On April 8, 2021, a Supreme Court Bench headed by the Chief Justice of India, CJI Bobde refused an interim order for a blanket stay against the deportation of Rohingya refugees in Jammu and Kashmir. The Court observed that since India is not a party to the Refugee Conventions, they do not have an obligation towards the fulfilment of the principle of non-refoulement. This observation was very problematic from the perspective of the human rights jurisprudence within the Constitution of India as well as it was a flawed reading of the very basic principles of International Law and the commitments of India therein. The Supreme Court of India, in this extremely shallow interim order refused to comprehend the complicated history of South Asia. The order overlooked the manner in which nearly every major issue like the Rohingya Refugee crisis dates back to our shared colonial history. Therefore, it is not only cruel but also impossible to forget history and deny legal obligations from the crisis.

There are approximately 79.5 million refugees across the world today. Amongst them, the Rohingya community from Myanmar is one of the most vulnerable and endangered communities. Over 900,000 Rohingya people have already been displaced from Myanmar while many remain within the nation as Internally displaced persons. Several Rohingya refugees have been hosted in camps by Bangladesh. Bangladesh has done a tremendously commendable job in hosting and protecting these refugees. Yet, despite repeated appeals, India has refused to share any of this refugee burden. In fact, India has validated the Myanmar claim that the Rohingya refugee people are not citizens of Myanmar and a threat to their internal security.  Simultaneously, several mainstream journalists continue to support the hateful treatment of the Rohingya people with their emphatic masculine roars every evening. The question however remains that who are the Rohingya refugee people and why must India, at all, be bothered to protect them? As a nation, what stakes and obligations do we have towards this Bengali speaking community from Myanmar?

Even though International Law is extremely clear about the right to protection of refugees, nations often dispute their status and refuse to grant them refugee status. The reasons behind such denials are strongly rooted in the geo political, social and historical background of the nations and their international relations. Therefore, in order to comprehend the refugee protection policies of a nation, it is also important to observe the political strategies that direct them. International refugee law is the most politicized topic within International law. And South Asian politics continues to premise itself around the partition. With several layers of history, politics, diplomacy and legality, the answer about India’s position regarding the Rohingya crises, therefore, is extremely layered.

Who are the Rohingya people and what is their crisis?

The United Nations organization has called the Rohingya refugee crisis, a textbook example of ethnic cleansing. More recently, in the case of  Gambia v Myanmar, the International Court of Justice took note of the ongoing genocide against the Rohingya population in Myanmar.(The Supreme Court interim order also records this). The Myanmar government and military have justified their actions, which include burning down Rohingya populated villages and drastic killing of the Rohingya population, as necessary internal security measures. Journalists in Myanmar, who reported such persecutions were jailed and the civil society of Myanmar has also maintained a careful distance from the issue. However, the systemic hatred and this operation to obliterate the ethnic group is not a very recent development. The source of this alienation dates back a very long time from the politics of the Colonialists, the World Wars and the Partition.

History of the Crisis

The Arakan region (of present-day Myanmar) was a key part of the Silk route, which hosted Arab traders since the 8th Century A.D. Later, a Buddhist kingdom emerged in the region. The Bengal Sultanate also continued in the close neighbourhood. Later, after the First Anglo Burmese War, when the Arakan region came under the British Colony, migration of low- skilled Bengali workers happened into the region. Mostly poor Muslim and a few Hindus migrated to this region. Therefore, the Arakan region gained a significant Muslim Bengali population. These were the Rohingya people.

By the Third Anglo Burmese War, Burma became a part of British India. And therefore, the migration of Bengali people multiplied in the region to the extent of threatening the majority Buddhist population. This even lead violent agitations amidst the two communities. Then, by 1937, Burma became a separate crown colony. Within a few years, the British had to launch their longest military campaign of the Second World War in that very region. And this was the root of several political and military repercussions.

Then, the Burma Campaign in 1942 was the turning point of the geopolitical history of South Asia. It was potentially a conflict between two colonial powers- Britain and Japan. While Britain struggled to protect their control over the colony, Japan promised independence to the Burmese. However, the Rohingya people supported the British as guerrilla fighters and with intelligence against the Japanese. They hoped to gain administrative control over Arakan if the British won. The British lost the war in 1942. And retributive communal violence broke out against the Rohingya Muslim population.

By 1944, Burma was disillusioned by the Japanese. They regained their allegiance to the British and even attempted to strengthen an ethnically homogenous military. Yet, ethnic representation within the administration remained ignored in Burma. Even though the British administrators found that a challenge, Lord Mountbatten, the Supreme Allied Commander of the South East Asia Command, overruled that. In 1947, the Great Partition happened.

The British, as reward for the Rohingya support against the Japanese gave significant administrative posts to the Rohingya people in Arakan. However, they could leverage little of these positions to consolidate their autonomy. Therefore, the partition came as a hope to the Rohingya Muslim people to join East Pakistan. Yet, pre occupied in the existing challenges of the partition of Bengal, Jinnah chose to disregard the Rohingya appeal to integrate in the pretext of not interfering into the internal matters of the Rohingya people. The Burmese became independent in 1948 and thus began the persecution of the Rohingya people by the Burmese military. Many Rohingya people fled to the Bengali populated East Pakistan, where they found a friendlier population with more acceptance of their ethnicity. By 1982, the Burmese government passed the Citizenship Act through which the Rohingya people lost their very recognition within Myanmar. For this Act, the Rohingya people were expected to prove their citizenship in order to remain in Myanmar. The implementation of this law is grossly selective and arbitrary in implementation. The Rohingya people could not get their citizenship and the first batch of Rohingya to Bangladesh arrived in 1992.

Today, the Rohingya people have no citizenship, no rights. The Burmese Military thereby have pursued an ethnic cleansing mission in response to which, over 200, 000 Rohingya people fled to neighbouring East Pakistan, which by then was Bangladesh. The migration continues till date as it has become increasingly difficult to establish Rohingya citizenship in Myanmar.

Why India?

The Partition of India created two new nations. However, the scattered effects of this bloody operation destabilized every little corner of South Asia. Our lives changed forever and so did our identities. In the past 70 years, we have endured crises in most borderlands including Balochistan, Northwest Frontier Province, Kashmir, Chittagong Hill Tracts, Assam, Nagaland and elsewhere. Ethnic complications, population, culture, self-determination are all extremely intertwined issues that bleed us and continue to seek answers. As we look for solutions, it is extremely important that we no longer disregard these issues as internal conflicts and engage in addressing them.

India is particularly a crucial nation in addressing these problems. The secular democracy, and a strong nuclear power, India has the significant edge of exercising regional influence.

India’s response both in diplomacy and humanitarian assistance shall mean tremendously in taking some significant steps towards easing these exposed, unattended wounds of Partition. If India truly intends to participate with a leadership capacity towards their international relations, India must assist in finding durable solutions to the biggest humanitarian crisis in their neighbourhood.

One of the reasons for which India and China do not want to engage with Myanmar are their immense economic investments in Myanmar. However, that should precisely be a worry for these nations. Without stability, economics shall not at all succeed in Myanmar. Besides, in response to the persecution, the Arakan Salavation Army (ARSA) is also a reason for worry. They do have links with terror outfits and without more attention to the situation, stability in the whole of South Asia can go out of hand. Instead of spreading hate through fake news on WhatsApp about the Rohingya people by labelling them all as terrorists, India must pay attention to the neutralization of the problem. If refugees have no place and are persecuted by all nations, children born to them may even be recruited in these fatal organizations and hence expose the entire world to a serious crisis. We need to find sustainable solutions and protect childhood, people and lives.

Durable Solutions, India and the International Community

The United Nations High Commission for Refugees suggests three possible durable solutions to any refugee crisis. The most commonly referred solution is the solution of voluntary repatriation, which is the process by which refugees lose their well-founded fear of persecution in their home countries. Therefore, with resolution of the crisis, refugees safely return to their homelands willingly. However, the most important component of this solution is that of voluntariness. Refugees must voluntarily return when they have no more fear in their minds. The second and third durable solutions are assimilation within the host community of the country in which the refugees take shelter and and resettlement in any third country. This assimilation is often a result of sustained stay and regular interactions within the two communities. However, no solution is indeed complete, until there is accountability from the perpetrators who caused the crisis in the first place. Therefore, the solutions need to constantly interact with one another, and this interaction needs to be facilitated by host nations. There are two primary reasons for which India should assert themselves more in the facilitation of these durable solutions. Firstly, in order to seek accountability through the International Criminal Court, the Security Council must play a very crucial role to pass a resolution against Myanmar as Myanmar is not a state Party to the Rome Statute. However, China, having their strong economic and interests in Myanmar, shall not let the Security Council take that step. And thus, it is very important for India, an important South Asian nation, to raise the issue of accountability within the International community. Such engagement shall give India a chance to stand up to China and position themselves as a protector of Human Rights and a leader of developing nations for promoting democratisation and secularism. This strategic benefit shall lead India to the second advantage, which is, a stronger claim for a Permanent Seat of the United Nations Security Council.

The Politics and refugee legacy within India

Post-Independence, India forwarded a foreign policy for the promotion of decolonization and democratization in the world. With the Non-Alignment Movement, India approached a vision to emerge as a leader of the developing nations. Thereafter, India also rejected the unequal representation of nations within the United Nations Security Council and sought to lead United Nations reforms.Yet, crises in South Asia continued and the effects of colonialization and the Great Partition was far from being diminished. Through the several crises that emerged within South Asia, India hosted several refugees from across Asia. From 1945 till 2016, India hosted millions of refugees from Afghanistan, East Pakistan, Sri Lanka, Afghanistan, Tibet etc. During the 1971 East Pakistan war alone, Bangladesh hosted over 1 crore people from East Pakistan. Many of these migrants gained Indian citizenship and became scholars and entrepreneurs. Famous migrants included acclaimed intellectuals like Professor Amartya Sen, Mahashweta Devi, Ritwik Ghatak and several others. India’s former Prime Minister Dr Manmohan Singh was also a refugee who had migrated from Lahore to present India in 1947. It would therefore not be improper to suggest that India comprises of a major immigrant population. Our social fabric is founded upon the very basis of migration. Several Indians have lived through the traumatic partition and their memories of bloodshed remain fresh. Therefore, despite the existing complexities within the Indian society, refugees always had a place here. And accordingly, the Courts in India, always delivered extremely favourable judgements towards refugee protection.

Indian support in all humanitarian crises of South Asia gained significant recognition from the United Nations High Commission. António Guterres, during his visit to India in 2013, had stated that the Indian refugee policy was an example for the world to follow.     

India and the BJP

In 2014, the Bharatiya Janata Party (BJP) formed the Indian government. The primary values of the political party were founded upon the premise of Hindu majoritarianism as professed by the doctrine of Rashtriya Swayamsevak Sangh. Their politics is also an outcome of similar ideologies. Therefore, most of the policies and statements of BJP is premised around the view that India should position themselves as a Hindu State. This assertion is quite different from the image of a constitutional democracy, secularism and unity in diversity that India has created in the past years. In fact, Prime Minister Narendra Modi has significantly worked to alter many of the foreign policies that India followed so far. His regime has noticeably changed the Indian policies towards refugee protection in the recent years, particularly regarding the Rohingya refugee crisis. Apart from the fact that India has substantial economic interests in Myanmar, religion is also a major factor for which the BJP is denying asylum to the Rohingya refugees.  There have been reports of hate crimes and propaganda against the Rohingya people in India and even those refugees who were recognized by the UNHCR have been rejected by India.  

Most surprisingly, the Indian Supreme Court has also accepted this position of the Indian government in defiance of all existing Indian precedence and International directives. The Petition before the Supreme Court argued on the grounds that not only was the policy of deporting the Rohingya violative of International Human Rights Law regime, but also a clear contradiction of the Indian Constitutional provisions. Simultaneously, the decision of the government was also a deviation from the directives that have emerged out of strong precedents in terms of treating displaced communities in India.

However, the State  refused to accept all the stated arguments. Instead, the government asserted that since the displaced Rohingya people were not citizens of India, they were not entitled to the enjoyment of the fundamental rights or the constitutional guarantees. About the applicability of International Law, the Respondent Counsels  declared that since India is not a part of the International Convention for Refugees 1951, they were not bound by it. And therefore, according to the government, they had no obligation to confirm to any international laws in the given case.

It is rather disappointing that the Supreme Court of India, despite the strong jurisprudence of refugee protection within India, accepted these rather shallow arguments. The observation that the Rohingya crisis was an internal matter of Myanmar was rather absurd. Under international criminal law, genocide forms one of the core crimes and it is therefore a responsibility of India to not be complicit to genocide taking place in their very own neighborhood.

It is important to understand that irrespective of whether a State recognizes displaced people as refugees, they shall be deemed as refugees if they fulfil the necessary ingredients to be refugees. Therefore, despite being a Non Party to the Refugee Convention, India is bound by Customary International Law to protect the rights of displaced people.

The foremost rule under customary international law is that of the rule of non-refoulment. Under the doctrine of non-refoulment , no state in the world is permitted to force refugees or asylum seekers to return to the country in which they may be subjected to persecution. It is one of the fundamental principles that govern International Law and therefore irrespective of treaty bound obligations, no state in the world is permitted to derogate this doctrine. Non Refoulment is a peremptory norm in International law, also known as jus cogens. Therefore, the argument of India that the State has no obligations towards the Rohingya people because India is a non-party to the Refugee Convention, is absurd. Besides, India is a Party to several International treaties and Conventions including the ICCPR, Convention on the Rights of the Child. These conventions and treaties contain provisions not just for citizens of the country, but for every person within the territory of the country. The Convention on the Rights of the Child has specific provisions on the protection for children.

The Indian Constitution also provides for a broad framework that protects the rights of all people within the territory of India. The right to the protection of law can be enjoyed by all within the territory of India. The Right to life guaranteed by the Article 21 of the Indian constitution, mentions that the provision is available to all persons within India. Whenever there has been a conflict in the interpretation of these provisions, the Supreme Court of India has previously given extremely balanced judgements.

In the case of Louise de Readlt (1991 SCC 554); and the case of Khudiram  [(1994 Supp. (1), Scc 615], the Supreme Court clearly explained that Article 21 of the Constitution extended to all persons including aliens. Similarly, in 1996, the Supreme Court had prevented the government of the state of Arunachal Pradesh from forcibly expelling Chakma refugees.

In the case of Dr Malavika Karlekar v the Union of India (Criminal 583 of 1992), the Supreme Court had even declared that the State was bound to consider if refugee status could be granted and until the assessment was completed, the petitioner should not be deported.  Similarly, in the case of U. Myat Kayew and Nayzam V State Of Manipur, the Supreme Court absolutely stated that all asylum seekers should who enter India (even illegally) should be permitted to approach the office of the UNHCR to seek refugee status.

In the case of Ktaer Abbas Habib Al Quatafi v Union of India, the Gujarat High Court had summarized all these principles that emerged out of these judicial precedents. The Court had clearly said that the International principle of non-refoulment was encompassed in the Article 21 of the Indian Constitution.

Clearly, legal rationale in India seems to have been unfortunately eclipsed by political agenda. The trend pursued by the BJP is a kind of nationalism that seeks to alienate Indians. In order to be nationalistic, Indians have begun to hate non-Hindus, especially Muslims. Secularism, in India today, is a bad word. And one must fit into the narrow mould of upper caste Hindu nationalism to remain safe in India. Therefore, the present Indian nationalism is a concept of alienation of communities and isolation from internationalism. Yet, India aims for international leadership. This ambition is particularly contradictory as India hardly wants to engage with the international community anymore.

(A portion of this article appeared previously in The Leaflet.)