CA Anil Sharma & Dr. Compesh Pannu
Executive Summary
The Rohingya, a Muslim ethnic group, claimed to have faced severe persecution and violence in Myanmar. It is narrated that the Rohingya have lived in Myanmar for centuries but have been denied citizenship and basic rights there. To escape persecution in Myanmar, hundreds of thousands of Rohingya have been fleeing to other countries for refuge since the 1970s. The largest migrations of this community took place in 2016 and 2017, when episodes of brutal suppression by the security forces of Myanmar caused more than 723,000 Rohingya to seek refuge in neighbouring countries.
All the neighbouring countries including Bangladesh and Malaysia, where most of the Rohingyas have fled, have not accepted them as their citizens and they are almost considered as ‘illegal migrants’ in those countries.
In India too, the position is not different. However, few petitions have been filed in the Supreme Court of India by and on behalf of the Rohingya’s illegally staying in India to grant them citizenship of the country. The government is opposing these petitions as there have been instances when the Indian government expressed concerns over the potential of Rohingya refugees being involved in illegal activities, and this has led to a cautious approach towards their presence. Indian Government authorities termed them as ‘illegal immigrants’ as they are seen as a threat to the security of the country.
About the Rohingya
The Rohingya are a Muslim ethnic minority group who practice a Sufi-influenced variation of Sunni Islam. They primarily lived in Myanmar’s Rakhine State, where they constituted about a third of the population. Their roots in the region can be traced back to the fifteenth century, during the Arakan Kingdom, with a more substantial influx occurring under British colonial rule in the nineteenth and early twentieth centuries. Despite their long-standing presence in the region, the Rohingya have been systematically denied recognition as one of Myanmar’s official ethnic groups. They are often regarded as illegal immigrants from Bangladesh, even though many Rohingya trace their ancestry in Myanmar back several centuries.
Legal Status of the Rohingya
Since Myanmar’s independence in 1948, successive governments have denied the Rohingya citizenship, rendering them stateless. The situation worsened with the 1982 citizenship law, which effectively stripped the Rohingya of their citizenship rights. Temporary identification cards known as ‘White Cards’ provided limited rights but were not recognized as proof of citizenship. In 2014, during a UN-backed census, the Rohingya were initially allowed to self-identify, but the government later restricted this, allowing them to register only as “Bengali.” This reclassification was part of a broader strategy to delegitimize their claim to Myanmar as their homeland. They face restrictions on marriage, family planning, employment, education, religious freedom, and movement. For instance, in northern Rakhine, Rohingya couples are restricted to having only two children and must obtain government permission to marry.
2017 Military Campaign and Exodus
In 2012, violent conflicts between Rakhine Buddhists and Rohingya Muslims in Myanmar’s Rakhine State led to mass displacement. The Arakan Rohingya Salvation Army (ARSA) was formed in the wake of the 2012 by younger Rohingyas. Clashes were reported between ARSA, and police forces in the stare. The biggest attack by ARSA was in August, 2017 when it attacked police posts in the Rakhine state in which 12 people were killed.
The crisis intensified dramatically in August 2017 following attacks by the ARSA on police and army posts. The Myanmar government labeled ARSA a terrorist organization and launched a brutal military crackdown that resulted in widespread atrocities, including mass killings, rapes, and the burning of Rohingya villages. Within a month, approximately 6,700 Rohingya were killed, and nearly 723,000 were forced to flee to other countries for refuge.
Despite international pressure and legal actions, including a lawsuit at the International Court of Justice, Myanmar’s civilian and military leaders have largely denied the allegations of genocide and continued to resist substantial changes to their policies.
Actions of different countries relating to the Rohingya refugees
The Rohingya crisis has led to the displacement of hundreds of thousands of refugees to neighboring countries such as Bangladesh, Indonesia, Malaysia, Thailand, and India. Each of these countries have taken different actions regarding the presence of Rohingya refugees, resulting in varying degrees of protection and challenges related to human smuggling and trafficking.
Bangladesh
Bangladesh hosts the largest number of Rohingya refugees, with over 954,707 registered as of January 2023. Most of these refugees reside in the Cox’s Bazar district, one of the world’s largest refugee camps. In Cox’s Bazar, their conditions are dire, with overcrowded camps lacking adequate sanitation, healthcare, and education facilities. Humanitarian aid from various international organizations provides basic necessities, but the sheer number of refugees makes comprehensive aid delivery challenging. Efforts to provide education have been limited, with many children lacking access to formal schooling.
Bangladesh is not a signatory to the 1951 Refugee Convention, and Rohingya refugees do not have official legal status in the country. Despite this, the government has allowed humanitarian organizations to operate and provide essential services. The lack of formal legal recognition means Rohingya cannot work legally and have limited freedom of movement, further entrenching them in poverty and dependency on aid. Human trafficking and smuggling are significant issues in the camps. The influx of Rohingya has placed immense strain on Bangladesh’s resources and infrastructure. Bangladesh and Myanmar have engaged in multiple discussions about repatriating Rohingya refugees. However, these efforts have largely stalled due to safety concerns and the refusal of many Rohingya to return without guarantees of citizenship and security.
Indonesia
Indonesia hosts a smaller number of Rohingya refugees. Indonesia is not a signatory to the 1951 Refugee Convention and its 1967 Protocol, and does not offer Rohingya a formal pathway to naturalisation or permanent settlement. The country provides limited protection under Presidential Regulation No. 125/2016, which includes temporary protection and basic necessities. However, the practical implementation of these protections is inconsistent, and many refugees face detention despite their recognized status. While refugees receive stipends, these are insufficient, forcing many to work informally without legal rights, exposing them to exploitation.
The university students in Aceh, run a campaign against Rohingyas and demanded that the refugees be moved to a local immigration office and then deported. They chanted “Kick them out” and “Reject Rohingyas in Aceh”.
Malaysia
Malaysia hosts a significant number of Rohingya refugees, with 107,430 registered as of March 2023. The country handles refugees under its Immigration Act, which criminalizes undocumented entry. While UNHCR provides some protections, such as reduced healthcare fees for registered refugees, those without documentation face high costs and the risk of arrest when seeking medical care. Education for Rohingya children is limited to private and alternative learning centers, which are often unaffordable. Attempts to regularize their status through work schemes have largely failed. The Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act provides protections for trafficking victims, but not for those smuggled, leading many Rohingya to face prosecution for illegal entry.
Thailand
Thailand hosts a smaller number of Rohingya. The country treats Rohingya as illegal immigrants under its Immigration Act, leading to risks of arrest and indefinite detention. UNHCR plays a crucial role in providing basic services, but access to public healthcare and formal employment remains limited. The Anti-Trafficking in Persons Act offers protections from trafficking victims, but implementation gaps and inconsistent enforcement often leave Rohingya without adequate protection.
India
India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol. However, India has been a host country to millions of refugees since its independence and it has always respected the policy of non-refoulement. There are an estimated 20,000 Rohingyas asylum seekers and refugees registered with United Nations High commissioner for refugees (UNHCR) in India. The Indian government estimates around 40,000 Rohingya migrants reside in the country, with significant populations in places like Jammu, Hyderabad, Delhi, Haryana and Telangana.
In February 2017,a member of Bhartiya Janata Party, petitioned the High Court of Jammu & Kashmir seeking identification and deportation of Rohingyas from Jammu. The filing of the petition was accompanied by public campaigns that led to xenophobic comments and vigilante-style attacks against the Rohingya community. Following the petition, India’s Minister of Home Affairs announced on August 17, 2017, that all Rohingya would be deported back to Myanmar.
Thereafter several petitions have been filed challenging the deportation of Rohingya refugees. These petitions argue that the deportation violates both Indian constitutional protections and international legal principles.
Mohammad Salimullah and Anr v. Union of India (2017)is a petition filed in the Supreme Court by two Rohingya refugees living in Delhi. They argued that the deportation of Rohingya refugees would violate their right to life and personal liberty under Article 14 and Article 21 of the Indian Constitution. Further, the Constitution of India under Article 51(C), a Directive Principle of State Policy, also requires fostering respect for International Law and Treaty Obligations. The petition also invoked the principle of non-refoulement, which prohibits returning refugees to a country where they face serious threats to their life or freedom.
It is worthwhile to briefly explain the respective provisions in the Constitution of India referred by the petitioners.
Article 21: Right to Life
Article 21 asserts that no person shall be deprived of their life except according to the procedure established by law. This means that every individual has the right to live, and their life cannot be taken away except in accordance with the prescribed legal procedures. The right to life encompasses various aspects, including the right to live with dignity, the right to livelihood, and the right to a healthy environment. Article 21 also protects the personal liberty of individuals. It states that no person shall be deprived of their personal liberty except according to the procedure established by law. Personal liberty includes the freedom to move freely, the freedom to choose one’s place of residence, and the freedom to engage in any lawful occupation or profession.
Article 14: Equality before Law
The said Article is clearly in two parts – while it commands the State not to deny to any person ‘equality before law’, it also commands the State not to deny the ‘equal protection of the laws’. Equality before law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons in different situations in order to establish equality amongst all. It is positive in character. Therefore, the necessary corollary to this would be that equals would be treated equally, whilst un-equals would have to be treated unequally.
Article 51(C):Promotion of International Peace and Security
The State shall endeavour to—
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised peoples
with one another; and
(d) encourage settlement of international disputes by arbitration.
The Principle of Non-refoulment: Following from the right to seek and to enjoy in other countries asylum from persecution, as set forth in Article 14 of the Universal Declaration of Human Rights, this principle reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person. These and other rights are threatened when a refugee is returned to persecution or danger.
UN Special Rapporteur Application (2020): The UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance, Tendayi Achiume, sought to intervene in the ongoing Supreme Court case. The application emphasized that deporting Rohingyas would be a violation of international human rights obligations, including the prohibition of refoulement, which India is bound to respect as a part of customary international law.
Interim Applications Related to Detention (2021): Following reports of the detention of 150-170 Rohingya refugees in Jammu, an interim application was filed in the Supreme Court seeking their release and protection. This application was a part of the ongoing legal efforts to prevent the deportation of detained Rohingyas, arguing that their detention and potential deportation were illegal and inhumane (Supreme Court Observer).
Petition by Advocate Prashant Bhushan: Filed on behalf of several Rohingya refugees, this petition challenged the Indian government’s stance on deporting Rohingyas. The petition cited constitutional guarantees of equality (Article 14) and protection of life and personal liberty (Article 21), arguing that these rights extend to non-citizens as well. The petition also highlighted that India’s actions contradicted its obligations under international human rights treaties, despite not being a signatory to the 1951 Refugee Convention (Supreme Court Observer).
Present status of these petitions
In Mohammad Salimullah and Anr v. Union of India (2017) , the Supreme Court, in April 2021, refused to grant interim relief to the petitioners, thus allowing the deportations to proceed.
In the Petition filed by Advocate Prasant Bhushan, the Supreme Court held that that Rohingyas in Jammu, on whose behalf the current application was filed, shall not be deported unless the procedure prescribed for such deportation is followed. The court also highlighted that while the fundamental rights under Articles 14 and 21 are available to all persons, the right to reside and settle in India under Article 19(1)(e) is exclusively for Indian citizens.
As of 2024, the Supreme Court has not made a final ruling on the petitions concerning Rohingya deportation. The government continues to argue against granting any refugee status to Rohingyas, emphasizing national security concerns and legislative jurisdiction. The case remains a significant point of contention, reflecting broader debates on immigration, security, and human rights in India.
Grounds taken by the Government of India before the Supreme Court
While opposing the petitions, the Government of India has consistently placed the following grounds before the Apex Court:
- National Security: The Indian government maintains that the influx of Rohingya migrants poses national security risks and that their presence in India is illegal under the Foreigners Act, 1946. The government asserts that the large number of Rohingyas represents a national security threat and should be deported.
- Limited Resources: The government argues that, as a developing nation with limited resources, India must prioritize its resources for its citizens and cannot accommodate large numbers of illegal immigrants.
- Legislative Framework: The government asserts that refugee status cannot be granted through judicial orders but must be addressed within the legislative framework. It emphasizes that India is not obliged to recognize the refugee status of the Rohingyas as it is not a party to the 1951 Refugee Convention .
Conclusion
There is no legal, social or humanitarian ground left when the government has expressed concerned about national security. We believe that there is nothing above national security.
