Rohingya Refugees – Legal Status and Current Challenges

The plight of Rohingya refugees in India has drawn attention due to a recent study that marks severe human rights violations. Conducted by The Azadi Project and Refugees International, the report reveals that many Rohingya are detained despite completing their sentences. This situation raises critical questions about India’s obligations under international law and the treatment of stateless populations.

Rohingya Refugees – Background

The Rohingya are an ethnic group from Myanmar, facing decades of persecution. Approximately 2.8 million Rohingya are stateless, making them the world’s largest stateless population. Many have fled to escape violence, with around 22,500 currently in India, according to the United Nations High Commissioner for Refugees.

International Legal Framework

International law protects refugees through the 1951 Refugee Convention and its 1967 Protocol. These documents establish the principle of non-refoulement, which prohibits returning individuals to places where they face persecution. This principle is binding customary law, recognised globally, including by the UNHCR.

India’s Position on Refugees

India is not a signatory to the Refugee Convention. Consequently, it claims no legal obligation to grant asylum or uphold non-refoulement. The Foreigners Act of 1946 and the Passport Act of 1967 are used to classify Rohingya refugees as illegal migrants, leading to their detention.

Judicial Decisions and Human Rights

The Indian Supreme Court has addressed the rights of Rohingya refugees. In 2021, it upheld the government’s stance on national security over the rights of detained Rohingya. Recent rulings have recognised the right to life under Article 21 of the Constitution but stopped short of granting residency rights.

International Obligations of India

India is a party to the International Covenant on Civil and Political Rights. Article 7 of this covenant obligates states to refrain from returning individuals to torture or degrading treatment. Additionally, India has ratified other treaties that implicitly support non-refoulement.

Current Concerns and Challenges

The lack of a coherent refugee policy results in unequal treatment of various refugee groups. While some groups receive recognition, Rohingya refugees often face arbitrary detention. The Citizenship Amendment Act of 2019 further complicates their status, excluding Muslim minorities from its provisions.

Legal Representation and Detention Conditions

Detained Rohingya refugees encounter severe challenges, including lack of legal aid. Civil society organisations face funding shortages, limiting their ability to assist refugees. Detention centres are reported to have deplorable conditions, prompting judicial scrutiny.

Recent Developments

In October 2024, the Delhi High Court dismissed a petition for the admission of Rohingya children into local schools, citing the need for a policy decision from the government. This reflects the ongoing complexities surrounding the status and rights of Rohingya refugees in India.

Questions for UPSC:

1. Examine the implications of non-refoulement for stateless populations under international law.
2. Critically discuss the impact of India’s non-signatory status to the Refugee Convention on Rohingya refugees.
3. Analyse the role of the judiciary in protecting the rights of refugees in India amidst national security concerns.
4. Point out the challenges faced by civil society organisations in advocating for Rohingya refugees in India and their implications.

Answer Hints:

1. Examine the implications of non-refoulement for stateless populations under international law.

1. Non-refoulement prohibits returning individuals to countries where they face persecution or torture.
2. It is a mainstay of international refugee law, ensuring protection for stateless individuals.
3. Stateless populations, like the Rohingya, are particularly vulnerable to human rights violations.
4. The principle is recognized as customary international law, binding even on non-signatory states.
5. Failure to adhere to non-refoulement can lead to severe consequences for stateless individuals, including further persecution.

2. Critically discuss the impact of India’s non-signatory status to the Refugee Convention on Rohingya refugees.

1. India’s non-signatory status means it is not legally bound to provide asylum or uphold non-refoulement.
2. This leads to the classification of Rohingya as illegal migrants, resulting in arbitrary detention.
3. Without formal refugee status, Rohingya have limited access to legal protections and rights.
4. The absence of a coherent refugee policy results in unequal treatment compared to other refugee groups.
5. India’s stance may undermine its international human rights commitments and obligations.

3. Analyse the role of the judiciary in protecting the rights of refugees in India amidst national security concerns.

1. The judiciary has recognized the right to life under Article 21 of the Constitution for refugees.
2. However, national security concerns often overshadow individual rights, limiting judicial intervention.
3. Supreme Court rulings have upheld government positions, impacting the fate of detained Rohingya.
4. Judicial decisions reflect a balancing act between human rights and state security interests.
5. Landmark cases have set precedents for interpreting international norms within domestic law.

4. Point out the challenges faced by civil society organisations in advocating for Rohingya refugees in India and their implications.

1. Funding shortages due to revoked FCRA licenses hinder civil society efforts to assist Rohingya.
2. Lack of legal representation contributes to the vulnerability and detention of Rohingya refugees.
3. Organisations face challenges in mobilizing support and resources for legal aid and advocacy.
4. Dehumanizing conditions in detention centres raise concerns about the treatment of refugees.
5. These challenges can lead to a cycle of neglect and further human rights violations for Rohingya refugees.