By Kaushiki Kar, South Calcutta Law College, Kolkata.
Right to life is one of the basic human rights and not even the State has the authority to violate that right. Protection of life and personal liberty in India means: No person shall be deprived of his life or personal liberty except according to procedure established by law. In Maneka Gandhi vs UOI, 1978, it was established that Article 21 though couched in negative language, confers on every person the fundamental right to life and personal liberty which has become an inexhaustible source of many other rights. These rights are as much available to non-citizens as to citizens (National Human Rights Commission vs. State of Arunachal Pradesh (1996 ).
In 1962, the Burma Socialist Party dismantled the Rohingya social and political organizations. The Burmese Party claimed that the Rohingyas knew they had no Legal Rights per se. In 1990s, the Military of Myanmar declared the Rohingyas as immigrants. Thousands of people (refugees and new arrivals) have moved out of Myanmar since 1996. Letting in 40,000 refugees in a country of 1.25 billion has turned out to be a situation of crisis for India. India’s signing of the Convention on Human Rights, on Civil and Political Rights, and on enforced disappearance of the people goes on to state that no one shall be forced back entry into a country where they are liable to face serious threats. Whereas the passport rules say refugees who are Hindu, Sikh, Christian, Buddhist, Parsi, or Jain will be given shelter. There was no mention of Muslims. This contradicts India’s spectrum of Secularity.
“Rohingya presence in the country has serious national security ramifications and it poses national security threats. Illegal influx of Rohingyas into India started in 2012-13 and inputs suggest links of some of the immigrants with Pak-based terror groups, there is a serious possibility of eruption of violence against Buddhists who are Indian citizens and who stay on Indian soil, by radicalized Rohingyas.”, the Centre appealed in the Apex Court.
Neighbouring country Bangladesh has taken in more than 400,000 refugees in less than a month. This is a talking point because when Hindu refugees fleeing Pakistan yearned to be Indians, the Central Government provided them with subsequent property and bank accounts. Illegal tents had been put up in the Sanjay Colony Police Chowki in Bhatti Mines Village (Delhi), which is being termed as the ‘Pakistani Mohalla’. This colony is home to immigrants from Pakistan – mostly Hindus who had stayed back at the time of partition.
“Our Constitution is not based on Group Rights; it is based on Individual Rights. India has always tried to advance Refugee rights. It is making such an argument for the first time,” was contended by Advocate Fali S.Nariman, who is also a refugee from who came in from Burma during the British rule. He opposed the government’s stand and said that under Article 32, the Constitution guarantees individual rights.
Out of the estimated 40,000 Rohingyas, more than 16,000 are registered with the UN refugee agency, but the government has said that even those registered with UNHCR would not be spared from deportation.
The lawyer representing the Rohingya, Prashant Bhushan, said that this is clearly a case of religious discrimination and an attempt to arouse an anti-Muslim feeling in the country. The Apex Court, on 3rd October, 2017, after the Rohingya hearing which was mostly led by emotional grounds, asked the respective Advocates to set arguments on the basis of legality and not on emotional grounds. It also said that humanitarian grounds and humanity must come from a place of mutual respect. The Court said that women, men and children had no clue about what is happening and so the Court could not just take a decision based on emotions alone. They will only entertain legitimacy.
On October 13th, the Supreme Court stated that the Rohingya crisis is of great magnitude. There has to be a balance between human rights and national interests as there cannot be an “iota of doubt”. On 13th November, the Court declared that the Government is to file an affidavit on a plea for the deportation of Rohingya refugees. Two Rohingya refugees filed a plea against the Centre stating that they should not be deported. The Court went on to declare that it would give a holistic hearing to the matter on 21st November but then deferred it to the 5th of December due to a request made by Advocate Fali S. Nariman. On 5th December, the three judge bench headed by Chief Justice Dipak Misra again deferred the hearing to 31st January, 2018.
It is clear that India suffers from poor refugee laws. Although we witness a massive entering of people from African and Middle East countries, we rely on UNHCR. We have been witnessing an unrestrained refugee spree since a while now. So much so that in the first half of 2014, the UN Refugee agency counted more than 2 million people as refugees living in India. They arrived during the peak migration crises and conflicts, including during partition, in 1947, the Tibet crisis of 1959, the creation of Bangladesh, 1971, civil wars in Sri Lanka and wars in Afghanistan.
Bangladesh, during this crisis, has released the following statements: “It is not sustainable for a poor country like Bangladesh to carry on feeding the huge number of Rohingya refugees from Myanmar for a very long time”.
“We would like India to move a resolution in the United Nations to call on Myanmar to take back the Rohingyas from Bangladesh as we cannot keep them lifelong with our limited resources,” the Bangladesh minister for Housing and Public Works.
India thrives on the concept of “unity in diversity”. We are a subcontinent with beautiful physical as well as political features. Won’t it be contrary to our beliefs if we do not let out a helping hand during this crisis? Despite unclear passport rules, we have let in refugees in the past.
However, we cannot forget the fact that India is also a country trying to make both ends meet. Sustainability is hard here as well. We also need to keep in mind the fact that India hasn’t found its inception in a seed of extremism. Her Constitution is built on the principles of sovereignty, socialism, secularism, democracy, republic, justice, liberty, equality, fraternity, human dignity, unity and integrity of the Nation.
One might wonder, why is there any contradiction then? Because politics and religion together blend well to create controversies. It is better to not politicise any issue and think purely on humanitarian grounds. Because the ground reality is really sad. Sad, because humans have the right to life and staying like a vagabond, wandering around, is a way of survival for animals. Humans must be acknowledged as humans, not refugees. Refugees lead a miserable life once they cross the border. They are not seen as tourists, they are seen as “refugees” and bad living conditions follows.
The UN has described the violence in Myanmar as “ethnic cleansing”. Myanmar should take necessary action to impede this scuffle and let everyone thrive in diversity. As to run a country, one cannot simply lead a State on emotional grounds alone, likewise, one should not forget about the emotions involved as well.