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Deporting Rohingyas will inspire hate not humanity

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Rajeev Dhavan
Rajeev DhavanOct 02, 2017 | 09:47

Deporting Rohingyas will inspire hate not humanity

So often, Indian governance moves to the darker side. This is when it inspires hate and not humanity. Amidst all its triumphs, India falls prey to communalism, violence, anger and distrust. As if time bombs lacerate the pathology of Indian life. The nation goes tick-tock-tick-tock. So much of this is made by our prejudices for which some will fight the "other" to the bitter end.

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A small but poignant example of this is the case of Rohingyas, 44,000 of whom have crossed into India. The government wants to throw them out because they are "terrorists". They are prepared to send food supplies for them in Myanmar. The INS Gharial carried 700 tonnes for Rohingyas and airlifts of 55 tonnes were made earlier this year to induce Rohingyas to return.

Myanmar deal

Despite empty promises, their safety in Myanmar cannot be guaranteed. A deal is being worked with Myanmar for their return. Indo-Myanmar policies are being rewritten. The "free movement" of 16km on either side may be revised. Meanwhile, China has investments in Myanmar's Rakhine state and doesn't want this crisis to be internationalised. Manipur is taking preventive measures. All border states are supported by the Union Home ministry as if India is at war with these people.

These Rohingyas are Muslims. The BJP targets Muslims as terrorists. The unwritten bias is Muslims are not welcome in this country. In the BJP, there is only one sane voice that has spoken with clarity. That is Varun Gandhi pleading humanity for refuges: "As far as the Rohingyas are concerned, I've called for empathy, leading potentially to asylum while vetting each applicant for national security concerns."

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For his sanity, Varun was ticked off by the high command and especially MoS home Hansraj Ahir. So much for democratic voices in the BJP. In Myanmar, the Rohingyas are beaten, tortured killed by the army and police along with civil forces. This is well documented. It is certain that if these 44,000 Rohingyas return, they will be harassed mentally and physically. If India denies asylum they will be in limbo. People with nowhere to go.

Refugee policy

Although, India has housed a large number of refugees from Pakistan, Bangladesh, Tibet, Afghanistan and her own from Sri Lanka, its refugee policy is unclear. The universal refugee policy is contained in the Refugee Convention of 1951 and the Protocol of 1967 which most nations follow. In 1953, RK Nehru justified India's ambivalence because the convention was perceived as anti-communist. India did not want to take sides during the Cold War. But that is no longer the case.

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These Rohingyas are Muslims. The BJP targets Muslims as terrorists.

Ironically, India following Pakistan is a member of the executive committee of the UNHCR (United Nations High Commission for Refugees) but not a member! This is escapism. Varun Gandhi, like many of us long before him, has demanded a refugee policy. The convention defines "refugee" as a person who has a "well founded fear of persecution on account of race, religion, sex, nationality, ethnic identity membership of a social group or political opinion" and extends to victims of external aggression, public order breakdown and the like.

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India has no reason for not signing the convention especially because it (i) is a member of the executive committee (ii) has a UNHCR in Delhi. This contrasts with its enviable record to admit refugees in trouble into India. Its policy is erratic and absurd.

Indian courts have, nevertheless, provided succour to refugees. In the Arunachal v Khudiram Chakma case (1994), the court allowed a pushback of Chakmas to allotted areas. In the NHRC vs Arunachal case (1996), the court recognised a constitutional obligation to protect Chakmas. In the Malavika Karlekar case, the Supreme Court injuncted the deportation of 21 Burma refugees. It has also allowed refugees to get the status determined by UNHCR in Delhi. This has been followed by courts in Gujarat and Guwahati. The UNHCR determination is respected but not determinative. Thus, Indian courts rely on Article 14 (equality) and Article 21 (life and liberty) to build inchoate but distinct rights for refugees.

In this context, any argument of terrorism will dissipate. The procedure of giving refugee status is very rigorous. One of its obvious consequences is that a person who is a terrorist can never be a refugee. UNHCR determination shows many are not accepted. The terrorist problem cannot be resolved on a hunch but by a process that separates terrorists from refugees. The former are a threat to India, the latter deserving benevolence. An Indian refugee policy, which is possible under our present law, will support anti-terrorism.

Ambiguities

Foreigners are controlled by the Foreigners Act 1946 which allows governments to behave arbitrarily towards foreigners they don't like. The Supreme Court was wary of this. Justice Bhagwati created a Model Refugee Law for SAARC nations. This had to be revised by a new Bhagwati Committee which I helped re-draft. But parliamentary consensus on a new law is doubtful. The other way is to introduce "rules" which will differentiate between various classes of foreigners: the refugees being a distinct class. Section 14 of the Act of 1946 can be used by the Union Government to induce (a) a proper definition of refugee and (b) a rigorous process for refugees determination. All they have to do is to instruct immigration officers to sift refugees from others.

Refugees in, terrorists out.

(Courtesy of Mail Today)

Last updated: October 02, 2017 | 16:14
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