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| @ | May 17,2019

[dropcap]A[/dropcap]T the stroke of midnight on August 15, 1947, two new nations were formed – India and Pakistan. That same night, around two million people had already been butchered, and 14 million people displaced within the Indian subcontinent.  Over 100,000 women were raped and killed. Properties were burnt and people were forced to migrate on the basis of their religion – Hindus to India and Muslims to Pakistan.

Thousands of children were killed, and countless became orphan refugees, living in camps on both sides of the border. Babies were roasted on spits. Some British soldiers and journalists, who had also witnessed the horrors of the Nazi death camps, said that the brutalities during partition were much more grotesque than the Holocaust. While thousands of migrants could never reach safer destinations, the fortunate ones were able to cross their borders. Yet, they lost all their properties and identity. The Great Partition became the largest mass migration that has ever been recorded in human history.

There are approximately 6.6 million refugees across the world today. Amongst them, the Rohingya community from Myanmar is one of the most vulnerable and endangered. Over 900,000 Rohingya people have already been displaced from Myanmar while many remain within the nation as internally displaced person. Several Rohingya refugees have been hosted in camps by Bangladesh, which has done a commendable job in hosting and protecting them.

Yet, despite repeated appeals, India, a country that should have understood the trauma of displacement,  has refused to share any of this refugee burden. In fact, India has validated Myanmar’s claim that the Rohingya refugee people are not citizens of Myanmar and are a  threat to their internal security.

Simultaneously, several mainstream journalists continue to support the hateful treatment of the Rohingya people with their emphatic masculine roars every evening. As the elections go on, the President of the ruling Bhartiya Janata Party(BJP), Amit Shah has claimed that if voted back to power, all Muslim infiltrators will be forced out of India while Hindus, Buddhists and Sikhs will be granted Indian citizenship. These intentions of the BJP uncannily resonate with the Citizenship Bill of Myanmar that categorically stripped the Rohingya people of their citizenship. Is the BJP planning something similar through these new strategies of implementing the National Register of Citizens (NRC)?

 

The Rohingya crisis – an textbook example of ethnic cleansing

 

Who are the Rohingya refugee people and why must India, at all, be bothered to protect them? As a nation, what stakes and obligations do we have towards this Bengali speaking community from Myanmar?

Even though international law is extremely clear about the right to protection of refugees, nations often refuse to grant them refugee status. The reasons behind such denials are strongly rooted in the geopolitical, social and historical background of nations and their international relations. Therefore, in order to comprehend the refugee protection policies of a nation, it is also important to understand the political strategies that direct them. International refugee law is the most politicised topic within international law. And South Asian politics continues to premise itself around Partition.

 

 

 

 

With several layers of history, politics, diplomacy and legality, the answer to India’s position regarding the Rohingya crisis, therefore, is extremely layered.                                                                      

The United Nations organisation has called the Rohingya refugee crisis, a textbook example of ethnic cleansing. The Myanmar government and military have justified their actions, which include burning down Rohingya populated villages and the mass killing of the Rohingya population, as necessary internal security measures. Journalists in Myanmar, who reported such persecutions were jailed and the civil society of Myanmar has also maintained a careful distance from the issue.

 

History of the Crisis

 

However, the systemic hatred and the operation to obliterate the ethnic group is not a very recent development. The source of this alienation dates back to the politics of the colonialists, the World Wars and Partition. The Arakan region (of present-day Myanmar) was a key part of the silk route, which hosted Arab traders since the 8th century AD. Later, a Buddhist kingdom emerged in the region. The Bengal Sultanate also continued in the neighbourhood. After the First Anglo Burmese War, when the Arakan region came under British colonial rule, the migration of low-skilled Bengali workers happened into the region – most of them poor Muslims and a few Hindus. Thereafter, the Arakan region gained a significant Muslim Bengali population. These were the Rohingya people.

By the third Anglo Burmese War, Burma became a part of British India. And the migration of Bengali people multiplied in the region to the extent of threatening the majority Buddhist population. This even led to violent clashes between the two communities. By 1937, Burma had become a separate Crown colony.  Within a few years, the British had to launch their longest military campaign of the Second World War in that very region. The Burma campaign in 1942 was the turning point in the geopolitical history of South Asia, with Britain in direct combat with Japan.

While Britain struggled to protect their control over the colony, Japan promised independence to the Burmese. However, the Rohingya people supported the British as guerrilla fighters and with intelligence against the Japanese. They hoped to gain administrative control over the Arakan region if the British won. Britain lost the war in 1942 and retributive communal violence broke out against the Rohingya Muslim population. By 1944, Burma, disillusioned by the Japanese, resumed their allegiance to the British.

 

Let down by history

 

The British, however, as a reward for Rohingya support against the Japanese gave them significant administrative posts in Arakan, but not enough power for them to assert their autonomy.  With Partition, the Rohingya people hoped to join East Pakistan. But Jinnah chose to disregard the Rohingya appeal and with Burmese independence in 1948 their persecution by the Burmese military began. Many Rohingya people fled to Bengali populated East Pakistan, where they found a friendlier population with more acceptance. Soon, in Myanmar, they were expected to prove their citizenship in order to remain in the country and unable to do so the first batch of Rohingya refugees arrived in Bangladesh in 1992.

Today, the Rohingya people have no citizenship, no rights. The Burmese military has pursued a policy of ethnic cleansing leading to over 200, 000 Rohingya people fleeing to Bangladesh. This migration has continued with the Burmese military and the government maintaining that the Rohingya people are not citizens of Myanmar and therefore a threat to the national security of the country.

 

Why India?

 

The United Nations High Commission for Refugees has suggests three possible durable solutions to any refugee crisis. The most commonly referred solution is the solution of voluntary repatriation, which is the process by which refugees lose their well-founded fear of persecution in their home countries. Therefore, with the resolution of the crisis, refugees safely return to their homeland willingly. However, the most important component of this solution is that of voluntariness. Refugees must voluntarily return when they have no more fear in their minds. This is perhaps the solution that nations must collectively seek for the Rohingya crisis. But that solution will not be complete unless those responsible for the crisis in the first place are held to account and the Rohingya people are assured of their safety.

The second and third durable solutions are local integration within the host community of the country in which the refugees take shelter and resettlement in a third country. Local integration is often a result of sustained stay and regular interactions with local communities. A third country resettlement involves the willingness of a  government to take in an abled bodied young population, though the successful transfer of refugees to a third country can sometimes be filled with political and geographical complexities.

India has been host to refugees from across Asia. During the 1971 Indo-Pakistan war alone, India hosted over one crore refugees from East Pakistan. Many of these migrants gained Indian citizenship and became scholars and entrepreneurs.  It would therefore not be improper to suggest that India comprises a sizable immigrant population.

Indian support in all humanitarian crises in South Asia has gained significant recognition from the United Nations High Commission. Antonio Guteress, during his visit to India in 2013, had stated that the Indian refugee policy was an “example for the world to follow”.

However, India’s position towards the Rohingya crisis has been nothing short of alarming, with the ruling party President threatening to throw out “Muslim infiltrators” if  voted back to power.

 

Protection of the Constitution of India and international law

 

It is important to understand that irrespective of whether a State recognises displaced people as refugees, they shall be deemed to be refugees if they fulfil certain criteria. Therefore, despite not being party to the Refugee Convention, India is bound by customary International Law to protect the rights of displaced people.

The foremost rule under customary international law is that of the rule of non-refoulment that forbids a country from returning refugees to a country in which they would be in danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion. Therefore, India’s argument that the State has no obligations towards the Rohingya people because it is not a party to the Refugee Convention, is absurd. Besides, India is party to several international treaties and conventions including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. These conventions and treaties contain provisions not just for citizens of the country, but for every person within the territory of the country.

 

 

 

 

The Indian Constitution also provides for a broad framework that protects the rights of all people within the territory of India. The right to life guaranteed by Article 21 of the Indian Constitution mentions that the provision is available to all persons within India.

In two of their judgments –  Louise de Readlt (1991 SCC 554) and Khudiram (1994 Supp (1)SCC 615, the Supreme Court clearly explained that Article 21 of the Constitution extended to all persons including aliens. Similarly, in 1996  the Supreme Court  in National Human Rights Commission vs State Of Arunachal Pradesh & Anr  1996 SCC (1) 742 prevented the government of the state of Arunachal Pradesh from forcibly expelling Chakma refugees.

In the case of Dr Malavika Karlekar v the Union of India (Writ Pet. (Crl. No.) 583 1992) the Supreme Court had even declared that the State was bound to consider if refugee status could be granted and until the assessment was completed, the petitioner should not be deported. Similarly, in the case of U. Myat Kyaw and Nayzin v. State of Manipur and the Superintendent of Jail, Manipur Central Jail, Imphal, Civil Rule No. 516 of 1991, the Supreme Court stated that all asylum seekers who entered India (even illegally) should be permitted to approach the office of the UNHCR to seek refugee status.

In the case of Ktaer Abbas Habib Al Quatafi v Union of India (1999 CriLJ 919), the Gujarat High Court summarised all these principles that emerged out of these judicial precedents and clearly said that the international principle of non-refoulment was encompassed in the Article 21 of the Indian Constitution.

Clearly, legal rationale in India seems to have been unfortunately eclipsed by political agenda.

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