India’s Obligations Towards the Rohingya

Source: This post on India’s Obligations Towards the Rohingya has been created based on  article On India’s obligations towards the Rohingya published in The Hindu on 31^st December 2024.

UPSC Syllabus Topic: GS Syllabus 2: International relations

Context: This article delves into India’s obligations and policies concerning Rohingya refugees, a marginalized and stateless population facing severe human rights violations in Myanmar. It critiques India’s approach to managing the Rohingya refugee crisis, juxtaposing it against international norms and conventions on refugee protection.

What did the recent report by The Azadi Project and Refugees International reveal about India’s treatment of Rohingya refugees?

1. The report highlighted severe violations of constitutional and human rights concerning Rohingya refugees detained in India. It criticized India for failing to uphold its international human rights obligations.
2. Key findings include:
   1. Many Rohingya refugees remain incarcerated even after completing their sentences.
   2. The detention practices violate both domestic and international legal frameworks.

Who are the Rohingya, and how are they protected under international law?

1. Population and Context: The Rohingya are the world’s largest stateless population, numbering approximately 2.8 million. Persecuted in Myanmar, they have been forced to flee due to genocidal violence.
2. Rohingya in India: Nearly 22,500 Rohingya refugees currently reside in India, according to the UNHCR.
3. International Protections:
   1. The 1951 Refugee Convention and its 1967 Protocol emphasize non-refoulement, barring states from returning individuals to countries where they may face persecution, torture, or severe human rights violations.
   2. Non-refoulement is recognized as customary international law, binding all states, even non-signatories.

• The principle has been affirmed by the UNHCR and the Office of the United Nations High Commissioner for Human Rights as absolute and without exception.

What is India’s stance on the Rohingya refugee issue?

1. Non-Signatory Status: India is not a party to the Refugee Convention or the 1967 Protocol. Additionally, it has not signed key instruments such as the Convention Against Torture or the International Convention for the Protection of All Persons from Enforced Disappearance.
2. Domestic Legal Framework: Rohingya refugees are detained under laws like the Foreigners Act, 1946, and the Passport Act, 1967, which classify them as “illegal migrants.”
3. Judicial Responses:
   1. In Mohammad Salimullah and Anr. vs. Union of India (2021), the Supreme Court rejected pleas to halt the deportation of detained Rohingya, citing national security concerns.
   2. In October 2024, the Delhi High Court dismissed a PIL to enroll Rohingya children in local schools, citing the need for a policy decision by the government.

What are India’s international obligations towards the Rohingya?

1. Human Rights Treaties: Despite not being a signatory to the Refugee Convention, India is bound by obligations under:
   1. The International Covenant on Civil and Political Rights (ICCPR), which prohibits refoulement to places where individuals might face torture or degrading treatment.
   2. The Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination, which India has ratified.
2. Non-Refoulement in Indian Law:
   1. The Supreme Court has ruled that international norms apply in the absence of domestic laws (Vishaka vs. State of Rajasthan, 1997).
   2. Article 51(c) of the Indian Constitution mandates that the state respect international law and treaty obligations.

• Several High Court judgments (e.g., Ktaer Abbas Habib Al Qutaifi vs. Union of India, 1998 and Dongh Lian Kham vs. Union of India, 2015) have upheld non-refoulement as integral to the right to life under Article 21 of the Constitution.

What are the main concerns about India’s refugee policies?

1. Absence of a Standardised Policy:
   • Refugee treatment varies based on India’s geopolitical interests. Tibetans, Sri Lankans, and Afghans receive more consistent protections compared to Rohingya refugees.
   • The Citizenship Amendment Act, 2019, excludes persecuted Muslim minorities like the Rohingya from its provisions.
2. Lack of Legal Aid and Representation:
   • Rohingya refugees face challenges securing legal aid as many civil society groups have lost Foreign Contribution (Regulation) Act (FCRA) licenses, limiting funding.
3. Detention Conditions:
   • Many refugees, including pregnant women and children, live in dehumanizing conditions in detention centers like the Matia Transit Camp.
   • The Supreme Court directed surprise inspections of such camps in Assam to assess living conditions.