As we recognise World Refugee Day on 20 June 2023, the spotlight focuses on the punitive approach of the world’s largest democracy towards refugees. The threats of the Union government reported earlier stating that the entire Rohingya population would be collectively deported keeps the entire refugee community in a state of panic.
Chin and Rohingya refugees if sent back to Myanmar or Bangladesh, would surely face imprisonment - if not death. The government, on the other hand, appears unconcerned - not only by the inevitable consequences of deportation but also by the international criticism of India by the United Nations High Commission for Refugees (UNHCR).
The Government's Lack of Understanding
The former Minister of State for Home, in response to the criticism, stated that refugees are foreigners; they have no rights whatsoever and certainly do not have a right against deportation. This is true of economic migrants, but not for refugees who are foreigners with constitutionally protected rights.
Illegal migrants seek economic opportunities. The distinctive characteristic of refugees is that they flee persecution. The refugees stand apart as a separate category having the most important right and entitlement to non-refoulement, or non-return. If refugees who have fled persecution are involuntarily returned to their country of origin, they invariably find that their lives are in danger.
International law forbids any nation from jeopardising the life of a refugee by pushing them back. The 1951 UN Refugee Convention prohibits this. India, so proud of its democracy, has refused to sign this Convention.
From this, the minister argued that since India has not signed the Convention, there is consequently no obligation to let refugees stay. This displays a complete lack of understanding of the rights of refugees in India.
Of course, refugees inevitably enter the country without a valid visa. Their panic and flight invariably results in illegal entry. However, is entering without valid documentation a sufficient reason for summarily throwing them out?
What The SC Says
The Supreme Court of India, in a series of cases held that even though India has not signed the Refugee Convention, the conduct of the Government must conform to the requirements of the Indian Constitution. Article 21 of the Constitution – “Right to Life”, protects not only citizens but all those found “within the territory of India”. This includes refugees who possess this most important constitutional right. If a refugee is harmed or killed after being exiled, government action would then be unconstitutional.
When former Minister Kiren Rijiju boldly announced the forced deportation of 21,848 Rohingyas and asylum seekers registered with the UNHCR, the Supreme Court promptly intervened and prevented the deportation. These refugees have now been in India for decades and there seems little possibility that they can ever be deported because the situation across the border is life-threatening.
In the Khudiram Chakma case in 1994, the Supreme Court held that “everyone has the right to seek and enjoy in other countries asylum from persecution”.
Two years later in the National Human Rights Commission (NHRC) case, where 65000 Chakma Refugees who fled from East Pakistan were forcibly sought to be pushed back by the All Arunachal Pradesh Students Union (AAPSU), the Supreme Court held, “the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit the AAPSU to threaten the Chakmas. No State Government worth the name can tolerate such threats.”
The Reality of Being a Refugee in India
The next question that arises is that if refugees are here to stay, what rights do they have in terms of employment, food, education, health care, and housing? For decades, India has ignored the economic rights of refugees.
A few years ago, a survey done by the Human Rights Law Network of Rohingya refugees in the slums of Delhi and Haryana found all Rohingya children out of school. Apparently, the authorities had told them that since they were foreigners, they had no right to be enrolled.
A similar rebuff came also when they demanded grains from the Public Distribution System. Similarly, they were denied treatment in government hospitals. For housing, they were forced to live in slums and often collected unsafe water for drinking from the streams running nearby. A petition was filed in the Supreme Court to assert the economic rights of migrants and the Solicitor General of India made a statement to the effect that refugees also had the same economic rights as citizens of India. This was a bold step, but the promise was never implemented.
A Prejudiced System
Over the years, India’s attitude towards refugees has become increasingly harsh. It is not as if the numbers are unduly large, or place an excessive economic burden on the nation.
Two factors account for this innate hostility - the Indian Government is guided by an anti-Muslim policy and instances of racism have permeated the decision-making process. If the refugee is Black or Muslim, there is little chance of fair consideration. Refugees from Africa such as the Rohingya have a difficult time in India and eventually leave after having suffered racial attacks and slurs. The impression they carry of India is not difficult to surmise.
The deportation of Rohingya people was originally sought to be justified on the ground that many of them have engaged in crimes. In a TV debate on the Rohingya people in Kashmir, it was said by the Union Government representative that the security of the State was paramount. Upon closer investigation, however, it turned out that there were very few criminal cases registered in the State against the Rohingyas. Thereafter, the Director General of Police made an official statement that no Rohingya terrorists had been found in Kashmir.
Recent policies of the Indian Government regarding the entry of economic migrants from the region has been slanted sharply against Muslims and in favour of Hindus, which has been challenged in the Supreme Court. It is sad to see India, which played a leading role in the making of the Universal Declaration of Human Rights decades ago, degenerated to the role of a crass, racist entity.
It is important for India to realise that yesterday’s refugees living in destitute conditions in slums could, today, if treated with dignity, become the Prime Minister of India one day.
(Colin Gonsalves is a designated Senior Advocate of the Supreme Court of India and the founder of Human Rights Law Network (HRLN). Olivia Bang is an advocate at the HRLN. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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