Recently , the Supreme Court stated that Rohingya refugees, if found to be ‘foreigners’ under Indian law, will be dealt with per the Foreigners Act, 1946.
Key Highlights on Rohingya Issues
- Challenge to Deportation: Petitions were filed contesting the Indian government’s power to deport Rohingya refugees, many of whom hold UNHCR refugee cards.
- Claims of Persecution: Petitioners argued that deporting Rohingyas to Myanmar violates the principle of non-refoulement, as they risk torture, persecution, and death.
- Centre’s National Security Argument: Government argued that India’s sovereignty and national security take precedence, especially under Section 3 of the Foreigners Act.
- No Absolute Right to Settle: The Supreme Court clarified that while Articles 14 and 21 apply to all persons, the right to reside or settle under Article 19(1)(e) is exclusive to Indian citizens.
Human Rights Issues Involved
- Right to Life and Dignity: Deportation, especially without assessing the risk of persecution, may violate the Article 21 rights of refugees.
- Equality Before Law: Article 14 ensures equal protection of laws to all persons, including non-citizens, which was invoked to oppose discriminatory deportations.
- Concerns Over Statelessness: As Myanmar has officially declared Rohingyas stateless, deporting them raises ethical and humanitarian concerns under international human rights standards.
- Protection of Children and Vulnerable Groups: Reports of deportations involving women and children have led to calls for compassionate policy and judicial scrutiny.
Legal Status of Refugees in India
- No National Refugee Law: India does not have a specific refugee law; refugee matters are governed through the Foreigners Act, 1946 and executive orders.
- Case-by-Case Treatment: Refugees are treated as foreigners without any formal legal distinction between refugees and other immigrants unless protected under specific policies or judicial orders.
- UNHCR Cards Hold Limited Value: While the UNHCR may recognise individuals as refugees, these identifications do not automatically confer legal rights within Indian domestic law.
Foreigners Act, 1946 and Its Applicability
- Broad Executive Powers: Under Section 3 of the Act, the Central Government has wide authority to regulate or prohibit the entry, stay, and departure of foreigners.
- No Right of Stay without Legal Sanction: If an individual is found to be a foreigner, the government is legally empowered to deport them unless protected under specific legal provisions.
- Deportation Must Follow Due Process: The Act permits deportation, but the procedure must align with constitutional guarantees such as those under Article 21 (Right to life and Personal liberty).
India’s Obligations under International Law
- Non-Signatory to Refugee Convention: India is not a party to the 1951 UN Refugee Convention or its 1967 Protocol and thus is not bound by their provisions.
- Recognises Genocide Convention: India is a signatory to the Genocide Convention, and petitioners argue deporting Rohingyas to Myanmar may indirectly violate this commitment.
- Principle of Non-Refoulement as Customary Law: The petitioners asserted that non-refoulement has evolved into jus cogens (compelling international law), binding all states irrespective of treaty obligations.
- Article 51(c) of Indian Constitution: Encourages respect for international law, but as per government its applicability is conditional on alignment with domestic laws.
Way Forward
- Enact a Comprehensive Refugee Law: India should consider framing a national refugee law that clearly defines refugee rights and obligations, ensuring legal clarity and humanitarian protection.
- Strengthen Due Process Safeguards: Ensure that all deportation decisions, especially involving vulnerable groups like children and stateless persons, follow constitutional guarantees under Articles 14 and 21.
- Uphold International Humanitarian Norms: Even without being a signatory to the Refugee Convention, India can adhere to the principle of non-refoulement as part of customary international law and its commitment to the Genocide Convention.
- Develop a Balanced Policy Approach: Integrate national security concerns with compassionate, rights-based mechanisms to address refugee issues in alignment with India’s democratic and humanitarian values.
About Rohingya Crisis
- The Rohingya are a Muslim ethnic minority from Rakhine State, Myanmar
- Despite residing in Myanmar for generations, they have been denied citizenship since 1982, rendering them stateless.
Origin of the Crisis
- Systematic discrimination, restrictive laws, and social exclusion by the Myanmar government have long marginalised the Rohingya.
- The situation worsened in August 2017 when the Arakan Rohingya Salvation Army attacked security forces, prompting a brutal military crackdown involving mass killings, rapes, and village burnings.
- The action was widely condemned as ethnic cleansing or genocide.
Current Status
- Over 900,000 Rohingya have fled to Bangladesh, primarily in overcrowded camps like Kutupalong in Cox’s Bazar, the world’s largest refugee camp.
- Others sought asylum in India, Malaysia, and Thailand.
- India hosts an estimated 40,000 Rohingya, with the government pursuing deportations citing national security.
- Rohingya remain stateless with limited access to education, healthcare, and employment.
International Efforts
- Global condemnation has led to legal proceedings at the International Court of Justice (ICJ) and International Criminal Court (ICC) against Myanmar’s military.
- Sanctions have been imposed by multiple countries on Myanmar.
- Despite these, repatriation efforts remain stalled due to persistent insecurity and lack of citizenship rights in Myanmar.
- The crisis continues to demand urgent, rights-based global intervention and durable resettlement solutions.
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