Millions of people are today forced to flee their homes as a result of conflict,
systematic discrimination, or other forms of persecution. The core instruments
on which they must rely to secure international protection are the 1951
Convention Relating to the Status of Refugees and its 1967 Protocol. Both are
the modern legal embodiment of the ancient and universal tradition of providing
sanctuary to those at risk and in danger.The term refugee has derived from a
French word “refugie” which means to flee for safety. Customary International
Law did not define the term refugee but it treated them like aliens. Ordinarily,
a refugee is referred to those persons who leave their States in which they have
permanent residences to escape persecution or military action.
The Rohingya are often called, “the world’s most persecuted minority”. They are
not considered amongst the Myanmar’s 135 officials ethnic group and have been
denied citizenship since 1983which has effectively rendered them stateless.
All the Rohingya in Myanmar live in the western coastal province Rakhine and not
allowed to leave without government permission. Itis one of the poorest state
in the country with lacks of basic necessities and opportunities. The worst type
of oppression and persecution of Rohingya occurs in this province. In August
2017 once again terrible violence commenced by Myanmar’s military forces against
They are deprived from their own citizenship, rights,
education, home and even food. They have fled from Myanmar to Bangladesh and
looking asylum in some other neighbouring countries. As far as India’s concern,
it came suddenly in limelight because government is planning to deport 40,000
Rohingyas settled in Jammu and Kashmir to Myanmar, because of potential security
threat and considering some additional things such as burden on the economic
development, demographic imbalance and over populated country like India has not
directly offered shelter and asylum to these persecuted ethnic people.Myanmar
is emerging as Southeast Asia‘s new flashpoint for terrorism as the plight of
its Rohingya Muslim minority continues to be exploited by extremists including
the Islamic State (IS) and Al Qaeda in the Indian Subcontinent (AQIS). 2017 saw
major turbulence in the country’s Rakhine state due to the military‘s
controversial counter- insurgency campaign where over 6,700 Rohingyas have been
killed and more than 600,000 were forced to cross the border to become refugees
in neighbouring Bangladesh due to violence, insecurity and the growing
The crisis emerged after various military operations in
August 2017 in response to many coordinated attacks on multiple police posts at
a northern Maungdaw township by a Rohingya group. The government reported that
12 security forces personnel and at least 77 Rohingya fighters were killed.In
the ensuing crackdown, the military, police and local militias were accused of
burning hundreds of Rohingya villages, gang-rapes and arbitrary killings. 
India has been historically known to be benevolent to refugees. During the late
1980s and early 1990s, it welcomed thousands of refugees from Myanmar.
Undoubtedly, India has unique history to provide asylum many people came from
different countries offered every kind of securities and necessities. But
today’s scenario has been changed. India being an overpopulated country,
struggling for providing bare necessitates food, shelter, cloth, education and
employments to its own citizens. Though India has followed the notion of “Atithi
Devo Bhava”. But there is limit to Atithi even. India cannot accommodate the
thousands of asylum seekers. India has revealed the opinion on Rohingya
immigration that if it will offer asylum to them or accommodate them as a
refugees that would definitely become the reason of a heavy economic burden in
the country. A few of the leaders have evenclaimed that country is not in a
position to admit the burden of Ronhingya Muslims.
Laws related to refugees in India
India does not have specific legislation that is applicable to all the refugees
in the country. Due to the lack of such a statute, judicial system is
constrained, when dealing with refugees, to invoke laws that are applicable to
foreigners in general, such as the Foreigners Act, 1946. The exception to this
rule is the legislation that has been passed regarding specific groups of
refugees, like the Tibetans. Laws have also been enacted relating to large scale
refugee movements during the partition of India in 1947 and the partition of
Pakistan in 1971. These acts regulate the movement of refugees relating to their
rehabilitation and the award of compensation.
Constitution of India, 1950 and International Conventions
Provisions of the Indian Constitution that have a bearing on refugees a found in
Articles 5 to 11, 14, 20, 21, 22, 25 (1), 27, 23 (3), 51(c) and 253; List I,
entries 14, 18 and 19; and List III, entry 27. These provisions deal with
citizenship; naturalisation; aliens (excluding enemy aliens); extradition;
displaced persons; fundamental rights of all people within the territory of
India (including refugees); the right of persons in criminal proceedings; and
the power of Parliament to recognise international treaties. Different levels of
assistance and facilities e.g., pertaining to educational opportunities, camp
conditions, employment opportunities, voluntary repatriation- have been extended
to special groups of refugees like Tibetans Chakmas, Sri Lankans and Afghans.
The right to life under Article 21 has been given an expansive meaning by the
courts to cover due process of law, i.e. “the right not merely to an animal
existence but a right to live with human dignity." This right as applied to
refugees in detention includes the right to the bare necessities of life,
including medical aid and food.
These provisions of the Indian Constitution indicate that the acknowledged rules
of natural justice in the common law systems applicable to all civilised
societies also apply in India, even to refugees.
For Refugees, Evacuees And Displaced Persons
A number of legislative measuresdealing with refugees were passed and issued
under the Seventh Schedule of the Constitution of India. Although many of them
have lost their importance in the current context, they have provided a useful
The established principle of the rule of law in India as set under Article
21and Article 51the directive principle of state policy, indicates the
spirit in which India approaches her international relations and obligations. The
Indian system is a common law system. Article 253of the Constitution read
with entry 14 of the list of the Seventh Schedule elucidates that, the power to
enter into treaties, conferred by Parliament, carries with it the right to
encroach on the state list to enable the union to implement a treaty. Therefore,
any law made in accordance with this Article that gives effect to an
international convention shall not be invalidated on the ground that it contains
provisions relating to the state subjects.
India claims to abide by the Article 14(1)of Universal Declaration of Human
Rights, Article 13 of International Covenant on Civil and Political
Rights,Article 22 of the Convention on the Rights of the Child.
Clearly, while India is not a signatory to either the 1951 Convention on the
Status of Refugeesor the 1967 Protocol, the principles of international law
relating to refugees must be taken as incorporated directly into Indian
Constitutional law via Article 21. This is so particularly in the view of the
fact that India has acceded to the 1966International Covenant on Civil and
Political Rights, the 1989 Convention on the Rights of the Child, and the
1979 Convention on the Elimination of All Forms of Discrimination against
There is therefore no current domestic law in conflict with international
conventions, treaties and resolutions relating to refugees. Today, international
refugee law stands somewhat integrated into Indian law.
Passport (entry into) India Act, 1920
The passport (entry into) India Act, 1920, deals with the question of passports
for persons entering and leaving India. The 1920 Act is important in the context
of refugees, given that they may enter and attempt to leave the country without
a passport or with a forged one. This is an accepted principle of refugee law by
Article 31 of the 1951 convention, which provides that contracting states shall
not impose penalties on account of illegal entry or prince of refugees in the
Registration of foreigners Act, 1939
The registration of foreigners Act, 1939, provides for the registration of
foreigners in India. The Act empowers the central government to make rules
regarding the procedure for foreigners to report to a prescribed authority about
their presence, movements, departure and proof of identity.
Foreigners Act, 1946
Due to lack of refugee-specific statute, the judicial system is constrained to
enforce, with regard to refugees, laws that are applicable to foreigners in
general. The foreigners act, 1946, addresses the entry, presence and departure
of foreigners to and from India.
Illegal Migrants (determination by tribunals) Act, 1983
Illegal Migrants (determination by tribunals) (IMDTA) Act, 1983 was passed by
the Parliament to check the growing number of illegal migrants entering the
north-eastern states of India. Given the ethnic, linguistic and cultural
similarities that the persons from the neighbouring countries share with the
citizens of north-eastern part of the country, it became increasingly difficult
to distinguish Indian nationals from foreigners.
Protection of Human Rights Act, 1993
The Protection of Human Rights Act, 1993, provides for the establishments at
National, State and various human rights courts, with the purpose of protecting
human rights in the country.The national human rights commission had taken an
interest in issues relating to refugees.
Indian Penal Code, 1860
The Indian Penal Code (IPC), 1860, applies equally to nationals, refugees and
other foreigners. A refugee may be charged under Sections 418, 419, 420, 468 and
The Debate on Rohingya Crisis in India
India is one of the most prominent refugee receiving countries in the world,
according to Refugee International estimates, India hosts around 3,30,000
refugees and its refugee population includes as many as 1,43,000 Sri
Lankans,1,10,000 Tibetans, an estimated 52,000 China and other minorities from
Burma, 15,000 from Bhutan, about 11,400 from Afghanistan, an unspecified but
massive number of Hindus from Bangladesh, a number of Nepalese who fled the
Maoist insurgency, and more than 400 from other from countries.
The Rohingya crisis isvery relevant in the contemporary international
relations. The historical origin of Rohingyas Muslim is quite controversial. One of
the general perceptions of the Myanmar people is that Rohingyasare illegal
immigrants from Bangladesh which are a threat to their economy and security. On
other hand, a few of the claims are that Rohingyas were living in Myanmar for
centuries and they are descendants of Muslim Arabs, Moors, Persians, Turks,
Mughals and Bengalis who come as traders, warriors etc.The densely populated
Bangladesh is struggling hard to shelter all the refugees who are desperate for
space, thus to shed of the shacks, they are sent to neighbouring countries, this
isigniting tensions in India that the influx could simply spill into its
India has stepped up security along its largely porous eastern border with
Bangladesh and is using “chilli and stun grenades” to block the entry of
Rohingya Muslims fleeing from violence in their homeland of Myanmar.Thus,
keeping in mind the parley, the Supreme Court has asked National Government to
equipoise thehumanitarian concernsfor Rohingyaliving in India and Nations’s
economic and security interests.
In 2013, two Rohingya refugees, Mohammad Salimullah and Mohammad Shaqir, who are
registered as refugees under the United Nations High Commissioner for Refugees (UNHCR),
filed a writ petition,under Article 32 of the Constitution before the Supreme
Court seeking a number of directions against the Union of India praying for
access to and availability of basic necessities.Writ petition was filed, to
secure and protect, the right against deportation, of the petitioner refugees in
India, in keeping with the Constitutional guarantees under Article 14 and
Article 21, read with Article 51(c) of the Constitution of India, which protects
against arbitrary deportation of Rohingya refugees who have taken refuge in
India after escaping their home country Myanmar due to the widespread
discrimination, violence and bloodshed against this community in their home
State. The petitioners have been granted refugee I-cards. The immigrants also
challenged their deportation on grounds of violation of international human
The petition rested its case on the contemporary socio-political context of the
Rohingyas in Arakan state of Western Burma as well as fact finding reports of
Human Rights & Law Network (HRLN) in 2012 and 2013 and are supported by HRLN in
the process of filing the petition and defending them in court.The issue
came into limelight,when the home ministry in July, 2017 stated that Rohingya
are illegal immigrants and they have posed grave security challenges as they
might be recruited by terrorist groups, and hence asked the state governments to
identify and deport them. Thereafter,state governmentsreported, that according
to available data, more than 14,000 Rohingya, registered with the UNHCR, were
staying in India. However, some inputs indicated that around 40,000 undocumented
Rohingya were also on record, mostly in Jammu, Hyderabad, Haryana, Uttar
Pradesh, Delhi-NCR and Rajasthan regions.
Contentions against deportation:
1. Providing Asylumand Reliefto Rohingyas
Undoubtedly, India has unique history to provide asylum many people came from
different countries offered every kind of securities and necessities. The
Ministry of External Affairs has started Operation Insaniyatto provided
assistance to Bangladesh in response to humanitarian crisis being faced by it.
Under this operation, India will provide relief material consisting of items
including rice, sugar, salt, pulses, cooking oil, biscuits and mosquito nets to
the affected people.
A team of volunteers from Sikh organisation Khalsa Aid reached ‘Teknaf,’
Bangladesh-Myanmar border to provide relief to the lakhs of Rohingya Muslim
families fleeing Myanmar. The team offered fresh water to the refugees
disembarking from the boats and arranged free transportation to take them to the
refugee camps.The NGO’s volunteers had set up a daily langar service for 30,000
to 50,000 people.
2. Against our Constitution and International customary law
The proposed deportation is contrary to the Constitutional protections of
Article 14, Article 21 and Article 51(c) of the Constitution of India, which
provides equal rights and liberty to every ‘person’this act of deportation
would also be in contradiction with the principle of ‘Non-Refoulement’, which
has been widely recognised as a principle of Customary International Law. The
Convention Relating to the Status of Refugees, 1951 lays down guidelines and
rules regarding the treatment of refugees. It put forward the ‘Principle of Non-Refoulement’ as
the right of refugees, It states that refugees should not be returned to a
country where they face serious threats to their life or freedom. India has not
ratified the Refugee Convention. But this is now considered a rule of Customary
International Law. Further India has also ratified, or is signatory to, various
Conventions and Treatiesthat advocate this Principle. Article 51(c) of the
Indian Constitution, a Directive Principle of State Policy, casts a duty on the
State to endeavour to foster respect for International law.
3. National Human Rights Commission’s (NHRC)take on deportation
The National Human Rights Commission (NHRC) has issued notice to the Ministry of
Home Affairs, taking suo motucognizance of media reports regarding the ideas of
the government of India to deport around 40,000 illegal Rohingya immigrants from
Myanmar, who are residing in parts of India territory. The Commission has
contended that,"refugees are no doubt foreign nationals but they are human
beings and before taking a big step the Government of India has to look into
every aspect of the situation, keeping the fact into focus that the members of
the Rohingya community have crossed into India borders are residing here for
long, have a fear of persecution once they are pushed back to their native
country.” Besides this, it also contends that the lack of citizenship of the
Rohingya community heightens their vulnerability to a range of human rights
Annual Report of the United Nations High Commissioner for Human Rights
The Annual Report of the United Nations High Commissioner for Human Rights
dated, June 28, 2016, on the ‘Situation of Human Rights of Rohingya Muslims and
other Minorities in Myanmar’, examines the patterns of human rights violations
and abuses against the Rohingyas, particularly widespread discrimination against
this community in their home country of Myanmar. The United Nations has
described the Myanmar government’s action against the Rohingya as “ethnic
cleansing”. United Nations has said that India should be more “responsible” in
the matter and “show some heart”.
4. The Rohingyas then being targeted for their religion
Mohd. Yunus, 42, in charge of the refugee campat Jammu and Kashmir claims
that,“Look at us as humans, not as Muslims. You may as well kill us here, rather
than send us back to Burma, where we will be killed anyway,” The Centre has
termed Rohingyas illegal immigrants and ordered their deportation, citing threat
to national security as reason. There is no evidence so far of their involvement
in terror or cross-border activities.
Contentions in favour of deportation:
1. A threat to national security
On 9 October 2016, 200 armed attackers from the Rohingya Solidarity Organisation
(RSO)-linked Aqa Mul Mujahidin, led by 45-year-old Havistoohar, carried out a
surprise attack on Myanmar‘s police at the Maungdaw border, killing 9 police
officers. The attackers, who were from Myanmar‘s northern Rakhine (Arakan)
state, seized weapons, ammunition, bayonets and magazines. According to the
Myanmar government, the attackers received funding and support from foreign
terrorist organisations to carry out the attacks.
2. International pressure building on India UN
According to UN, the Rohingya is one most persecuted minority in the world,they
are the stateless people. It is a big humanitarian issue and the world should
deal with it. The Rohingya persecution is against national and religious law of
Myanmar. In addition to that Rohingya mass killing is against the international
convention of human right and it is considered as genocideaccording to the UNand
the situation is deteriorating for Rohingya day by day. There are three reasons
behind it, firstly in an International politics global north and their issues
are important and the rest is not. Secondly, it is the suffering of the people,
not state so people are not the centre of attention of the world. Thirdly, the
bilateral relation and the economic and trade interest is more important for the
countries rather than any humanitarian crisis.
3. Absence of documentation is a problem
Experience in the Northeast with immigrants has been very bad, over 30% people
are immigrants and as a result the indigenous people are fast losing their
identity.We are fast losing our culture, we are losing our land.Since
Myanmar doesn’t recognise Rohingyas as citizens, they are only given a card
identifying them as temporary residents. ThoughUNHCR has issued them refugee
identity cards after a rigorous interview process. About 16,500 Rohingyas in
India, are registered with UNHCR.
4. Home for Rohingya is Myanmar only
Government in their argument tells Supreme Court in Rohingya deportation
casethat,“India can’t become world’s refugee capital.” Because the real home
of the Rohingya is Myanmar and they have a right to live there. Myanmar’s
unwanted children cannot become India’s moral burden no matter how tragic their
fate has become.
The Rohingya's is a long history of unresolved political parley for recognition
of ethnic identity and citizenship in the wake of neighbour's retreat from
South-East Asia. As one understands in plainest form only a peaceful
neighbourhood can ensure India's national security. India, as a member of the
international community, must fulfill its role to ensure that the roots of the
crisis are resolved and the rights of the Rohingya are secured. But as we go
through this issue, images of unfed refugee toddlers, malnutrition with dilated
bellies, flies buzzing around their faces and lips, refuses to cast off. At the
same time, if we think of all the starving toddlers who are Indians, it
definitely seems to belike a classic case of moral jeopardy. Who would our
government fed first? This situation clearly explains, If you run after two hares,
you will catch neither. So we should definitely argue in favour of the Rohingyas,
if each one of us could spare a space for them in our houses and pay for their
food bills, but unfortunately, we cannot afford it.
ErikaFeller,et al, Refugee Protection in International Law,3, Cambridge
University Press (2003).
20 H.O. Agarwal, International Law and Human Rights, 868, Central Law
Publications(20 ed. 2015).
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concern, 2 International Journal of Academic Research and
Poppy McPherson,6,700 Rohingya Muslims killed in one month in Myanmar, The
Guardian,Dec.14, 2017, at 6.
(Mar. 31, 2018, 4:50 PM), https://www.theguardian.com/world/2017/dec/14/670
Angelica Habulanand Muh Taufiqurrohman, Southeast Asia Philippines,
Indonesia, Malaysia, Myanmar, Thailand, Singapore, Online Extremism,
10 International Centre for Political Violence and Terrorism Research, Counter
Terrorist Trends and Analyses,4, 7-30 (2018).
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Nehginpao Kipgen,Can India ignore the Rohingya crisis?, The Hindu,SEP15,
Khudiram Chakma v. Union of India, (1994)Supp (1) SCC 614(India).
East Punjab Evacuees (Administration of Property) Act, 1947; UP
(Rehabilitation of Refugees) Act, 1948; Mysore administration of Evacuee
Property (Emergency) Act, 1949; East Punjab Refugees (Registration of Land
Claims) Act, 1948. etc.
art. 21, “no person, whether a citizen or an alien, shall be deprived of her
life or personal liberty except in accordance with a procedure established by
law that must be fair.”
art. 51, “the state shall endeavour to foster respect for international law
and treaty obligations in the dealings of organised peoples with one another.”
art. 253, “Parliament has the power to make any law for the whole or any
part of the territory of India for implementing any treaty, agreement, or
convention with any country or countries or any decision made at any
international conference, association or other body.”
art.14 cl. 1, “Everyone has the right to seek and enjoy other in countries
asylum from persecution."
art. 13, “An alien lawfully in the territory of a State party to the present
Covenant may be expelled therefrom only in pursuance of a decision reached in
accordance with law and shall, except where compelling reasons of national
security otherwise require be allowed to submit the reasons against his
expulsion and to have his case reviewed by, and be represented for the purpose,
before the competent authority or a person or persons especially designated by
the competent authority.”
art. 22, “State Parties shall take appropriate measures to ensure that a
child who is seeking refugee status or who is considered a refugee in accordance
with applicable international or domestic law and procedure shall, whether
accompanied or unaccompanied by his or her parents or by any other person,
receive appropriate protection and humanitarian assistance in the enjoyment of
applicable rights set forth in the present Convention and in other international
human rights or humanitarian instruments to which the said States are parties.”
Sec. 418- Cheating with knowledge that wrongful loss may ensue to person
whose interest offender is bound to protect;
Sec. 419- Punishment for cheating by personation;
Sec. 420- Cheating and dishonestly inducing delivery of property;
Sec. 468- Forgery for the purpose of cheating;
Sec. 471-Using as genuine a forged document or electronic record.
Saurabh Bhattacharjee,India Needs a Refugee Law,43 Economic and Political
Weekly 71, 71-75 (2008).
Correspondent, Rohingya crisis: India steps up security along border; BSF
uses chilli, stun grenades to stop influx of refugees,Firstpost, Sep. 23, 2017at
(Apr. 3, 2018, 9:28 AM), https://www.firstpost.com/india/rohingya-crisis-india-steps-up-security-along-border-bsf-uses-chilli-stun-grenades-to-stop-influx-of-refugees-4073247.html.
Mohammad Salimullah and Anr. v. Union of India and Ors., (2017)Writ Petiton
(Civil) No. 793 (India).
Ishita Dey, et al,The contours of “traditional hospitality”: A study of
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Correspondent, Operation Insaniyat: India to send relief to Bangladesh to
help with Rohingya influx,India Today, Sep.14, 2017, at 13.
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NHRC v. Arunachal Pradesh,A.I.R.1996 SC 1234(India), the Supreme Court
emphasised that, “Our Constitution confers certain rights on every human being
and certain other rights on citizens. Every person is entitled to equality
before the law and equal protection of the laws. So also, no person can be
deprived of his life or personal liberty except according to procedure
established by law. Thus, the State is bound to protect the life and liberty of
every human being, be he a citizen or otherwise”
Universal Declaration of Human Rights; International Convention on the
Elimination of all Forms of Racial Discrimination; International Covenant on
Civil and Political Rights; Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment and International Convention on Protection
of all Persons Against Enforced Disappearances.
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Mohammad Salimullah and Anr.v. Union of India and Ors.(2017) Writ Petiton
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