India’s Obligations Towards the Rohingya

Who are Rohingya Refugees?

• The Rohingya are a mostly Muslim ethnic group who have lived in Buddhist-majority Myanmar for centuries.
• Flee Myanmar due to genocidal violence.
• However, Myanmar does not recognise them as an official ethnic group, making them the largest identified stateless community in the world.
• Rohingya population: ~2.8 million globally.
  • ~22,500 in India (UNHCR estimate).

Refugee Rights Under International Law

• 1951 Refugee Convention and 1967 Protocol: The principle of non-refoulement prohibits returning individuals to places where they face persecution or severe human rights violations.
  • Recognized as customary international law, binding even on non-signatory states.
  • Non-refoulement is absolute, as affirmed by the Office of the United Nations High Commissioner for Human Rights and the UNHCR.
• Other Key Treaties:
  • International Covenant on Civil and Political Rights (ICCPR): Article 7 implicitly upholds non-refoulement.
  • Convention on the Rights of the Child (CRC) and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): Ratified by India, these reinforce non-refoulement obligations.

India’s Position on Rohingya Refugees

Domestic Legal Framework

• India is not a signatory to the Refugee Convention, its Protocol, or key treaties like the Convention Against Torture.
• Domestic laws such as the Foreigners Act, 1946, and the Passport Act, 1967, label Rohingya refugees as “illegal migrants.”
• The government asserts no legal obligation to provide asylum, citing national security concerns.

Supreme Court Decisions

• 2021: In Mohammad Salimullah & Anr. vs. Union of India, the Court allowed deportation of 170 Rohingya refugees citing national security.
• 2024: Delhi High Court dismissed a plea to admit Rohingya children into local schools, noting the issue required government policy decisions.

India’s International Obligations

• Relevant Treaties:
  • India is party to the ICCPR, CRC, and ICERD, which enforce non-refoulement.
  • Signed but not ratified the Convention Against Torture, making its provisions non-binding but indicative of India’s commitment.
• Judicial Interpretations:
  • Supreme Court rulings (Vishaka vs. State of Rajasthan, 1997; NALSA vs. Union of India, 2014) affirm the application of international conventions in the absence of domestic legislation.
  • High Courts (e.g., Ktaer Abbas Habib Al Qutaifi vs. Union of India, Gujarat HC, 1998; Dongh Lian Kham vs. Union of India, Delhi HC, 2015) interpreted non-refoulement as part of Article 21 (Right to Life).

Concerns and Challenges

• Unequal Treatment of Refugees: Refugee policy lacks standardisation, driven by geopolitical interests.
  • While Tibetan, Sri Lankan, and Afghan refugees receive legal aid and long-term visas, most Rohingya face detention and criminal imprisonment despite UNHCR registration.
• Exclusionary Policies
  • Citizenship Amendment Act, 2019: Excludes persecuted Muslim minorities like the Rohingya from its provisions.
• Lack of Legal Representation: Civil society groups face funding issues due to revoked FCRA licences, limiting their ability to support detained refugees.
  • Lawyers are hesitant to take up Rohingya cases fearing government backlash.
• Dehumanising Living Conditions: Recently, the Supreme Court directed Assam State Legal Services to inspect living conditions at detention facilities because detention centres, such as Matia Transit Camp, are overcrowded and unhygienic.
  • Pregnant women and children of Rohingya refugees are among those detained in substandard conditions.

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