In the absence of a legislation to deal with refugees, India continues to treat Rohingya refugees in an arbitrary manner, discriminating against them in relation to refugees from other nations, and inhumanely detains and deports them, in violation of customary international law and its own international treaty obligations.
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Hasina Begum, a Rohingya refugee staying in India, was deported to Myanmar on March 22 from the Indian border town of Moreh in Manipur’s Tengnoupal district. She had been in detention at the Kathua sub-jail in the union territory of Jammu and Kashmir since March 6 last year. She had UNHCR [United Nations High Commissioner for Refugees] registration no. 305-13C01783 as a refugee in India. Her husband and three minor children are still living in the most abject conditions in a slum in Jammu. The minor children have been inconsolable since the detention and deportation of their mother.
Begum is the daughter of Kalil Mohammad, originally a resident of the village Rani goaing Namera Tai (‘Bonfara’ in the Rohingya language; ‘Morobbong’ in the Burmese language), Post Office Bali Bazar in the Rakhine state of Myanman. The deportation documents have wrongly given her address as Toung Brung in the Maungdaw district in Rakhine.
On March 15, a team of Jammu and Kashmir Police took her by train to the nearest railhead to the point of deportation, which is the town of Dimapur in the north-eastern state of Nagaland. She was scheduled to be deported on March 22 from Moreh, which is 316 km from the Dimapur Railway station.
The Jammu and Kashmir Police team reached Imphal, the capital of Manipur on March 18 from Dimapur and proceeded to Moreh on the same day. The refugee in custody was received by the District Immigration Officer at Tamu, the adjoining border town in Myanmar on the same day, though the Superintendent of Police of the Special Branch in Manipur reportedly erroneously gave the date of May 22, 2022 in his communication to the Manipur State Human Rights Commission [MHRC].]
According to estimates by the Indian government, there are about 40,000 Rohingya currently in India. Other sources claim that this figure is grossly overestimated in order to exaggerate the “infiltration” by Rohingya, many of whom are Muslim in Hindu-majority India. As of August 2020, 18,914 Rohingya were registered with the UNHCR in India.
A complaint against the imminent deportation was made by the non-governmental organization [NGO] Human Rights Alert to the MHRC on March 21. The MHRC, taking cognizance on the same day, asked the Manipur Government to respond by March 24. The order was conveyed to the Manipur police the same day. The local media, on the morning of March 22, reported the order of the MHRC extensively. Yet, the refugee was deported.
On the evening of March 31, over 20 Rohingya refugees were detained in Jammu. The South Asia Human Rights Documentation Centre [SAHRDC] has a list of 13 of those detained. They were reportedly meeting to make preparations for the observance of Ramzan amongst the 6,000 plus strong Rohingya community in Jammu. It is hoped that UNHCR and its NGO partners intervene legally with alacrity.
Earlier on the evening of March 25, a Rohingya activist from Delhi was briefly detained in Hyderabad. Local lawyers contacted by SAHRDC were able to secure his release after a few hours.
The Rohingya have been fleeing to India for decades, with waves in 2005 and 2012, and again in 2016/2017. According to estimates by the Indian government, there are a maximum of 40,000 Rohingya currently in India. Other sources claim, however, that this figure is grossly overestimated in order to exaggerate the “infiltration” by Rohingya, many of whom are Muslim in Hindu-majority India.
As of August 2020, 18,914 Rohingya were registered with the UNHCR in India. These Rohingya are spread out across the country in Jammu, Haryana, Delhi, Jaipur, and Hyderabad, with the largest portion in Jammu. The Indian police and intelligence services rarely recognize their UNHCR refugee cards. In 2016, only 486 Rohingya from Myanmar had a valid Long Term Visa [LTV] issued by the Government of India.
Risks faced by Rohingya if refouled to Myanmar
Since the beginning of the ethnic cleansing, the Myanmar government has not made credible commitments to stabilize the situation. It has also denied mass atrocities. In fact, government officials have claimed that Rohingyas have set fire to their own houses and were committing genocide against themselves.
In an earlier agreement with Bangladesh on the repatriation of Rohingya to Myanmar, the government stated that it would not prosecute or penalize returnees for having illegally exited the country, despite periodic curfews placed in Rohingya-populated areas. This pledge does not guarantee that atrocities will not recommence upon return.
Also read: Rohingyas: Genocide in the backyard
Recognition of refugees as distinct from migrants by India
In India, no legislation exists that specifically refers to refugees. It has in practice often clubbed Rohingya refugees with the class of illegal immigrants who may be deported by the government under the Foreigners Act, 1946 and the Foreigners Order, 1948. Legally, however, a refugee is a special category of immigrant and cannot be clubbed with an illegal immigrant. Under international law, a refugee is commonly defined as:
“[A]ny person who…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
In India, no legislation exists that specifically refers to refugees. It has in practice often clubbed Rohingya refugees with the class of illegal immigrants who may be deported by the government under the Foreigners Act, 1946 and the Foreigners Order, 1948. Legally, however, a refugee is a special category of immigrant and cannot be clubbed with an illegal immigrant.
This definition was first codified in Article 1(A)(2) of the United Nations’ [UN] 1951 Convention Relating to the Status of Refugees, and today is accepted to form part of customary international law. The definition given in Article 1(A)(2) is in fact narrower than its customary equivalent, owing to a progressive broadening to include those who may not fall into the above-mentioned category but are nonetheless in need of international protection. For both groups, the content of international protection, including the guarantee of non-refoulement, is strictly identical. Importantly, a person does not become a refugee because of recognition, but is recognised as one because they are a refugee.
As the determination of refugee status is merely declaratory, the principle of non-refoulement applies to those who have not yet had their status declared and are mere asylum-seekers, and even to those who have not expressed their wish to be protected.
In fact, the Indian government has in the past differentiated between illegal immigrants and refugees despite the absence of domestic legislation.
For instance, at no time has India acted to expel Tibetan refugees or to close their borders to new arrivals from Tibet. Like Sri Lankan Tamils, the Indian government considers Tibetans in settlements and refugee camps throughout the country to be refugees. The government even issued special documentation to Tibetans and Sri Lankans, recognizing their status as refugees, and allowing them to access basic socio-economic rights.
At no time has India acted to expel Tibetan or Sri Lankan Tamil refugees, or to close their borders to new arrivals from Tibet or Sri Lanka.
The Indian government previously issued entering Tibetans with a Registration Certificate [RC]. This is a legal document issued pursuant to the Registration of Foreigners Act, 1939 and SRO (Statutory Rules and Orders) 1108 of 1950 “Regulating Entry of Tibetan Nationals into India.” While not explicit in the terms of the order or on the face of the document itself, in practice, the RC serves as a de facto residence permit. It entitles Tibetan refugees to rights similar to those of an Indian national, save for the right to vote or obtain employment in Indian government offices.
Additionally, when extending the right to apply for long term visas for refugees, then Union Minister of State for Home Affairs Kiren Rijiju stated:
“There is no national law on Refugee at present [sic]. Government has circulated a Standard Operating Procedure for dealing with foreign nationals who claim to be refugees to all State Governments/ Union Territories on December 29, 2011. This Standing Operating Procedure stipulate that cases, which are prima facie justified on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by the State Government/Union Territory Administration to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification.”
Additionally, the Government of India has repeatedly stressed the difference between refugees and migrants in various international fora, including through:
- Remarksby Secretary (West) of the Ministry of External affairs that “the blurring of the distinction between migrants and refugees is a worrisome trend”;
- By adopting the New York Declaration for Refugees and Migrantsby the UN General Assembly that inter alia provided to “reaffirm respect for the institution of asylum and the right to seek asylum”;
iii. Remarks by a diplomatic official that “we need to be cautious not to open the path for redefining the refugee convention and its protocol, and in no case diluting the principle of non-refoulement”.
Also read: India’s treatment of the Rohingya reaffirms the need for a domestic refugee law
India is bound to non-refoulement through customary international law
The principle of non-refoulement – or not sending refugees to a place where they face danger – is a norm of customary international law. The content of the obligation has been explicitly expressed in Article 33(1) of the Convention on the Status of Refugees:
“No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.”
The principle of non-refoulement, although it is also codified in writing, exists separately as an obligation under customary international law.
In order to become customary international law, a practice and obligation must be widely reflected in State practice and must be regarded by those States as a practice done out of obligation rather than courtesy (opinio juris).
Clearly, the principle of non-refoulement is widely adhered to internationally. There are presently 145 States parties to the 1951 Convention and 146 to its 1967 Protocol – that is, three quarters of the member-States of the United Nations are party to one or both treaties – making them two of the most-subscribed human rights treaties. The fact that some States do not perfectly conform to the principle does not void the rule, but only demonstrates that some States prefer to ignore a peremptory obligation.
In regard to opinio juris, the UNHCR has noted that “[S]tates have overwhelmingly indicated that they accept the principle of non-refoulement as binding, as demonstrated, inter alia, in numerous instances where states have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle.” It is hence that the principle of non-refoulement, although it is also codified in writing, exists separately as an obligation under customary international law.
As indicated above, India does not as of now have explicit legislation protecting refugees from refoulement practices. Customary International law thus somewhat fills a gap, as was corroborated in 2016 at the Delhi High Court in the case of Dongh Lian Kham vs. Union of India 226 (2015) by Justice Ashutosh Kumar:
“Non refoulement is accepted by the customary international law and municipal law of nations and by now it has attained widespread international recognition.”
In Gramophone Company Of India Ltd vs. Birendra Bahadur Pandey & Ors, (1984), the Supreme Court held that the comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament. As per the doctrine of incorporation laid down in this judgment, the principle of non-refoulement, a recognized principle of international law, must be incorporated in the law of land since there is no municipal law in India which is in conflict with such principle.
Even if there was a conflict, the principle of non-refoulement has obtained jus cogens status, and may thus not be overridden under any circumstances. Additionally, it was held in Vishaka & Ors. vs. State Of Rajasthan (1997) that “any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.”
Also read: India pushing back Rohingyas at its borders is a gross violation of rights
India is bound to non-refoulement through other treaties
As was previously established, India is bound to abide by the principle of non-refoulement due to its jus cogens character in international customary law. However, India has also given its consent to the principle by ratifying certain treaties that either directly or indirectly contain provisions pertaining to non-refoulement.
Not only has India ratified a significant number of treaties re-affirming the principle of non-refoulement, it is also signatory to at least two more treaties that prohibit the refoulement of individuals back to circumstances where their life or bodily integrity may be threatened. (The difference between ratification and signature is that of whether Parliament has approved of the legislation being implemented.)
As per the doctrine of incorporation laid down by the Supreme Court, the principle of non-refoulement, a recognized principle of international law, must be incorporated in the law of land since there is no municipal law in India which is in conflict with such principle.
India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT] in 1997. Article 3 of the Convention states:
“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.”
Importantly, “torture” is meant to include “not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.”
Although its ratification of the CAT is pending, India has made more than merely a moral commitment to abide by its provisions. Article 18 of the Vienna Convention on the Law of Treaties [VCLT] states that pending entry into a force, a State shall not contravene the promise it made when signing the treaty, and is obliged to refrain from acts which would defeat the object and purpose of a treaty.
Although India has not signed the VCLT, the treaty is relevant for two reasons: First, it codifies customary international law, as was recognized in the Indian Supreme Court in Ram Jethmalani vs. Union of India (2011). Second, the Delhi High Court in fact applied concrete provisions of the VCLT in its judgment in AWAS 39423 Ireland vs. Directorate General of Civil Aviation (2015). As stated by British lawyer and academic Mike Sanderson:
“Although [many] years have now elapsed since India became a signatory to the convention, it continues to actively debate ratification. As recently as 2010, a bill was introduced to the Lok Sabha (the lower house of the Indian Parliament) for the purpose of ratifying the convention. Although passage of the bill seems to have been delayed indefinitely following its referral to a Select Committee of the Rajya Sabha (the upper house of the Indian Parliament) for revision, it is plain that India has not yet “made its intention clear not to become a party to the treaty.” As such, India remains obliged not to act in a manner that would “defeat the object and purpose” of the CAT.”
For the same reason, India is also bound to abide in general by the International Convention on Protection of All Persons against Enforced Disappearances, which it signed in 2007. Article 16 of the Convention explicitly lays down the principle of non-refoulement:
“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.”
Also read: International Law Omissions in Rohingya Deportation Order
Major practical challenges
As India has not ratified the Convention Relating to the Status of Refugees and does not have specific refugee-related law, it does not have a proper State refugee determination procedure. Instead, UNHCR is bestowed with the task of determining refugee status and providing registration documents for urban refugees. As of August 2020, only about 19,000 of the alleged 40,000 Rohingya refugees settled in India had received such refugee documentation. This situation arises not because the remaining Rohingya were found to not be refugees, but because their cases have not been examined yet due to the tardiness of the UNHCR in India. The protection team of the UNHCR office in India is more often than not missing in action.
India has also given its consent to the principle by ratifying certain treaties that either directly or indirectly contain provisions pertaining to non-refoulement.
The Supreme Court’s order from April last year deporting Rohingya refugees airbrushes international norms and India’s obligations under international law. The court placed reliance on national security concerns put forward by the government without questioning the alleged dangers that the refugees may present. The Indian government had not shared the details of the purported national security concerns it claimed the Rohingya refugees pose. In the meanwhile, hundreds of Rohingya refugees remain in detention in Jammu and other parts of India in miserable conditions.
Also read: Supreme Court’s Rohingya deportation order illegally flawed, ignores principles of natural justice
The horror of horrors is that India has been on the Executive Committee of the UNHCR in Geneva since 1995, without having signed the refugee convention or its additional protocol!
(This is adapted from the chapter titled Rohingya refugees in India: Governmental and judicial attitude written by the author for the book ‘The Routledge Handbook of Refugees in India’, edited by S. Irudaya Rajan and published last month.)
The writer is the executive director, South Asia Human Rights Documentation Centre.
