Rohingya row shows why we need a national refugee law
India needs legislation, consistent with the international refugee law principles such as non-refoulement that governs refugees
Rohingya refugees are in the headlines again. With each day, the majoritarian chorus painting Rohingyas as a national security threat and asking for their deportation is growing louder. It seems the more vociferously one speaks against Rohingyas, the higher will one’s nationalistic credentials soar.
Legally, deporting Rohingyas to Myanmar is justified by citing that India is not a signatory to the 1951 Refugee Convention or to the 1967 protocol relating to the status of refugees. Article 33(1) of the Refugee Convention obligates a country not to expel or return a refugee to a country where his life or freedom would be threatened on account of race, religion, nationality, or membership of a particular social group or political opinion. This is known as the principle of non-refoulement.
Apart from the Refugee Convention, this principle is present in the Torture Convention and has been read as part of international human rights law. Deporting Rohingyas to Myanmar is a breach of the principle of non-refoulement because they face persecution in Myanmar - a fact attested by the International Court of Justice in The Gambia v. Myanmar case. The argument goes that since India is not bound by the Refugee Convention, the principle of non-refoulement does not apply. The Supreme Court in Mohamad Salimullah v Union of India, a 2021 case, gave credence to this view by allowing the deportation of Rohingyas because India is not a signatory to the Refugee Convention. Likewise, in 2018, another Supreme Court bench headed by Ranjan Gogoi, then Chief Justice India, refused to restrain the deportation of Rohingya refugees despite the argument that such deportation was against international law.
The view that the principle of non-refoulement does not bind India because it is not a signatory to the Refugee Convention is patently wrong. It erroneously assumes that treaties are the only source of international law. A very important source of international law is custom. The principle of non-refoulement has been widely recognised as part of customary international law. Customary norms, by their very nature, are universal, and thus, the principle of non-refoulement binds even those countries such as India that are not signatories to the Refugee Convention. India’s deportation of Rohingyas to Myanmar despite their continued persecution by the local government is a blatant violation of international law. The fact that the country’s apex court has allowed this to happen under its watch adds insult to injury.
Another important legal facet is the conspicuous absence of a refugee and asylum law in India. The absence of a legislative framework clearly defining a refugee, asylum seeker, and their rights has created a legal void. This void is filled by the Ministry of Home Affairs (MHA)’s Standard Operating Procedure (SOP) issued in 2011. As per the SOP, those instances where a prima facie justification can be made of a well-founded fear of persecution of an alien on the grounds of race, religion, ethnicity, political opinion, etc, can be recommended by a state government to the MHA for the grant of a long-term visa (LTV) subject to security verification. If an alien fails to obtain a LTV, she will be deported under the Foreigners Act, 1946. This entire process vests excessive discretion in the executive to decide the fate of refugees, often evading international law obligations. In the absence of a rights-based enforceable regime, refugees are dependent on the State’s munificence. BS Chimni, India’s foremost international lawyer, has called India’s policy toward refugees as one of “strategic ambiguity”. But, in the case of Rohingyas, this approach has clearly moved towards being arbitrarily exclusionary.
Therefore, India needs legislation, consistent with the international refugee law principles such as non-refoulement that governs refugees. Parliamentarians such as Shashi Tharoor have moved private members’ bills to this effect but to no avail. Enacting a law of this nature requires political consensus. The onus is on the central government to forge such a consensus. Sacrificing international legal obligations at the altar of populist domestic politics is egregious and not something that we should be proud of when we rejoice 75 years of Independence nurtured by the rule of law and inalienable fundamental freedoms.
Prabhash Ranjan is professor and vice-dean, Jindal Global Law School, OP Jindal Global University
The views expressed are personal