1951 Refugee Convention defines refugees as having “a well-founded fear of persecution”, based on race, religion, nationality, among other factors. Non-refoulement or the prohibition of expulsion is a core principle enshrined in Article 33. While India is not a party to the refugee convention, it is bound by customary international law (another category of international law), which recognizes this principle. Given the recent articulation of the crisis from the lens of “terrorism” (which is undefined in international law), invoking the controversial “national security” exception to non-refoulement in the treaty does not override the customary law rule.
For argument’s sake, even assuming the legality and applicability of the exception, a strict interpretation necessitates taking into account only extremely serious threats emanating from individuals. Even this has to be proved on a case-by-case basis because of the humanitarian aims of the treaty. Deporting 40,000 Rohingya en masse would clearly fall foul of this test.
Other sources of non-refoulement that do not contain national security exceptions include the International Covenant on Civil and Political Rights, the Convention Against Torture, and ensuing customary law. This means that returning refugees to conditions where they may lose their lives, be tortured, or subjected to inhuman, cruel or degrading treatment or punishment, would be violative of international human rights law.
In case of genocidal acts as may be the case here, the designation of genocide as the fundamental norm from which no ‘derogation’ or exceptions are permitted, would render expulsion for any reason contrary to international law.
The increasing importance and elaboration of the “Responsibility to Protect” on the global stage make India’s stance even more untenable.
By saying Rohingyas will “disturb the demographic pattern”, they imply having more Muslims is a bad thing
Aakar Patel, social and political commentator
India has three areas (Northeast, Jammu & Kashmir and the Adivasi belt) with decades-long conflicts. Outside these areas, meaning in the parts where over 1 billion Indians live, there is almost no terrorism. Total deaths from terrorist violence (including those killed as terrorists) outside the conflict areas have this year been 1, in the year before 11, the year before that 13 and the year before that 4. Terrorism, particularly what is called Islamist extremism, is not a threat in India, as the data show.
However, in denying refuge to the Rohingyas, and indeed in threatening to send them back to the dangerous conditions they have fled, India’s reasons include terrorism threats from a community with no history of terrorist violence.
According to minister of state for home Kiren Rijiju, the other threat from their presence is a disturbance in the demographic pattern. This implies having more Muslims is a bad thing.
India under the Bharatiya Janata Party has developed a bigoted official policy of accepting refugees from neighbouring countries, so long as they are not Muslim. However, the Rohingya are being threatened in a way that other refugees, including Muslims like Afghans, are not. Why?
One can only speculate that it is the contempt of the familiar. The Rohingya speak a form of Bengali and therefore fit the pattern of a community demonised by Hindutva. The hatred generated against Bengali-speaking Muslims include allegations of being moochers (bearing Aadhaar cards), smugglers of cows for beef and terrorism supporters.
To its constituency, which has bought the demonisation in full, the BJP is selling an uncomplicated story: the Rohingya are Bangladeshis by another name. Like all Bangladeshis, they must be sent back.
Rohingya Muslims are being seen as part of illegal migration and that leads to anxiety
P. C. Haldar, former Intelligence Chief.
There is no single factor which dominates this decision or weighs in when we speak of a subject as complex as this.
My personal view is that the influx of Rohingya Muslims is perhaps being seen as part of illegal migration that leads to anxiety among people here. It is not being linked to what is happening in Myanmar. They are not being seen as sufferers.
Also, we do not have a policy for accepting or rejecting the refugees. We do not know whom to consider for refuge and whom to ignore. At present, it depends on how the existing case is being perceived by us.
India has taken in so many people and has been following a very humane policy throughout, but there are certain constraints. What we need is a defined policy, something which the civil society has not been able to reach a consensus on. If a policy has to be made then there should be a discussion, a diligent effort, which seems missing.
We took many displaced people over the years which have had its consequences. In this case, there is certain amount of security threat that might have influenced the decision. Like in Arakan, there was certain degree of involvement if Jihadi elements. But it is inevitable when there is an influx. Some anti-social elements are bound to penetrate along with the genuine sufferers, which then becomes a concern for the state and its people.
Economics too, could be a factor as we are already overburdened, but this requires serious study.