ROHINGYAN REFUGEE CRISIS: AN INDIAN LEGAL PERSPECTIVE

In a recent petition before the Hon’ble Supreme Court of India, one Mohammed Salimullah, a
Rohingya – had prayed for the release of the people from his community detained in Jammu
and Kashmir and asked the court to issue a direction to the Centre not to deport them to
Myanmar. His contention was that they will be subjected to genocide if deported back to
Myanmar. However, this petition was dismissed by the Apex court. This is not the first time
that such a petition is filed before the court i. Earlier in 2018, a similar petition was filed in the
court to restrain the deportation of the Rohingya Muslims detained in Assam. Then too, the
court had dismissed the petition. Such petitions point towards some serious issues in the
Indian policy on tackling the refugee crisis. It is important to understand the contentions that
were raised in the case. Prashant Bhushan was the advocate representing the petitioners. He
had submitted before the court that Article 14 and Article 21 of the Indian Constitution are
available to all persons and not just citizens. He further contended that the non-refoulment
policy is implied from Article 21 of the Constitution of India. However, the Apex Court
ordered deportation of the Rohingya Muslims under Foreigners Act, 1946ii.

The larger issue in Indian context is that though India has been accepting refugees in the past
as well, but it has no legislation or any binding authority to deal with the situation of
refugees. India is neither a signatory to UN Convention of Status of Refugees nor it has any
national refugee law or a strict policy in this regard. This creates a legal lacuna in the entire
process.

NON-REFOULEMENT POLICY AND SCOPE OF DEPORTATION

Non-refoulement policy is one of the principles of the international refugee law that is
concerned with asylum. This principle follows from the right to seek and enjoy in other
countries asylum from the persecution that refugees may face in their native country. This
principle is set forth in Article 14 of the Universal Declaration of Human Rights and reflects
the commitment of the international community to ensure to all persons the enjoyment of
human rights, including the rights to life, to freedom from torture or cruel, inhuman or
degrading treatment or punishment, and to liberty and security of person iii. These and other
rights are threatened when a refugee is returned to persecution or danger. In the Rohingyan
Muslims context, it is known that they were persecuted in Myanmar at the hands of the
elected government as well. Now with the military coup taking over Myanmar, India saw yet
another influx of people from Myanmar to Mizoram and Manipur because they fear that the
army will kill them if they stay in Myanmar. Most of the new entrants are democratic
activists.

It is to be taken into consideration that according to United Nations Convention on Status of

Refugees 1951 and the following 1967 protocol defines refugees as “any person who is
outside their country of origin and unable or unwilling to return owing to well-founded fear
of persecution for reasons of race, religion, nationality, membership of a particular social
group or political opinion.” But India does not recognize Rohingyas as refugees. The Centre
has, on various occasions termed them as “illegal immigrants. iv” The Hon’ble Solicitor
General of India, Tushar Mehta has called the Rohingyan Muslims illegal immigrants in the
Hon’ble Supreme Court. Another instance of the use of term “illegal immigrants” is while
answering a question in Parliament on 9 August 2017, the then Minister of State for
Home Affairs, Kiren Rijiju said the government was planning to deport Rohingyas
from India because they are “illegal immigrants.” v

The use of this term has been quite ambiguous. The Centre has been guilty of not taking a
firm stance in the status of the Rohingyan Muslims. On one hand, the Home Minister, Amit
Shah has been seen campaigning to “weed out illegal immigrants” and on the other hand, in a
recent visit in Bangladesh, Prime Minister Narendra Modi was seen expressing appreciation
at the generosity of Bangladesh in sheltering and providing humanitarian assistance to the 1.1
million Rohingya Muslims in Cox Bazar who were forcibly displaced from the Rakhine State
of Myanmar. According to the joint statement, the term “refugees” and not “illegal
immigrants” was used for the Rohingya Muslims. Though officially, India in the domestic
sphere, it uses “displaced persons” to refer the Rohingya Muslims in Bangladesh, but
those in India are referred to as “illegal immigrants.”  

INDIA’S LIABILITY TOWARDS ROHINGYA MUSLIMS

As mentioned earlier, India does not have a strict refugee law or policy nor it is a signatory to
the Refugee Convention of the United Nations, it becomes very convenient for the
government to shift the “refugee” status to that of “illegal immigrants”. Even after UNHCR
had issued identity cards to over 15,000 Rohingya Muslims, it is easy for India to shift
options. India has been denying its liability towards Rohingya and the non-refoulement
principle because it is not a signatory to the UN Convention on the Status of Refugees. In the
year 2017, India had reportedly deported as many as 40,000 Rohingya Muslims back in
Myanmar who had fled to India due to well founded fear of a genocide in their native land.
India cited that it is not a signatory to the Convention and the subsequent 1967 Protocol and
hence is not bound by the non-refoulement policy. In a significant move, Budget for the year
2020 had reduced the budgetary allocation for Relief and Rehabilitation for migrants and
repatriates by as much as three times than what was is before vi. The 2020 Budget has also
significantly increased the budgetary outlay for Census 2021, emphasizing focus on the
National Population Register.

However, this stand is misplaced because even if India is not a signatory to that convention, it
is still bound as a signatory to other international treaties such as the International Covenant
on Civil and Political Rights which imply the principle of the non-refoulement principlevii.

But India has been not following the non-refoulement principle to its latter and spirit.
Absence of any definition of refugee in the domestic law of country has made Indian policy
towards the refugees as an arbitrary selection of granting asylum to the persecuted people. A
renowned academic and legal expert on Indian refugee law and international law, B.S.
Chimniviii has termed the arbitrary Indian asylum policy as “strategic ambiguity.”  For
instance, while Tibetan refugees were allowed to form an exile government in India, the
Tamilians that came in during the Sri Lankan civil war were put in strict, heavily monitored
camps and India is presently in the process of deporting thousands of Rohingya Muslims
originally from Myanmar.

IMPACT OD CITIZENSHIP AMENDMENT ACT ON ROHINGYAS

The Citizenship Amendment Act that was passed in December 2019 is presented by Home
Minister of India, Amit Shah as a refugee policy. However, it is far from true. The
amendment to the Citizenship Act fails to include Muslims, implying the exclusion of the
Rohingya refugees. The newly enacted Citizenship Amendment Act quickens the citizenship
process of some of the persecuted minorities from Afghanistan, Bangladesh and Pakistan ix. It
states that whosoever entered India before 31 December 2014 belonging to the 6 religions,
namely, Hindu, Sikh, Buddhist, Jain, Parsi or Christian community will be granted
citizenship in 6 years as opposed to the general requirement of 11 years in the Act.
The exclusion of the Rohingyan Muslims from this procedure was explicitly saffirmed by the
Home Affairs Ministry of India. Dr. Jitendra Singh, the Union Minister of State in the Prime
Minister’s Office had expressed in a statement that the Union Government was “considering
ways” for the deportation of the Rohingya Muslims. He further added that this step is being
considered by the government because the Citizenship Amendment Act does not grant
citizenship to the Muslim persecuted minorities or the Muslim asylum-seekers. As a result of
this amendment, the deportation of the Rohingya Muslims to Myanmar is reaffirmed x. He
further stated that the amendment is applicable in the Union Territory of Jammu and Kashmir
which holds a significant number of the Rohingya population. Hence, even when new laws or
amendment to new laws are brought forth by India and advertised as “refugee policies”, they
fail to be comprehensive in nature and exclude a serious refugee crisis at hand.

CONCLUSION

It is apparent that India needs a strong legal framework for the handling of the refugee crisis
that it has been seeing regularly. Without a concrete legal framework, it is not only spoiling
its own image in an international sphere which can be detrimental to its diplomatic
endeavours but is also ignoring significant and basic human rights of the persecuted
minorities who have no option but to come to India and seek asylum. Further, a legal
framework in this regard will also reduce the scope of arbitrary shifting of “refugees” to the
status of “illegal immigrants”. All in all, a domestic refugee policy for India is a need of the
hour to tackle significant issues that it faces regularly.
i
Express News Service, “SC rejects petition against any move to deport Rohingya detained in Jammu”, Indian Express,
April 9, 2021.

ii
Id.

UNHCR Note on the Principle of Non-Refoulement, available at, https://www.refworld.org/docid/438c6d972.html

iii

(last visited 11 April 2021).

iv
Nirupama Subramanian, “Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with
circumstances”, Indian Express, April 13, 2021.

v
Examining India’s stance on the Rohingya crisis, available at, https://www.orfonline.org/research/examining-indias-
stance-on-the-rohingya-crisis/ (last visited 8 April 2021).

vi
India’s Refugee Policy: From Strategic Ambiguity to Exclusion, available at, https://thediplomat.com/2020/02/indian-
refugee-policy-from-strategic-ambiguity-to-exclusion/ (last visited 9 April 2021).

Nirupama Subramanian, “Explained: On ‘refugees’ and ‘illegal immigrants’, how India’s stance changes with
vii

circumstances”, Indian Express, April 13, 2021.

viii
Id.

Rohingyas in India, available at, https://www.ohchr.org/Documents/Issues/Religion/Islamophobia-AntiMuslim/Civil

ix

%20Society%20or%20Individuals/RitumbraM1.pdf (last visited 9 April 2021).

x
Id.