Refugee Crisis in India for Muslim Myanmar Migrants
The photo-op provided by India’s prime minister, strongman Narendra Modi, with the svelte Nobel laureate Aung San Suu Kyi has more than its share of irony. The former is leading a supremacist right-wing government in India and spearheading a refugee policy that institutionalizes discrimination against Muslim migrants. The latter is facing worldwide reprobation for her treatment of the Rohingya refugees who, the Dhaka Tribune says, are “pouring into Bangladesh like water.”
The Indian prime minister is scheduled to hold wide-ranging talks with State Counsellor Aung San Suu Kyi. India has announced that it will “throw out” Rohingyas, and Myanmar, which boasts of its Nobel Peace laureate at the civil helm of affairs, is also pursuing targeted persecution of this minority. Though Yemen, Syria and Iraq have their share of the internally displaced, the plight of the Rohingyas has drawn the sharp and consistent criticism of the United Nations since 2015. Not one to be bashful or concerned, the Guardian reported that the government led by Aung San Suu Kyi will simply not allow U.N. reps to enter the country anymore. The U.N. report of Feburary this year must have severely embarassed, if that is possible, this regime.
Just the day before Modi and Kyi shook hands, a younger Nobel Peace prize winner, Malala Yousafzai—who battled the Taliban in her home country of Afghanistan and has become an icon of resistance—called on Myanmar’s leader to “stop the violence” in a statement issued on September 4. Malala Yousafzai is among the latest in a long line of human rights activists and officials to publicly criticize Aung San Suu Kyi, Myanmar’s effective leader, for the treatment of the Rohingya Muslim minority in Myanmar. More than 73,000 Rohingya have crossed into Bangladesh in the latest wave of violence by the Myanmar military, spurred by an attack from a group of Rohingya militants on a military post on August 25.
The brutal treatment of Myanmar’s Rohingya is longstanding—they’ve been called the most persecuted minority group on the planet. Though they are Muslim, even states wedded to Islam discriminate against them, as Bangladesh has shown. Now look at India. Figures show that India has some 40,000 (at least) Rohingya refugees on its soil. In a complete turnaround from established policy, the Indian government is simply not committing itself to safeguard the lives of these hapless refugees.
India’s minister of state for home affairs, Kirren Rijiju, is a staunch defender of this unwelcoming policy of the regime. He recently made the Modi government’s intentions clear when he said that India would not “throw out” the Rohingyas but “would follow due process for deportation." He sharply criticized human rights advocates for “demonizing India internationally.”
Within days, the human rights advocate and practioner Prashant Bhushan had moved a special petition before India’s Supreme Court, in a bid to stay the government’s hand. Invoking the special jurisdiction of the court, under Article 32, the Supreme Court will now be compelled to adjudicate on this deportation.
On September 4, at the last hearing in the case, the Additional Solicitor General for the Modi regime, Tushar Mehta—a trusted Modi aide from his home state of Gujarat—refused to commit, saying about the deportation plans: “I am not making any such statement or commitment.” Through this, the Indian government refused to give 40,000 Rohingya Muslim immigrants an assurance that it will not move for their deportation back to Myanmar. The case will now be heard on September 11.
Forcefully arguing his case, Prashant Bhushan, assisted by advocate Pranav Sachdeva, said, “The 40,000 Rohingyas are the world’s most wretched people. They have been persecuted everywhere. Protect them.” As of now, the court has refused to commit to anything. The petition on behalf of the Rohingyas contended that any move to deport them would violate the constitutional guarantee of the Indian State to “protect the life and liberty of every human being, whether citizen or not.”
The writ petition under Article 32 of the Constitution of India seeks to secure and protect the right against deportation of the petitioner refugees in India, in keeping with the constitutional guarantees under Article 14 and Article 21, read with Article 51(c) of the Constitution of India against arbitrary deportation of Rohingya refugees who have taken refuge in India after escaping their home country of Myanmar due to the widespread discrimination, violence and bloodshed. The petitioners have been registered and recognized by the UNHCR in India in 2016 and have been granted refugee I-cards. The “Non-Refoulement” text, meaning India cannot deport people when they face imminent threat to their lives, states:
“No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.” (A copy of the Convention Relation to the Status of Refugees, 1951)
The Indian Constitution accords refugees some degree of constitutional protection while they are in India. The following constitutional provisions offer a framework for protecting the rights of refugees:
- Article 51 (c) of the Indian Constitution, a Directive Principle of State Policy, requires fostering of respect for international law and treaty obligations in the dealings of organized peoples with one another.
- Article 14, Right to equality states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This article guarantees to refugees in India, the right to equality before law and equal treatment under the law.
- Article 21, Right to life and liberty: “No person shall be deprived of his life of personal liberty except according to procedure established by law.” In according protection to refugees, the Hon’ble Supreme Court has interpreted these constitutional provisions to extend the protection of the right to equality and the right to life and personal liberty of refugees.
The petition cites judicial precedents, which include:
“That the Supreme Court in its landmark judgement on the right to privacy dated 24th August 2017, in, Justice K.S. Puttaswamy (Retd) and Anr. v. UOI and Ors WP (C ) No. 494/2012, has categorically stated, ‘Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.’”
A second precedent is also quoted in the petition:
“That In the National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742, the Supreme Court , states ‘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 human being, be he a citizen or otherwise.’”
India is not a signatory to the UNHCR, as the government and its spokesperson on the issue, Kiren Rijiju has so often stressed. Yet Indian courts have interpreted international treaty obligations liberally.
“The Delhi High Court in Dongh Lian Kham v. Union of India, 226(2016) DLT 208, states, ‘The principle of “non-refoulement,” which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as “non-refoulement” affects/protects the life and liberty of a human being, irrespective of his nationality.’”
In this legal push by Bhushan, the petition asks for the following:
- An Order directing a stay on Deportations of members of the Rohingya community who are presently in India.
- Directions to the Govt to ensure that petitioners and other members of the Rohingya community in India, such basic amenities to ensure that they can live in human conditions as required by International law in treatment of refugees.
Just recently, the country’s National Human Rights Commission issued notice to the government on the proposed deportment. At the heart of the Modi government’s thinking and orientation is the partisan amendment moved in the 2016 Citizenship Amendment Bill that is currently before a Joint Committee of Parliament. Through this, the Modi regime seeks to pass this before the general elections of 2019.
This rather perverse amendment, in its current formulation, seeks to exclude undocumented immigrants belonging to certain minority communities from Afghanistan, Bangladesh and Pakistan (all majority-Muslim countries)—Hindus, Sikhs, Buddhists, Jains, Parsis and Christians—from the category of illegal migrants, making them eligible to apply for Indian citizenship. The list of religious minorities, inexplicably, excludes Muslim groups like the Ahmadis, who are also among the most persecuted religious minority in Pakistan. This essentially means that while non-Muslim migrants become eligible for Indian citizenship, Muslims are denied this right.
The Rohingyas could well be the first fall guys of this anti-vision of the Modi regime. But where will they go? Not to Myanmar, if a Nobel laureate head of state has anything to say about it.
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