The law is clear: India can’t deport Rohingyas
India has a fair reputation on the refugee issue having taken in Sri Lankans, Tamils, Afghans, Tibetans and Myanmaris. This is why the reaction of the Government of India on the Rohingya issue doesn’t quite make sense. Apart from being wrong on law, it creates an impossible situation and tarnishes India’s image abroad.
The Supreme Court in the case of granting citizenship to the Chakma’s confirmed the proposition that since Article 21 – the Right to Life – of the Constitution covers all “persons” and not just citizens, the State is duty bound to protect the lives of citizens and foreigners alike. This is how the principle of non-refoulement or non-return -- which bars a country from deporting a refugee to any country where she might be raped, murdered or tortured -- has been interpreted as inhering in Article 21.
However, the security issue remains to be discussed with some calmness. The Centre’s concerns ought not to be cursorily ignored. I represent 7,000 refugees in Jammu and visited some of the 23 refugee settlements in the city. Not a single refugee in Jammu has been charged with terrorism. On the possibility of radicalisation of the Rohingyas and of terrorist organisations fishing in troubled waters, one need only to rely on the statement of the chief minister of the state, asserting that there are no signs of radicalisation of the Rohingya population. How a traumatised population responds and develops depends on how it is treated. Treat them with dignity and the little Rohingya girl playing in the mud in her slum in Delhi could grow up to be the prime minister of India. Give them a brutal demolition, and perhaps some may join the ranks of militants. Their future and ideological orientation lies in our hands. Take the case of the Sri Lankan refugees who fled to India in large numbers, all of them with LTTE tattooed on their hearts. The Indian government did not take the stand that the possibility of radicalisation disentitled them from being treated humanely in Indian refugee camps. The same approach must be taken with the Rohingyas.
The government says that since the Rohingyas are illegal migrants they can be deported. The initial part is right, the conclusion is wrong. Migrants are divided into economic migrants and refugees. Both enter the country without valid visas or passports. Economic migrants searching for jobs cannot demand that they be allowed to remain under existing Indian jurisprudence. They may be deported. Refugees, however, are distinguished from others in that they flee persecution in their country of origin. Once they enter India, they are protected by the Constitution and cannot be returned. It is odd that the officials have not been shown the guidelines of the home ministry regarding refugees where it is said that persons fleeing persecution will not be treated as illegal immigrants and will be granted long-term visas. Apparently, 5,000 Rohingyas have been granted such visas and the remaining are in queue.
On the United Nations High Commission for Refugees (UNHCR) front, an unnecessary confrontation is brewing. Under a long-standing arrangement and understanding with the UN, the agency has been permitted and encouraged to do thorough refugee verification and determination of refugees. This information is promptly shared with the home ministry and intelligence agencies. This is an important function and one which enables the government to know exactly where the refugees are and their details.
One could understand the chaotic situation that would exist if refugees were to come into India and go underground rather than flock to UNHCR for registration. The implications for national security are clear. The UNHCR plays a dual role of protecting refugees by giving them refugee cards and in meeting India’s security concerns. This well-established system has operated for decades, based on mutual respect and self-interest. Recently, however, there have been very rough statements made by counsel appearing for the government of India, obviously briefed by short-sighted and ill-informed officials to the effect that the government does not recognise the UNHCR and the refugee cards issued by them after status determination. The government of India can certainly take over refugee determination but it must surely deal with the UN with courtesy and recognise the enormous work done by the UNHCR all to India’s benefit and security concerns.
Colin Gonsalves is a senior Supreme Court advocate and founder, Human Rights Law Network. He is a recipient of the 2017 Right Livelihood award
The views expressed are personal