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Throwing light on the inhumane and illegal method of 'pushing back' Rohingya refugees into Bangladesh adopted by the Border Security Force in India, RAVI NAIR writes about how this violates India's international law obligations, and why these refugees deserve due process as guaranteed by the Indian Constitution.
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INDIA shares a direct border with Myanmar as well as Bangladesh. Although the exodus of the Rohingya community coming directly from Myanmar has largely subsided, some Rohingya staying in overcrowded camps in Bangladesh have turned to cross into India. India shares a 4,096 km border with Bangladesh, and the Indian state of West Bengal, with a nearly 2,217 km-long border with Bangladesh, has been the preferred route for crossing over into India.
Rohingya refugees, though, are prevented from entering India by our authorities at the Bangladesh border. This pushback is not only done in an inhumane and degrading manner, by using chili grenades and stun guns but are in direct contravention of the refugees' right to life.
In order to curb the influx of Rohingyas into India, the Border Security Force (BSF) employs violent methods to stop them from crossing into India. A Times of India report from November 2017 quotes K.K. Sharma, the then-Director of the Border Security Force (BSF), as saying:
"Our policy is to push them back and not arrest them. If we arrest anyone trying to infiltrate into India, then they become a liability and then there has to be a process of identifying them. So we just push them back."
These practices at India's borders with Bangladesh and Myanmar ought not to be confused with mere deportations, which are concerned with expelling those who have entered into a state's territory. Instead, the 'pushbacks' explicitly seek to prevent entry into Indian territory in the first place.
In the case of 19 Rohingya refugees apprehended in September 2017, for instance, the BSF explicitly stated, as per an in-depth Economic Times report, that it would not detain them, as would have been the due process according to immigration law, but that "this time, the instructions were to 'push back', so they were taken to the border and let go to the other side."
As per the same report, P.S.R. Anjaneyulu, the then-Inspector General (IG) of the BSF at the South Bengal frontier, stated:
"Our mandate is clear, Rohingya must be stopped and pushed back into Bangladesh or whichever part they might be coming from."
BSF Director General K.K. Sharma was quoted as saying in an Asian Age report:
"It is our policy to push back the Rohingyas infiltrating into the country rather than arresting them. If we arrest them, it becomes a liability since then a process has to be followed in terms of identifying them. So the best way to deal with the problem is to push them back.
As per the Economic Times report, additional BSF units were stationed at the borders, as were additional boats to patrol riverine areas, such as the Sunderbans, just south of Kolkata. In October 2017, a year after the last surge in violence against the Rohingya in Myanmar, around 85,000 BSF personnel were posted around India's border with Bangladesh. The BSF erected physical barriers to crossing, such as a 10-ft three-layered fence with concertina wires in some parts, or stacks of boulders in others.
According to the reporting by Economic Times, 175 Rohingya were apprehended by the South Bengal Frontier BSF, and 46 by the North Bengal Frontier BSF, between 2014 and 2017. According to the Asian Age report, the BSF "apprehended 87 Rohingyas till October 31, 2017 at the India-Bangladesh border out of which 76 [were] pushed back to Bangladesh [by November]." The Union Minister of State for Home Affairs at the time was more ambitious in his estimates, and in January 2018 said that no Rohingya had been able to cross the border between India and Myanmar since 2014.
Importantly, it must be acknowledged that government officials speak proudly of their treatment of Rohingya and see their policy decisions as beneficial for India. Since some of the border crossings patrolled (such as in Petrapole and Ghojadanga, for e.g.) are used daily by people commuting for work, not all Rohingya may have been stopped. Overall, claims about the amount of Rohingya rejected at the borders may have been exaggerated to project a semblance of success. However, even the pushbacks and inhuman treatment of the estimated 200-odd refugees referred to above is a grave human rights violation that cannot be excused.
The methods employed to keep Rohingya out are explicitly violent. A Reuters report of September 2017 quotes a BSF official in New Delhi as saying: "We don't want to cause any serious injury or arrest them, but we won't tolerate Rohingya on Indian soil …We're using grenades containing chili spray to stop hundreds of Rohingyas trying to enter India … the situation is tense."
A chilli grenade makes use of a naturally occurring compound in chili powder to cause severe irritation and temporarily immobilize its target.
R.P.S. Jaswal, a deputy IG of the BSF patrolling a large part of the border in India's eastern state of West Bengal, also admitted, as per the Reuters report, that his troops were told to use both chili grenades and stun grenades to push back the Rohingya.
Notably, the concept of 'pushback' does not rely on geographical proximity to a border. It merely requires that a person be forced to return across a border they previously crossed, without consultation with the receiving government. As per the Government of Assam White Paper on Foreigners:
"There is difference between 'Push back' and 'Deportation'. In case of Push Back there is no need for acceptance of the person concerned by BGB [Border Guards Bangladesh]. In case of deportation, on the other hand, there is a proper flag meeting between BSF and BGB and deportation takes place only when BGB accepts the foreigners. If BGB refuses to accept the foreigner, BSF is left with no further option and such persons become 'stateless'."
In September 2017, five Rohingya staying in Rachakonda, near the city of Hyderabad, were reportedly apprehended by the police and dropped at the Bangladesh border. While this is commonly thought of as deportation, it was in fact a pushback. In a two-week period in October 2017, the BSF is reported to have pushed 75 Rohingya into Bangladesh, in the face of opposition from the BGB.
How does this violate human rights?
The prohibition of torture and the right to life is considered to be jus cogens, which means that it stands above other legal obligations and must not be explicitly ratified in order to apply. In order to lay out what acts fall under the umbrella term 'torture', one must draw on the provision about the prohibition of torture as defined by the European Convention on Human Rights (ECHR).
Article 3 of the ECHR states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Article prohibits torture under all circumstances. Cases of actual torture are the gravest and acute violation of Article 3, but Article 3 also notably covers acts that do not amount to torture proper, but are assaults on human dignity and physical integrity amounting to "inhuman or degrading treatment". That these are also considered part of the non-derogable Article 3 shows that they should be treated at par with torture and should also be considered jus cogens.
Article 3 can be infringed by both deliberate infliction of ill-treatment, and also by negligence or failure to take specific action or provide adequate standards of care. It imposes both negative and positive obligations: that is, an obligation to refrain from certain action, and obligations to actively protect individuals from torture and other cruel, inhuman and degrading treatment.
The treatment of Rohingya at the Indian border violates Article 3 of ECHR in three ways:
1. Through refoulement itself
2. As cruel and inhuman treatment through chilli grenades
3. As cruel and inhuman treatment through stun guns
Violations of the prohibition of torture can amount to violations of the right to life since torture is sometimes grave enough to constitute life-ending harm. The right to life is invoked even in cases in which the victim did not, in fact, die. Hence, the practice of refoulement of Rohingya violates India's responsibilities under both the fundamental right to life, guaranteed by Article 21 of the Constitution, and the prohibition of torture.
The unlawfulness of pushbacks is similar to that of mass deportations, as they group individuals based on ethnic and religious traits and deny a case-by-case assessment. The unlawfulness of push-backs extends beyond discrimination, as they additionally undermine people's right to seek asylum, and proscribe their right to due process before a decision to expel them is taken. As explained in the United Nations High Commissioner for Refugees (UNHCR) Note on International Protection of 13 September 2001:
"The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx."
In the case of Hirsi Jamaa and Others v. Italy (27765/09) from 2012 at the European Court of Human Rights (ECtHR), the Court discussed an incident in which the respondent party, Italy, had collectively expulsed refugees by preventing them from arriving on Italian soil. The Court ruled that Italy had violated Protocol 4 of the ECHR, which defines and bans such pushback practices.
The judgment makes it clear that any interdiction policy which does not allow migrants the opportunity to claim asylum or to mount a legal challenge against return before the return is enforced, will violate the ECHR.
Importantly, it matters little in assessing unlawfulness whether the expulsion occurred under the country's territorial jurisdiction, and thus, whether the expulsion of refugees occurs on Indian territory or in Bangladesh. As held by the ECtHR in its Hirsi Jamaa judgment:
"Under international law concerning the protection of refugees, the decisive test in establishing the responsibility of a State was not whether the person being returned was on the territory of a State but whether that person fell under the effective control and authority of that State. … They stressed the importance of avoiding double standards in the field of safeguarding human rights and ensuring that a State was not authorised to commit acts outside its territory which would never be accepted within that territory."
Through the actions of the BSF, Rohingya are pushed back into Bangladesh. Bangladesh itself, on 23rd November 2017, signed an accord with Myanmar, agreeing to return all Rohingya refugees in Bangladesh to Myanmar. Our then-Union External Affairs Minister "welcomed the signing of an Arrangement between Government of Myanmar and Government of Bangladesh on return of Displaced Persons from Rakhine State", as per an answer in the Lok Sabha in 2018.
Meanwhile, the security forces in Myanmar continue to present an imminent threat to any Rohingya families that would return. In the four years that have passed, not only has the Burmese government not made any credible commitments to stabilize the situation, but it has continued to deny that any mass atrocities are taking place at all. In one instance, it was even claimed that Rohingya were setting fire to their own houses.
In a recent agreement with Bangladesh on the repatriation of Rohingya to Myanmar, the Burmese government stated that it would not prosecute or penalize returnees for having illegally exited the country, despite a curfew placed on all Rohingya since 2012. However, this pledge does not guarantee that the atrocities will not recommence upon return, or even that attempts to prevent extrajudicial punishment will be made.
Moreover, any assurances of security upon return would be meaningless, since that security would be supplied by the very same security forces that drove the Rohingya community out of the country. Pushbacks to Bangladesh, thus, effectively permit forced repatriation to Myanmar, where Rohingya face continued persecution and torture.
Also read: Rohingyas: Genocide in the backyard
Not only are pushbacks in contravention of international law, both customary and treaty-based, but they are also clearly in violation of the Indian Constitution. Article 14 of the Constitution states that:
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
Importantly, as has been repeatedly held by the Supreme Court in a clutch of decisions (such as Louis De Raedt v. Union of India (1991 SCC (3) 554), State of Arunachal Pradesh v. Khudiram Chakma (1994 SCC (1) 615), and National Human Rights Commission v. State of Arunachal Pradesh, (1996 SCC (1) 742)), this provision applies not only to citizens, but to all persons. The decision to conduct a pushback at the border does not make provision for examination of the individual circumstances of each refugee, and thus denies those seeking entry into India due process.
The concept of due process, however, is a fundamental human right in itself. This was ruled by Justice Bhagwati in the Supreme Court's landmark judgment in the case of Maneka Gandhi v. Union of India (1978 SCR (2) 621) in the following words:
"The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."
In fact, the Union Ministry of Home Affairs, in 2014, published a circular labelled "Consolidated instructions regarding procedure to be followed for deportation/repatriation of a foreign national", which states that in all cases where the foreigner is arrested and action is taken under the relevant Acts, the foreigner can be deported only after completion of the sentence/court proceedings.
Similarly, the Patna High Court held, in the case of Malik Astur Ali v. State of Bihar (2012), that powers regarding detention and expulsion under Section 3(2) of the Foreigner's Act, 1946 cannot be exercised discretionary, and that those decisions should be made by a Foreigner's Tribunal.
The authorities cited above not only indicate that those affected by mass expulsions at our international borders ought to have their cases submitted to judicial review, but that there should be a border procedure in place in order to detect and register those seeking admission individually.
In its judgment in the case of Dongh Lian Kham v. Union of India (226(2016) DLT 208), the Delhi High Court decided that to respect the principle of non-refoulement, the Foreigner Regional Registration Office ought to consult with the UNHCR regarding the option of deportation to a third country, and thereafter seek approval from the Union Ministry of Home Affairs (Foreigners Division).
The Home Ministry's standard operating procedure for grant of long-term visas (LTV) to refugees states that:
"In case, it is found that prima facie the claim is justified, (on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion), grant of LTV to the foreign national will be considered."
Additionally, the Home Ministry published an advisory document in 2012 to deal with foreign nationals who are victims of human trafficking. This document lays out detailed procedures and states that such a person should not be charged with illegal immigration, and should be repatriated to the country of her origin through diplomatic channels. In pushbacks, such procedures are wholly ignored.
The Union Government justifies the pushbacks at the border with reference to the Rohingya posing a security threat. Indeed, states regulate entry into their territory, and the argument of national security or national interest can thus be a valid one. However, even national interest and national security do not allow pushbacks. These pushbacks of Rohingya refugees are occurring in an indiscriminate and arbitrary manner without the examination of individual claims.
To the contrary, former BSF Director K. K. Sharma admitted that pushbacks occur for mere expediency, because otherwise: "it becomes a liability since then a process has to be followed in terms of identifying them." Notably, the government does not claim that each individual being refouled poses a security threat, but merely that some Rohingya do get, or that Rohingya could be, recruited by Islamic fundamentalists.
Importantly, this idea of some Rohingya posing a security threat is more a sentiment than based on facts: A written statement made in the Jammu and Kashmir Legislative Assembly by the-then state's Chief Minister in 2017 clarified that of 5,743 identified Rohingya in the then-state, "[n]o instance of radicalisation of these foreigners has been reported so far " This was reiterated by former BSF Chief Sharma, who had previously ordered the pushbacks, in a press briefing: that no terror links have been found within the Rohingya community.
Hence, the argument that the Rohingya poses a threat to national security itself is not substantiated with any evidence.
Overall, the principle of non-refoulement does not entail a right for Rohingya to be granted asylum in a particular State. It does mean, however, that where India finds that an individual is not a security threat, it must adopt a course that does not result in the Rohingya's removal, directly or indirectly, to a place where their lives would be in danger.
(Ravi Nair is with the South Asian Human Rights Documentation Centre. The views expressed are personal.)
