Deporting Rohingya could have huge implications on India and tarnish global image, says lawyer Colin Gonsalves

By Deya Bhattacharya

On 19 September, the Centre told the Supreme Court that all decisions regarding illegal immigrants fell within the domain of the executive, and therefore, the illegal influx of Rohingya "using the porous border between India and Myanmar" was a serious threat to the national security.

The government also alleged that the Rohingya Muslims have links with the Islamic State. In this light, India's statement to the United Nations Human Rights Council affirms that the situation in the Rakhine State in Myanmar must be dealt with in a restrained manner and should emphasise on the "welfare of the civilian population".

A statement from the Ministry of External Affairs also stated that "India was deeply concerned at the recent spate of violence in the Rakhine State of Myanmar that has resulted in the outflow of a large number of people from the State."

Representational image. Reuters

The government of India filed a 15-page affidavit in the Supreme Court as a response to a petition filed by two Rohingya refugees, challenging the Centre's proposal to deport them.

The document, which was drawn up by the Ministry of Home Affairs, states: "It is submitted that continuance of Rohingyas' illegal immigration into India and their continued stay in India, apart from being absolutely illegal, is found to be having serious national security ramifications and has serious security threats."

It stated that the proposal to deport the Rohingya would be a constitutionally imperative move in the interest of the nation. The affidavit also suggests that the "illegal influx" of Rohingya commenced when the UPA-II was in power in 2012-13.

The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his opening statement at the 36th Session of the Human Rights Council, described the situation in Myanmar as "darker and more dangerous", and has deemed the violations against the Rohingya as "a textbook example of ethnic cleansing".

He also stated that he condemns the current measures that India has proposed to take to deport the Rohingya who are undergoing gross human rights violations and extreme violence. The statement said: "Some 40,000 Rohingya have settled in India, and 16,000 of them have received refugee documentation. The Minister of State for Home Affairs has reportedly said that because India is not a signatory to the Refugee Convention the country can dispense with international law on the matter, together with basic human compassion. However, by virtue of customary law, its ratification of the International Covenant on Civil and Political Rights, the obligations of due process and the universal principle of non-refoulement, India cannot carry out collective expulsions, or return people to a place where they risk torture or other serious violations."

The Centre’s proposal for deportation has spurred a batch of petitions challenging the move, and several top lawyers — Fali S Nariman, Kapil Sibal, Rajeev Dhavan, Prashant Bhushan, Ashwini Kumar and Colin Gonsalves — are preparing to argue in favour of the Rohingya.

Firstpost interviewed Colin Gonsalves, senior advocate at the Supreme Court and founder of the Human Rights Law Network, who is representing 7,000 Rohingya settled in Jammu. Gonsalves speaks of India's position on the Rohingya refugee crisis, and how both international law and Indian constitutional mandates lean in favour of the Rohingya.

What is the Central government's position on the Rohingya crisis? Do you think this has anything to do with the religious ideology of the current government?

The official position of the Central government is that the Rohingya should go back to Myanmar as they are a threat to national security. The position is a combination of two elements: Firstly, it is a part of the anti-Muslim sentiment that pervades the country; but there is also another element, the thinking that Rohingya refugees might be fertile ground for recruitment by the Islamic State. Unfortunately, for this position, there is no evidence at all that the refugees are involved in anything or that they are inclined to think in that direction. I think this was a knee-jerk reaction from the government without thinking of the consequences.

So, what is the Central government's argument on the issue?

The Centre says that it has not signed or ratified the UN Refugee Convention of 1951 and therefore, it is not bound by the principle of non-refoulement (or the non-return principle). The principle forbids a country receiving asylum seekers or refugees from returning them to a country where they are likely to be persecuted because of their race, ethnicity, nationality, etc. The Central government has also cited Article 19 of the Constitution, which is limited to an Indian citizen’s right to travel and live in any part of the country. The Rohingya, however, are not asking for this right. They are asking for the principle of non-refoulement to be followed adequately.

India has signed neither the UN Refugee Convention of 1951 and the additional protocol of 1967? Does this matter in the present context?

The government of India states that the Convention of 1951 does not apply because India is not a party to the convention. This argument would have been plausible had it been raised in 1951. Unfortunately, they are making this argument some 70 years later. In the past 70 years, the principle of non-return, which in 1951 was a mere clause in a convention, has been expended universally as a principle of customary international law. It is now entrenched globally in international law.

Secondly and more importantly, the principle is now elevated to the status of  jus cogens, and cannot be abrogated. Other crimes that are a part of jus cogens are torture and genocide. It is, therefore, shocking how backward thinking the government is - being a non-signatory to a convention does not mean that India is not accountable for upholding certain principles of international law. But Article 21 is good enough to cover all of this, in the absence of treaty conventions.

And it's a misconception that prior to ratification of certain conventions, you need to put in place a law. The UN has in many, many documents clarified this, and these have been filed by us in the Supreme Court. By mandating that we have to draft a domestic law before ratification of a convention, we are creating self-serving, artificial hurdles. As it is, India is very loathe to submit itself to international scrutiny. We say we are a globalised country, but we are, in fact, a very narrow-minded, parochial country.

What is the legal basis of the petition against the Rohingya deportation?

The basis of the petition is constitutional law; it’s not humanitarian. I’m surprised that the National Human Rights Commission (NHRC) made a statement saying that on "humanitarian basis", the Rohingya be allowed to stay - which is alright because it’s better than nothing. But the NHRC, of all bodies, should know that there is a constitutional basis to this. Article 21(the Right to Life) of the Constitution protects all persons, not just Indian citizens. Therefore, if they are covered by the Right to Life, you are covered by the principle of non-return. You cannot return a refugee to a place where s/he may be raped or tortured. That is endangering the right of a refugee to his/her life.

The government's affidavit, as I mentioned, says that Rohingya are demanding rights under Article 19 - this is a fundamental mistake because the Rohingya have not asked for this right. Rohingya have asked for protection and the right to not be returned to the place where they are being persecuted under Article 21. That is a solid constitutional law argument.

The Centre calls the Rohingya "illegal immigrant" instead of refugees or asylum seekers. What is the difference between the two and is the government correct?

In a very crude way, the Centre is right - Rohingya and Bangladeshis are illegal immigrants, so to speak. The Government of India guidelines divide these immigrants into two categories: First, those who come in for economic reasons, without a visa. These immigrants can be sent back to their country for the lack of proper documentation. The second category is refugees, who are persons fleeing persecution; when you determine that a person who has entered India is a refugee and might face danger in their own country, the constitutional rights apply to them. So to summarise, a Rohingya is an illegal immigrant at the time of entry into India, but once s/he is determined a refugee, the person receives a long-term visa. About 16,000 of the 40,000 of  Rohingya who have entered have refugee cards issued by the UNHCR, stating that they should not be sent back.

Are there any legal precedents in India where refugees have been saved from deportation?

The Chakma case is what comes to mind, and the NHRC was involved here. The Supreme Court observed against the arguments of Arunachal Pradesh, that the Chakmas had a right to stay in the country. The case was decided about 20 years ago. About 1,00,000 Chakmas are going to get citizen status in India this year.

What is the implication for India, globally, if the Central government goes ahead with the deportation?

The implications would be enormous, and I don’t think that the Central government realises that. Just like Nobel laureate, Aung San Suu Kyi did not realise the implications of the refugees fleeing across the border. And the UN has used the term "ethnic cleansing" to describe the condition of Rakhine State in Myanmar while a Nobel peace laureate leads the country.

India is the largest democracy in the world so the government should consider sending back refugees because we might be known as a country that supports ethnic cleansing. Our country has a great record with the treatment towards refugees: We have taken in Tibetans, Afghan and Sri Lankan refugees and now, suddenly, the government is taking a decision that might be a political harakiri. India’s image, globally, might get tarnished completely.