During the Second World War, the Arakan or Rakhine state was one of the frontlines of the South East Asian theatre of war. The Rohingyas fought against the Japanese imperial forces on the side of the British and the allies. It was only for a short period in the 1950s that there were attempts to be more accommodating of the Rohingya as peoples of Burma. The U Nu government recognized 144 ethnic groups in Burma. General Ne Win after his military coup pared down the list of recognized ethnic groups to 135. The Rohingyas were excluded.
An estimated between one and 1.5 million Rohingyas in Rakhine State in Myanmar are concentrated in the three townships of North Rakhine State – Maungdaw, Buthidaung and Rathedaung.The word ‘Rohingya’ is a historical name for the Muslim Arakanese. There is still a Muslim village in Akyab city, now known as Sittwe, by the name of Rohingya. The old name for Rakhine State was Rohang from which the term Rohingya was derived. Today, this term, Rohingya, has become contentious. The Rohingyas settled in Burma in the ninth century, since then they have mixed with Bengalis, Persians, Mughuls, Turks and Pathans.
In 1948, Rohingyas were not subject to laws such as the Foreigner Act (Indian Act III, 1846), the Registration of Foreigners Act (Burma Act VII, 1940) and the Registration of Foreigners Rules, 1948) related to Registration of Foreigners before or after Burma’s independence. Under the national quota, Rohingya representatives were elected during the colonial administration from North Arakan as Burmese nationals. In 1946, as an indigenous people, General Aung San assured full rights and privileges to Muslim Rohingyas saying that native people should not be divided. But he soon resiled from this position.
After Ne Win seized power, he dismantled Rohingya social and political organizations in 1962. In 1977, the military registered all citizens and, more than 200,000 Rohingyas had to leave for Bangladesh in 1978. Rohingyas were forced to leave for East Bengal (now Bangladesh) in four main periods: the late 1700s and early 1800s, the 1940s and 1978.This was followed by further expulsions in 1991 and 1992 and again in 2012. These four waves of forced displacement in fact reconfirm that the Rohingya have been living in Burma for centuries and it gives the lie to the claims of the Myanmar government and Buddhist fundamentalists that they are migrants from Bengal.
India’s position on the Rohingya Refugee crisis
The Ministry of External Affairs statement of 26 August 2017, titled ‘Situation in Rakhine State of Myanmar’ gave the plot away prior to the visit of Prime Minister Narendra Modi to Myanmar from September 5-7, 2017. “India is seriously concerned by reports of renewed violence and attacks by terrorists in northern Rakhine State Myanmar. We are deeply saddened at the loss of lives among members of the Myanmar security forces…..” the statement said. In the joint statement issued by India and Myanmar on September 6, the previous formulation is repeated. “India condemned the recent terrorist attacks in northern Rakhine State, wherein several members of the Myanmar security forces lost their lives.”
Nothing about the enormity of the humanitarian crisis nothing about the continuing refugee flow into Bangladesh and the miniscule earlier spillover into India.
There is little to show for Narendra Modi’s much hyped visit. Apart from the usual Bollywood kitsch song and dance routine passing off as a display of Indian culture overseas at a diaspora event and sightseeing, the main security formulations were dead on arrival.
The Indian government could not even make a substantive gesture to Bangladesh of offering humanitarian assistance as faraway Turkey has intelligently done. It could have offered to send a medical team to Rakhine to offer medical assistance to all the injured irrespective of the ethnic community that they belonged to.
The Indonesians and Malaysians in ASEAN are none too happy with the Indian position on the Rohingyas. As far as the Look East or Act East policy goes all that one needs to do is to go to Moreh town in Manipur, the alleged Indian gateway to South East Asia. A wild east where infrastructure exists in the fertile imaginations of the denizens of Delhi. Law and order there has been sub contracted out by the Assam Rifles to armed auxiliaries of non-state groups.
The International Backlash
“I deplore current measures in India to deport Rohingyas at a time of such violence against them in their country… by virtue of customary law, its ratification of the International Covenant on Civil and Political Rights, the obligations of due process and the universal principle of non-refoulement, India cannot carry out collective expulsions, or return people to a place where they risk torture or other serious violations.”
The United Nations High Commissioner for Human Rights could not have said it more bluntly. It was part of his opening statement to the United Nations Human Rights Council’s 36th session of the UN Human Rights Council. Zeid Ra’ad Al Hussein has been regularly calling countries to account at the UN where, in nine cases out of ten, nations unite to thwart meaningful international scrutiny of their records.
It is clear that the entire UN human rights system has got the measure of the Goebbelsian spin that the Indian political and diplomatic leadership has been engaging in, particularly since 2014, on human rights, tolerance, democratic norms and standards. Coincidentally, India’s membership at the UN Human Rights Council ends this year.
“I am also dismayed by a broader rise of intolerance towards religious and other minorities in India. The current wave of violent, and often lethal, mob attacks against people under the pretext of protecting the lives of cows is alarming. People who speak out for fundamental human rights are also threatened. Gauri Lankesh, a journalist who tirelessly addressed the corrosive effect of sectarianism and hatred, was assassinated last week.”
Underlying the UN High Commissioner’s statement is less outrage and more a deep sense of disappointment at India’s stonewalling and obfuscation. India’s attitude to all well-meaning advice and mild criticism has been procrastination, in the forlorn hope, that the concern about India will be overtaken by concerns elsewhere. Yemen, Syria, Myanmar, et al.
Indian law on the Refugee Issue
India does not have a national legal framework to deal with refugee issues. Mercifully, India’s courts have recognised the right to non-refoulement. However, this appears to apply solely to persons with or without refugee status, who have entered India.
In Ktaer Abbas Habib Al Qutaifi v. Union of India (1999 CriLJ 919, also see Indian Kanoon1), the Gujarat High Court held that the right to non-refoulement is protected by the right to life. However, its limited application ends wherein a refugee poses a threat to national security. The Court relied on Article 51(c) of the Constitution which states that “the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.” This includes non-refoulement obligations.
The Court held that “the evidence relating to the meaning and scope of non-refoulment in its treaty sense also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive, authority that the principle is binding on all States, independently of specific assent.”
The Court concluded that the asylum seeker petitioning for legal recognition could not be deported until status determination by the UNHCR has taken place. This case established that non-refoulement obligations do apply to the State of India, despite its failure to sign international agreements, most specifically the 1951 Refugee Convention.
The Supreme Court has held that the fundamental rights enshrined under Article 21 of the Indian Constitution regarding the right to life and personal liberty, applies to all irrespective of whether they are citizens of India or aliens within the country. In Malavika Karlekar v. Union of India, the Supreme Court accordingly prohibited the deportation of a group of asylum-seekers. The group had applied for refugee status and had a prima facie case for refugee status. They posed no national security threat. The protection was placed in force until their status was determined.
In U. Myat Kyaw & Nayzin v.State of Manipur & Superintendent of Jail, the Guwahati High Court ordered the government to release a group of asylum-seekers from jail. They were arrested for illegal entry into India, under the provisions of the Foreigners Act. The protection was ordered for a period of two months as they were to apply to UNHCR for the determination of their refugee status during this period.
In this case, the Indian courts recognised the right to be free from refoulement. This prohibits sending refugees to their country of origin against their will where there is a significant risk that they may be harmed through threats to the right to life or be subjected to torture, cruel, inhuman or degrading treatment. Cases significantly suggest that before deportation of potential refugees, the UNHCR must determine their status and ensure that obligations of non-refoulement will not be breached.
In Khudiram Chakma v. State of Arunachal Pradesh, the Supreme Court approved of the commentary on the Universal Declaration of Human Rights (UDHR), examining Article 14’s prohibition on refoulement. It stated,
"Article 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy asylum has to be interpreted in the light of the instrument as a whole; and must be taken to mean something. It implies that although an asylum seeker has no right to be granted admission to a foreign State, equally a State which has granted him asylum must not later return him to the country whence he came. Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments."
These cases lend emphatic support to the conclusion that the Indian judiciary largely recognises that the State is bound by international agreements on the right to non-refoulement of persons from Indian territory. This is additionally recognised in the Constitution under the right to life and therefore provides a useful legal framework to claim and ensure the enforcement of refugee right to non-refoulement in India.
India’s Supreme Court applied Article 21’s right to life and Article 14’s right to equality in recognising that equal protection of the law should be awarded to aliens as well as citizens within its borders. In National Human Rights Commission v. State of Arunachal Pradesh &Anr., the court recognises the right to security of the person,
In recognising these rights, the Supreme Court places a positive obligation on the Indian State and Central Government to protect the lives and personal security of all aliens, including refugees, from threats by private actors as well as the State or Central Government. Accordingly, the State and Central Governments “must act impartially and carry out...[their] legal obligations to safeguard the life, health and well-being of... [refugees] residing in the State[s] without being inhibited by local politics.” In meeting its duties, the government may use police, paramilitary, or any other necessary force.
The Supreme Court noted the responsibility of the government to deal with threats to refugees in accordance with the law. This includes a duty to apply the law where any party threatens the security of refugees.The Supreme Court of India however, follows normal procedure even when it has urgent items on its list. It postponed the hearing on the government’s intention to deport Rohingya refugees, scheduled for 11 September 2017, by one week. On 5 December 2017 the court further postponed the hearing to 31 January 2018 of a batch of pleas, including that of two refugees against the centre’s decision to deport Rohingya Muslims to Myanmar.
Case Law Reference:
Kfaer Abbas Habib Al Qutaifi v. Union of India- 1999 CriLJ 919
Dr. Malvika Karlekar v. U.O.I - [Crl. W P No. 583 of 1992]
State Of Arunachal Pradesh vs Khudiram Chakma - 1994 AIR 1461
National Human Rights Commission v. State of Arunachal Pradesh &Anr - 1996 SCC (1)742
U. Myat Kyaw and Nayzin v. State of Manipur and the Superintendent of Jail, Manipur Central Jail, Imphal - Civil Rule No. 516 of 1991
Reference: 1. https://indiankanoon.org/doc/1593094/
*Ravi Nair is a human rights activist and a researcher with SAHRDC, South Asia Human Rights Documentation Centre with specific expertise on refugee issues.