India recently deported a group of Rohingya refugees to Myanmar. Click here to know more.
With UN High Commissioner for Refugees (UNHCR) calling for a report from India on this, it is essential to look at India's refugee obligations.
What is the global framework?
Refugee law is a part of international human rights law.
To address the problem of mass inter-state influx of refugees, the Convention Relating to the Status of Refugees was adopted in 1951 in the UN.
This was followed by the Protocol Relating to the Status of Refugees in 1967.
One of the most significant features of the Convention is the principle of non-refoulement.
It mandates not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.
This idea of prohibition of expulsion lies at the heart of refugee protection in international law.
Is Rohingya deportation justified?
It is often argued that the principle of non-refoulement does not bind India since it is a party to neither the 1951 Convention nor the Protocol.
However, the principle constitutes a norm of customary international law, which binds even non-parties to the Convention.
The Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations, UNHCR, 2007 mandates this.
Also, Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
Moreover, Article 51 of the Indian Constitution imposes an obligation on the state to endeavour to promote international peace and security.
Article 51(c) talks about promotion of respect for international law and treaty obligations.
Thus the argument that the nation has not violated international obligations during the deportation is a mistaken one.
The deportation of Rohingya refugees by India is not only unlawful but breaches a significant moral obligation.
Why do Rohingyas deserve protection?
The Rohingya are, notably, among the world’s least wanted and most persecuted people.
In Myanmar, they are denied citizenship, the right to own land and travel, or to even marry without permission.
According to the UN, the Rohingya issue is one of systematic and widespread ethnic cleansing by Myanmar.
Certainly, the discrimination that the Rohingya face is unparalleled in contemporary world politics.
By the Indian Constitution, even foreign citizens are entitled to the right to equality and the right to life, among others.
So the Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty.
What are the legal limitations?
India lacks a 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 unchecked power to the Central government to deport any foreign citizen.
Further, the Citizenship (Amendment) Bill of 2019 strikingly excludes Muslims from its purview. [The majority of the Rohingya are Muslims.]
This limitation on the basis of religion fails to stand the test of equality under Article 14 and offends secularism, a basic feature of the Constitution.
