The arguments put forth by the Centre in the course of the January 31 hearing in Writ Petition (Civil) No. 793/2017 in Mohammad Saleemullah & Anr V. Union of India & Ors, are not new: The Centre said that refugees are eating into the limited resources of the country, illegal migrants are more vulnerable for getting recruited by terrorist organisations, and that all the Rohingya are terrorists. The August 8, 2017, circular, which articulated the government’s position that illegal immigrants from Rakhine are to be identified and deported, is not only unconstitutional but also contradicts India’s own stand.
Fundamental principles of refugee law tell us that more often than not, refugees crossing borders arrive illegally in the country of asylum and relatively few are able to get a visa to escape persecution. Refugee law makes a concession in the case of an individual who proclaims that she could not have arrived “legally” in the country of asylum because of circumstances that made her flee in the first place. This is also why the refugee status determination process is an inquisitorial process and not an adversarial one, because the law recognises that a refugee is in a vulnerable state since she is fleeing actual or the threat of persecution, often at the hands of state agencies. Thus, to begin with, the Supreme Court ought to have ordered a temporary stay on the circular and proceeded to hear the matter with some urgency.
In 2012, following protests of the Rohingya before the UNHCR seeking a less precarious legal status, the government announced that it would issue Rohingya refugees long term visas (LTVs), based on asylum-seeker cards. Asylum-seeker cards are not cards in the eye of law; the legal existence of an individual with this document is precarious. The government asked refugees, therefore, to return to their places of residence and approach the FRRO or the Foreigners Regional Registration Office to be issued these visas. What is novel about extending LTVs to the Rohingya is that except the Hindus from Pakistan and Bangladesh, foreigners, especially mandate refugees, are not known to receive LTVs. Granting LTVs to Rohingya refugees meant that the government, not just the UNHCR, was recognising them as refugees. Clearly, the Indian government, which has had at best an ambivalent stance on refugees, is capable of bringing in progressive measures.
Prior to the government’s announcement, in December 2011, the Ministry of Home Affairs (MHA) drew up what it called standing operating procedures (SOPs) to deal with foreign nationals who claim to be refugees. The procedure contemplated by the government was in conformity with the refugee status determination process followed by the UNHCR globally. A refugee, according to the SOP, would have to prove well-founded fear as per the definition of “refugee” under the 1951 Convention on the Status of Refugees. Based on a determination by states/Union Territories and recommendations made to the MHA, the government, under this process, would verify the individual and issue an LTV. The Minister of State for Home Affairs, as recently as May 2015, stated in the Lok Sabha that the SOP deals with those who claim to be refugees.
If the government is now abandoning its position and ignoring the law, it needs to explain why. India is not the refugee capital of the world, as the government has claimed. India’s refusal to address the refugee issue in a holistic manner helps it “manage” refugees as suits it. There are a number of instances, such as in Jammu and elsewhere, where the Rohingya have been arrested for various offences. Thus, to say that the only way to deal with security concerns is to abandon the refugee policy, violate the law and deport refugees, is neither constitutionally sound nor responsible. The problems regarding the Rohingya — illegal movement of foreigners across the borders and refugees within the country and overstaying of the visas — are not specific to them. South Asian history makes India’s relationship with its neighbours more complicated than rhetoric would have us believe.
De jure statelessness makes the Rohingya more vulnerable and they are now at India’s doorstep. What the Supreme Court should consider is how the SOP follows both national security concerns as well as the basic rules of refugee protection. Rajeev Dhavan’s analysis of the Foreigners Act, 1946 and the allied legislation gives us an idea of the institutional mechanism that can be conceived in India without an exhaustive refugee protection framework in the form of a separate legislation. To say that deportation of the Rohingya is the answer is not only lazy and unstatesmanlike, but also ignores India’s own interests in the long run and, of course, the law.