The Hindu Editorial Analysis- 28th August 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

India’s Rohingya refugee children are not criminals

Why in News?

A five-month-old infant born to a Rohingya refugee died in a detention or holding centre in Jammu in July. A viral video shows the police tear gassing a small congested area in the holding centre. Refugee women and children are also seen in the same space. As the explosion occurs, one can hear the shrieks of women and see children running in panic. 

What is the Rohingya Crisis?

• The Rohingya people have suffered decades of violence, discrimination and persecution in Myanmar.
• Rohingya are not recognized as an official ethnic group and have been denied citizenship since 1982. They are one of the largest stateless populations in the world.
• Since the early 1990's, the Rohingya have fled successive waves of violence in Myanmar.
• Their largest and fastest exodus began in August 2017 when violence broke out in Myanmar’s Rakhine State, driving more than 742,000 people to seek refuge in neighbouring countries —the majority of whom were women and children.

Who are the Rohingya?

• Rohinyas are ethnic minorities in Myanmar. They follow Muslim Religion.
• Few years ago, religious and ethnic tensions between the Rohingya Muslims and the Rakhine Buddhists (who make up the majority of the population in Mayanmar) escalated into widespread, deadly rioting. Hundreds of thousands were forced to flee. Since then, ongoing violent attacks have forced even more people to leave their homes.
• The Myanmar Government says that Rohingya people are not Burmese citizens – but the Rohingya have been living in Myanmar for generations. Today, they are a people with no home or citizenship.
• Rohingya people are being widely abused and exploited. They are one of the most persecuted minorities in the world.

How India is handling the issue?

• India has been receiving Rohingya refugees and allowing them to settle in the different parts of the country over the years, especially after the communal violence in the state of Rakhine in 2012.
• However, India considers the refugee crisis as an internal affair of Myanmar.
• Indian believes that ASEAN has an undeniable responsibility to resolve this crisis.
• India does not want a conflict of interests with the new regime in Myanmar-Myanmar has a key role in India’s Look East Policy.
• Since India is not a signatory to the United Nations Convention on Refugees, refugee status granted by the United Nations High Commissioner for Refugees (UNHCR) to the Rohingya was irrelevant to their deportation.
• According to the Government of India, there are no refugee camps established for either Bangladeshis or Rohingyas in India and there were only schemes of assistance for Tibetan and Sri Lankan refugees.

SC View:

• The Supreme Court has asked Union Government to strike a balance between humanitarian concern for Rohingya community staying in India and country’s economic and national security interests.
• The apex court underlined that both executive and judiciary cannot be totally oblivious to condition of women and children among Rohingya refugees and said that crisis has thrown up an extraordinary situation.
• With this, the status quo held by Government continues even though the court gave the community liberty to approach it in case of any contingency.
• SC has refused to release 300 Rohingyas from detention camps in Jammu and Delhi. The court called for their deportation under the Foreigners Act, 1946.

Analysis of SC order:

• SC held that refugees cannot invoke Article 32 right. However, the constitutional safeguards of Articles 14 and 21 are equally available to every person, including refugees.
• SC distanced itself from commenting on the genocide happening in Myanmar. The court distanced itself despite the International Court of Justice (ICJ) observation that the Rohingya had suffered genocide.
• Court ignored India’s binding commitment to non-refoulment and obligations in prohibiting genocide. India has ratified the Convention on Prevention and Punishment of the Crime of Genocide in 1959.
• Allowing Rohingyas to get deported is a breach of Article 21 and against the Gujarat High Court ruling In Ktaer Abbas Habib Al Qutaifi v Union of India. Even, Delhi High Court in Dongh Lian Kham v Union of India (2016) held the same view.

• Court stated that petitioners’ claim to a right against deportation should be seen along with the right to reside. Under Article 19 right to reside is only available to citizens. But Rohingyas had never asked for the right to reside. Rather they have prayed for the right to life to reside in a camp and the right to liberty to protect them from arbitrary arrests, harassment, and intimidation.

Stand of different Stakeholders over Status of Rohingyas:

• The UN treats Rohingya as refugees. As per the organization, the Myanmar military crackdown in Rakhine state in 2017 created the world’s biggest refugee crisis.
  • The 1951 UN convention on the status of refugees and 1967 protocol defines refugees as:
    • Persons who fled their homes and countries due to a well-founded fear of persecution. The persecution can be because of his/her race, religion, nationality, membership of a particular social group, or political opinion.
• Bangladesh gave refuge to Rohingyas in the Cox Bazaar region on humanitarian grounds. It converted the region into the biggest refugee camp in the world.
• Myanmar believes that Rohingyas are illegal immigrants that entered their country from Bangladesh.

Issues with deportation of Rohingyas:

• Influx of Pro-Democracy Protestors: They have entered India through Manipur and Mizoram since the Feb 2021 military coup in Myanmar. If refugee status is given to them, then it would be very difficult to deport Rohingyas as both face a threat of persecution.
• Cooperation from Myanmar: Myanmar is reluctant to admit Rohingyas under its territory. Further India has been able to send back only a few refugees in the last 4 years.
• Principle of non-refoulement: The desire to send back Rohingyas goes against this principle. India is bound to follow it as it is a signatory to the International Covenant on Civil and Political Rights.
  • The principle states that no refugee shall be returned in any manner to any country where he or she would be at risk of persecution.
• Differential Treatment: India offers Voluntary repatriation to Sri Lankan Tamil refugees after the end of the civil war in 2009. Further, they can seek jobs and send their children to schools.

NHRC Observation regarding the deportation issue:

• Refugees are no doubt foreign nationals but they are human beings.
• Fear of Persecution: Before taking a big step, the Government of India has to look into every aspect of the situation, keeping in focus the fact that the members of the Rohingya community, who have crossed into India and are residing here for long, have a fear of persecution once they are pushed back to their native country.
• Highlighted the Supreme Court’s decisions: the Right to Life and Personal Liberty under Article 21 of the Constitution apply to all, irrespective of their citizenship.

What needs to happen?