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About Nafees Ahmad and Gursimran Kaur Bakshi

Dr Nafees Ahmad is an Associate Professor at the Faculty of Legal Studies, South Asian University (SAU) in New Delhi. Dr Ahmad holds a doctorate in International Refugee Law and Human Rights. 
 
Gursimran Kaur Bakshi is a graduate of the National University of Study and Research in Law. She has previously written for the Border Criminologies of the University of Oxford. She can be reached at simrankaurbakshi@gmail.com.

Image description: Group of Rohingya adults and children sit on the ground beneath a makeshift shelter

Forced deportation in the face of imminent threat of persecution violates the inalienable right to life. India is not a signatory to the 1951 Convention Relating to the Status of Refugees (UNCSR) and its 1967 Protocol. Nonetheless, the obligation to respect United Nations High Commissioner for Refugees (UNHCR)’s mandate comes from its membership of the Executive Committee. India continues to be a host to the largest number of refugees across South East Asia. But without a framework for refugee protection, the treatment of refugees is determined by political expediency.

Differential treatment

Rohingya refugees living in India are repeatedly victimised by the differential standards of protection offered by India’s ad-hoc policy and inconsistent state practices. On August 17, Twitter witnessed a tussle between Hardeep Singh Puri, Minister for Urban Development, who announced residential housing for Rohingya refugees living in Madanpur Khadar in the National Capital Territory of Delhi, and the Ministry of Home Affairs (MHA), that hours later, in a press release noted, “…[the] Ministry of Home Affairs has not given any directions to provide EWS [Economically Weaker Sections] flats to Rohingya illegal migrants…” The MHA clarified that they are in contact with the country of origin in order to deport migrants and that until then, they would be kept in Madanpur, which should be declared a detention centre. This clash illuminates the hypocrisy between foreign commitments and domestic policy and also highlights the tension where, on one hand, the Government wants to repatriate Rohingyas based on alleged security concerns and, on the other hand, it is willing to offer citizenship to religious minorities of its neighbouring countries under the Citizenship (Amendment) Act 2019, based on political expediency.

Ignoring guarantees of procedure established by law

The Foreigners Act 1946, which defines a foreigner as someone who is not a citizen of India, is often invoked to deport Rohingyas. In 2011, MHA circulated a Standard Operating Procedure (SOP) for dealing with foreigners who want to seek asylum based on prima facie justified grounds of persecution. However, the examination of the claims are dependent entirely on the MHA’s discretion. The Act and SOP, devoid of procedural safeguards, cannot supersede the guarantee of procedure established by law, which is extended to all persons, under Article 21 of the Constitution. It encompasses the protection of the principle of non-refoulement (no forced repatriation), which is duly enunciated under Article 33(1) of the UNCSR. In Nandita Haksar v The State of Manipur, the High Court of Manipur, while allowing safe-passage to refugees, correctly recognised that various adumbrated rights have been duly afforded protection under Article 21 and this would ‘indubitably’ encompass the right to non-refoulement.

Also crucial is the Supreme Court’s interim order in Mohammad Salimullah & Anr v UOI & Ors, where while allowing deportation of refugees based on alleged grounds of national security, it observed that the right not to be deported is ancillary to the right to reside and settle in India under Article 19(1)(e) of the Constitution, a right that is limited to citizens.

The court failed to recognise that non-refoulement does not flow from Article 19(1)(e) but from Article 21 that also extends to protecting human dignity. This principle originates in the prohibition of torture and degrading treatment, found in various treaties of international human rights law (India is a party to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights and is one of the 193 member countries to endorse the 2018 United Nations Global Compact on Refugees (GCR)).

No mention of voluntary repatriation

GCR obligates India to ensure that the returns must be done in safety and dignity.  However, there has been no mention of the “voluntary repatriation” dimension,  a requirement of Customary International Law, despite India’s attempt to build homes for Rohingyas in Myanmar. Voluntary repatriation of refugees has been emerging as a binding norm of International Refugee Law, one that is not contingent upon international human rights treaties but is approbated by them. Conversely, the practice of the majority of the nation-states implies allowing the return of refugees to their homelands as per Articles 13 and 15 of the UDHR.

Looking at the contemporary international geopolitical hegemony, India is desperate to play the role of a world leader. India needs to therefore relinquish its ambivalence and revisit its ad-hoc refugee policy in the wider context of the responsibility-sharing principle under the GCR; the democracy of refugee constitutionalism; the decriminalisation of migration; and evolving the right to compensation from the country of origin for hosting refugees under international law.

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