Special Commentary

The Legal and Policy Complexities of India's October Rohingya Deportation

05 Nov, 2018    ·   5525

Angshuman Choudhury considers the government's deportation policy in light of ground realities and domestic and international legal commitments


Angshuman Choudhury
Angshuman Choudhury
Senior Researcher, and Coordinator, Southeast Asia Research Programme (SEARP)

On 4 October, the Indian government deported seven Rohingya men, who had been in detention in Assam since 2012, to Myanmar. A press release issued by India's Ministry of External Affairs (MEA) flagged this as "repatriation" of seven "Myanmar nationals" done "in accordance with established procedures and previous precedent."

 Although the move was challenged through a plea before the Supreme Court, a senior bench led by the chief justice refused to intervene in the matter on the grounds that Myanmar had accepted them as "citizens," as claimed by the Indian government’s affidavit.

This recent case is a useful reference to understand the Bharatiya Janata Party (BJP)-led government’s renewed deportation policy and its modus operandi. Despite its apparent legal standing, this context-insensitive policy, while relying on misrepresenting ground realities, disregards India’s international and domestic legal commitment to the principle of non-refoulement.

More importantly, it appears to be the first of many deportations to be possibly undertaken in the coming months through a similar policy template. Home Minister Rajnath Singh's announcement regarding a central missive to all state governments to identify Rohingya refugees, Delhi Police’s ongoing drive to collect the personal and biometric details of all Rohingya refugees in the city, and the potential deportation of 23 more Rohingya from Assam are all indicative of a pattern: of the incumbent government poised to use deportations as an electoral plank in the state and national elections.

Deliberate misrepresentation?

 A closer look at the government’s portrayal of the deportees and the deportation process reveals inconsistencies between state perception and ground realities.

 Both the MEA statement and the affidavit stated that the seven deportees - flagged as "illegal immigrants" in the government’s court deposition - were detained in Assam in 2012 where a local judicial magistrate sentenced them to three months in prison for violation of the Foreigners Act, following it up with a detention-until-repatriation order. The Myanmar embassy, according to both documents, had now issued 'Certificates of Identity' to the deportees to facilitate their return.

Both documents avoided mentioning the deportees' ethnic identity in a clear attempt to skirt external scrutiny and allow Myanmar to take them back without domestic opposition. But, media reports and other sources accessed by the author later confirmed that they were all Rohingya Muslims. This brings to question the government’s straightforward - perhaps even deliberately misleading - assertions.

'Illegal immigrants' or 'asylum seekers'?

There are two indicators that lead to the rational ssumption that the seven Rohingya persons left Rakhine State in 2012 under duress and violent persecution.

First, the Rohingya community has been subjected to longstanding institutionalised marginalisation and discrimination by the Burmese state since decades, especially after the military government stripped them of citizenship rights through the 1982 Citizenship Law. A report released by a UN-mandated International Fact-Finding Mission (FFM) in September described this long-term Rohingya condition as "apartheid."

Second, 2012 - the year the seven deportees were apprehended in Assam - saw the eruption of violent communal riots between the ethnic Rakhine Buddhist and Rohingya communities in Rakhine, which resulted in the displacement of more than 20,000 people. At that time, too, the UN and several international human rights organisations had accused Myanmar’s security forces of selectively targeting the Rohingya Muslim community in concert with ethnic Rakhine leaders.

Given this context of state-sponsored persecution and forced displacement from Myanmar, the seven Rohingya in fact fall within the category of "asylum seekers," and not "illegal immigrants." This automatically brings them under the protection of international and domestic legal norms - falling under the principle of 'non-refoulement' - that prohibit India from sending them back to their country of origin where the Rohingya community continues to face a clear threat of persecution, re-displacement, and violence.

Violation of the 'non-refoulement' principle

Although the Rakhine riots took place six years ago, the situation has only worsened since, with the Myanmar military targeting the Rohingya community in Northern Rakhine under the garb of counterinsurgency in at least two instances.

The first was in October 2016 when an insurgent attack triggered a violent military campaign in northern Rakhine, displacing close to 80,000 Rohingya. In August 2017, another such attack prompted a fresh military campaign against the Rohingya, which killed at least 10,000 and expelled more than 8,00,000 to Bangladesh. The UN FMM’s September report labelled the latter campaign as "genocide." In the same report, the Mission added that any returning Rohingya would face the same fate. As recently as 24 October, the FMM’s Chair said that the "genocide" had not stopped.

These factors, which should have prominently featured in the government’s decision-making matrix with respect to the "repatriation," were evidently overlooked. Further, New Delhi did not take any on the record, public assurance from the Myanmar government that the returning Rohingya would live a life of safety, dignity, and freedom in Rakhine. Going by reports from the ground, there is no indication that the community is any better today.

Hence, what the Indian government termed as "repatriation" was in fact a clear case of 'refoulement'.

The government, in an earlier affidavit before the apex court, had argued that it can legitimately send "illegal immigrants" back to their home countries as India has not ratified the 1951 UN Refugee Convention or its 1967 Protocol. While this is true, India has either ratified or signed other international instruments - like the International Covenant of Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the 1966 Bangkok Principles on the Status and Treatment of Refugees - which enshrine the non-refoulement principle.

Most importantly, non-refoulement is a part of customary international law, implying that all countries are bound by it irrespective of whether they have signed any conventions. Moreover, in July 2017, India recorded its full commitment to the principle at the UN during thematic discussions on the "Global Compact on Refugees."

Besides international obligations, India’s own Supreme Court and High Courts, in several judgements in the past, have invoked the non-refoulement principle by citing not just international law but also India’s own constitutional provisions. By deporting the Rohingya, the government is upending these well-established judicial norms.

'Nationals', 'citizens', or 'residents'?

While the MEA statement claimed that the deportees were accepted by the Myanmar government as "residents" of the country, the affidavit used the terms "nationals and citizens" without any distinction. Despite these variations, the apex court accepted the government’s claims made in the affidavit.

All three terms - 'resident', 'national', 'citizen' - have different legal implications, and denote varying levels of rights and entitlements. In fact, Article 5 of Myanmar’s own 1982 Citizenship Law clearly states that a ‘national’ can become a ‘citizen’ only after certain qualifications.

The most telling indication of the government’s misrepresentation of the situation is the Identity Card for National Verification (referred to as the ‘Certificate of Identity’ in the MEA statement and affidavit) that the Myanmar government gave to facilitate the return of the seven Rohingya. It clearly states that the card holder is not a Myanmar citizen.

Myanmar’s 1982 Citizenship Law allows full citizenship to only those who belong to one of the 135 "national races," which the Rohingya do not. The only way for the Rohingya to acquire anything close to a full Myanmar citizenship is to forego their own ethnic identity and accept a pre-citizenship document called the National Verification Card (NVC), which identifies them as 'Bengalis' (and thus, immigrants). The Myanmar government has been forcing the Rohingya to accept the NVC or leave the country for over a year now, only to be rejected by a majority of the community.

Consent, no consent, or false consent?

As per international standards for repatriation clearly outlined in the UNHCR’s Handbook on Voluntary Repatriation (1996) and various resolutions passed by the Executive Committee of the High Commissioner’s Programme, which India is a member of, no host country can send asylum-seekers or refugees back to their country of origin without their express and informed consent. The returnees must be informed of the prevailing situation in their country of origin during the time of repatriation and the decision to go back has to be made in the absence of any "physical, psychological, or material pressure."

The seven deportees were lodged inside the confines of their prison in Assam from 2012, and were most likely not privy to the developments in Myanmar. It remains unclear whether the Indian government made any attempt to inform them before recording their consent, if at all. The limited reference in the MEA statement and the absence of the element of consent in the affidavit indicates no such initiative. Further, in this case, UNHCR India, which is mandated to facilitate voluntary repatriation, ostensibly failed to play an active role in determining consent.

India’s reputation as a responsible South Asian power and a potential candidate in a reformed UN Security Council will be at stake, assuming that New Delhi carries out deportations in a similar fashion in the coming months. Such a policy not only reverses India’s policy of providing shelter to vulnerable groups of foreigners fleeing violence and persecution in their home countries, but also sets a dangerous policy precedent for future governments to follow. 

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