By Ajai Sahni
Oct 02, 2017
An estimated 40,000 Rohingya refugees from the Rakhine State of Myanmar, who have entered India illegally, have no right to be here. Under normal circumstances, their deportation could attract no significant legal barriers, other than the inherent sluggishness of judicial processes, the corruption and inadequacies of the enforcement apparatus, and the anonymity and possibility of merging into India’s vast population. Significantly, a majority of these refugees have been in this country for some five years – more than three of these under the present regime at the Centre, and their presence on Indian soil and, somewhat more disturbingly in Jammu, 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) has claimed in its submission to the Supreme Court on September 18 that the Rohingya 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”. The GoI claims that “many among” the Rohingya refugees are radicalised and that there was a “serious possibility of violence erupting against the Buddhists”. The Rohingyas – it is not clear whether the larger community or the specific group present in India – have links with Pakistan’s Inter-Services Intelligence and extremist groups. Allegations of Rohingyas with ‘militant’ background being “very active” in Jammu, Delhi, Hyderabad and Mewat; of engaging in hawala transactions; of engaging in human trafficking; and of acquiring fake/fabricated Indian identity documents (the last of these is, of course, entirely credible) have also been submitted to the court.
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 in point are the National Investigation Agency’s (NIA’s) somersaults in the ‘Hindutva terrorism’ cases. Evaluating the evidence in these cases is, of course, beyond our scope and competence, but it is clear that the NIA has either fabricated evidence due to political pressure under the last regime; or it has suppressed or destroyed evidence due to pressure under the present regime. The one certainty that is unambiguously demonstrated is that the NIA has been lying. This is not a unique or isolated aberration among investigative agencies.
It is necessary, consequently, to assess the government’s claims in terms of what is publicly known, and what has been made known to the court.
There is no evidence, so far, to suggest that any Rohingya group or individual 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, serial explosions at the Maha Bodhi Temple at Gaya in Bihar in which two monks were injured, but NIA investigators then established that the attack had been engineered by extremists of the Students Islamic Movement of India (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 – including the Lashkar-e-Taiba’s attempts to establish the Difa-e-Musalman Arakan – have proven evident failures. No demonstrable terrorist activity by Rohingyas in India has emerged as a consequence.
It is useful to recall that the process for the proscription of a clearly identified terrorist formation in India requires a quasi-judicial evaluation of evidence of current activity; there is no legal process available for the proscription, or even branding, of an entire community as ‘terrorist’, ‘criminal’, or a ‘security risk’.
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, Indian 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 very high profile public, media and litigious campaign? Not because it has any possibility of success, but 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.
Ajai Sahni is executive director, Institute for Conflict Management, New Delhi