More than 420,000 Rohingya Muslims have fled to Bangladesh to flee the abominable treatment accorded to them by the Burmese army. The United Nations has termed the persecution as a “textbook example of ethnic cleansing”. In the midst of these events the Indian Home Minister has called the Rohingya Muslims who apply for asylum in India “illegal immigrants”. Meanwhile Prime Minister Narendra Modi said that India stands by Myanmar over the issue of violence in the Rakhine state on a visit to Myanmar. In another suggestion that India sides with Myanmar on the issue India refused to sign the Bali declaration against Myanmar on the Rohingya crisis. The government is also facing an appeal in the Supreme Court against their decision to deport the Rohingyas.

In such a scheme of events there emerge more questions than answers. Is the Indian government justified in deporting the Rohingya refugees? Does the Indian government’s position on refusal to grant asylum stand in consonance with India’s welcoming past? If a state with likes of Bangladesh can accept hundreds of thousands of refugees, what stops India? Has India implicitly accepted the Burmese position that terrorism and insurgency can be tackled at the cost of the lives of innocent people, mostly children?

It is an irony that India which opened its gates to an estimated 10 million refugees during the 1971 Bangladesh liberation war, has refused to grant asylum whilst Bangladesh has agreed to do so. Even though Bangladesh Prime Minister Sheik Haseena has condemned the violence and asked Myanmar to take back its nationals, and given the limited resources that Bangladesh possesses, nothing has stopped its government from accepting the refugees, India on the other hand has not only closed its doors to the Rohingyas but has also decided to deport those who came into India earlier. The refugees aren’t leaving Myanmar just to flee persecution, but also to escape the appalling human rights violations that include gang rape and killings of babies and young children as documented by the United Nations in February this year. In such circumstances its only judicial pronouncements and international law that can come to the rescue of the Rohingyas.

Article 33 of the United Nations Convention on the Status of Refugees 1951, the principle of non-refoulment, whereby no state shall return the refugees to any other country where the refugee’s rights are in danger. It is true that India is not a signatory to this convention, however this principle of non-refoulment is considered a norm of customary international law which to a large extent is binding on India. Moreover this principle of non-refoulment has been incorporated in India by virtue of a Gujarat High Court judgment in the case of Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) that said “Article 21 of the Constitution of India guarantees right of life on Indian Soil to a non-citizen, as well, but not right to reside and settle in India”. This position was affirmed in a Delhi High Court judgment in the case of Dongh Lian Kham v. Union of India (2015). The only exception to this is if the Rohingyas pose a threat to India, to say so however would be trivializing the rights violations and persecution they face.

While concluding their decision in the aforementioned Delhi High Court case, the judges said “it would only be in keeping with the golden traditions of this country in respecting international comity and according good treatment to refugees that deportation must be reconsidered”. According to the principles embodied in the constitution, it is not right for the government to deport the Rohingya refugees, neither is it desirable to not accept refugees, given India’s welcoming past and the principle of atiti devo bhava be it Bangladesh, Sri Lanka, Pakistan or Afghanistan. Over the past few weeks, the world has woken up to see harrowing images of desperate Rohingyas including children, in dire need of help, it’s in view of the assistance they require that India needs to change its position on the Rohingya issue.

 

Surya Rajkumar

Surya Rajkumar

Surya Rajkumar is a student of Law at the O.P. Jindal Global University. His interests include Indian geopolitics, international law and human rights. He has been published in various sources including the Oxford University’s Human Rights Blog.

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