Over the last 70 years, independent India has opened its doors to refugees of every religion – Buddhists of Tibet; Muslims of Afghanistan; Hindus and Christians of Sri Lanka; and, of course, ten million Hindus, Muslims, Buddhists and tribals of East Pakistan in 1971. Religion has never before 2014 been used as a marker to determine whether we offer shelter or not. Our only criterion has been the humanitarian one of whether those who seek refuge are fleeing persecution or violence in their countries.
That, alas, has now changed. The first signpost of our march towards a Hindutva India was Modi’s promise during the Assam elections that any Hindu from Bangladesh would have an automatic right of residence in India, but certainly not any Bangladeshi Muslim. This was a manifest contradiction of our millennial traditions. Remember, it was Muslim sultans and badshahs who offered the Zoroastrians refuge from persecution by Islamists in Persia. Now, in derogation of this humanist tradition, while any Hindu world-wide is being privileged, like the Jews of Israel, with a Right of Return, Muslims are explicitly barred despite our being the second-biggest home to Muslims in the world.
Thus, the Home Ministry’s September 2015 notification under the Passports Act and the Foreigners Act exempts from usual entry and residential procedures “Hindus, Sikhs, Christians, Jains, Parsis and Buddhists” facing persecution in neighbouring countries – but, specifically, not Muslims. This is quite contrary to the wide embrace of our Constitution, specifically Article 21 (relating to the fundamental right to life and liberty) and Article 14 (relating to the fundamental right to equality), that confer these rights on “any person” without reference to any religious affiliation.
Moreover, the Supreme Court have made clear, in their 1996 judgement in NHRC v/s Arunachal Pradesh, that the expression “any person” applies not only to bona fide Indian citizens, but anyone for the moment residing in India, Indian or not: “the State”, the court has decreed, “is bound to protect the life and liberty of every human being, be he a citizen or otherwise.” Minister of State for Home Affairs Kiren Rijiju should know this, particularly as he is an MP from Arunachal Pradesh.
Yet, the otherwise gentle and civilized Kiren Rijiju, one of the most decent persons I have been privileged to know, finds himself obliged as a Modi minister to take the line: “As far as we are concerned, they (Rohingya Muslims) are all illegal immigrants. They have no basis to live here. Anybody who is (an) illegal immigrant will be deported”. Deported to where? To Myanmar – from where they have fled?
Surely Modi’s government must know of the terrible suffering these Rohingya have fled from. Sending them back (“deportation”) amounts to transgressing the well-established principle of “non-refoulement”, that is, the principle in customary international law that no refugees may be pushed back to their place of origin if there is any apprehension that such persons will be subjected to the very suffering from which they fled. India has formally accepted this in her ratification of various international declarations, conventions and treaties, including the Universal Declaration of Human Rights and numerous international conventions relating inter alia to the elimination of racial discrimination, the protection of civil and political rights, and against torture and enforced disappearances. Modi and his ministers of Home Affairs, senior and junior, cannot but be aware of the recent August 24, 2017 Supreme Court judgement in the right to privacy case (Justice Puttuswamy’s case) that “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime.” When the Home Ministry issues directives to state governments asking, in the context of the Rohingya refugees, that task forces be set up in every district to identify and deport any illegal immigrant, should not the ministry also make clear that the Supreme Court has also ordained that, as “India is a responsible member of the international community…the court must adopt an interpretation which abides by the international commitments made by the country, particularly where its constitutional and statutory mandates indicate no deviation”? Neither our constitution nor any statute indicates any deviation.
In another landmark judgement only last year in Dong Lian Kham, the Delhi High Court held that the principle of non-refoulement “is required to be taken as a part of the guarantee (to life and liberty) under Article 21 of the Constitution”. The court added that this “would be in keeping with the golden traditions of this country in respecting international comity and according good treatment to refugees”. Can either the minister’s statements, in or outside parliament, and the kind of advisories being issued to state governments in regard to Rohingya refugees, be described as “good treatment to refugees”?
What are the atrocities from which the Rohingya have sought escape? Non-acceptance is the least of them, but that is where the trouble begins. In the local dialect, “Rohingya” means “from Arakan”. Buddhist nationalists insist that they are not from Arakan (that is, the province of Rakhine, bordering Bangladesh) but Bengali settlers who have no right to be in Myanmar, although almost all of them are from families settled in Rakhine village for centuries. This word play is such a serious political hot potato in the country that before appointing former UN Secretary-General Kofi Annan as head of an informal international advisory group to look into the problem and make recommendations, Aung San Suu Kyi secured the assurance that their report would not identify the Rohingya as such but only as “Muslims”.
This was in line with the denial to these one million people of their citizenship rights since the very start of post-Independence Burma, formalized in Burma’s Citizenship Act of 1962 that refused them citizenship, thus rendering them, in effect, stateless.
Nevertheless, the fact that they were there stared in the face the military regime that took over in 1962 in the face. In consequence, when democracy in Myanmar made its first tentative appearance in 2008, the Rohingya were permitted to vote and Rohingya representatives were, in fact, elected to the Myanmar parliament. This was not acceptable to either the military-appointed Chief Minister of the province nor the majority community of non-Rohingya Rakhine. Therefore, the entire minority community was disenfranchised in the next round of elections that brought Aung San Suu Kyi to power – but, to the intense disappointment of global human rights activists, she said nothing.
Incidents of cruelty and violence flared into a major communal clash in 2012 when many Rohingya villages were assaulted, their homes burnt, their fields devastated, forcing them to run for their lives. In all this, the army was complicit. Thousands took to boats in the treacherous waters of the Bay of Bengal and the Andaman Sea. Many hundreds drowned. Those who survived landed on the shores of Malaysia, Indonesia and the Philippines. A few lucky ones found their way to the United States.
Young hotheads who formed the Arakan Rohingya Salvation Army (ARSA) started staging guerilla attacks on police stations and other symbols of state power. This only worsened the situation by providing justification to the army and Buddhist vigilantes to redouble their vengeful assaults on innocent Rohingya. By the time a further pogrom was unleashed on the Rohingya in 2015, India became the refuge of some 40,000 Rohingya, a fraction of the at least 400,000 Rohingya who have fled to neighbouring Bangladesh. Of those who have remained, some 120,000 have been herded into 70 internment camps where living conditions are dreadful, death is always near and escape is the only hope. The World Food Programme reports “extreme food insecurity” with over 80,000 children in need of treatment for acute malnutrition.
In their 2016 report, the UN Human Rights Commission have brought on record “summary executions, enforced disappearances, arbitrary arrest, degrading conditions of detention, consistent allegations of torture and ill-treatment, sexual humiliation and abuse” and any number of other charges against the state authorities in their treatment of the Rohingya minority. Is it refoulement to such terrible conditions that the Modi government seeks? True, Rijiju says he is not advocating “dumping them into the sea”, but what else do his ministry’s directives amount to?
Foreign policy considerations might make it necessary to not belabour the Myanmar authorities or Aung San Suu Kyi personally with all this, but that is not the issue. The issue is the continued stay without molestation and misbehavior by our police of the poor Rohingya who have sought refuge in India. Notwithstanding the Home Ministry’s bumph about “limited resources”, India can easily accommodate them and let them remain until conditions are restored for their safe return home. Perhaps that will never happen. But then, if we can assure indefinite refuge to uncounted generations of Tibetans, unnumbered Afghans and hundreds of thousands of Sri Lankan Tamils refugees, why not a few thousand Rohingya? Only because a humane regime was in office when the others came. The tragedy of the Rohingya is that they have come at a time when the present dispensation is seeking fodder to feed their communal machine. If only they can hang on till this lot are ousted in 2019, we can offer them generous succour.