On Rohingyas, the Centre is on a sticky legal wicket

The highprofile and litigious campaign against the refugees feeds into the Hindutva discourse

An estimated 40,000 Rohingya refugees, who have entered India illegally, have no right to be here. Under normal circumstances, their deportation could attract no legal barriers, other than the sluggishness of judicial processes and the inadequacies of the enforcement apparatus. Significantly, a majority of these refugees have been in this country for five years – more than three of these under the NDA government, and their presence has been no secret.

Abruptly, at a time when they are being subjected to what has been described as ‘text book genocide’ in Myanmar, the Centre has decided that it is necessary to expel these illegal aliens – precisely when it is nigh impossible to do so under the natural protection offered both by international convention and national law. It is, consequently, important to examine the context and implicit purpose of this move.

The Government of India (GoI) claimed in Supreme Court on September 18 that the refugees constitute a “serious national security threat/concern”, and that there deportation was a “policy decision in larger interest of the country” in which the court “may decline its interference”. Government agencies, of course, have information that is not available to the public. Events, however, have demonstrated repeatedly that these agencies are also willing to bend the truth from time to time in their efforts to accommodate parties in power. Among the most significant of recent cases are the National Investigation Agency’s (NIA’s) somersaults in the ‘Hindutva terrorism’ cases. Evaluating the evidence in these cases is beyond our competence, but it is clear that the NIA has either fabricated evidence or it has suppressed or destroyed evidence due to pressure. There is no evidence, so far, to suggest that any Rohingya has carried out a terrorist attack in India. Nevertheless, the Institute for Conflict Management database has tracked linkages between Rohingya radicals and Pakistan-backed Islamist terrorist formations in Bangladesh since 1999. Some suspicions were raised after the July 7, 2013, explosions in Gaya in which two monks were injured, but NIA then established that the attack had been engineered by SIMI to “take revenge against Buddhist people” in the aftermath of anti-Rohingya rioting in Myanmar in 2012. At this stage, there was some evidence that Pakistani terrorist formations, backed by the ISI, were trying to recruit among the Rohingya in Myanmar for terrorist operations in that country, as well as in Bangladesh and India. These claims have been supported, not only by India’s Research and Analysis Wing, but by Bangladeshi, US and Singapore intelligence agencies as well. Five years have, since, passed, and these efforts have proven evident failures. No demonstrable terrorist activity by Rohingyas in India has emerged as a consequence.

Further, and crucially, while the GoI is correct in its contention that India is not a signatory of the international Convention on the Status of Refugees (1951), it is wrong in the claim that it is, consequently, not bound to the principal of non-refoulement (the prohibition of returning refugees to a country where they are likely to face a threat to their lives and liberty, except in cases of those who have committed grave offences in the host country). India is signatory to a number of other international conventions – including the Convention against Torture, which have the same effect. More importantly, courts have repeatedly reaffirmed the principal of non-refoulement in a number of cases on the basis of Article 21 and other Constitutional provisions, and are unlikely to throw established jurisprudence abruptly into the waste paper basket. There is, consequently, little possibility of the GoI securing legal sanction for its current efforts to deport the Rohingya refugees. The legal luminaries who are representing the GoI in the Supreme Court cannot be unaware of these realities.

Why then the high profile public, media and litigious campaign? This is because it feeds perfectly into the wider Hindutva discourse and its polarising politics. This is no different from the periodic and high-decibel broadsides launched against illegal Bangladeshi migrants; despite over nine years of BJP-led government (six under Atal Behari Vajpayee and well over three under the present regime), nothing of significance has been done on this issue. But its electoral yield has been significant. The Rohingya refugees are now part of the human detritus that can be cheaply sacrificed to this strategy.