'Rohingyas are Refugees, Not Illegal Migrants': SC Advocate Colin Gonsalves

The Indian government has traditionally used very foul and aggressive language with (Rohingya) refugees, he added.

Supreme Court advocate Colin Gonsalves speaks to The Quint about the Rohingya row sparked by the flip-flop between BJP's Hardeep Singh Puri and the Union Home Ministry.

(Photo: The Quint)

On Wednesday, 17 August, Minister for Housing and Urban Affairs, Hardeep Singh Puri, tweeted that Rohingya refugees in Delhi will be moved to EWS (economically weaker section) flats and that “India respects and follows UN Refugee Convention 1951 and provides refuge to all regardless of race, religion or creed.” Soon after, the Ministry of Home Affairs (MHA) ‘clarified’ that the Rohingyas are not being moved anywhere and spoke about their deportation.

The Quint spoke to Supreme Court advocate and founder of Human Rights Law Network (HRLN) Colin Gonsalves about Indian government's stand on the Rohingya refugees, the difference between refugees and illegal migrants, and why India must follow international law on refugees. Excerpts from an interview:

What do you make of this flip-flop between Puri and the MHA over Rohingya refugees in Delhi?

The minister (Puri) is perfectly correct. Whether India signs the 1951 Refugee Convention or not, the Constitution and the judgments of the Supreme Court require that India follow the international law on refugees.

That means that the principle of non-refoulement i.e. 'non-return' must be followed by all nations that follow the rule of law. It is elevated to the principle of jus cogens i.e. 'the principle of law that no nation can derogate from.' No nation can say that it’s not in our statutory law or it’s not in our Constitution.

If you are a part of the civilised world of law, then this principle – that you will not return a refugee fleeing persecution to the country where he or she is likely to be killed or tortured or persecuted if he or she is pushed back – is a general principle of international law. No nation can say, like India says, that we don’t follow this.

India, in terms of its ‘position’ on laws pertaining to refugees, is a very barbaric nation. But in terms of its practices, it is sort of in-between. There was a time when the minister for state for (Home) said, “We plan to push back all 60,000 (Rohingya) refugees.”

It alarmed India and the international community. India, however, did not go ahead with it. In that sense, it must be said that it has not done the terrible thing it said it would do. Whether it does so in the future or not is yet to be seen.

But it’s current articulation that we are not bound to treat refugees as not having human rights or constitutional rights is totally contrary to the position in Indian law. The judgments of the courts on refugees – the Myanmaris and the Tibetans, among others – say that India “must march in tune with its international obligations.”

So, the government is wrong when it says that we have not signed the 1951 Refugee Convention, so we are not bothered.

In matters relating to refugees, we took the Centre to the SC for not providing refugees with PDS rights, not allowing refugees in government hospitals, and not allowing refugee children in government schools. In that case, I must congratulate the Solicitor General of India for saying that “whatever is applicable for Indian citizens is applicable for refugees as well.”

This is the law. Article 21 (right to life) is applicable for Indian citizens and non-citizens alike. It’s applicable to all those within the territory of India.

There’s a common mistake that ministers make when they say that Rohingyas are foreigners and therefore the Constitution doesn’t apply to them. Of course it applies, in respect of fundamental rights – food, education, healthcare.

Are Rohingyas ‘refugees’ or ‘illegal migrants’?

Refugees who flee persecution, torture, rape, killings – such as the Rohingyas who fled Myanmar – are not criminals. They may cross the border and go into another country without a visa but they are not breakers of the law. Why? Both international and Indian law recognise that what is done to save your soul, to prevent you from being killed or tortured, can never be a crime.

The mere fact that they come without a visa doesn’t mean that they are illegal migrants.

There is a crucial difference between being an illegal migrant and being a refugee. The common thing between them is that both come to the country without a visa, but the illegal migrant comes here voluntarily, and the refugee comes here with no choice.

An illegal migrant comes on account of economic reasons, therefore if you are an illegal migrant only, then you can be arrested and sent back. There is no dispute on that at all. But a Rohingya is not an illegal migrant. A Rohingya is a refugee.

In its ‘clarification’ on shifting Rohingyas to EWS flats in Delhi, the MHA said that ‘illegal foreigners are to be kept in detention centres till their deportation as per law.’ Can the Centre do that?

Has the refugee committed a crime by coming to India after fleeing persecution in their own country? No.

Can you then put this person in jail or in detention centres? No.

Every democratic state is required to give the refugee a reasonable place to stay. A detention centre is like a jail. It’s for criminals, it’s not meant for refugees.

I would congratulate the minister (Puri) for taking a far-sighted view of what needs to be done, while the home minister, as usual, is taking a very hard line, a police approach to refugees.

Refugees are not a police problem. Of course, if they break the law in India, it becomes a police problem. Refugees are a matter of human rights, not of policing.

What do you make of the Indian state’s behaviour with the Rohingya refugees?

The Indian government has traditionally used very foul and aggressive language with (Rohingya) refugees, and the idea is to terrorise them. I have looked at the criminality among Rohingyas. I appeared on a TV programme with Subramanian Swamy, where he said that ‘we are deeply apprehensive about the criminal roots and the criminal antecedents of these Rohingyas.’

In response, I said that I had been to all the 19 settlements in J&K. I met the police officers of the neighbouring police stations and asked them if there is any Rohingya who has engaged in criminal activity in their jurisdiction. All of them said no. By this I don’t mean petty crime, I mean criminal activity like trafficking of people and other grave crimes.

A week later, the D-G, Police, J&K, issued a statement that said that there are no Rohingyas in J&K that have criminal antecedent.

Is it systemic? No. Are the Rohingyas generally criminally minded? No. Is it a law-and-order problem? No.

What has India’s stand been on refugees in the past?

To Tibetans, the Indian government has been very fair. To Sri Lankans, it’s been less than fair. They come to India but they live in refugee camps, and it’s been over a decade. Their conditions are terrible. They faced persecution in Sri Lanka and then in India. It is a tale of suffering and despotic treatment by the Indian government.

For refugees from African countries, the attitude is terrible, partly due to the racist attitude of the Indian administration. They are in detention centres.

Rohingyas come from a land of deep persecution.

The record of the Indian government is very mixed. Except for the Tibetans, it’s not a very good record. If you are a Hindu refugee, you are treated differently. The Afghan Hindu gets treated differently from Afghan Muslims.

The response is very mixed and confused and thank god for that because otherwise people would say ‘let’s push them across the border.’ That extreme stand has not yet happened.

We did have the pushback of the Myanmaris when they crossed the border many, many years ago. They were met by the Indian forces who forced them to go back in the middle of the night.

There have been people who have been pushed across the border. Rohingyas have been pushed across the border and sent back to the same places where their houses were burnt, people were raped. It’s been a mixed stand. The Indian government has been belligerent in reaction, sporadically. It’s a hostile stand, not a democratic stand.

What are the consequences of the Indian state’s use of belligerent language for the Rohingya refugees?

The real-life consequences of this belligerent language by the government are that people in India start taking the law into their own hand. I remember visiting J&K and there were posters put up saying: “Get ready to push these people out.”

Then, what we had was the burning of slums, not just in J&K but also in Delhi. I visited the camp in Delhi and it’s quite clear that vigilantes are taking the law in their own hand and burning down Rohingya camps. It’s so dangerous. People can die in the process.

We suffer the consequences of our own dadagiri. Our politicians are full of dadagiri. Real courage, real strength doesn’t come from this kind of empty, hollow dadagiri but Indian politicians are generally very prone to this. This resonates with the right-wing elements because they are also into local dadagiri.

What has been the role of the judiciary in tackling this issue?

As far at the SC is concerned, right from the time of Justice Dipak Mishra, it has stood steady. The SC understood the enormous consequences – both nationally and internationally. What has scared the court, and correctly so, is that once you give your judicial stamp and people get taken back to Myanmar and if they are shot dead or raped, it will hang very heavily on the conscience of the judiciary. So, the Indian SC has been a little far-sighted. Also, a little unsure and frightened of the aggressive push by the government lawyers but they have by and large stood firm.

But in many parts of the country, judges have allowed deportation. And nobody knows what happened to those persons who were deported. Judges are going by very crude understanding, namely ‘you are a foreigner, you have no right to stay.’

There’s an old judgment of the SC that ‘a foreigner has no right to insist on staying’ but that judgment was delivered in the context of economic migrants. An economic migrant came to India and said, ‘extend my visa,’ and the SC said that ‘a foreigner can’t tell us to extend a visa.’ This judgment was not delivered in the context of refugees who are fleeing persecution. An economic migrant can be sent back tomorrow because when you are sent back, you are not raped or killed.