INDIA: Deportation of Rohingya refugees against international law

The Asian Human Rights Commission (AHRC) is concerned by India’s decision to deport seven Rohingya refugees back to Burma. The seven are among around 40, 000 refugees that have fled to India over the years, escaping the discrimination and violence faced by the minority group in Burma.

Last year, two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, filed a Public Interest Litigation challenging the Indian government’s decision to deport the 40,000 Rohingya refugees. This year, an interim plea was filed on this pending petition to stop the deportation of seven Rohingyas, who are likely to be subjected to torture and perhaps even killed upon return. The petitioners were represented by Advocate Prashant Bhushan. Since 2012, these persons have been held in a detention camp in Silchar in Assam, after their arrest by Assam police, for ‘illegally entering the country’. Mr. Bhushan argued that it is a matter of life, and it is the court’s responsibility to see that the lives of Rohingyas are protected.

Justice Ranjan Gogoi disagreed however, and on his first day as the Chief Justice of India, he refused to take the case for urgent hearing. Instead, he said, “if they are deported, we can always get them back if it’s (deportation) wrong. Do not worry.” On October 4, a three-judge bench comprising of Justice Gogoi, Justice Sanjay Kishan Kaul and Justice K M Joseph dismissed the petition, thereby paving the way for the first deportation ever of Rohingya refugees back to Burma. They have reportedly, already been transported to the border town Moreh in Manipur, and will be handed over to Burmese authorities at the Moreh border post.

According to Additional Solicitor General Mr. Tushar Mehta, appearing for the Indian Government, these Rohingya illegally migrated to India in 2012 and were convicted under the Foreigners Act. To this, Bhushan argued that the worst kind of genocide has taken place in Myanmar in which over 10,000 people were killed, resulting in the fleeing of hundreds of thousands of Rohingya to Bangladesh and India; this makes them refugees, not illegal migrants.

India’s decision to send back the seven Rohingya has been heavily criticised by the United Nations. Tendayi Achiume, the UN’s Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, said that the Indian government has an international obligation to fully acknowledge the institutionalised discrimination, persecution, hate and gross human rights violations the Rohingyas have faced in their country of origin, and provide them the necessary protection. Achiume also said expressed disappointment at the duration of their detention, and said that it is inhumane treatment.

Even more troubling is the fact that the special rapporteur on racism at the Office of the High Commissioner for Human Rights (OHCHR) has raised a red flag over this move as it may be seen as breach of the customary principle of non- refoulement. Earlier, the United Nations Secretary General, Antonio Guterres, had called upon India to exert pressure on Burma to create an environment that is conducive for Rohingya refugees to return safely.

In spite of not being a signatory to the 1951 UN Refugee Convention, India has time and again opened its borders and welcomed waves of refugees fleeing political and religious persecution or violent armed conflict from Tibet, Bangladesh, Afghanistan and Sri Lanka. However, the Rohingya have not been met with a similar kindness and generosity of spirit. Pandering to domestic politics and an increasingly polarised public, several members of the ruling party have used the spectre of a looming terrorist threat to deny asylum to this predominantly Muslim community.

In its affidavit to the apex court in September 2017, the Indian government had said the decision on whether or not refugees are allowed to settle in the country is best left to the executive. The government also said that India is a non-signatory to the 1951 United Nations Refugee Convention and hence, was not obliged to adhere to the principle of non-refoulement. This is a surprising reversal of India’s publicly stated positions made at various international conferences over the years.

These affidavits and the decision of the Court is condemnable, and the AHRC urges the Government of India to abide by the international norm of non-refoulement and protect the rights of asylum seekers and refugees fleeing violence and persecution.

Document Type : Statement
Document ID : AHRC-STM-060-2018
Countries : India,
Issues : Freedom of religion, Independence of judges & lawyers, Rule of law,