Fire in Delhi Rohingya camp: Why India must step up

The Supreme Court is facing the daunting task of balancing humanitarian and national security concerns.

 |  4-minute read |   22-04-2018
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As a recent fire ravaged a Rohingya camp in Kalindi Kunj, New Delhi, it destroyed, among other things, the refugees’ crucial identity papers. Rohingya Muslims, fleeing persecution in Myanmar, are already the largest stateless population in the world. Denied full citizenship in Myanmar under the 1982 Citizenship Law and unwelcome to the dominant Rakhine-Buddhist majority, the refugees have been landing in India in droves. Around 40,000 Rohingyas have set up camps in India since May 2017.

A BJP youth wing leader claimed to have set fire to the camp in a tweet, which was later deleted. Photo: PTIA BJP youth wing leader claimed to have set fire to the camp in a tweet, which was later deleted. Photo: PTI

The United Nations Security Council has convened several times to discuss the Rohingya crisis, and has estimated 80 per cent of the refugees to be women and children.

Legal battle

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 of striking a balance between national security and human rights of the refugees, lodged in shelter in camps in Delhi, Jammu and Haryana.

In a Public Interest Litigation 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 and visas.

The government has further contented 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 grounds 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 state of the Rohingyas with the relief facilities offered to the Sri Lankan Tamil refugees, the Centre has contended that the grant of these facilities has its genesis in the Indo Sri Lankan Agreements of 1964 and 1974, and the Rohingyas cannot be equated with the Sri Lankan refugees.

In response to the Centre, the petitioners have contended that India does have binding obligations to help the Rohingyas under various international treaties it has signed and ratified, as well as under the Indian Constitution.  In a bid to strengthen their plea, the petitioners have elaborated on the living conditions of the Rohingya camps, including health and sanitation issues, and the exploitation of the refugees.

Canvassing arguments for the Rohingya community, eminent lawyer Fali S Nariman has pointed out that protection to the Rohingyas, in terms of fundamental rights, should be granted under Indian law (Article 21 of the Constitution of India – the right to live with dignity extends to non-citizens as well), as well as various international covenants on human rights India is a party to.

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

Faith-free refugee law needed

Pending the final disposal of the PIL, there should be a distinction between immigrants and refugees. Despite various factors, such as potential threats to internal security, number of illegal migrants and resettlement issues, they should at least be granted access to education and healthcare. 

On the other hand, the principle of non-refoulement should apply only to the refugees who are in the country, and not on those who are willing to come in.

India has been hosting a large numbers of refugees since 1971, sans a specific legal framework pertaining to refugees. In 2016, the government proposed amending the Citizenship Act 1955 to grant citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians fleeing to India to escape persecution in Pakistan, Afghanistan and Bangladesh.

This specifically excludes displaced persons of Muslim faith, and is a stark violation of Article 14 of the Constitution, infringing upon the Right to Equality.

Whether the crucial decision regarding the deportation of Rohingya Refugees will be a tussle between the executive and the judiciary remains to be seen. Judicial activism is becoming the norm in the present day Indian context, due to inaction of the executive machinery on various accounts.

India needs to have in place a faith-free refugee law, and not resort to religious fanaticism.

Also read: Majid Majidi's Beyond The Clouds is his most unusual film yet, in an unintended manner 



Spiti Sarkar Spiti Sarkar @spiti_sarkar

The author is an advocate practising in the Supreme Court and a graduate of Symbiosis Law College, Pune

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