Why they shouldn’t be sent back

Government sources estimate that 40,000 refugees belonging to the Rohingya minority ethnic group have entered Indian territory after escaping persecution…

Why they shouldn’t be sent back

(Photo: AFP)

Government sources estimate that 40,000 refugees belonging to the Rohingya minority ethnic group have entered Indian territory after escaping persecution in Myanmar. They were subjected to indiscriminate executions, gunfire from helicopters and a scorched-earth campaign apparently designed to destroy Rohingya villages and driving them out of predominantly Buddhist Myanmar.

The United Nations estimates that more than 1,000 people were killed in the suppression. A report by the UN Office of the High Commissioner for Human Rights (OHCHR) recorded that the attacks against the Rohingya very likely amounted to “crimes against humanity.”

Government of India’s intention to deport 40,000 Rohingya from the country prima facie appears to be in violation of its commitment to international human rights standards and refugee law.


Article 1(2) of the United Nations Convention on the Status of Refugees (CSR) 1951 and its 1967 Protocol says a ‘refugee’ is “a person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

Rohingya Muslim being a minority ethnic group fulfills the requirements for claiming and to be accorded refugee status and hence eligible for all the protections given under the Convention and its Protocol. Article 14 of the Universal Declaration of Human Rights i.e. the right to seek and to enjoy in other countries asylum from persecution, replicates the commitment of the international community to ensure to all persons the enjoyment of rights to life, freedom from torture, cruel, inhuman or degrading treatment, and to liberty and security of person.

The non-refoulment (Article 33 of Convention), the doctrine central to refugee protection forbids return (refouler) of an individual to a country in which he or she may be persecuted, and has taken a progressively fundamental character. It has now acquired the status of jus cogens i.e. a peremptory norm of customary international law from which no derogation is permitted regardless of fact whether a country is party to convention or not. India has ratified neither the Refugee Convention (1951) nor its 1967 Additional Protocol.

Nevertheless, it has extended protection to refugees as Party to a number of United Nations Conventions on Human Rights. India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organization of the UN, which approves and supervises the material assistance programme of United Nations High Commissioner for Refugee (UNHCR). Membership of the EXCOM indicates particular interest and greater commitment to refugee matters.

Apart from this, India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967 and accepted the principle of non-refoulment as envisaged in the Bangkok Principles of 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. Being a signatory to International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR), Convention on the Elimination of all forms of Discrimination Against Women (CEDAW ) and most significantly the Convention Against Torture (CAT) 1984, places an obligation on India with respect to protection of refugees.

In absence of a specific legislation, refugees are treated under the Foreigners Act 1946, Indian Passport Act, and Registration of Foreigners Act 1939 or in special cases through orders like the Foreigners from Uganda Order, 1972. Further, the Constitution of India guarantees certain fundamental rights, which are applicable to non-citizens, namely, the right to equality (Article 14), the right to life and personal liberty (Article 21) and the freedom to practice and propagate their own religion (Article 25).

Any violation of these rights can be remedied through recourse to the constitutional courts. The Supreme Court has held that refugees or asylum seekers cannot be discriminated because of their noncitizen status.

Judiciary in India has played a vital role in protecting refugees. Court orders have filled legislative gaps in many cases and have provided a humanitarian solution to the problems of refugees. Moreover, Indian courts have allowed refugees and intervening Non-Governmental Organizations (NGOs) to file cases before them. Furthermore, the courts in the absence of municipal law have generously construed the provisions of the Constitution to offer protection to refugees and asylum seekers. The Supreme Court has constantly held that the fundamental right enshrined under Article 21 i.e. Right to life and personal liberty and Article 14 i.e. Equality before law and equal protection of all the laws within the territory of India applies to all irrespective of the fact whether they are citizens of India or aliens.

This protection was extended to Chakma Refugees while hearing the matters of Louis De Raedt vs. Union of India [(1991) 3 SCC 544] and State of Arunachal Pradesh vs. Khudiram Chakma [1994 Supp. (1) SCC 615]. Later, in National Human Rights Commission vs. State of Arunachal Pradesh [1996 SCC (1) 742] widely known as Chakma refugee case, the Supreme Court restrained the forcible expulsion of Chakma refugees from the state of Arunachal Pradesh.

The court very ardently laid down:

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every humanbeing, be he a citizen or otherwise. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.”

India has given shelter to diverse groups of refugees, ranging from Tibetans, Chakmas, Bhutanese, Rohingyas, Sri Lankans, Afghans and small populations from Somalia, Sudan and other sub-Saharan African countries. There seems no apparent reason why Indian government should not abide by its international obligations and not return forcibly Rohingya to Myanmar.

Doing this will not only disturb the principles of customary international law and constitutional law but also dilute the decision of the Supreme Court in Chakma refugees case. Prime Minister Narendra Modi who is known for his diplomatic skills must influence the international community to build pressure on the government of Myanmar to stop persecution driving Rohingyas into India, and voluntary repatriation of those taking refuge here.

(The writer is Associate Professor of Law, National Law University of Odisha)