On India’s International Obligations Towards Rohingya Refugees

Relevance: GS 2 – Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests

Why in the News?

  • India’s refugee policy towards the Rohingya has come under scrutiny following a report highlighting appalling living conditions in detention camps.
  • The study was conducted by The Azadi Project (a U.S.-registered non-profit) and Refugees International (an American organization advocating for displaced populations).
  • The report underscores “gross violations of constitutional and human rights” faced by Rohingya refugees in India.
  • It criticizes India for failing to meet its obligations under international human rights treaties.
  • Interviews with detainees, families, and legal representatives reveal that many Rohingya refugees remain incarcerated even after serving their prescribed sentences.

Protection of Rohingya Refugees Under International Law

Stateless and Persecuted Population:

  • The Rohingya, numbering approximately 2.8 million, are the world’s largest stateless population.
  • Denied citizenship and subjected to decades of persecution in Myanmar, they face genocidal violence.
  • Forced to flee, they are now dispersed across multiple countries, with nearly 22,500 residing in India (UNHCR estimate).

Principle of Non-Refoulement:

  • Enshrined in the 1951 Refugee Convention and its 1967 Protocol, it prohibits states from expelling individuals when there is evidence of persecution, torture, or severe human rights violations in their homeland.
  • Recognized as a cornerstone of human rights, humanitarian, and refugee law.

Customary International Law:

  • Non-refoulement has attained the status of customary international law, binding all states regardless of formal adherence to the Refugee Convention or Protocol.
  • The UN Office of the High Commissioner for Human Rights emphasizes its absolute nature, with no exceptions.
  • In a 2007 UNHCR advisory opinion, the principle was reaffirmed as binding on all states, including non-signatories to the Refugee Convention or Protocol.

India’s Stand on Rohingya Refugees

Non-Participation in Key International Instruments:

  • India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol.
  • It is also not a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance.

Legal Framework:

  • India asserts it has no legal obligation to provide asylum or adhere to the principle of non-refoulement.
  • Rohingya refugees are detained under domestic laws like the Foreigners Act, 1946, and the Passport Act, 1967, which grant broad executive powers to regulate foreigners and categorize Rohingyas as “illegal migrants.”

Judicial Stance:

  • Right to Life under Article 21: In March 2024, the Union government acknowledged in the Supreme Court that Rohingyas are entitled to the right to life but lack the right to reside or settle in India.
  • National Security Concerns: In Mohammad Salimullah and Anr. v. Union of India (2021), the Supreme Court rejected a plea to halt the deportation of 170 Rohingya refugees detained in Srinagar, citing national security concerns.
  • Access to Education: In October 2024, the Delhi High Court dismissed a PIL seeking admission of Rohingya refugee children to local schools, stating the issue involved international implications and required a policy decision by the Union government.

India’s International Obligations

Obligations under Ratified Treaties:

  • International Covenant on Civil and Political Rights (ICCPR):
    • India is a party to this treaty, which under Article 7 prohibits refouling individuals to places where they may face torture or cruel, inhuman, or degrading treatment.
    • The U.N. Human Rights Committee has affirmed this interpretation.
  • Other Ratified Conventions:
    • International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child also uphold the principle of non-refoulement.

Convention Against Torture:

  • While India has signed but not ratified this convention, Article 3 expressly mentions non-refoulement.
  • As a signatory, India is expected to uphold the principles it endorsed by signing the treaty, even if the provisions are not legally binding.

Judicial Precedents Supporting International Norms:

  • Supreme Court Rulings:
    • Vishaka & Ors. v. State of Rajasthan (1997): Established that in the absence of domestic legislation, international conventions and norms should be applied by Indian courts to uphold human dignity.
    • National Legal Services Authority v. Union of India (2014): Reiterated the applicability of international norms to matters lacking domestic legal frameworks.
  • High Court Decisions:
    • Ktaer Abbas Habib Al Qutaifi v. Union of India (1998): The Gujarat High Court interpreted the principle of non-refoulement as inherent to Article 21 of the Constitution.
    • Dongh Lian Kham v. Union of India (2015): The Delhi High Court similarly upheld non-refoulement under Article 21 in a case involving refugee deportation.

Constitutional Mandate:

  • Article 51(c) of the Indian Constitution directs the State to promote respect for international law and treaty obligations, reinforcing India’s commitment to uphold principles like non-refoulement.

Existing Concerns

Absence of a Standardised Refugee Policy:

  • India lacks a unified framework, leading to inconsistent treatment of refugees based on geopolitical and diplomatic priorities.
  • While Tibetan, Sri Lankan, and Afghan refugees are granted long-term visas or refugee certificates, most Rohingya refugees face arbitrary detention despite UNHCR registration.

Exclusionary Legislation:

  • The Citizenship Amendment Act, 2019 excludes persecuted Muslim minorities, including Rohingya, from its provisions, further marginalizing them.

Lack of Legal Representation and Aid:

  • Rohingya refugees detained in India often lack adequate legal representation.
  • Civil society organizations advocating for Rohingyas face funding shortages due to revoked FCRA licenses, limiting their capacity to provide assistance.
  • Lawyers are hesitant to take up Rohingya cases, fearing negative outcomes and repercussions.

Deplorable Detention Conditions:

  • Detention centres housing Rohingyas, including pregnant women and children, are marked by dehumanizing living standards.
  • The Matia Transit Camp in Assam has drawn particular criticism for its appalling conditions.
  • Following these concerns, the Supreme Court directed the Assam State Legal Services to conduct surprise visits and assess living conditions in such detention facilities.

Associate articles

https://universalinstitutions.com/why-are-rohingya-refugees-risking-their-lives-at-sea/

https://universalinstitutions.com/the-myanmar-conflict-is-a-regional-problem/

Source: https://www.thehindu.com/news/national/indias-international-obligations-towards-rohingya-refugees-explained/article69015375.ece

Mains question

Discuss the challenges faced by Rohingya refugees in India, highlighting legal, humanitarian, and policy concerns. Evaluate India’s international obligations and the need for a comprehensive refugee policy. (250 words)