The official explanation of why India is determined not to continue to give refuge to Rohingyas has legal, constitutional and moral problems.
A Rohingya Muslim man Ahammed Khabhir and his wife sit outside their tent at a refugee camp in the old city of Hyderabad on June 24, 2016. | Noah Seelam/AFP
This article was first published in Scroll on 4th February, 2019
The Union government has announced its unambiguous resolve to forcefully push out from Indian territory some of the most vulnerable and unwanted refugees in the world. These are Rohingya Muslims from Rakhine province in Myanmar. Since 2011, fleeing brutal persecution by the Myanmar armed forces, they began arriving in India.
Indian security agencies estimate the numbers of such refugees to be around 40,000. They have settled in informal slum-like squatter camps in cities like Jammu, Delhi and Jaipur, living in extreme squalor, and surviving through rag-picking and casual construction work.
The Union government, however, views these people not as refugees fleeing one of the gravest genocidal humanitarian crises in modern history, but as “illegal immigrants” or “infiltrators” who pose a dangerous security threat to India and claim the limited resources available to its citizens.
On August 8, 2017, the Union Ministry of Home Affairs wrote to chief secretaries of all states flagging the alleged surge of what it called “illegal immigrants” in India and the “grave security challenge” they posed. The letter advised all state governments “to sensitize all the law enforcement and intelligence agencies for taking prompt steps in identifying the illegal migrants and initiate the deportation processes expeditiously and without delay”. A few days later, Union Minister of State for Home Kiren Rijijusaid, “As far as we are concerned they [the Rohingya refugees] are all illegal immigrants. They have no basis to live here. Anybody who is illegal migrant will be deported.”
Rohingya refugees in India
Unease mounted among the Rohingya refugees in India when the rhetoric against them heated up, going beyond official channels. Bunched together with Bangladeshis, they became targets of routine hate rhetoric of senior BJP leaders, including party president Amit Shah, who called them “illegal infiltrators” and likened them to “termites” who must be eliminated. The Citizenship (Amendment) Bill, 2016, made it further clear that the dangers that the government anticipates from undocumented immigrants from neighbouring countries is only if they are Muslims. The Bill seeks to grant citizenship to Hindu, Buddhist, Sikh, Christian, Parsi and Jain migrants from Bangladesh, Afghanistan and Pakistan if they have lived in India for six years, even if they cannot produce the required documents. The inference here is that the danger to India only comes from Muslim immigrants, whether from Bangladesh or Myanmar.
Their alarm grew further when in October, Union Home Minister Rajnath Singh announced that he had asked all state governments to identify and collect the biometric details of all Rohingya refugees living in India. He said based on the reports submitted by the states, India would take up the matter with Myanmar to “get it resolved”. This implied that these refugees would be deported to Myanmar.
Later in October, the Supreme Court of India refused to stay the return of the first seven Rohingya refugees to Myanmar. These were men who had been detained in Assam’s Silchar jail for the past six years. On January 3, India deported five members of a Rohingya family to Myanmar. None of the 12 persons who have been deported so far have been given citizenship rights in Myanmar, although the Union government had assured the Supreme Court that they would be given these rights once they were returned.
In panic, Rohingya families across India worried that the Indian government would forcefully hand them over to Myanmar authorities. Some testified to reporters that they paid Rs 10,000 each to touts who promised to facilitate their transfer to Bangladesh, the only country in the region where they believe they might be safe.
People belonging to Rohingya Muslim community sit outside their makeshift houses on the outskirts of Jammu in May 2017. (Photo credit: Reuters).
On January 18, 31 Rohingya women, men and children were arrested by the Indian Border Security Force from a vacant paddy field in the no-man’s land separating the two countries, after an extended showdown with Border Guards Bangladesh. Sixteen of these were children younger than eight years. The refugees had been apprehended by the Bangladesh soldiers when they were trying to enter their territory furtively. A number of flag meetings between officers of the Indian and Bangladesh border forces ensued, but Bangladesh was unwilling to accept them. Indian authorities gave the refugees food, water and blankets, and finally arrested them.
One of them, Abdul Sukkur, spoke to The Indian Express while in police custody. He said that they had escaped from their villages in Rakhine in Myanmar in 2012 after a massive Myanmar military offensive. He said they stealthily entered India through West Bengal and finally settled in Jammu, because they learnt they could find employment there.
Muhammad Shahjahan, another one of those arrested, told the Indian Express: “We worked as labourers setting up mobile phone towers and lived in a mohalla on the Jammu-Narwal bypass housing Rohingya refugees. Recently, people and the government had started targeting us, saying we were terrorists. Local people threatened us to leave, and we are on the run again for our lives. If we are sent back to Myanmar, they will simply kill us all. Please don’t send us there.”
Sukkur added, “My two children have never known normal life. The entire family of my uncle was hacked to death. My aunts and cousins were brutally raped and killed. There is no future for us in Myanmar, only death. We don’t want to die.” He lamented, “We are not welcome in India and Myanmar will kill us.”
Sukkur is right. In response to the legal challenge to the deportation of the first seven men to Myanmar, the Government of India explained why it is unwilling to allow Rohingya refugees to continue to live in India. Invoking the fundamental rights guaranteed by the Constitution in an affidavit it filed in September 2017 before the Supreme Court on the deportation of Rohingya refugees, the Centre said: “The scheme of the Constitution makes it very clear that India as a sovereign nation, has the first and the foremost constitutional duty and obligation towards its citizens to ensure that [the] demographic and social structure of the country is not changed to their detriment, the resulting socio-economic problems do not occur to the prejudice of its citizens, and most importantly the resources of the nation are utilized to fulfil the Fundamental Rights of its citizens and are not diverted to the detriment of the citizens of India due to the influx of illegal immigrants into the country.”
The Union Ministry of Home Affairs had made similar claims in its October 2017 letter to all state governments asking them to identify and monitor Rohingya refugees. In that letter, Joint Secretary Dilip Kumar had stated that the Centre regarded what he called “infiltration” of Myanmar Rohingyas into Indian territory as a burden on the limited resources of the country, one that aggravated the security challenges India was already facing.
Members of the Hindu Sena shout slogans demanding the deportation of Rohingya refugees from India, in New Delhi, on September 11, 2017. (Photo credit: Reuters/Adnan Abidi).
The official explanation of why India is determined not to continue to give refuge to Rohingyas contains a thicket of problems – legal, constitutional and moral.
First of all, it is disingenuous for a country of 1.25 billion people, which is also the fastest growing economy in the world, to argue that its citizens will be deprived of resources if it continues to house just 40,000 Rohingya people. These refugees are working people at the lowest end of the economy, living without any state support in penury in underserved shanties. How does this minuscule population, thinly dispersed across the country, divert “to the detriment of the citizens of India” the resources of the nation?
Second, there is irony that the arguments that the Centre is making to justify deporting Rohingyas are those that most political parties in the North East are making to oppose the Union government’s bid to give citizenship to millions of undocumented immigrants through its highly controversial Citizenship (Amendment) Bill. These parties are opposing this Bill because of fears that changes in the demographic and social structure of the country would cause socio-economic problems and eat into scarce resources. It is clear that the Centre is willing to let India bear these costs and risks as long as the undocumented immigrants are not Muslims.
Third, both in its public pronouncements and in its response to the Supreme Court, the Centre refers darkly to “security threats” that the Rohingya refugees pose to India. The implication is that they are terrorist militants or sympathisers. However, the government has not placed in the public domain even a shred of evidence that would validate these fears. Once again, it is the majoritarian and communal world-view of the ruling BJP and its ideological mentor, the Rashtriya Swayamsevak Sangh, which assumes that a Muslim identity in itself constitutes a threat.
Fourth, invoking the fundamental rights in India’s Constitution to justify withholding these very same rights from the Rohingyas is incorrect and duplicitous. There are some fundamental rights guaranteed by the Constitution not just to citizens, but to all persons. Most prominent among these are Article 14 and Article 21, guaranteeing the rights to equality and to life.
Rohingya refugees rest at a temporary shelter in New Delhi on April 16, 2018, following a fire at their refugee camp. (Photo credit: AFP).
Human rights lawyers Prashant Bhushan and Cheryl D’ Souza in their submissions to the Supreme Court pointed out that it had affirmed in 1996 that Article 14 and Article 21 will extend to all foreigners, including refugees. Further, on the matter of deportation or the return of refugees to their countries of origin, it also upheld in two judgments in 1999 and 2016 the principle of non-refoulement, and encompassed this principle within Article 21 of the Indian Constitution.
Non-refoulement is the principle that does not allow a country to return people who have sought refuge within their borders, to a country in which there is high likelihood that they would face persecution based on race, religion, nationality, membership of a particular social group or political opinion.
There is overwhelming evidence that such a situation prevails alarmingly and dangerously in Myanmar today. The most recent report of the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar, dated August 24, 2018, definitively concluded that the Myanmar military, with certain civilian actors, have been responsible for committing international crimes of genocide and crimes against humanity against Rohingyas. The report states that “genocidal intent” by “the broader oppressive context and hate rhetoric; specific utterances of commanders and direct perpetrators; exclusionary policies, including to alter the demographic composition of Rakhine State; the level of organisation indicating a plan for destruction; and the extreme scale and brutality of the violence”. The Rohingyas’ treatment by the Myanmar security forces, acting in concert with certain civilians, includes, according to the report, (a) killing, (b) causing serious bodily or mental harm, (c) inflicting conditions of life calculated to bring about the physical destruction of the group in whole or in part, and (d) imposing measures intending to prevent births. It speaks of “a continuing situation of severe, systemic and institutionalised oppression from birth to death”.
The United Nations is clear that the repatriation of refugees and return of internally displaced persons from Myanmar should only be allowed by countries when “safe, voluntary and dignified” conditions “with explicit human rights protections in place, including citizenship” are assured. The report added: “In the current circumstances, returns are not possible.”
Despite this, the Union government led by Prime Minister Narendra Modi is determined to deport the impoverished and fearful Rohingya people who have sought a safe haven in India even though they live in conditions of near-destitution. It does this in pursuit of an unapologetically communal agenda, with the expectation that it would garner votes in the coming elections for its display of its version of muscular majoritarian nationalism. It pursues this to exhibit its “steely resolve” to satisfy the hardline constituencies of the BJP and Rashtriya Swayamsevak Sangh in the run-up to the national elections in April or May. For them, kindness and compassion are signs of weakness, not strength.
This is being done explicitly in the name of the Indian citizen. We are therefore complicit in turning these hapless and terrified people away into the shadow of death. We are forcing them to return to a land where they are certain to face conditions of genocide and apartheid. To do so is to abandon the values of our Constitution and freedom struggle, and indeed any claims we may continue to harbour of being a humane people.