There have been numerous reiterations from Members of Parliament claiming that India, not being a party to the 1967 Refugee Protocol, does not have any obligations towards refugees and can deport Rohingya refugees. Apart from shocking our collective conscience, this is also false and legally untenable.
Non-refoulement – the principle that says a country cannot send refugees back – is customary international law, making it obligatory upon all countries irrespective of treaties.
While the government remains adamant in Supreme Court about deporting the Rohingyas, it has consistently maintained that Hindu refugees are welcome in India.
Allegedly, since India’s neighbours are Muslim countries, therefore persecuted minorities who flee as refugees will belong to religions other than Islam. This argument is flawed as many Muslim refugees come to India from neighbouring countries for safety – Afghans fleeing the Taliban, Ahmadiyas from Pakistan fleeing Sunni persecution, Bangladeshi writers and intellectuals fleeing jihadist groups.
The second line of argument is that India was partitioned to contain the Hindu population of the sub-continent, hence they should be exclusively welcomed. Such xenophobia is a display of religious-nationalism where the religious identity of the majority community is being manipulated for political gain.
India does not have a legal framework for refugee protection, so technically the government has obligations only under customary international law. However, laws are not the only criteria for a humanitarian obligation. Religious discrimination in refugee protection also constitutes a moral and cultural wrong.
Providing Refuge: A Key Lesson in Hindu Scriptures
For a government that holds Hindutva principles dear, it has conveniently forgotten that protecting refugees is a key lesson in Hindu scriptures. Hindu mythology and folklore are replete with stories of sharan (refuge) being sought by a helpless sharanarthi (refugee) and shelter being provided by a mighty king or God. Denying refuge is morally abhorrent.
Protection of a refugee is a right today, guaranteed under domestic and international laws. Prior to anglicisation of Indian laws, however, protection of a refugee was the duty of the ruler.
Traditionally, India had a duty-based legal system rather than a rights-based system. The burden of all protections and freedoms was placed on rulers to provide to their subjects.
The Vana Parva of the Mahabharata tells the story of King Shibi, who granted refuge to a pigeon being chased by a hawk in his kingdom. When the hawk insisted that the King could not let him go hungry since he was also the King’s subject, Shibi upheld both aspects of his dharma by offering his own flesh to the hawk.
The Constitution of India mandates the State to provide equal protection of the law and the right to life and personal liberty, to all persons, irrespective of citizenship or religious affiliation. By not granting Muslim refugees protection, the government stands in blatant violation of both the Constitution and the tradition of refuge to sharanarthis of all religions.
In the Kisseh-i-Sanjan, the Zoroastrians, fleeing Persia after the fall of the Sassanid Empire, sought refuge in the court of Jadeja Rana of Gujarat.
The Rana showed them a bowl filled with milk to indicate that there was no space in Gujarat. A Parsi priest dissolved a spoonful of sugar in the bowl, making the milk sweeter but not spilling a drop.
Jadeja Rana welcomed the Parsis to stay, and in turn the refugee community helped Gujarat gain great prosperity.
The present government often refers to Indian culture while making policy, but is ignoring several cultural legacies. The scriptures caution against denying a sharanarthi protection. After the game of dice, Draupadi begged Dhritarashtra for protection, but the King turned a blind eye to the misdeeds of his sons. It proved very costly to Dhritarashtra, who had to pay for his poor judgment with the life of his sons.
The scriptures encourage protecting even the most insignificant creature who seeks refuge. In Satyayuga, a tiny fish asked Vaivasvata Manu to protect it from bigger fish in the river. Manu sheltered the fish, and was blessed when the Matsya avatar tethered itself to a boat on the day of the Deluge and carried Manu and his family to safety.
Turning Away Refugees Will Lead to International Condemnation
The government’s attitude is tarnishing India’s reputation in the international arena. In January 2013, Anotonio Guterres, then UN High Commissioner for Refugees, exhorted India’s refugee policy as an example to the international community. In June 2015, the New York Times came out with a scathing indictment of India’s role in the Rohingya crisis, putting the world’s largest democracy in the same boat as autocratic China and stating that Asia’s most powerful nations are “sitting out the crisis”.
In a matter of one year since this government came to power, India went from being the UNHCR’s shining model to an opportunist in the international arena who took in refugees “when it made political sense”. Not just the international media, even the UN High Commissioner for Human Rights “deplored current measures in India to deport Rohingyas”.
Such international censure on the issue of refugee protection is certainly new for India, and not in keeping with either our culture or our state practice.
As Indians, we like to believe our stable democracy makes us superior to our SAARC neighbours. However, not rallying behind refugees or calling out the countries of origin on their human rights violations is making India complicit in the abuses committed by nondemocratic, unsecular regimes. India is displaying poor regional leadership by not taking on responsibility.
(Protiti Roy studies Human Security and Forced Migration at the Fletcher School of Law and Diplomacy, Massachusetts. 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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