Context: Recently the Ministry of Home Affairs (MHA) declared that Rohingyas are illegal foreigners.
Rohingya, an ethnic group, mostly Muslim, hail from the Rakhine province of west Myanmar, and speak a Bengali dialect.
Myanmar has classified them as “resident foreigners” or “associate citizens“.
They were forced to leave Myanmar in large numbers after several waves of violence, which first began in 2012.
The Myanmar army revived the attacks in 2017 and lakhs took shelter in Bangladesh.
What is the process of deportation?
According to the MHA, illegal immigrants are detected, detained and deported under provisions of the Passport Act, 1920 or the Foreigners Act, 1946.
The powers to identify and deport them have also been delegated to State governments and Union Territories.
Once a ‘foreigner’ has been apprehended by the police for staying illegally, without any document, he or she is produced before the local court.
If the accused is found guilty, they can be imprisoned for three months to eight years.
After completing their sentence, the court orders deportation.
The foreign inmates are moved to detention centres till the country of origin verifies and accepts them.
Have any Rohingya been deported?
In 2018, seven Rohingya were deported to Myanmar.
It was the first time that Myanmar issued a certificate of identity to the seven Rohingya.
According to advocacy group Human Rights Watch (HRW), since October 2018, India has deported 12 Rohingya to Myanmar, “claiming that they left voluntarily.
In December 2017, the then Minister of State for Home informed Parliament that there are around 40,000 Rohingya in India,. Of these, only 16,000 are said to be registered with the UN refugee agency.
India’s Refugee Policy
India lacks specific legislation to address the problem of refugees, in spite of their increasing inflow.
The Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class. It also gives unbridled power to the Central government to deport any foreign citizen.
Further, the Citizenship Amendment Act, 2019 (CAA) strikingly excludes Muslims from its purview and seeks to provide citizenship only to Hindu, Christian, Jain, Parsi, Sikh, and Buddhist immigrants persecuted in Bangladesh, Pakistan, and Afghanistan.
Moreover, India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.
In spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol, India has had a stellar record on the issue of refugee protection. India has a moral tradition for assimilating foreign people and culture.
Further, the constitution of India also respects the life, liberty, and dignity of human beings.
The Supreme Court in the National Human Rights Commission vs. State of Arunachal Pradesh (1996) held that “while all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.”
India’s Argument for Not Signing the 1951 Refugee Convention
The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals.
If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
On the other hand, this argument, if used in the South Asian context, could be a problematic proposition for India too.
Why is there a Need for a law on Refugees?
Long-term Practical Solution:
India frequently experiences a large influx of refugees.
Therefore, a long-term practical solution requires that India make a shift from its charitable approach to a rights-based approach by enacting a national refugee law.
Adhering to Human Rights:
A national refugee law will streamline refugee- status determination procedures for all kinds of refugees and will guarantee them the rights they have under international law.
Addressing Security Concerns:
It could sufficiently address India’s security concerns, while at the same time ensuring that there is no unlawful detention or deportation carried out in the garb of national-security concerns.
Inconsistency in the Treatment of Refugees:
The bulk of the refugee population in India originates from Sri Lanka, Tibet, Myanmar and Afghanistan.
However, only Tibetan and Sri Lankan refugees are recognized as such by the government.
They are provided protection and assistance directly through specific policies and rules formulated by the government.
The people demanding refuge are in a vulnerable situation and see a last ray of hope in an inclusive and tolerant country. Considering this, there should be an intake of refugees but not at the cost of the native population. So, It is high time for India to define a clear-cut refugee legislation and policy.
