The predicament of Rohingya Refugees in the Indian Context: A legal perspective

A recent fire incident ravaged a Rohingya camp in Kalindi Kunj, New Delhi and led to the destruction of their crucial identity papers. The Rohingya Refugees are the lot from Myanmar’s Rakhine province. The exodus of Rohingya Refugees from Rakhine has assumed gargantuan proportions in recent times. In a tide of ethnic cleansing tensions between the minority Muslim groups and the mainly Buddhist Rakhine population in Myanmar has led to displacement of tens and thousands of Rohingyas from their home.  Around 40,000 Rohingyas have set up camps in India since May 2017. Denied citizenship under the 1982 Citizenship Law, they are the largest stateless population in the world. Facing massive oppression by the successive Burmese governments, their conditions are deplorable.

 The United Nations Security Council has convened several times to discuss the Rohingya crisis. However the exodus of the refugees is a deep-rooted problem with persecutions having been launched on them way back in 1978, 1991-1992, 2012 and 2015. The United Nations has estimated 80% of the refugees to be women and children.

Rohingya Refugees in India

The status of Rohingya Refugees in India is witnessing a see-saw of opinions as the Supreme Court of India has before itself, the daunting task before itself to strike a balancing Act, between national security and human rights of the refugees. In India, the Rohingya refugees have been availing shelter in camps in Delhi, Jammu and Haryana.

In a Public Interest Litigation lodged in the Supreme Court of India titled Mohammed Salimullah vs Union of India (Writ Petition No 793 of 2017) the protagonists/ Petitioners have been seeking a mechanism to stop push backs of the refugees which the Central Government has justified to be in accordance with the law, since the refugees do not have passports/ visas. It has been further contended by the Central Government that the plea of the Petitioner to have Refugee Identity Cards issued to the Rohingyas through the Foreign Regional Registration Officer (FRRO) is untenable on the ground that the principle of Refoulement has its origin in the UN Convention of 1951 relating to the status of Refugees and the Protocol of 1967 to which India is not a signatory. The principle of Non-Refoulement encapsulates that refugees will not be deported to a country where they face threat or persecution. Comparing the relief facilities granted to the Sri Lankan Tamilian Refugees, the Centre has contended that the grant of these facilities has its genesis in the Indo Sri Lankan Agreements of 1964 and 1974 In furtherance of the same, the Rohingya refugees in the instant case cannot be equated with the Sri Lankan Refugees.In response to the Centre’s contentions, the Petitioners contended that India does have binding obligations under various international treaties it has signed and ratified, as well as the Indian Constitution.  In a bid to strengthen their plea, the Petitioners have also elaborated on the living conditions of the Rohingya refugee camp including health and sanitation and exploitation of the Rohingya refugees.

Canvassing arguments for the Rohingya community, eminent lawyer Fali S Nariman pointed out the protection of the Rohingyas is accorded which include fundamental rights under the Indian Law(Article 21 of the Constitution of India- The right to live with dignity extends to non-citizens as well)as human rights arising out of international covenants to which India is a party.

The Supreme Court has held that there ought not to be any discrimination between the Rohingya refugees taking refuge in camps in Haryana and the slum dwellers in terms of providing basic amenities. The National Commission for the Protection of Child Rights urged the ‘principle for Repatriation and Restoration’ in section 3(xiii) of the Juvenile Justice Act of 2015, praying that the children of refugees, placed in Child Care homes be reunited with their parents.

Conclusion

This is to finally put forth that pending the final disposal of the Public Interest Litigation, there ought to be a distinction between immigrants and refugees. Despite, various factors namely potential threats to internal security, number of illegal migrants, resettlement issues surface to the top in the context of striking a balance between national security and human rights of the refugees. The conclusive viewpoint is that they should at least be granted access to education and healthcare.  On the flip side, the principle of Non-Refoulement should apply only to all refugees who are in the country and not those who are willing to come in. Futuristically whether the crucial decision regarding the deportation of Rohingya Refugees will be a tussle between the executive and the judiciary remains to be seen.