April 03, 2020
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Law As Last Refuge

Constitutional provisions, statutes, legal precedents can sanction refugee status

Law As Last Refuge
Rohingya refugees at a south Delhi camp in May 2012
Photograph by Getty Images
Law As Last Refuge

The Supreme Court is set to dec­ide the fate of tens of thousands of Rohingyas who presently find refuge in India, following their exodus from ethnic persecution in Myanmar. Lawyers app­earing for the now stateless people are convinced that there is constitutional ground and legal precedent to support their plea despite the abse­nce of specific legislation.

The UN has estimated there are 40,000 Rohingyas in India, of whom 16,000 have been recognised as refugees.

Lawyer Prashant Bhushan first appr­oached the Supreme Court on the behalf of some of the Rohingya refugees against summary deportation. Noted civil rights lawyer Colin Gonsalves joined on behalf of Rohingyas in the Jammu camps. Leading the arguments will be the noted jurists Fali Nariman and Rajeev Dhavan, who has authored what is probably the only book on the subject—Refugee Law and Policy in India.

The Union home ministry has said that they consider the Rohingyas to be a “drain on resources”, and their ejection to be in the interest of “national security”. The government also circulated an affidavit that reportedly claimed some Rohingyas had militant and terrorist links in Bangladesh and Pakistan. However, the government later retracted the affidavit, calling it a preliminary draft.

The United Nations High Commi­ssioner for Refugees (UNHCR) is the international body that certifies refugees. However, India has not come on board the 1951 UN Refugee Con­vention framework. Records show that the government of the day had viewed it as a political tool to accommodate refugees from the Communist countries during the Cold War. In 1995, India became a part of the executive committee of the UN Refugee Convention. India has acce­pted refugees of Armenian, Afghan, Tibetan, Nepalese, Bhutanese, Sri Lan­kan and Bangladeshi origin.

One of the Rohingya petitioners in the Supreme Court has pointed out that, in a May 2015 written reply to a question in Parliament, Union minister of state for home Kiren Rijiju accepted that the UNHCR has the mandate to recognise and certify refugees.

India has had Supreme Court judgements that expanded the ambits of Articles 14 (equality) and 21 (life) to all persons, including non-citizens.

Dhavan’s book shows that there are apex court judgements that expanded the ambits of Articles 14 (right to equality) and 21 (life) to all persons, including non-citizens. The 1978 Maneka Gandhi case (on Emergency) and the 1993 J.P. Unni­krishnan and 1994 P. Rathinam cases have expanded and re-interpreted Article 21. In 1996, in the case on the National Human Rights Commission (NHRC), the Supreme Court specifically extended the right to life to Chakma refugees from Bangladesh. Incidentally, NHRC chairperson H.L. Dattu, a former CJI, has indicated that the NHRC, which also sent notices to the home ministry on the proposed summary deportation, will join the Supreme Court case.

Similarly, there are several cases that extended the right to equality, under Article 14, to all persons and specifically to foreigners in at least two cases, decided by the Andhra Pradesh High Court in way back in 1974 and 1978.

Article 51(c) of the Constitution req­uires that the government respect international law. And yet, the government stand proposes to repatriate Rohingyas back to Myanmar. This would go against the principle of “non-refoulment”, which means that refugees cannot be deported back to a country where they do face a serious threat.

The laws on refugees and foreigners are part of India’s legacy of laws from the colonial era such as the Foreigner’s Act 1864, Fugitive Offender’s Act 1881 and the Indian Extradition Act 1903. “The curr­ent Foreigner’s Act does not have a provision to de-recognise refugees. Therefore, this makes them a subcategory of foreigners,” says Dhavan.

“The government has four avenues to fix the issue: amend the law, issue executive instructions to the Foreigner Regional Registration Offices to treat those seeking refuge with compa­ssion, leave certification of refugees to the UNHCR (as has already been observed by at least two high courts), or to frame a new law altogether. A committee led by Justice P.N. Bhagwati had alr­eady drafted and shared a model law. It has a process to filter suspected terrorists from amongst refugees and to deport them, as long as it was not to the country they were fleeing from,” he points out.

“Refuge to Rohingyas would be the reverse of cuddling terrorists. This was tested in the process while accepting Sri Lankan refugees.”

“Giving refuge to Rohingyas would be the reverse of cuddling terrorists,” says Dhavan. “This has been tested in the elaborate process followed while accepting refugees from Sri Lanka. Can you send off somebody on the unrebuttable presumption that they must all be terrorists? Returning Rohingyas to Myan­mar will amount to their de facto execution, supported by the inaction of the courts and a government policy that appears to be anti-Muslim.”

Recent news reports have shown that thousands of stranded Rohingyas have been ill-treated in Thai jungle camps, where many died, and later sold as slaves to Thai shipping boats. Legal experts who argue in favour of India granting refuge to Rohingyas believe that the plea to the SC may well turn into a trial for their very lives. A denial of refuge and subsequent repatriation could become a death sentence for most of them.

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