The stance of the Indian government regarding the Rohingya crisis is a source of consternation, to put it mildly. The central government has decided that ethnic Rohingya who are already in India - around 40,000 - should be deported and others should not be allowed to enter. The government stand is unconstitutional and violative of customary international law. It is biased, discriminatory and conservative. This unlike-India stand is a departure from previous practice and represents an abdication of India's moral and political responsibility as a member of the international community.
On August 8, the central government issued an order to all state governments to identify and deport illegal immigrants, including Rohingya. Despite the escalation of the crisis after 25 August in Burma when counterinsurgency operations in the Rakhine State have led to large-scale killings, human rights violations, and an exodus of more than a half-million people to Bangladesh, the response of the government has remained obdurate. It has authorised border security forces to use "rude and crude methods" to block infiltrators. A Border Security Force officer recently admitted to media that they had started using chilli sprays and stun grenades. In some states, forcible removal of Rohingya refugees has begun.
How legitimate are such actions on the ground when the matter is under judicial consideration in the Supreme Court of India? The preliminary arguments on a writ petition filed by two Rohingya Muslims on 29 August against their proposed deportation was heard on October 3. The petitioners are among the around 16,500 Rohingya refugees who are registered with the UN Refugee Agency (UNHCR) and given identity cards. They have been in India since 2011-12 when they came mostly on foot to escape the violence and persecution by the Burmese military and Buddhist majority vigilante groups.
It is one thing to be concerned about national security and quite another to criminalise an entire community.
The writ petition, issued under Article 32 of the Constitution of India, that allows all persons - citizens and foreigners - to move the Supreme Court in case of violation of their fundamental rights, argues for protection. It affirms that two fundamental rights and one principle of international law would be violated if the Rohingya refugees were deported back to Burma. The fundamental rights in question are Article 14 ("equality before law and equal protection of laws") of the fundamental right to equality and Article 21("life and personal liberty") of the fundamental right to freedom. The fundamental principle of international law that is at risk is non-refoulement that prohibits any country from returning refugees or asylum seekers to another country where there was a likelihood of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". The petition also draws upon case law highlighting previous examples where Indian courts have upheld the rights of refugees.
The government's counter-affidavit, however, maintains that the subject matter was not justiciable since the court had jurisdiction only regarding "fundamental rights of Indian citizens". It was a matter for the executive, and government policy could vary from case to case "in larger national interest". Moreover, India was not a signatory to the 1951 Refugee Convention or its 1967 Protocol, therefore, it was not bound to the principle of non-refoulement. Further, that the Rohingya were illegal immigrants and Indian security agencies had information that some of them had links with terrorist organisations in Pakistan and other countries, were involved in illegal and anti-national activities, and figured in the sinister designs of the Islamic State of Iraq and the Levant (ISIL, also known as ISIS) and other extremist groups. India was primarily responsible to its own citizens and national resources were scarce. Admitting the Rohingya could also change the "demography and social structure" of the Indian society.
The right-wing BJP government's decision is in contrast to that of previous governments vis-a-vis other people in similar predicament. As of end-2014, there were nearly 300,000 refugees from 28 countries in India. Those who sought refuge had faced persecution or were "genuinely at risk" in their home states and were forced to flee.
India's record as far as the principle of non-refoulement is concerned has been fairly good so far. Contrary to what has been stated in the government affidavit, as a principle of customary international law, it applies also to states that are not parties to the 1951 Refugee Convention or its 1967 Protocol. Moreover, India is a signatory to several International Conventions which include, inter alia, the principle of non-refoulement; India is also signatory to the recent "New York Declaration for Refugees and Migrants" (dated October 3, 2016) that recognised the rights of refugees to asylum and also affirmed the principle of non-refoulement.
The government largesse to minority communities of Pakistan and Bangladesh is of note. By notification in gazette on September 7, 2015, the government made amendments to the Passport (entry into India) Rules, 1950, and the Foreigners Order, 1948, exempting a "… certain class of foreigners - persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and had entered into India on or before the 31 December 2014 without valid documents ... or when the validity of any such document has expired"; this "class of foreigners" were eligible for long-term visas.
The government's response to the Rohingya refugees is striking in contrast. Why? Are they not a minority or have they not faced religious persecution? On the contrary, the Rohingya are acknowledged as the most persecuted minority in the world. It so happens, that a large majority of them are Muslims. Burma refuses to recognise their distinct ethnic identity or history and insists that they are illegal immigrants from Bangladesh. It has denied them citizenship making them the largest stateless population in the world; they are impoverished and have almost no rights within Burma (the Hindu Rohingya who have accepted the second-class green citizenship cards, which Muslim Rohingya have not, have some rights).
They have been targets of the majority Buddhist community who along with the Burmese police and military (all Buddhists) enjoy impunity. The Rohingya have suffered wave upon wave of mass violence that has led to massive displacement within Burma as well as forced them to cross international borders. It is this state of unresolved political conflict in the face of continuous persecution that no doubt is behind the birth of Rohingya insurgency. The world has been witness to the Rohingya reality. The United Nations and other international organisations have found their claims to be credible and advised the Burmese government to end their persecution and grant them citizenship. Is the Indian government not aware of all this?
Increasingly, within India as in some other parts of the world, there is an easy equation being drawn between Islam and terrorism. The accusation of cross-border terrorism and fear for national security are often invoked by the right-wing BJP government and their ideologues vis-a-vis Muslim citizens of India, and now, by extension, to Rohingya Muslims.
The allegations of terror links, as mentioned in the government affidavit, do not hold water. Of the six states in India in which Rohingya have taken refuge, Jammu has the largest number of Rohingya, who have been living there for last five years. Demand for deportation of Rohingya surfaced early this year when some BJP leaders of Jammu initiated a campaign to remove them and threatened dire action if their demand was not met. A public interest litigation (PIL) seeking their identification and deportation was also filed in J&K High Court by a BJP-linked advocate.
The NDTV recently conducted a detailed survey and found the allegations to be baseless. According to its report, in reply to a question raised in the budget session of the State Assembly in January, the Chief Minister, Mehbooba Mufti, said that "no Rohingya in Jammu and Kashmir has been found involved in militancy-related incidents. No instance of radicalising [of] these foreigners has been reported so far. Seventeen First Information Reports (FIR) have been registered against Rohingya for various offences, including those relating to illegal border crossing".
NDTV's survey found that only 14 FIRs implicated Rohingya. "We tracked down every single one of the 14 FIRs or first information reports to find the following: eight cases for lack of visa, two cases of rape, one case of cow slaughter, one case for causing injury, one case for selling goods in the black market and one for stealing railway property." The Inspector General of Police in Jammu has also confirmed that offences that they are found guilty of are petty, similar to those committed by "other groups of that social-economic situation". Senior advocate, Colin Gonsalves, who is representing the Jammu Rohingya in the Supreme Court has also maintained that there was not a single terror case.
In any case, as Senior Advocate Fali Nariman, who appeared for the Rohingya petitioners on October 3, pointed out: "... If the government had any specific information about any Rohingya persons being terrorists, those persons could be excluded from the applicability of the Refugee convention and dealt with separately by the agencies concerned."
One need not be a Muslim to feel that the present stand of the government is biased and discriminatory. It is one thing to be concerned about national security and quite another to criminalise an entire community. The modus operandi to ensure national security cannot be to ostracise all the Rohingya who have already taken refuge in India or others who may be at our borders and need our help. This anti-Muslim and anti-Rohingya attitude is causing insecurity within this community and polarisation in society.
The Indian government has been reticent on the Rohingya crisis. Prime Minister Modi in his visit to Burma in early September was quick to condemn "extremist violence" but remained silent on the exodus. It was only after international criticism mounted that he expressed concern and subsequently "Operation Insaniyat', that includes aiding Bangladesh with food and relief material, was initiated.
One has also heard another argument that is popular in some quarters - that Rohingya were an internal problem of Burma. However, due respect to sovereignty of a nation cannot extend to turning a blind eye to human rights excesses within its boundaries. Moreover, the Directive Principles of State Policy of the Constitution of India require the State to "promote international peace and security" (Article 51a) and "foster respect for international law and treaty obligations ..." (Article 51c). Ignoring this would represent an abdication of moral and political responsibility towards the persecution of an ethnic minority the scale of which had been deemed as "ethnic cleansing" and "genocidal" by UN observers.
The Rohingya's is a long history of unresolved political conflict for recognition of ethnic identity and citizenship in the wake of colonialism's retreat from Southeast Asia. India, as a member of the international community, must do its bit to ensure that the roots of the conflict are addressed and the rights of the Rohingya safeguarded. Only a peaceful neighbourhood can ensure India's national security.
Bela Bhatia is an Indian academic and human rights worker. She holds a PhD in social and political sciences from the University of Cambridge and a Bachelor of Laws (LLB) from the Gujarat University. She works on an independent basis and lives in Bastar, south Chhattisgarh.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.