INDIA/BURMA: Do not deport Rohingya and other refugees living in India

Rohingya Muslims, an ethnic group belonging to Burma, are considered the most severely persecuted people in the world. The majority of Burma’s 800,000 strong, Muslim populace, identifies as Rohingya and have faced severe discrimination in this Buddhist-majority nation. Rohingyas are routinely denied basic rights to healthcare and livelihood. By the 1982 Burma Citizenship Law they were stripped of their citizenship. It is estimated that approximately 40,000 Rohingya are currently residing in India. Only 16,500 are officially registered as refugees with the United Nations High Commissioner for Refugees (UNHCR India).

The Rakhine State of Burma to which most Rohingya are confined, is the least developed in Burma, with 78% of people living in abject poverty, in comparison with a national average of 38%. The Food Security Assessment conducted by World Food Programme detected high levels of malnutrition amongst Rohingya youth in particular, with no child under the age of 2 being able to access the minimum level of nutrition. Despite the reluctance of neighbouring nations to accept them as refugees, a record number of Rohingyas have fled Burma in previous years, with over 94,000 fleeing between 2014 and 2015 alone. Apart from the poverty and the poor living circumstances, the Rohingyas routinely face extreme violence, rape, threats to life and death at the hands of Burma’s Security Forces.

The Indian Government must officially denounce the violence against Rohingyas in Burma. International Organizations have conclusively declared the persecution of Rohingya Muslims as a form of genocide, the prevention of which is an erga omnes obligation under international law. Hence, States not only have the duty to prevent violation of such a norm within their own borders, but also to generally ensure that such actions in other States are not condoned. Stateless and with nowhere to call their own, due to bickering factions, an oppressive military junta and a complex and fragile political situation in Burma, the Rohingyas look to neighbouring counties like India for refuge and safety. Living in Thailand, Indonesia, Bangladesh and India, among other countries, Rohingyas face persecution wherever they flee to. In India, the highest number of Rohingyas are reportedly in Jammu and in Hyderabad and most live in abject poverty, living a hand-to mouth existence.

In spite of this severe humanitarian crisis, the Indian Government has not shown itself to be amenable to protecting Rohingya refugees. The Union Minister of State for Home Affairs, Kiren Rijiju, proclaimed that the Rohingyas and other illegal immigrants would be deported. Further, they are categorically excluding them from the special protections under the proposed Citizenship Amendment Bill of 2016, which is currently pending passage, available to Hindus, Christians, and Parsis fleeing religious persecution in neighbouring countries, but unavailable to Muslims.

Rijiju attempted to justify the removal of the remaining refugees who are officially registered, by citing the fact that India is not a signatory to The 1951 Convention Relating to Status of Refugees. Hence, it has no responsibility towards asylum-seekers. This stance is patently illegal as India does have customary international law obligations that are jus cogens, irrespective of whether it continues to shirk them by refusing to sign the 1951 Refugee Convention. The treatment of Rohingyas is in violation of the most basic rights under international legal instruments, such as the right to a life with dignity envisaged under the Universal Declaration of Human Rights, and crucially, the principle of non-refoulement, which binds India from deporting refugees back to a country where they will be persecuted. While the Ministry of External Affairs had addressed issues such as humane treatment for victims of human trafficking, particularly for purposes of labour exploitation, no such attention has been forthcoming for the Rohingyas.

The Ministry of Home Affairs had issued a Press Release dated 6th August, 2014 which stated that:

“India is not a signatory to the 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol thereon. There is no national law on Refugee at present. 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. A foreigner to whom LTV is permitted by the Ministry of Home Affairs will be allowed to take up any employment in the private sector or to undertake studies in any academic institution..”

In June 2017, the AHRC issued an Urgent Appeal calling on the authorities to release Rohingya Muslims languishing in State homes in West Bengal for supposed ‘violations’ of the Foreigner’s Act, 1946, as the Indian Government refuses to recognise them as refugees. The proposed amendments to the Citizenship Act and this present stance of the Government, resolutely intent on deporting Rohingya Muslims, seems indicative of a Centre that wants to write Muslims out of the dominant narrative.

It is essential that the Indian Government urgently formulates comprehensive legislation pertaining to the treatment of refugees. An independent Commission must be urgently constituted to specifically examine India’s obligations towards refugees and asylum-seekers under International Law. On Aug 18,2017, he National Human Rights Commission issued notice to the Union Home Ministry, asking for a detailed report on its deportation plan within 4 weeks, stating that “refugees are no doubt foreign nationals but they are human beings”. The UN Secretary General too has commented adversely on the situation in India. While some Rohingyas were granted LTV’s a few years ago, it is essential that the government recommend the grant of the LTV to all Rohingya refugees, enabling to gain employment and study in India without hassle. It must ensure protection of their basic rights, as well as immunity from any charges stemming from their crossing into the country without proper visas and identification.

Bound by its obligations under Art.21 of the Constitution of India, the Centre needs to answer these questions:

On what grounds has it taken the decision to deport the Rohingyas? What is the status of the Standard Operating Procedure of August 2014? Why is it not applied to the Rohingyas, given that there is ample evidence that they are persecuted in Burma? Why is it that Afghans, Sri Lankan Tamils and Tibetans have been allowed to live in India as refugees, without declarations that they will be deported? Why treat the Rohingyas differently? Given our long, shared and complex history and relationship with Muslim majority countries like Pakistan and Bangladesh, why have Muslims been specifically excluded from the Citizenship Amendment Bill of 2016?