On Wednesday, the Ministry of Home Affairs issued a press release titled ‘Rohingya Illegal Foreigners’ in reaction to the uproar against providing humane living circumstances for Rohingya refugees. The statement read “Illegal foreigners are to be kept in the Detention Centre till their deportation as per law. The Government of Delhi has not declared the present location as a Detention Centre. They have been directed to do the same immediately.” The matter, therefore, rests in the hands of the Delhi government, whose MLAs and MPs unfairly blamed the Rohingya community for the Jahangirpuri home demolitions in April.
It is necessary to refute the allegation that those to be detained are illegal foreigners. Refugees live in India with the help of their UNHCR refugee cards and asylum seekers certificates as their official identification documents. These cards are routinely renewed via an RSD (Refugee Status Determination) interview process, which is lawful and authorised. Since the UNHCR collaborates with the Indian government, particularly the ministries of external affairs and home affairs, which includes the police authority, the government is tangentially involved in this process. The assertion that Rohingya refugees are “illegal” is therefore false. Still, at least 294 refugees are detained in India currently. Four of them are little children. All of them had valid UNHCR refugee cards and Person of Interest documentation.
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Many counter that India is not a signatory to the 1951 Refugee Convention and the 1967 Protocol and is therefore under no obligation to protect. However, they overlook that India not only signed but also contributed to the 1951 Universal Declaration of Human Rights. The UDHR’s Article 14 states that “everyone has the right to seek and to enjoy in other countries asylum from persecution”.
Experts like Saurabh Bhattacharjee highlight that India has a patchwork of commitments and judicial measures for refugees who seek safety in the country. These are international commitments such as the 1948 Universal Declaration on Human Rights and the 1966 International Convention on Civil and Political Rights, constitutional rights such as the Right to Life and Liberty and Right to Equality Before Law, and judicial expansion of rights.
An elderly man with a child walks past makeshift tents at the Rohinya refugee settlement area in Kalindi Kunj, New Delhi, August 17, 2022. Photo: PTI/Ravi Choudhary
Bhattacharjee notes that there have been legal precedence of courts siding with refugees and granting them status in cases such as Louis De Raedt vs Union of India, State of Arunachal Pradesh vs Khudiram Chakma or even U Myat Kayew and Nayzan vs State of Manipur. In the latter, “the Gauhati High Court, under article 21, ruled that asylum seekers who enter India, even if illegally, should be permitted to approach the office of the UN high commissioner to seek refugee status.”
There remains a dire need for the 1951 Refugee Convention and the 1967 Protocol. Despite the convention and protocol being gold standards in refugee rights protection, India has refused to ratify them. However, as with any other such issue, an absence of a proper law on the matter doesn’t discourage it from taking place; it ensures that when it does happen, it occurs outside the confines of the law.
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In fact, the language, sentiment and history of criminalising humans ‘per law’ is rooted in the Foreigners Act that the British bestowed upon India in 1864. The foreign colonial government, ironically, established the Act to “ban, detain, and expel foreigners” entering India illegally. In 1946, they made the Act harsher in the wake of the second world war which is the version India uses today as The Foreigners Act of 1946. This Act and its variations such as the 1939 Registration of Foreigners Act and the 1948 Foreigners Order give the government draconian licenses in allowing it to restrict refugee movement, order medical exams, restrict employment opportunities, supervise socialisation and force deportations. All of which the Indian state is doing today. The rules that the British used to oppress Indians are still in effect today, only they are now used against refugees already fleeing genocide.
The absence of refugee law and the rising anti-refugee sentiment is only making refugees more vulnerable than they already are. It is time that India wakes to its constitutional and humanitarian obligations to not just protect Indians but any human that considers the country their home.
Riya Singh Rathore is a researcher and editor. She has completed her postgraduation in international relations from University College Dublin.
