Rohingya refugees are of “Risk profile” and their admission in India as a refugee without verification and identification having standard proof on Balance of Probability and “Reasonable Possibility”, the threshold of proof instead of “beyond reasonable doubt” is a threat to national security and this entire procedure of their identification and verification is of National Interest. The standard of proof used in the Identification and verification process by the UNHCR is based on the balance of probabilities and preponderance of the evidence that is a weak standard of proof. As per information of various sections of the media including print and electronic, Many Rohingya are possessing different Identity card of India including Voter Id Card and Aadhar Card. It is unknown whether their Identity card is genuine or forged. However, it concerns National Security, Integrity and Sovereignty.
India is neither a signatory to any of the refugee conventions nor there is national legislation on refugees. There are reasons given for India’s non-accession to the convention including:
it is a Eurocentric document;
the country has been too vulnerable to “infiltrators and terrorists” since Partition;
Convention’s inability to deal with situations of mass influx;
Perceived imbalance of rights and obligations between refugee receiving states and source states;
Lack of minimum obligation on the part of states to not create refugee flows;
Lack of cooperation mechanism between different states to resolve the problems of refugees;
the problem of migrant workers will increase;
India is too poor a country to accommodate refugees in accordance with the Convention; and,
India provides some relief and assistance to refugees despite not signing the Conventions.
A national refugee law was once hoped for as a solution to the legal void for refugees in India. As of yet, that hope has not been realized. While India is not a signatory to the Refugee Convention, it has nevertheless ratified the 1966 International Covenant on Civil and Political Rights (ICCPR), the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), the 1948 Universal Declaration of Human Rights (UDHR), the 1963 Convention on the Elimination of all Forms of Racial Discrimination 1963 (CERD), and the 1984 Convention Against Torture (CAT), all of which bear on how refugees are treated. Since India is not a Signatory of the 1951 Convention, the UNHCR has a limited – though critical- role to play in the registration and rehabilitation of refugees in India. In 1981, India allowed UNHCR to setup its country office in New Delhi. UNHCR India conducts its mandate Refugee Status Determinations (RSDs) for individual asylum–seekers from non-neighbouring countries.
The refugee rights and entitlements in India are mainly determined within the context of India’s Constitution and the Foreigners Act of 1946. These laws give wide powers to detain and deport foreigners for illegal entry and stay, and the accord no differential treatment for refugees. In policy and practice, India generally documents refugee groups as foreigners. Section 8 of the Foreigners Act, 1946 provides as:
Determination of nationality—(1) When a foreigner is recognised as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected:
Provided that where a foreigner acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognized as entitled to protection by the Government of the country whose nationality he has so acquired.
(2) A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court:
Provided that the Central Government, either of its own motion or on an application by the foreigner concerned, may revise any such decision.
Section 9 of the act further provide that burden of proof, in this case, shall be upon who claims that he is not a foreigner or he is a foreigner. It read as follows:
The burden of proof.—If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.
According to Indian laws, the Burden of proof in the case of Nationality is upon the person who claims whether he is a foreigner or not. It is pertinent to note here that the Standard of proof used in the RSD process by UNHCR is based on the Balance of probabilities and preponderance of evidence which is a weak standard according to the Indian Statute. The UNHCR Mandate by virtue of the 1951 convention grants refugee status to persons on the grounds of race, religion, nationality, membership of a particular social group and imputed political opinion. The Rohingya are granted Refugee status on the grounds of ethnicity and race. Often UNHCR fails to determine beyond reasonable doubt their place or origin and/or place of original inhabitance. It creates doubt with regard to the place of origin whether Rohingyas as claimed by them are from Northern Rakhine state in Myanmar or not.
UNHCR discloses information of asylum seekers limited to only basic biodata and final RSD decisions to Host Countries authorities, nevertheless, Host Country authorities have a legitimate interest in receiving information regarding individuals who are registered by UNHCR on their territory and Mandate Refugees who may have exclusion concerns such as their participation in war crimes (involving both state and non-state actors), crimes against humanity and genocide.
UNHCR standards regarding the Confidentiality of information about asylum seekers and refugees undermine the sovereignty of the Constitution of India and domestic laws of India. It is respectfully submitted before this Hon’ble Court that recently India opens a probe into Rohingya militant group Aqa Mul Mujahidin (AMM). The National Investigative Agency opened the probe into the group that calls itself Aqa Mul Mujahidin, following the arrest of two suspected Jamaat-ul-Mujahideen Bangladesh militants who were accused of carrying out a bomb blast at a Buddhist Pilgrimage in Bihar.
It is also noteworthy that to date, UNHCR does not have a Branch Office agreement with the Government of India; UNHCR works under the umbrella of UNDP in India. Another factor in the precarious welcome India currently offers to refugees is its preoccupation with national security in the aftermath of the Mumbai bombings of 2011 and the coordinated terrorist attacks of 2008, and longstanding, unresolved conflict with Pakistan over the contested territories in Kashmir. In light of their national security concerns, some groups of refugees may be regarded with suspicion by their Indian hosts.
Any international treaty or convention become binding on the country only when It would be approved by the Parliament of India. In other words, it is the Indian parliament, who represent the people of India and it solely has the inherent power to decide whether an international treaty/convention/agreement is good for the country or not. In this regard India follows the ‘Dualist ‘theory of law, that is, international law is different from national law unlike the ‘monist’ theory, which stipulates that international law automatically becomes national law. While the Indian governments do not automatically enforce international conventions and treaties, these agreements do impose on India a duty to respect them under their constitution under Article 51(c). However, this does not restrict the absolute power of the Indian Government to expel a foreigner under domestic statutes. Refugees do not enjoy any official legal status or position in India, and a carve-out for them is unavailable in the Foreigners Act.
The Principles of Non-Refoulement prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations. Although, this principle is not absolute and has well-established exception:
i) National Security
ii) Group of Persons who have exclusion Triggers, for instance, someone involved in war crimes, crime against humanity and genocide, would they be entitled to international protection? In this Case, we do not have any information of the groups of the person who are seeking asylum. Even UNHCR does not go deep into their enquiry to find out whether they fall under any exclusion trigger or not. Even in the 1951 Convention, Exceptions to the principle of non-refoulement are there in certain situation. These Circumstances are expressly provided in Article 33(2) of 1951 Convention, which stipulates that:
“The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
There are many militant groups related to Rohingya like Arakan Rohingya Salvation Army, which are active across many countries like Myanmar and suspicion of their affiliation to such militant Group cannot be ruled out while granting asylum. Rohingya are illegal immigrants entered in India through Bangladesh, eventually reaching New Delhi and dispersing to other parts of the country like Jammu & Kashmir. New Delhi’s response, though initially accepting of Rohingya refugees, has since stoked fear of terrorism and militancy.
UNHCR is acting like a Surrogate State. It is an International Organization operating in Indian and conducting RSD process, notwithstanding that It cannot take the role of the Union Government. They are here to supplement Government, not to supplant the Government of India.
In Indian Context, Federalism and Implication of Refugee law if at law government will strive to make a law because each state has their own limitations. For instance, considering the travel route of Rohingya in India, once they crossed the international border from Myanmar enters into Bangladesh and thereafter enters into India and travel and resides in many states such as West Bengal to Uttar Pradesh to New Delhi and eventually to Jammu & Kashmir. It is difficult for each state to provide them durable solution and protection in each state where ever they travel and resides.
The deportation of Rohingya by the Government of India is not unreasonable and does not infringe their Right to equality. In deciding these types of cases “Proportionality test” laid down by the Hon’ble Supreme Court is predominant. While deciding proportionality of any act/law passed by the Government, the Court requires to test it on 4 limbs as follows:
1. Is the State pursuing a legitimate aim?
2. Are the means used to achieving this aim reasonable or suitable?
3. Is there a less intrusive way to achieve the State objective?
4. Balancing the State Objective on the one hand with the importance of the right and the extent of the intrusion on the right on the other.
The Government’s measure to deport is to protect national security, which by itself is a legitimate Aim. Further on the 2nd limbs of the Proportionality test, the Association of the Rohingyas with various terrorist and militant groups cannot be ruled out. They are also linked with extremist Islamic factions, ‘who want to achieve their ulterior motives in India by flaring up communal and sectarian Violence in Sensitive areas of this Country. So, the Action of Government has reasonable nexus between the means employed and the aim sought. As far as the third limbs of this test is concerned, the burden lies on the person claiming the infringement of rights to introduce the alternative for analysing whether a measure is least intrusive. It is further submitted that on fourth limbs that any right of an individual cannot override National Interest. In the light of the above, the Government of India should continue to Identify and verify Rohingya and deport them to their country of origin. It is also recommended that the Ministry of home Affairs should conduct RSD Interviews of all Asylum seekers including Rohingya. The Identification and Verification process must be carried out only by the Government of India and not by the UNHCR.
Pankaj Kumar is a Former Expert on Mission to the UNHCR and Gautam Jha is AOR Supreme Court of India