The Rohingya are an ethnic minority in Myanmar, predominantly living in Rakhine state bordering Bangladesh. Most Rohingya are Muslim but a small minority is Hindu. Although they have lived in Myanmar since the 8th century, the Rohingya are denied citizenship rights under a 1982 citizenship law. According to a host of United Nations agencies, the Rohingya have faced long periods of repression, often amounting to genocide, since the early 80s, forcing the community to flee their homeland. Indeed, the Rohingya have been described as the world’s most persecuted ethnic minority.

Currently, most of the Rohingya refugees are in Bangladesh, but an estimated 40,000 are staying in India, many arriving this year after the Burmese military and Buddhist mobs unleashed a murderous wave of terror in Rakhine state.

Most of the Rohingya refugees in India stay in Jammu, Delhi and Hyderabad, living in deplorable conditions in camps with no running water, electricity or basic sanitation. Many of their old, infirm and children die of starvation or diseases. Yet, they do not want to return to Myanmar, for they know only death awaits them there.

The 1951 Refugee Convention mandates all its signatories to grant refuge to people fleeing their country because of severe repression or genocide. India has not signed this convention, but it is party to four other UN statutes – Convention on Human Rights, Convention on Civil and Political Rights, Convention against Torture, Convention against Forced Disappearances – each of which recognises the principle of non-refoulement. The principle states that a country cannot deport refugees to any place where they face threat to life or of severe repression.

India has always abided by the Refugee Convention despite not signing it, and over the past 70 years accepted successive waves of refugees from Tibet, Bangladesh, Sri Lanka, Afghanistan and Pakistan. Moreover, its refugee policy has been consistent with the principle of non-refoulement.

However, on August 8 this year, Minister of State for Home Kiren Rijiju asked state governments to identify all Rohingya refugees, whom he termed illegal immigrants, for deportation. The National Human Rights Commission objected and issued a notice to the government, which has not responded to it so far.

On September 1, a writ petition was filed in the Supreme Court on behalf of two Rohingya who are registered with the UN High Commissioner for Refugees. The petition pointed out that if deported, the Rohingya would face imminent death and as such the action would violate their fundamental rights under Article 21 and 14 of the Indian Constitution, which guarantee every person, including non-citizens, the right to life and liberty as well as the right to non-discrimination. It further argued that their deportation would violate the non-refoulement principle.

Hindu Sena activists demand deportation of Rohingya refugees. Photo credit: Reuters

Heartless state

In response, the government disputed the Supreme Court’s jurisdiction to interfere in what it said was a purely executive policy that did not involve the Rohingya’s fundamental rights. It also claimed that the refugees posed a security threat, citing some intelligence reports that terrorist groups were trying to recruit them. Further, the government contended, the refugees put a strain on India’s resources so they needed to be sent back in accordance with its guidelines for deporting illegal migrants.

Outside the court, a battery of Bharatiya Janata Party’s spokespersons declared Rohingya Muslim refugees as terrorists. There is, of course, no evidence of any Rohingya being involved in terror activities. The Jammu and Kashmir government, of which the BJP is a part, is on record saying that not one FIR names any Rohingya as being involved in terrorist or militant activities. Jammu has been home to around 6,000 Rohingya refugees for several years now.

So, is the government’s position tenable in law, domestic and international? Even assuming that it has credible information about terrorist groups trying to recruit the Rohingya, can that be a ground for deeming the entire community a security threat and deporting them to a country where their lives are threatened?

It is a similar situation to when lakhs of Sri Lankan Tamils fled to India during the civil war in that country. India had declared the Tamil militant group LTTE a terrorist organisation after its operatives assassinated Prime Minister Rajiv Gandhi in 1991, yet Tamil refugees were not refused entry on the ground they posed a security threat. The government simply sequestered the refugees against whom there was credible intelligence that they posed a threat.

In fact, even the 1951 Refugee Convention provides that the refugee status would not be granted to people against whom there is credible intelligence. It is the job of the UN High Commissioner for Refugees to identify such people on the basis of information provided by the government and refuse them refugee status. It would thus be unfair and inhumane to forsake all Rohingya refugees even if some of them could be involved in such activities.

It is also wrong for the Indian government to treat the Rohingya as ordinary illegal immigrants. International law makes a distinction between ordinary illegal immigrants and refugees fleeing severe persecution and genocide. By all accounts, the Rohingya who have come to India are refugees escaping the worst persecution seen in recent memory. They cannot be treated as ordinary illegal immigrants.

Why then is the government going after them so forcefully? It seems the ruling BJP is trying to inject more communal poison into the minds of Indian people by branding Rohingya Muslims as terrorists. This issue is thus a great test for the Indian state as well as the Supreme Court, for history will judge us by how humanely we treat the world’s most persecuted ethnic minority.

Prashant Bhushan is a senior lawyer and activist, and convenor of the Campaign for Judicial Accountability and Reforms.