Kirit.P.

Mehta School of Law

B.A, LL.B. (Hons.) / Second Semester

Moot (2021-2022)
Research Topic: Rohingya Muslim Crisis

Submitted to: Prof. Rajneesh Dubey

Submitted by: Vaidehi Yadav
Sap id: 81012019593

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Table Of Content
1. List of Statues referred-…………………………………….3-4
2. List of Case law…………………………………........................4
3. Introduction………………………………………………...….4
4. Chapter-1…………………………………………………......5-6
 What was the legal and constitutional status of Kashmir prior to the
revocation of article 370?

5. Chapter-2………………………………………………….…6-9
 Constitutional challenges
 Federalism issues
 Expected consequences
6. Chapter-3………………………………………………….…9-11

7. Chapter-4………………………………………………….11-12
 Conclusion
 Bibliography

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Abstract
In this article I will research on with the problem of refugees and international
law. The purpose is two-fold: to understand the legal framework for protection
of refugees and to understand the manner in which in the international legal
framework is adopted by the states in the domestic jurisdiction.

The limitation of international law in addressing the refugee problem is

highlighted through “contestations” and “fault lines”.
It is argued That such an contestation and fault lines exist in the manner in
which conceptions like sovereignty, nationality, territoriality, jurisdiction and
legal obligations are clothed and implement in the international legal discourse.
The example of the Rohingya refugee crisis from India is employed to
contextualize the discussion.

Intro
rohingya is an ethnic group which is concentrated mainly in the Rakhine
(formerly known Arakan) State of Myanmar majority of whom belong to the
Muslim religion. According to historians, Muslims have lived in Myanmar since
the 12th century. During the British Rule in India which consisted of the modern
day Myanmar as well, there was migration of workers and labourers from that
region to the present day of Bangladesh and India, which later, the present day
Myanmar Government (after gaining independence) called as illegal migration;
and due to the inability of the people to prove their origin from the State
(because of unavailability of any document with them, stating the same). After
independence of Myanmar in 1948, the Citizenship Act was passed, which
stated the ethnic groups which were to be given the status of citizens, among
which the name of rohingya was not included but only identity cards were
issued to families living in Myanmar from the past two generations. Another
significant change came during the military coup of 1962 which further changed
the norms of citizenship, limiting the educational and job prospect for the
Rohingya  . Lastly, new citizenship law in the year 1982 was passed in which
they were not given recognition among the 135 ethnic communities, which
thereby rendered the people of the Rohingya Community as stateless. The result
of the same was opportunities and rights being denied to them which included
health services, work, education, to practise religion, etc. Since 1970s, there
have been military crackdowns on Rohingya , which even led to rape, torture of
women and children, apart from deaths (according to reports) and thereby
forcing them to flee to the neighbouring countries in search of better life away
from the atrocities being committed and the deteriorating lifestyle devoid of
basic necessities to survive. The recent crackdown by the military of the country
has been reported in 2016-2017 and the acts of the State in this respect have
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been termed as genocide. The UN Human Rights Envoy to Myanmar even went
to the extent of terming the discrimination and persecution against Rohingya as
ethnic cleansing and which could amount to crimes against humanity.
According to an estimate, more than a million have fled the violence due to fear
of persecution in Myanmar. More than 1,68,000 Rohingya have fled Myanmar
since 2012, according to the most recently available statistics from the United
Nations in May 2017. According to the International Organization for
Migration, more than 87,000 Rohingya  fled to Bangladesh from October 2016
to July 2017, following violence that broke out last year. The official response
from Aung San Suu Kyi and her Government have been that they have refused
to recognise them as an ethnic group. On the contrary, they have blamed the
cause of violence in the State of Rakhine, and the military crackdowns as a
response on the Arakan rohingya Salvation Army.

Issues in india

The issue of Rohingya migration into the territory of India got highlighted

recently due to the mass influx of the refugees reported during the month of
September. The same was a consequence of the policy approach adopted by the
Rakhine Commission established to address the ethnic conflict, by way of
recommending solution for the security of the Rohingya. The same had the
effect of pushing the people to the north across the border thereby in the process
led to migration into the Indian borders. The issue gained the spotlight due to a
number of factors foremost being the security concern as stated by the
Government of India leading to calls of deportation of the refugees by the
Centre. The same was challenged in the Supreme Court of India and the matter
is sub judice. According to the government estimate, approximately
40,000 Rohingya refugees are currently residing in India among which 14,000
are registered with UNHCR while the rest are staying illegally. The major reasons
for the stand of the Government been stated in the affidavit filed in the Supreme
Court has been security ramifications and reports by security agencies
highlighting links of Rohingya with ISI and other terrorist organisations to carry
out communal violence. The Government also submitted that migration into the
north-east corridor may further destabilise the fragile region due to militancy
apart from a possibility of violence against the Indian citizens who belong to the
Buddhist community. Further, the submission was made regarding the
involvement of Rohingya in illegal activities of fabricating Indian identity
documents as well as mobilisation of funds through hawala channels. There has
been considerate pressure on the Government's stand by the international
community and organisations but the Indian stand has been clear. The
Government has made it certain that no compromise will be made with respect
to the security concerns.
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Legal perspective:
India as such does not have any specific law which deals with either refugees
or asylum seekers. The Constitution as well as the subsequent Acts and changes
related to citizenship only define the term “citizen” and as such have no
provision with regard to refugees. Basically, a person living in India can either
be considered as a citizen or a foreigner (the term which is defined under the
Foreigners Act, 1946). The other legislations relating to refugees in India are the
Registration of Foreigners Act, 1939, Foreigners Act, 1946 and Passport Act,
1967. The UN Convention defines a refugee as “unable or unwilling to return to
their country of origin owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or
political opinion”, while the absence of any definition of refugee in India
renders the concept ineffective. India is also not a signatory to either UN
Convention of 1951 or the 1967 Protocol which are part of the UNHCR statute
concerning the status of refugee.

 If one looks through constitutional provision, Article 14 of the Indian

Constitution states that no person should be denied equality before the law or
the equal protection of the laws within the territory of India; whereas Article 21
states that no person should be deprived of his life or personal liberty except
according to procedure established by law.

Maybe international Law

State policy, enjoins the State to foster respect for international law. This further
brings the discussion to involve the “Principle of Non-Refoulement”, which is
widely recognised principle of international law. The principle prohibit the
receiver country in which a person seeks asylum, to send the asylum seeker to
another country where his life is in danger of being persecuted based on race,
religion, nationality, social grouping or political opinion. India is not a signatory
of UN Conventions, although, is a signatory to the conventions relating to the
“Principle of Non-Refoulement”. Also, India's conduct, domestically and
internationally, has been seen as in support of principle of non-refoulment, such
as dealing with the issue of Tamil migrants from Sri Lanka during the civil war
as well as during the Indo-Pakistan war of 1971. Another aspect to consider on
the question of the stand of deportation taken by the Government is that the
judicial decision in Dongh Lian Kham v. Union of India1 has held that the
principle of non-refoulement is part of the guarantee under Article 21 of the
Constitution irrespective of nationality. Also, the Supreme Court in National
Human Rights Commission v. State of Arunachal Pradesh2 observed that the
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State is bound to protect the life and liberty of every human being, citizen or
otherwise. All these arguments combine put a question on the stand taken by the
Government of deporting them, as going against the principles of international
law, the Constitution as well as the judicial decisions.

Conclusion