The central government has submitted to the Supreme court its reply challenging the deportation of Rohingya refugees. The 16-page affidavit prepared by the home ministry argues that this is a matter for the executive and not the courts since it has nothing to do with the Constitutional rights of Indian citizens. Rohingya refugees constitute a national security threat, it continues, best dealt with by the Centre, which is empowered by existing laws to expel any foreigners it chose to.

Both contentions leave gaps. They also throw disturbing light on a government preoccupied with narrowly defined “national interest” rather than fundamental rights and which singles out particular communities for empathy or punishment.

Rights of non-citizens in India

The Centre’s argument that this case lies outside the purview of the courts fails to convince. Several Constitutionally guaranteed fundamental rights extend to non-citizens within India’s borders. These include equality before law and access to justice under Article 14, and right to life and liberty under Article 21.

The government also claims that it is not bound by international laws like the principle of non-refoulement, since it is not a signatory to the United Nations 1951 Refugee Convention and has not ratified conventions against torture and enforced disappearance. This principle states that no country can expel or return a refugee to the “frontiers of the territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The International Covenant on Civil and Political Rights that India has signed, the affidavit contends, does not cover non-refoulement.

It is for the courts to decide whether the principle applies in the case of Rohingya refugees. But legal experts have argued that it flows from international customary law, not just the 1951 convention. Second, Article 51 of the Indian Constitution, which talks about India’s responsibilities to promote “international peace and security”, urges the state to “strengthen the international law and the treaties”. Third, even if the Constitution does not explicitly recognise the principle of non-refoulement, it has been read into Indian laws and practices through judicial innovations. The Gujarat High Court recognised non-refoulement under Article 21, for instance, in Ktaer Abbas Habib al Qutaifi, 1998.

The right to non-refoulement is limited by concerns of national security, even under the 1951 convention. In this case, however, there is little evidence in the public domain to show that the 40,000 Rohingya refugees in India constitute a terror threat.

In the affidavit, the Centre claims that the Rohingya “figures in the sinister designs of ISI/ISIS and other extremist groups” bent on fomenting trouble in India, but says it cannot produce evidence for this for security reasons. Even if the government has valid concerns about security, branding an entire community a terror threat reeks of profiling on the basis of religion and ethnicity.

Refugee there, illegal migrant here

Indeed, disturbing language of discrimination permeates the affidavit. As it talks about Rohingya migration destabilising the volatile border states, the Centre co-opts some of the words and fears that have shaped reactionary politics in the North East. For instance, local populations being swamped by an “influx” of “illegal migrants”, leading to “demographic change” and a strain on limited resources. For communities in the North East, marginalised by the national mainstream and worried about survival, to have such fears may be understandable. But it is alarming when the central government, which is meant to mediate between different interests and groups, echoes them.

In Delhi, such language has also acquired communal undertones. Throughout the affidavit, the government refers to all Rohingya refugees as “illegal migrants” and reserves for itself the right to expel them under laws such as the Foreigner’s Act of 1946 and the Registration of Foreigners Act, 1939. Since India lacks a law on refugees, all foreigners entering the country without valid travel documents are considered illegal migrants.

Yet, legislation like the Citizenship (Amendment) Bill, 2016 suggests some migrants are less illegal than others. The bill, which potentially violates the right to equality under Article 14, makes it easier for non-Muslim illegal migrants from neighbouring countries to get citizenship. The rationale articulated by government was that they belonged to minorities who had fled religious persecution. This is a perfectly accurate description of the Rohingya, stripped of citizenship in Myanmar, marked as outsiders by a rabid religious nationalism, and now facing genocide in their country.

But in the affidavit at least, the Indian government refuses to recognise the humanitarian crisis that has made the Rohingya refugees. This is a bizarre contrast to the government’s own endeavours outside the court. Under Operation Insaniyat, the external affairs ministry is to provide humanitarian assistance to Bangladesh, currently struggling to deal with the sudden “influx of refugees”. Although the refugee group is not specifically named in the ministry’s press release, it clearly refers to the Rohingya, who have poured into Bangladesh in their thousands over the last few weeks.

Which throws up a conundrum: how is it that the Rohingya are refugees deserving of relief material in Bangladesh but illegal immigrants who must be expelled in India?