India’s refugee policy towards the Rohingya has garnered renewed attention due to a report highlighting the appalling living conditions faced by Rohingya refugees in detention camps across the country.

About the Report on Rohingya

• The report, jointly conducted by The Azadi Project (a U.S.-registered non-profit) and Refugees International.
• The report reveals “gross violations of constitutional and human rights” and criticizes India’s failure to uphold its obligations under international human rights treaties.
• Many Rohingya refugees remain incarcerated even after serving their prescribed sentences, as per interviews conducted with detainees, their families, and legal representatives.

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About Rohingya Refugee Crisis

• The Rohingya are the world’s largest stateless population, numbering approximately 2.8 million.
• Denied citizenship and subjected to decades of persecution in Myanmar, they have fled genocidal violence and are dispersed across multiple countries.
• According to the UNHCR, nearly 22,500 Rohingya refugees currently reside in India.

International Protections for Rohingya Refugees

• 1951 Refugee Convention and 1967 Protocol: These treaties enshrine the principle of non-refoulement, which prohibits states from expelling individuals to countries where they risk persecution, torture, or other severe human rights violations.
  • India is not a signatory to the Refugee Convention or its 1967 Protocol.
• Non-refoulement is a cornerstone of refugee law and is recognized as customary international law, binding all states regardless of formal assent.
  • In a 2007 advisory opinion, the UNHCR affirmed that non-refoulement constitutes customary law and has an absolute, exception-free nature.

India’s Position on Refugee Policy

• India is not a party to key international treaties such as:
  • Convention Against Torture: Though India signed the Convention Against Torture, its failure to ratify it makes the provisions non-binding, but non-compliance undermines its commitment as a signatory.
  • The International Convention for the Protection of All Persons from Enforced Disappearance
• India argues that it bears no legal obligation to provide asylum or adhere to the principle of non-refoulement.
• Domestic laws such as the Foreigners Act, 1946, and the Passport Act, 1967, are used to detain Rohingya refugees by categorizing them as “illegal migrants.” Judicial Rulings and Government Stance
• In March 2024, the Union government clarified in the Supreme Court that while Rohingyas are entitled to the right to life under Article 21 of the Constitution, they do not have the right to reside or settle in India.
• Mohammad Salimullah v. Union of India 2021: The Supreme Court rejected  the plea to stop the deportation of 170 Rohingya refugees, citing national security concerns.
• In October 2024, the Delhi High Court dismissed a PIL seeking the admission of Rohingya refugee children into local schools, stating it required a policy decision by the Union government.

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India’s International Obligations

• Treaties and Conventions: India is a party to the International Covenant on Civil and Political Rights (ICCPR), which obligates states under Article 7 to refrain from deporting individuals to places where they may face torture or cruel, inhuman, or degrading treatment.
• India has ratified the following:
  • International Convention on the Elimination of All Forms of Racial Discrimination
  • Convention on the Rights of the Child

Judicial Precedents in Refugee Case: 

• Support for Dignity of Life: In landmark rulings such as Vishaka v. State of Rajasthan (1997) and NALSA v. Union of India (2014), the Supreme Court ruled that in the absence of domestic legislation, international conventions must guide Indian courts to uphold the dignity of human life.
• Article 51(c) of the Constitution mandates that the State strive to respect international law and treaty obligations.
• High Courts have recognized non-refoulement as integral to Article 21, with rulings such as:
  • Gujarat High Court: Ktaer Abbas Habib Al Qutaifi v. Union of India (1998)
  • Delhi High Court: Dongh Lian Kham v. Union of India (2015)

Existing Concerns Regarding Refugees

• Lack of Standardized Refugee Policy: India’s treatment of refugees varies based on shifting geopolitical and diplomatic interests.
  • While groups like Tibetans, Sri Lankans, and Afghans receive refugee certificates or long-term visas, Rohingyas face arbitrary detention despite being registered with the UNHCR.
• Exclusion under the Citizenship Amendment Act (CAA), 2019: The CAA excludes persecuted Muslim minorities, such as the Rohingya, from its provisions.
• Lack of Legal Representation and Aid: Rohingya refugees face limited access to legal aid, as many lawyers are reluctant to take up their cases due to funding constraints and potential repercussions.
  • Revocation of FCRA licenses has hindered funding for civil society organizations supporting Rohingyas.
• Dehumanizing Living Conditions: Detention centers housing Rohingyas, including pregnant women and children, are marked by deplorable conditions.
  • In October 2024, the Supreme Court directed the Assam State Legal Services to conduct surprise visits to evaluate these conditions, particularly at the Matia Transit Camp.

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Government efforts to resolve Rohingya Crisis

• Limited Refugee Acceptance: India has not officially recognized the Rohingya as refugees and has limited their formal resettlement options.
• Focus on Repatriation: The government has primarily advocated for the repatriation of Rohingya to Myanmar, despite concerns about their safety and security upon return.
• Humanitarian Aid: India has provided humanitarian assistance to Rohingya refugees in Bangladesh, particularly through medical aid and disaster relief efforts.
• Border Security Measures: The government has implemented stricter border controls to prevent further influx of Rohingya refugees.
• International Cooperation: India has participated in international forums and discussions on the Rohingya crisis, emphasizing the need for a regional solution and the importance of addressing the root causes of the crisis in Myanmar.

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