THE ROHINGYA REFUGEE CRISIS IN INDIA

THE ROHINGYA REFUGEE CRISIS IN INDIA Brihad Ralhan 1 The 1.1 million Rohingya people residing in Myanmar have always been surrounded by controversy. They have co-existed alongside Buddhists and have done so uneasily, for a long time. Myanmar rendered the Rohingya people stateless in 1982 and stripped them of their citizenship. The same people have been victims of communal violence taking place in Myanmar as well. They have, through many years, faced consistent and systematic human rights violations in the country due to the existing communal division. However, things worsened a lot more in 2016-17 when the Rohingya people were made victims of a military crackdown in Myanmar. Due to the rising tension in the State, thousands of Rohingya people fled to neighbouring countries, seeking refuge from persecution. More than 40,000 of these are known to be residing in India currently. These people have been travelling, with little food and water supply, dangerously on the high-seas in order to reach the nearest port away from Myanmar, where they face serious threats to their safety. Out of the 40,000 residing in India, 16,500 have been registered with The Office of the United Nations High Commissioner for Refugees [Herein after UNHCR ] Since India does not have a codified refugee law, UNCHR handles the in-take of refugees in the country through its own registration process. Recently, the Government announced its intention to deport all 40,000 Rohingya refugees living in India, including the 16,500 registered ones. This has led to a petition being filed before the Hon ble Supreme Court of India by 2 registered Rohingya refugees. The Union of India claims that since it is not a signatory to the United Nations [Herein after UN ] Convention on Refugees related to Status of Refugees, 1951, the recommendations or the selection process of the UNCHR is not binding on it and hence it can deport all the refugees living in the country. This article, from a neutral standpoint, tries to summarise the possible arguments from both sides of this case with a brief opinion based solution at the end. The arguments brought forward by the petitioners may consist of the following. 1 2nd Year BLS LLB Student, Government Law College, Mumbai 1 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

1. FUNDAMENTAL RIGHTS AND NON-REFOULEMENT: They may mainly rely upon two fundamental rights viz. Article 14 and Article 21 guaranteed in the Indian Constitution which applies equally to both Indians as well as foreign nationals, including refugees. Article 14 Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 21 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Time and again, the High Courts and the Supreme Court have pronounced judgments to protect the liberty of refugees. By the use of the said two articles, courts have tried to further liberalise the rights of refugees. Non-refoulement is an accepted customary international law which may be defined as the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution. In the case of Ktaer Abbas Habib Al Qutaifi v. Union of India &Ors. 2, non-refoulement was recognized under Article 21 by the Gujarat High Court. India though not a signatory to the 1951 Convention, takes upon itself the responsibility under Article 51 of its Constitution, which is a Directive Principle of State Policy. Article 51 (c) Foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration. Hence, non-refoulement, which is a customary international principle, is to be followed by India since it is important in the international jurisprudence. 2 1999 Cri.L.J. 919. 2 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

The Hon ble Supreme Court, in NHRC v. State of Andhra Pradesh 3 held that the Constitutional sway in India embodies right to equality and ensures the right to a dignified life to all citizens as well as non-citizens. On the basis of the principle of non-refoulement, the Court directed against the refoulement of Chakma refugees, who were the nationals of Bangladesh. Again, in the case of Syed Ata Mohammadi v. Union of India, 4 the Bombay High Court pointed out that the Iranian refugees cannot be sent back to Iran, where they face the fear of persecution. The Supreme Court has stayed deportation of refugees in a number of cases such as Maiwand s Trust of Afghan Human Freedom v. State of Punjab 5 ; and N.D. Pancholi vs. State of Punjab & Others. 6 These cases along with numerous more illustrate how the judiciary has declared nonrefoulement as existent under Article 21 of the Constitution, taking into consideration the international customary laws. Furthermore, Article 14 of the Indian Constitution is at risk of being violated in case the Rohingyas are deported. This argument is two-fold. The first part deals with the right to be heard enjoyed by a foreign national. 1.1. RIGHT TO BE HEARD: In Hans Muller of Nurenburg v. Superintendent, Presidency 7, the Supreme Court gave an absolute power to the Government to throw out foreigners. The same was upheld by the Supreme Court in Mr. Louis De Raedt & Ors v. Union of India. 8 However, in the same judgment, the Court also held that foreigners have due process rights and the right to be heard. In the present case, the members of the Rohingya community are being threatened to be deported without first being heard, which is also a breach of audi alteram partem, a principle of natural justice. 3 1996 SCC (1) 742. 4 Criminal writ petition no. 7504/1994 at the Bombay High Court 5 Crl. WP No.125 & 126 of 1986. 6 WP (civil) No. 1294 of 1987, unreported) 7 1955 SCR (1)1284 8 1991 SCR (3) 149 3 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

There exist certain exceptions, as provided in Article 33(2) of the 1951 Refugee Convention, to non-refoulement and rights of the refugees on the basis of two grounds: (i) National Security; and (ii) Public Order. Hence, if there is a threat to either the national security or the public order of the country, the refugees can be deported as the State has to perform its duty towards the nation and itscitizens by maintaining law and order. In view of the serious consequences to a refugee of being returned to a country where he is in danger of persecution, the exception provided for in Article 33(2) should be applied with the greatest caution. It is necessary to take fully into account all the circumstances of the case and, where the refugee has been convicted of a serious criminal offence, to any mitigating factors and the possibilities of rehabilitation and reintegration within society. 9 The Union of India, in the current case, may argue that Rohingya people, if allowed to live to continue to stay in India, may be exposed to terror groups and thereby breed terrorism in an already volatile-region, i.e. Jammu and Kashmir, where a chunk of the Rohingya population currently resides. However, this may not be fully credible and deporting the entire community of 40,000 people from the country based on the same, even if credible, would be blatant ignorance and erred judgment on part of the Government, especially since UNHCR in India, carries out a Refugee Status Determination (RSD) process which starts with registration as asylum seekers, following which, it conducts interviews with each individual asylum seeker accompanied by a qualified interpreter. This process provides areasoned decision on whether refugee status is granted or not. 10 In the case of P. Nedumaran v. Union Of India 11 before the Madras High Court, some refugees, originally from Sri Lanka, prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka and to allow those refugees who did not want to go back, to continue to stay in India. The Hon ble Court held that since the UNHCR was 9 Note on Non-Refoulement (Submitted by the High Commissioner) By UNHCR EC/SCP/2 August 1977. 10 UNHCR website. See http://www.unhcr.org.in/index.php?option=com_content&view=article&id=8&itemid=130 (last accessed on 26/9/2017) 11 MANU/AP/0367/1993 4 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

involved in ascertaining the voluntariness of the refugees return to Sri Lanka, hence being a World Agency, it is not for the Court to consider whether the consent is voluntary or not. The Court went on to acknowledge the impartiality, non-biasness and competence of the UNHCR officials. Hence, since the UNHCR registers refugees on a case by case basis, the Government, based on a few intelligence reports cannot deport the entire Rohingya community en masse and disregard the standard operating procedure followed by UNHCR, which has been recognized by the courts. 1.2. UNREASONABLE CLASSIFICATION: The second part of this argument deals with segregation, without the existence of a discernible reason, of Rohingya people, from the rest seeking refuge in India. In the case of Ajay Hasia v. Khalid Mujib Sehravardi 12, it was observed thus: If the classification is not reasonable and does not satisfy the two conditions referred to above [(i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action], the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Hence, the Government s classification of refugees needs to be based on intelligible differentia. In the present case, there seems to be no rationale behind separating Rohingyas from the rest of the refugees of the country. The burden of proof in this situation lies on the Government to prove as to why Rohingya refugees, including the ones registered with UNHCR, are the ones not getting the same protection as the other refugees. The same classification, if based on communal grounds, is a serious violation of the provisions of the Indian Constitution which does not discriminate on the basis of religion. The said classification and the act of deporting the Rohingya community may be an arbitrary action on part of the State, since linking terrorist activities to the entire community without any evidence is not a sufficient ground for singling out the Rohingyas. Furthermore, isolated cases of public disorder due to clashes between the locals and Rohingyas may not be taken as 12 (1981) 1 SCC 722. 5 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

a justification to deport the entire community of 40,000 people back to Myanmar where they may face serious threats to their safety. 2. CONVENTIONS SIGNED BY INDIA: Even though India is not a signatory to the United Nations Convention on the Status ofrefugees, it is a signatory to several other conventions which place an obligation upon itto not deport the Rohingyas in the present case.the petitioners may argue that India, by signing these conventions/principles, has shownits intent to legislate upon the same and has shown its agreement in implementing thesame. A signature, subject to ratification/acceptance/approval, is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty. 13 2.1.CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMANE OR DEGRADING TREATMENT OR PUNISHMENT: While India is a signatory to this convention, it has not ratified the same yet. Article 3 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. 13 Arts.10 and 18, Vienna Convention on the Law of Treaties 1969 6 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

Over the last few years, Anti-Rohingya riots took place throughout Myanmar, wherein, reportedly, many Rohingyas were killed. It was also reported by international organisations that the State police and armed forces tortured the Rohingyas. Keeping these considerations in mind, India should detect the consistent violation ofhuman rights in Myanmar and not forcibly expel the Rohingyas. 2.2.INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE: India is a signatory to this convention, but has not ratified the same. Article 16 1. No State Party shall expel, return ("refouler"), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law. Enforced disappearance is defined as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. 14 In the present scenario, the State of Myanmar, through its agents, has deprived the Rohingyas of their liberty. Hence, since substantial grounds exist for believing that Rohingyas may face the threat of enforced disappearance in Myanmar, India should consider the same and not deport them. 14 Article 2, International Convention for the Protection of All Persons from Enforced Disappearance 7 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

2.3. ASIAN AFRICAN LEGAL CONSULTATIVE ORGANIZATION S (AALCO) 1996 BANGKOK PRINCIPLES ON STATUS AND TREATMENT OF REFUGEES: India is a signatory to the said principles. Article III 1. No one seeking asylum in accordance with these Principles shall be subjected to measures such as rejection at the frontier, return or expulsion which would result in his life or freedom being threatened on account of his race, religion, nationality, ethnic origin, membership of a particular social group or political opinion. The provision as outlined above may not however be claimed by a person when there are reasonable grounds to believe the person s presence is a danger to the national security or public order of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 2. In cases where a State decides to apply any of the above-mentioned measures to a person seeking asylum, it should grant provisional asylum under such conditions as it may deem appropriate, to enable the person thus endangered to seek asylum in another country. When the Rohingyas try to seek asylum by entering into India, they should not be rejected at the frontier, returned or expelled, especially if doing so would result in the lives of such persons being threatened. The Rohingyas who tried fleeing to India, used boats to travel on the high seas and international waters which were ill-equipped for the journey. The exception of national security being at risk demands reasonable reasons for believingthat there indeed is a threat in the person s presence. When these boats were being overturned killing hundreds and the people were merely seeking refuge, there is no reason for the Indian Navy to believe that such persons could be linked to terrorist activities without any evidence. 2.4. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: India has acceded to this convention. Article 7 8 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment. Article 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. In the present case, there are substantial grounds for believing that the Rohingyas, if expelled, would face a real risk of irreparable harm. This is clear from the fact that, since decades, Rohingyas have faced issues and that recently, in 2016-17, with the military crackdown, they face significant risks. Article 13 of the said convention also protects the right to be heard and due process rights of refugees before being deported. 2.5. UNIVERSAL DECLARATION OF HUMAN RIGHTS: Article 14 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations. India has agreed to the provision which grants persons the right to seek and enjoy asylum from persecution. Hence, being a part of the Universal Declaration of Human Rights, India must not ignoreits responsibility owed towards Rohingyas, who seek asylum from persecution. 9 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

2.6. CONVENTION ON THE RIGHTS OF THE CHILD: Article 22 States 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 procedures shall, whether unaccompanied or accompanied 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. This convention, as ratified by India, lays down that State parties should unconditionally ensure that a child who is seeking refugee status or who is a refugee shall receive protection and assistance in the enjoyment of rights in the present convention as well as inother instruments to which the said State is a party. Thus, India owes an unconditional duty of care towards the Rohingya children seeking refuge in the country. The above mentioned conventions and the relevant articles as reproduced all talk about creating an obligation on the State parties to not expel or deport people seeking refuge,against their consent, if there is a risk of being subjected to irreparable harm and persecution after being deported. While it is true that these conventions are not directly enforceable in an Indian court of law and that the judiciary itself is not empowered to make legislations, it is free and empowered to interpret the obligations of India under international law into the municipal laws of the country in passing a judgment when dealing with cases involving questions of international law. This is made possible through Article 51 of the Constitution. The same can be confirmed by the words of S.M. Sikri, C.J. in the case of Kesavananda Bharathi v. State of Kerala 15 - It seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. 15 (1973) Supp. SCR 1 10 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

Also, in the case of Additional District Magistrate, Jabalpur v. Shivakant Shukla 16, the Supreme Court broadened the scope of Article 21 of the Indian Constitution by referring to Articles 862 and 963 of the Universal Declaration of Human Rights. In Vellore Citizens Welfare Forum v. Union of India and Others, 17 the Court held Even otherwise, once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. The authorities cited above seek to implement the relevant provisions of the conventions to which India is a party. Hence, the Hon ble Supreme Court is fully empowered to grant the relief sought by the petitioner and the same may not be questioned. In addition to the above conventions, India has signed one more convention which may be brought into the picture here, i.e. United Nations Convention on the Law of the Sea. Article 98 of the same is as follows: 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose. 16 AIR 1976 SC 1207 17 AIR 1996 SC 2715 11 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

India, being a signatory to this convention, is obligated to reasonably assist and rescue all persons found at sea in danger of being lost or in distress. Since the pattern of Rohingyas dying at the high seas due to lack of supplies and ill-equipped boats was clear, the Indian Navy is obligated in offering assistance to such persons as the same is reasonably expected by the refugees from the Indian Navy. They must hence not be sent back and instead be offered the assistance they require. While the above contentions stand strong, the respondent to the current case, the Union of India, has many counter-contentions it could rely upon. The Government of India has relied upon the fact that there exists a lot of tension between Rohingyas and the other communities within India itself. It has shown its concern over the fact that an influx of Rohingya refugees to areas such as Jammu and Kashmir may change the demographic pattern of the already controversial and volatile area. It may also contend that keeping 40,000 refugees involves spending of a lot of resources of the Government and that such expenditure should be undertaken by the executive based on its own will and shall hence not be forced upon it by the judiciary. The 23,500 Rohingya refugees who are not registered with the UNCHR may be deemed as illegal immigrants. A foreigner who enters into or stays in any area in India without valid documents required for such stay, as the case may be, can be proceeded against under Section 14A(b) of the Foreigners Act, 1946. India follows the principle of dualism where no treaty can be enforced before it is incorporated into domestic law. In the State of West Bengal v. Kesoram Industries Ltd, 18 the court ruled that It is true that the doctrine of 'Monism' as prevailing in the European countries does not prevail in India. The doctrine of 'Dualism' is applicable. But, where the municipal law does not limit the extent of the statute, even if India is not a signatory to the relevant International Treaty or Covenant, the Supreme Court in a large number of cases interpreted the statutes keeping in view the same. Again, A treaty entered into by India cannot become law of the land and it cannot be implemented unless Parliament passes a law as required under Article 253. 18 2004 AIR SCW 599 12 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

Furthermore, Section 3(2) (c) of the Foreigners Act, 1946 states thus: 3. Power to make orders. (2) In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner (c) shall not remain in India, or in any prescribed area therein; (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal; Section 3(2) (c) of the Foreigners Act, 1946 empowers the Central Government to deport foreigners from the country if they come to adverse notice or their presence in the country is considered to be against the national interests. The Foreigners Act, therefore, confers the power to expel foreigners from India and such power is absolute and unfettered and no interference could be made with respect to the subjective satisfaction the Union regarding their decision to deport a foreign national. In the case of Ananda Bhavani (a) Geethanando, Ananda Ashram, Pondicherry Vs Union of India, 19 the court said that if the presence of some constitutes threat to the national security then their deportation order, without hearing will not be considered the violation of principle of natural justice. It may here be contended by the Union of India, that since there exists a threat to public order, principles of natural justice may not be considered before deporting the refugees. In Dough Lian Kham &Anr v. Union of India &Anr 20 the Supreme of Court of India ruled- The Fundamental Right of a foreigner/refugee is only confined to Article 21, i.e. the right to life and liberty and does not include the right to reside and settle in India, which right is only applicable to the citizens of the country. The power of the Indian Government to expel foreigners is absolute and unlimited and there is no provision in the Constitution of India or other law, putting fetters on the aforesaid discretion of the Government. 19 1991 MLW (Crl.) 393 20 WP (CRL) 1884 of 2015 13 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

The principle of "non-refoulement", which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as "nonrefoulement" affects/protects the life and liberty of a human being, irrespective of his nationality. This protection is available to a refugee but it must not be at the expense of national security. Also, the Apex Court in a number of landmark judgments has decried the practice of enforcing international conventions through the courts. Hence, the Judiciary has itself laid down decisions in favour of judicial restraint vis-a-vis judicial overreach. India s policy on geopolitics is not a domain for the court to decide. Its friendly relations with Myanmar may get affected and may thereby cause turbulence and turmoil in the South-Asian region for the entrenchment of the court in passing a writ of mandamus interfering with the executive s decision. In S.R. Bommai v. Union of India, 21 the judges held that there are certain situations where the political element dominates and judicial review is not possible. Ahmadi J. said that it was tough to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it, they would be questioning political wisdom, which they must avoid. After having a look into the above mentioned possible contentions from both the sides, it is difficult to say that one is absolutely right over the other. The Hon ble Supreme Court of India, using judicial innovation, may set precedence for the future, through this highly complex case. There shall be no doubt that there exists a moral obligation on India to not forcibly expel the Rohingyas back to Myanmar. A possible solution of deporting to a thirdcountry may be considered by the Government, until which it may, in good faith, give basic assistance and protection to the Rohingya refugees. It should be considered by the Union of India that the 23,500 refugees who are yet to register with the UNHCR may not have the idea or the resources required to approach the offices of UNCHR and hence deporting them without giving them a fair chance is not ideal. It may also be noted that India has mostly always been welcoming of refuges seeking refuge in India. The country has absorbed far 21 (1994) 3 SCC (Jour) 1 14 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

more than 40,000 refugees in the past and the question of economic burden has never been brought up. While the laws and judgments on this case are divided, so are the opinions of the people of India. The Supreme Court of India may pass a judgment on the case soon, looking at the importance this case has received and the number of people that are involved and concerned. Perhaps, it is time that the Indian legislature comes forward and codifies a law on refugees and puts all questions of uncertainty regarding this matter to a much awaited peaceful end. 15 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW