Why New Delhi Has Got It All Wrong With the Rohingya Refugees
Indian government stand on Rohingya Muslims is based on unfounded fears that goes against the rule of law.
The stand by Indian government to deport thousands of Rohingyas is wrong – legally and ethically.
The Indian government decided to deport 40,000 Rohingya refugees, labeling all as illegal immigrants. The step is flawed, not just ethically and politically, but it is also violative of international law.
Jus cogens is at stake
Though India is not a signatory to the 1951 convention, wherein under article 33, the principle of non-refoulement was enshrined. But “Refoulement” ie, forcible return, is forbidden by international law. Persons who cross an international border have the right to protection. They cannot be returned against their will.
They cannot be returned to a country from which they have fled. Jus cogens is a norm which is not just binding on all states, but operates in an absolute and unconditional way.
Are Rohingyas a National Threat?
Though the Indian government’s stand to deport Rohingyas on the basis of “national threat and terrorism” finds its way in an exception mentioned in Article 33(2) of 1951 convention, which is a popular practice among some countries now, like the US. But this exception cannot be invoked in the Indian concept as India is not a signatory to the 1951 convention.
Secondly, the provision has a very limited application, as states cannot formulate broad anti-terror policies to deteriorate refugee protection.
Thirdly, when it comes to Rohingyas in India, no single arrest has been made so far on the basis of terror charges. Thus, it would be a gross injustice to all the 40,000 Rohingyas in India to deport on a mere suspicion that others might get radicalised.
Moreover, what’s worth noting here is that refugees from countries like Pakistan and Afghanistan (countries which have a terror base) will be exempted and allowed to stay in India. Hence this argument by the Indian government is just an escape route, and would be in conflict with the Right to Equality under Article 14 of the Indian Constitution.
Further, the argument that the Rohingyas would be an economic burden, doesn’t hold good as a majority of them are involved in menial jobs like the ragpickers, street vendors, construction workers, etc. And what’s worth noting here is that these refugee camps are located on a private land given by some philanthropic individuals or organisations.
Targeting a Certain Community
Moreover, deportation of Rohingyas as illegal immigrants, is discriminatory, as palpably expressed in the new Citizenship Amendment Bill, 2016, that proposes to grant citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians fleeing persecution in Afghanistan, Pakistan, and Bangladesh, omitting Muslims from this provision. In the absence of any specific refugee legal regime, the Indian authorities have been exercising their discretion on a case-to-case basis in terms of refugees.
We must remember here that discretionary powers must not be exercised arbitrarily and vaguely. Every constitutional functionary has to exercise its discretionary power in consonance with the spirit of the Constitution, which has been laid down time and again by the judiciary.
Abiding by International Law
Indian courts have been vociferous in giving due regard to international treaties and obligations. For example, in Maganbhai Ishwalal Patel v. Union of India [AIR 1969 SC 783], in which the Supreme Court observed that “Making of law is necessary when a treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens or others which are justifiable are not affected, no legislative measure is needed to give effect to the agreement or treaty.”
Further, in Gramophone Company of India Limited v. Birendra Pandey (AIR 1984 SC 667), the court said that “The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament.”
The courts have often relied on Article 51(c) of the Constitution that says “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.”
India has been a safe home for a long time. And we must continue this practice while keeping in mind the long cherished traditions like Atithi Devo Bhava, which means the guest is a god, and Vasudhaiva Kutumbakum, which means the whole world is one family, therefore, we should help our global family members, irrespective of their nationality and faith. Such ideological and historical precedent must be upheld and cherished by the Indian government and its people.
(Mohd Owais Farooqui is Assistant Professor, Jamia Millia Islamia, New Delhi and Aftab Alam is lawyer at Supreme Court. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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