Millions of people are today forced to flee their homes as a result of conflict, systematic discrimination, or other forms of persecution. The core instruments on which they must rely to secure international protection are the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Both are the modern legal embodiment of the ancient and universal tradition of providing sanctuary to those at risk and in danger.[1]The term refugee has derived from a French word “refugie” which means to flee for safety. Customary International Law did not define the term refugee but it treated them like aliens. Ordinarily, a refugee is referred to those persons who leave their States in which they have permanent residences to escape persecution or military action.[2]

The Rohingya are often called, “the world’s most persecuted minority”. They are not considered amongst the Myanmar’s 135 officials ethnic group and have been denied citizenship since 1983which has effectively rendered them stateless. All the Rohingya in Myanmar live in the western coastal province Rakhine and not allowed to leave without government permission. Itis one of the poorest state in the country with lacks of basic necessities and opportunities. The worst type of oppression and persecution of Rohingya occurs in this province. In August 2017 once again terrible violence commenced by Myanmar’s military forces against Rohingya Muslim.

They are deprived from their own citizenship, rights, education, home and even food. They have fled from Myanmar to Bangladesh and looking asylum in some other neighbouring countries. As far as India’s concern, it came suddenly in limelight because government is planning to deport 40,000 Rohingyas settled in Jammu and Kashmir to Myanmar, because of potential security threat and considering some additional things such as burden on the economic development, demographic imbalance and over populated country like India has not directly offered shelter and asylum to these persecuted ethnic people.[3]Myanmar is emerging as Southeast Asia‘s new flashpoint for terrorism as the plight of its Rohingya Muslim minority continues to be exploited by extremists including the Islamic State (IS) and Al Qaeda in the Indian Subcontinent (AQIS). 2017 saw major turbulence in the country’s Rakhine state due to the military‘s controversial counter- insurgency campaign where over 6,700 Rohingyas have been killed and more than 600,000 were forced to cross the border to become refugees in neighbouring Bangladesh due to violence, insecurity and the growing humanitarian crisis.[4]

The crisis emerged after various military operations in August 2017 in response to many coordinated attacks on multiple police posts at a northern Maungdaw township by a Rohingya group. The government reported that 12 security forces personnel and at least 77 Rohingya fighters were killed.In the ensuing crackdown, the military, police and local militias were accused of burning hundreds of Rohingya villages, gang-rapes and arbitrary killings. [5]

India has been historically known to be benevolent to refugees. During the late 1980s and early 1990s, it welcomed thousands of refugees from Myanmar. Undoubtedly, India has unique history to provide asylum many people came from different countries offered every kind of securities and necessities. But today’s scenario has been changed. India being an overpopulated country, struggling for providing bare necessitates food, shelter, cloth, education and employments to its own citizens. Though India has followed the notion of “Atithi Devo Bhava”. But there is limit to Atithi even. India cannot accommodate the thousands of asylum seekers. India has revealed the opinion on Rohingya immigration that if it will offer asylum to them or accommodate them as a refugees that would definitely become the reason of a heavy economic burden in the country. A few of the leaders have evenclaimed that country is not in a position to admit the burden of Ronhingya Muslims.[6]

Laws related to refugees in India

India does not have specific legislation that is applicable to all the refugees in the country. Due to the lack of such a statute, judicial system is constrained, when dealing with refugees, to invoke laws that are applicable to foreigners in general, such as the Foreigners Act, 1946. The exception to this rule is the legislation that has been passed regarding specific groups of refugees, like the Tibetans. Laws have also been enacted relating to large scale refugee movements during the partition of India in 1947 and the partition of Pakistan in 1971. These acts regulate the movement of refugees relating to their rehabilitation and the award of compensation.

Constitution of India, 1950 and International Conventions

Provisions of the Indian Constitution that have a bearing on refugees a found in Articles 5 to 11, 14, 20, 21, 22, 25 (1), 27, 23 (3), 51(c) and 253; List I, entries 14, 18 and 19; and List III, entry 27. These provisions deal with citizenship; naturalisation; aliens (excluding enemy aliens); extradition; displaced persons; fundamental rights of all people within the territory of India (including refugees); the right of persons in criminal proceedings; and the power of Parliament to recognise international treaties. Different levels of assistance and facilities e.g., pertaining to educational opportunities, camp conditions, employment opportunities, voluntary repatriation- have been extended to special groups of refugees like Tibetans Chakmas, Sri Lankans and Afghans. The right to life under Article 21 has been given an expansive meaning by the courts to cover due process of law, i.e. “the right not merely to an animal existence but a right to live with human dignity." This right as applied to refugees in detention includes the right to the bare necessities of life, including medical aid and food.[7]

These provisions of the Indian Constitution indicate that the acknowledged rules of natural justice in the common law systems applicable to all civilised societies also apply in India, even to refugees.

For Refugees, Evacuees And Displaced Persons

A number of legislative measures[8]dealing with refugees were passed and issued under the Seventh Schedule of the Constitution of India. Although many of them have lost their importance in the current context, they have provided a useful legislative precedents.

The established principle of the rule of law in India as set under Article 21[9]and Article 51[10]the directive principle of state policy, indicates the spirit in which India approaches her international relations and obligations. The Indian system is a common law system. Article 253[11]of the Constitution read with entry 14 of the list of the Seventh Schedule elucidates that, the power to enter into treaties, conferred by Parliament, carries with it the right to encroach on the state list to enable the union to implement a treaty. Therefore, any law made in accordance with this Article that gives effect to an international convention shall not be invalidated on the ground that it contains provisions relating to the state subjects.

India claims to abide by the Article 14(1)[12]of Universal Declaration of Human Rights, Article 13 of International Covenant on Civil and Political Rights,[13]Article 22 of the Convention on the Rights of the Child.[14]
Clearly, while India is not a signatory to either the 1951 Convention on the Status of Refugeesor the 1967 Protocol, the principles of international law relating to refugees must be taken as incorporated directly into Indian Constitutional law via Article 21. This is so particularly in the view of the fact that India has acceded to the 1966International Covenant on Civil and Political Rights, the 1989 Convention on the Rights of the Child, and the 1979 Convention on the Elimination of All Forms of Discrimination against Women.

There is therefore no current domestic law in conflict with international conventions, treaties and resolutions relating to refugees. Today, international refugee law stands somewhat integrated into Indian law.

Passport (entry into) India Act, 1920

The passport (entry into) India Act, 1920, deals with the question of passports for persons entering and leaving India. The 1920 Act is important in the context of refugees, given that they may enter and attempt to leave the country without a passport or with a forged one. This is an accepted principle of refugee law by Article 31 of the 1951 convention, which provides that contracting states shall not impose penalties on account of illegal entry or prince of refugees in the country.

Registration of foreigners Act, 1939

The registration of foreigners Act, 1939, provides for the registration of foreigners in India. The Act empowers the central government to make rules regarding the procedure for foreigners to report to a prescribed authority about their presence, movements, departure and proof of identity.

Foreigners Act, 1946

Due to lack of refugee-specific statute, the judicial system is constrained to enforce, with regard to refugees, laws that are applicable to foreigners in general. The foreigners act, 1946, addresses the entry, presence and departure of foreigners to and from India.

Illegal Migrants (determination by tribunals) Act, 1983

Illegal Migrants (determination by tribunals) (IMDTA) Act, 1983 was passed by the Parliament to check the growing number of illegal migrants entering the north-eastern states of India. Given the ethnic, linguistic and cultural similarities that the persons from the neighbouring countries share with the citizens of north-eastern part of the country, it became increasingly difficult to distinguish Indian nationals from foreigners.

Protection of Human Rights Act, 1993

The Protection of Human Rights Act, 1993, provides for the establishments at National, State and various human rights courts, with the purpose of protecting human rights in the country.The national human rights commission had taken an interest in issues relating to refugees.

Indian Penal Code, 1860

The Indian Penal Code (IPC), 1860, applies equally to nationals, refugees and other foreigners. A refugee may be charged under Sections 418, 419, 420, 468 and 471[15]of IPC.

The Debate on Rohingya Crisis in India

India is one of the most prominent refugee receiving countries in the world, according to Refugee International estimates, India hosts around 3,30,000 refugees and its refugee population includes as many as 1,43,000 Sri Lankans,1,10,000 Tibetans, an estimated 52,000 China and other minorities from Burma, 15,000 from Bhutan, about 11,400 from Afghanistan, an unspecified but massive number of Hindus from Bangladesh, a number of Nepalese who fled the Maoist insurgency, and more than 400 from other from countries.[16]

The Rohingya crisis isvery relevant in the contemporary international relations. The historical origin of Rohingyas Muslim is quite controversial. One of the general perceptions of the Myanmar people is that Rohingyasare illegal immigrants from Bangladesh which are a threat to their economy and security. On other hand, a few of the claims are that Rohingyas were living in Myanmar for centuries and they are descendants of Muslim Arabs, Moors, Persians, Turks, Mughals and Bengalis who come as traders, warriors etc.The densely populated Bangladesh is struggling hard to shelter all the refugees who are desperate for space, thus to shed of the shacks, they are sent to neighbouring countries, this isigniting tensions in India that the influx could simply spill into its territory as-well.

India has stepped up security along its largely porous eastern border with Bangladesh and is using “chilli and stun grenades” to block the entry of Rohingya Muslims fleeing from violence in their homeland of Myanmar.[17]Thus, keeping in mind the parley, the Supreme Court has asked National Government to equipoise thehumanitarian concernsfor Rohingyaliving in India and Nations’s economic and security interests.

In 2013, two Rohingya refugees, Mohammad Salimullah and Mohammad Shaqir, who are registered as refugees under the United Nations High Commissioner for Refugees (UNHCR), filed a writ petition,under Article 32 of the Constitution before the Supreme Court seeking a number of directions against the Union of India praying for access to and availability of basic necessities.Writ petition was filed, to secure and protect, the right against deportation, of the petitioner refugees in India, in keeping with the Constitutional guarantees under Article 14 and Article 21, read with Article 51(c) of the Constitution of India, which protects against arbitrary deportation of Rohingya refugees who have taken refuge in India after escaping their home country Myanmar due to the widespread discrimination, violence and bloodshed against this community in their home State. The petitioners have been granted refugee I-cards. The immigrants also challenged their deportation on grounds of violation of international human rights conventions.[18]

The petition rested its case on the contemporary socio­-political context of the Rohingyas in Arakan state of Western Burma as well as fact finding reports of Human Rights & Law Network (HRLN) in 2012 and 2013 and are supported by HRLN in the process of filing the petition and defending them in court.[19]The issue came into limelight,when the home ministry in July, 2017 stated that Rohingya are illegal immigrants and they have posed grave security challenges as they might be recruited by terrorist groups, and hence asked the state governments to identify and deport them. Thereafter,state governmentsreported, that according to available data, more than 14,000 Rohingya, registered with the UNHCR, were staying in India. However, some inputs indicated that around 40,000 undocumented Rohingya were also on record, mostly in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan regions.[20]

Contentions against deportation:

1. Providing Asylumand Reliefto Rohingyas

Undoubtedly, India has unique history to provide asylum many people came from different countries offered every kind of securities and necessities. The Ministry of External Affairs has started Operation Insaniyatto provided assistance to Bangladesh in response to humanitarian crisis being faced by it. Under this operation, India will provide relief material consisting of items including rice, sugar, salt, pulses, cooking oil, biscuits and mosquito nets to the affected people.[21]

A team of volunteers from Sikh organisation Khalsa Aid reached ‘Teknaf,’ Bangladesh-Myanmar border to provide relief to the lakhs of Rohingya Muslim families fleeing Myanmar. The team offered fresh water to the refugees disembarking from the boats and arranged free transportation to take them to the refugee camps.The NGO’s volunteers had set up a daily langar service for 30,000 to 50,000 people.[22]

2. Against our Constitution and International customary law

The proposed deportation is contrary to the Constitutional protections of Article 14, Article 21 and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every ‘person’[23]this act of deportation would also be in contradiction with the principle of ‘Non-Refoulement’, which has been widely recognised as a principle of Customary International Law. The Convention Relating to the Status of Refugees, 1951 lays down guidelines and rules regarding the treatment of refugees. It put forward the ‘Principle of Non-Refoulement’ as the right of refugees, It states that refugees should not be returned to a country where they face serious threats to their life or freedom. India has not ratified the Refugee Convention. But this is now considered a rule of Customary International Law. Further India has also ratified, or is signatory to, various Conventions and Treaties[24]that advocate this Principle. Article 51(c) of the Indian Constitution, a Directive Principle of State Policy, casts a duty on the State to endeavour to foster respect for International law.

3. National Human Rights Commission’s (NHRC)take on deportation

The National Human Rights Commission (NHRC) has issued notice to the Ministry of Home Affairs, taking suo motucognizance of media reports regarding the ideas of the government of India to deport around 40,000 illegal Rohingya immigrants from Myanmar, who are residing in parts of India territory. The Commission has contended that,"refugees are no doubt foreign nationals but they are human beings and before taking a big step the Government of India has to look into every aspect of the situation, keeping the fact into focus that the members of the Rohingya community have crossed into India borders are residing here for long, have a fear of persecution once they are pushed back to their native country.” Besides this, it also contends that the lack of citizenship of the Rohingya community heightens their vulnerability to a range of human rights violations.[25]

Annual Report of the United Nations High Commissioner for Human Rights

The Annual Report of the United Nations High Commissioner for Human Rights dated, June 28, 2016, on the ‘Situation of Human Rights of Rohingya Muslims and other Minorities in Myanmar’, examines the patterns of human rights violations and abuses against the Rohingyas, particularly widespread discrimination against this community in their home country of Myanmar. The United Nations has described the Myanmar government’s action against the Rohingya as “ethnic cleansing”. United Nations has said that India should be more “responsible” in the matter and “show some heart”.[26]

4. The Rohingyas then being targeted for their religion

Mohd. Yunus, 42, in charge of the refugee campat Jammu and Kashmir claims that,“Look at us as humans, not as Muslims. You may as well kill us here, rather than send us back to Burma, where we will be killed anyway,” The Centre has termed Rohingyas illegal immigrants and ordered their deportation, citing threat to national security as reason. There is no evidence so far of their involvement in terror or cross-border activities.[27]

Contentions in favour of deportation:

1. A threat to national security

On 9 October 2016, 200 armed attackers from the Rohingya Solidarity Organisation (RSO)-linked Aqa Mul Mujahidin, led by 45-year-old Havistoohar, carried out a surprise attack on Myanmar‘s police at the Maungdaw border, killing 9 police officers. The attackers, who were from Myanmar‘s northern Rakhine (Arakan) state, seized weapons, ammunition, bayonets and magazines. According to the Myanmar government, the attackers received funding and support from foreign terrorist organisations to carry out the attacks.[28]

2. International pressure building on India UN

According to UN, the Rohingya is one most persecuted minority in the world,they are the stateless people. It is a big humanitarian issue and the world should deal with it. The Rohingya persecution is against national and religious law of Myanmar. In addition to that Rohingya mass killing is against the international convention of human right and it is considered as genocideaccording to the UNand the situation is deteriorating for Rohingya day by day. There are three reasons behind it, firstly in an International politics global north and their issues are important and the rest is not. Secondly, it is the suffering of the people, not state so people are not the centre of attention of the world. Thirdly, the bilateral relation and the economic and trade interest is more important for the countries rather than any humanitarian crisis.[29]

3. Absence of documentation is a problem

Experience in the Northeast with immigrants has been very bad, over 30% people are immigrants and as a result the indigenous people are fast losing their identity.[30]We are fast losing our culture, we are losing our land.Since Myanmar doesn’t recognise Rohingyas as citizens, they are only given a card identifying them as temporary residents. ThoughUNHCR has issued them refugee identity cards after a rigorous interview process. About 16,500 Rohingyas in India, are registered with UNHCR.[31]

4. Home for Rohingya is Myanmar only

Government in their argument tells Supreme Court in Rohingya deportation case[32]that,“India can’t become world’s refugee capital.” Because the real home of the Rohingya is Myanmar and they have a right to live there. Myanmar’s unwanted children cannot become India’s moral burden no matter how tragic their fate has become.

Conclusion

The Rohingya's is a long history of unresolved political parley for recognition of ethnic identity and citizenship in the wake of neighbour's retreat from South-East Asia. As one understands in plainest form only a peaceful neighbourhood can ensure India's national security. India, as a member of the international community, must fulfill its role to ensure that the roots of the crisis are resolved and the rights of the Rohingya are secured. But as we go through this issue, images of unfed refugee toddlers, malnutrition with dilated bellies, flies buzzing around their faces and lips, refuses to cast off. At the same time, if we think of all the starving toddlers who are Indians, it definitely seems to belike a classic case of moral jeopardy. Who would our government fed first? This situation clearly explains, If you run after two hares, you will catch neither. So we should definitely argue in favour of the Rohingyas, if each one of us could spare a space for them in our houses and pay for their food bills, but unfortunately, we cannot afford it.

End-Notes

[1]ErikaFeller,et al, Refugee Protection in International Law,3, Cambridge University Press (2003).
[2]20 H.O. Agarwal, International Law and Human Rights, 868, Central Law Publications(20 ed. 2015).
[3]Kumari Anupama, Acase study of rohingya crisis in Myanmar and India’s concern, 2 International Journal of Academic Research and Development470, 477-481(2017).
[4]Poppy McPherson,6,700 Rohingya Muslims killed in one month in Myanmar, The Guardian,Dec.14, 2017, at 6.
(Mar. 31, 2018, 4:50 PM), https://www.theguardian.com/world/2017/dec/14/670 0-rohingya-muslims-killed-in-attacks-in-myanmar- says-medecins-sans-frontieres.
[5]Angelica Habulanand Muh Taufiqurrohman, Southeast Asia Philippines, Indonesia, Malaysia, Myanmar, Thailand, Singapore, Online Extremism, 10 International Centre for Political Violence and Terrorism Research, Counter Terrorist Trends and Analyses,4, 7-30 (2018).
(Mar 31, 2018, 4:59 PM), http://www.jstor.org/stable/26349853.
[6]Nehginpao Kipgen,Can India ignore the Rohingya crisis?, The Hindu,SEP15, 2017at 6.
[7]Khudiram Chakma v. Union of India, (1994)Supp (1) SCC 614(India).
[8]East Punjab Evacuees (Administration of Property) Act, 1947; UP (Rehabilitation of Refugees) Act, 1948; Mysore administration of Evacuee Property (Emergency) Act, 1949; East Punjab Refugees (Registration of Land Claims) Act, 1948. etc.
[9]art. 21, “no person, whether a citizen or an alien, shall be deprived of her life or personal liberty except in accordance with a procedure established by law that must be fair.”
[10]art. 51, “the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.”
[11]art. 253, “Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any country or countries or any decision made at any international conference, association or other body.”
[12]art.14 cl. 1, “Everyone has the right to seek and enjoy other in countries asylum from persecution."
[13]art. 13, “An alien lawfully in the territory of a State party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose, before the competent authority or a person or persons especially designated by the competent authority.”
[14]art. 22, “State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedure shall, whether accompanied or unaccompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are parties.”
[15]Sec. 418- Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect;
Sec. 419- Punishment for cheating by personation;
Sec. 420- Cheating and dishonestly inducing delivery of property;
Sec. 468- Forgery for the purpose of cheating;
Sec. 471-Using as genuine a forged document or electronic record.
[16]Saurabh Bhattacharjee,India Needs a Refugee Law,43 Economic and Political Weekly 71, 71-75 (2008).
[17]Correspondent, Rohingya crisis: India steps up security along border; BSF uses chilli, stun grenades to stop influx of refugees,Firstpost, Sep. 23, 2017at 9.
(Apr. 3, 2018, 9:28 AM), https://www.firstpost.com/india/rohingya-crisis-india-steps-up-security-along-border-bsf-uses-chilli-stun-grenades-to-stop-influx-of-refugees-4073247.html.
[18]Mohammad Salimullah and Anr. v. Union of India and Ors., (2017)Writ Petiton (Civil) No. 793 (India).
[19]Ishita Dey, et al,The contours of “traditional hospitality”: A study of Rohingyas in India,
Interrogating Forced Migration Calcutta Research Group Research Workshop, (2015).
[20]The Press trust of India, Deport illegal immigrants like Rohingyas due to security threat: Centre to states, Hindustan Times, Aug.13, 2017, at 11.
[21]Correspondent, Operation Insaniyat: India to send relief to Bangladesh to help with Rohingya influx,India Today, Sep.14, 2017, at 13.
[22]Divya Goyal, Rohingya crisis: Sikh volunteers reach Bangladesh-Myanmar border to provide langar to refugees, The Indian Express, Sep.12, 2017, at 12.
[23]NHRC v. Arunachal Pradesh,A.I.R.1996 SC 1234(India), the Supreme Court emphasised that, “Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise”
[24]Universal Declaration of Human Rights; International Convention on the Elimination of all Forms of Racial Discrimination; International Covenant on Civil and Political Rights; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Convention on Protection of all Persons Against Enforced Disappearances.
[25]Live Law (Apr.1, 2018, 9:00 PM), http://www.livelaw.in/sc-to-hear-rohingya-refugees-case-on-sep-18-petitioners-file-supplementary-affidavit-read-affidavit/.
[26]Situation of human rights of Rohingya Muslims and other minorities in Myanmar, Report of the United Nations High Commissioner for Human Rights,(2016).
[27]Niha Masih, ‘Look at us as humans, not as Muslims’: Rohingyas’ appeal in Jammu after deportation threat, Hindustan Times, Sep.10, 2017at 6.
[28]Iftekharul Bashar, Mayanmar, 9 Counter Terrorist Trends and Analyses, International Centre for Political Violence and Terrorism Research 20, 22-25 (2017).
(Mar. 27, 2018, 10:40 AM),http://www.jstor.org/stable/26351478.
[29]Zarifia Sabet, The core debate on Rohingya issue in InternationalRelations, InternationalAffairs, (2017).
(Apr. 2, 2018, 4:01 AM), http://internationalaffairsbd.com/core-debate-rohingya-issue-international-relations/.
[30]Marya Shakil, Rohingya Debate: We’re Losing Our Culture and Land to Immigrants, Says Himanta Biswa Sarma,CNN-News18, Sep. 23, 2017, at 9.
(Apr. 2, 2018, 5:09 PM), https://www.news18.com/byline/marya-shakil.html.
[31]Mohammad Salimullah and Anr.v. Union of India and Ors.(2017) Writ Petiton (Civil) No. 793 (India).
[32]Id.