Deportation of Rohingya migrants from India

Almost a year ago, the Indian government announced its plan to deport "all illegal immigrants" including approximately 40,000 Rohingya refugees estimated to be living across India. In August 2017 in a letter sent to each of the state governments, India's Ministry of Home Affairs issued an order to "identify and deport all illegal immigrants", including Rohingya refugees. The home ministry as well as leaders of the ruling BJP insisted that there were links between illegal migrants and threat to national security as they were perceived to be more vulnerable to potential recruitment by terrorist organisations.

Official statements were also made indicating clearly that for Rohingya refugees this plan would be executed even against those who were registered with the UN refugee agency (UNHCR). Thus for plans of deportation, all of the Rohingya refugees were predetermined to be "illegal migrants" despite facing heavy criticism both within and outside the country for blatantly ignoring the plight of those who had fled from fear of persecution and who as such were "refugees" and not illegal migrants.

A petition filed in 2017 challenging such deportation plan is still pending in the Indian Supreme Court. However, in October last year, hearing on the same petition in the Supreme Court Bench headed by the former Chief Justice Dipak Misra said that although the problem of Rohingya refugees is of a "great magnitude", there is a need to strike a balance between human rights of the refugees and national security concerns. Despite such observation and strong criticism from rights groups, the Indian government had recently deported seven Rohingya refugees who were detained in Silchar Central Jail in Assam since 2012 for illegally entering India without valid papers.

Meanwhile, India's Supreme Court had rejected a petition seeking to stop the government from deporting the seven Rohingya men to Myanmar. This is notably one of the very first decisions of the newly appointed Chief Justice Ranjan Gogoi where he had categorically emphasised that the decision of deportation is one from the centre and the court cannot interfere with the decision.

However, as also argued by the petitioners in the case, such deportation is a flagrant violation of India's obligation towards international law and the Supreme Court did have a responsibility to assess legality of such orders. The seven Rohingya men were merely allowed identity certificates and temporary travel documents valid only for a month. These documents did not confirm that they have been granted citizenship by the Myanmar government as had been claimed by the Indian government. These are people who had fled from serious violations of human rights and persecution. Without any proper repatriation arrangement between the two countries the seven Rohingya men had been deported and that too without assessing how far the current political and human rights situation in Myanmar had been improved. Even the UNHCR had been denied access to assess these men's claim to international refugee protection. In an official statement UNHCR also raised concern that these men did not have access to lawyers from state legal services nor could they have their asylum claims assessed in India. As such the deportation clearly amounts to a violation of the non-refoulement principle or the principle of prohibition against forcible return to a state where a person fears persecution, which is a customary international law principle binding all countries irrespective of whether or not the 1951 refugee convention or its protocol had been ratified.

Since this deportation had occurred pursuant to the government order to detect delete and deport all illegal migrants, this would probably be just the beginning of a wide scale deportation process which perhaps would target to push back all 40,000 Rohingya refugees living across India. However, as asserted many times now by the UN and other advocacy groups, there had not been any affirmative action on part of the Myanmar government which could possibly indicate that the threat to persecution against the Rohingya community no longer exists in Myanmar. This can particularly be an area of serious concern for Bangladesh. Given that the threat of persecution against Rohingya community in Myanmar had not been removed, this forcible return of 40,000 people to Myanmar would probably mean that they would again escape from Myanmar and seek refuge across borders in Bangladesh. In that case the pertinent question would be is Bangladesh prepared to host additional 40,000 Rohingyas within its territories?

This deportation in fact coincides with the latest publication of the NRC (National Register of Citizens) in Assam. Preparing this enormous task of draft NRC which had primarily delisted almost 4 million people from Indian citizenship was actually done under the order and supervision of the Indian Supreme Court. On a 2014 petition seeking to challenge section 6A of the Indian Citizenship Act of 1955, the Supreme Court had given such a direction. The 2014 petition challenges the special cut-off date of March 25, 1971 prescribed in section 6A for entry into Assam (after which an entry by any person will be considered illegal) and seeks a uniform cut-off date for the entirety of India. Since the petition challenging section 6A is still pending for hearing, if the Constitutional bench declares Section 6A to be unconstitutional, the entire process of NRC may become superfluous as then people who had entered Assam even before March 1971 can be considered illegal migrants.

Interestingly, the Supreme Court Bench which had in 2014 ordered for the updating of NRC was headed by Justice Ronjon Gogoi hailing from Assam who is currently the newly appointed Chief Justice. Justice Gogoi also happens to be heading the Bench which had dismissed the recent petition challenging the order of deportation of the seven Rohingya men. Appointment of Justice Gogoi as the new Chief Justice may or may not have had any role to play in changing the approach of the Indian judiciary towards illegal migrants and asylum issues. Nevertheless, the recent dismissal of the petition against deportation may be looked at as an early sign of how the petitions of asylum seekers may be viewed by the Indian Supreme Court in future.

Taslima Yasmin is assistant professor, Department of Law, University of Dhaka.

Email: taslima47@yahoo.com