Ethnic Cleansing and Trails of Tears: Is India’s “Closed-Door Policy” and Denial of Non-Refoulement Principle Defensible

But in our camp, his story was everyone’s story, a single tale of dispossession, of being stripped to the bones of one’s humanity, of being dumped like rubbish into refugee camps unfit for rats.” [1]

Introduction

Imaginably one of the most significant alliances is that of between a State and its nationals. This bond, which predominantly owes its genesis to an individual’s birth/jus soli or blood relationship(s)/jus sanguinis or naturalisation, etc., binds a personage into an inviolable and everlasting association. Appreciably, nationality permeates every aspect of a person’s identity and often proves to be the core of his existence. Ergo, it is quite understandable that this propinquity between a citizen and his nation is often manifested by christening a country by its nationals as a “motherland”. According to the International Court of Justice (ICJ)[2],

 … nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State….

 

Further, the Inter-American Court of Human Rights (IACtHR) in one of its advisory opinions[3], observed, “nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity”.

In the same vein, Warren, C.J. while rendering his dissenting opinion in Perez v. Brownell[4], inter alia, remarked,

  1. Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the State within whose borders he happens to be. In this country the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights.

Notably[5], the political and legal bonds that link a person to a State and bind him with ties of loyalty and fidelity by virtue of nationality, not only entitles him to diplomatic protection from that State, rather, also vouchsafes a certain degree of protection against the demands for extradition from other nations. Concurrently, while on one hand, affiliation of nationality entitles a State, liberty of even forcible intervention[6]for the protection of rights of its citizens/nationals abroad; State’s nationality, on the other hand, obliges such individuals/citizens to abide by its laws and serve their country as and when a need arises. However, notwithstanding such obligations and encumbrances on individuals, nationality is regarded as one of the most cherished attributes and a fundamental human right, creating an important incident of international law, besides ensuring the dignity of individual. As a corollary, it may be effortlessly deduced that the perplexities and quandaries, encompassing persons deprived of this basic human right, are incessant and unrelenting.

Statelessness: De jure and de facto

Significantly under the international law[7], de jure statelessness/stateless individual “means a person who is not considered as a national by any State under the operation of its law”. Per contra, de facto stateless persons[8] are often understood as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country”. In this regard, the United Nations High Commissioner for Refugees (UNHCR)[9], inter alia, observed:

stateless person would be a person who possesses no nationality, but the lack of nationality must be provable and proven. It may be easy if the person was born of, or married to, a stateless person and did not acquire a nationality by birth, or lose it by marriage…. Quite different is the position of persons who have no proof of expatriation and cannot obtain such evidence and those who have not, either in law or in fact, lost or been deprived of their nationality but refuse to avail themselves of the protection of their former home country for whatever reason. The first category of persons (i.e. those who actually lack a nationality) are called stateless persons de jure. The others are, in fact, in the same position as de jure stateless persons because they have no state to turn to for protection, but legally they are nationals of a certain state although they do not derive any benefits therefrom. These persons are called de facto stateless persons.

 

Simply put[10] the dissimilarity between de jure and de facto statelessness lies in the fact that while the former relates to a lack of recognition of an individual as a national of any State, the latter relates to an individual’s inability to demonstrate a status of de jure statelessness, coupled with the lack of an effective nationality and national protection. Interestingly, as per some authors of international law[11], despite there being conceptual legal dissimilarities between de jure and de facto statelessness, “they both essentially refer to persons lacking protection from a State. From this perspective, they should be entitled to equal protection under international law”. Whilst some other jurists[12]proclaim that the term, “de facto statelessness” is a misnomer, and that it is more appropriate to denominate such individuals as “de facto unprotected persons”. However, irrespective of varied opinions on nomenclatures/terminologies or manner of its eventuation, it is quite explicable that statelessness ensues prodigious hardships, privation, vulnerability to abuse, lack of social and economic security, grave risks of psychological problems, such as hopelessness, depression, etc., to such individuals. Further, startlingly, despite the momentous societal evolution around the word and notwithstanding an increased consciousness and response to human rights concerns, perseverance of statelessness in colossal proportions in present times is quite difficult to ratify and accede to.

Statelessness: Reasons and disquieting implications

Eloquently, the reasons leading to statelessness may be broadly accredited to the factors such as reintegration, succession, dissolution or cessation of territories by States; operation of complex citizenship laws or administrative practices; discrimination onbaccount of gender, age, ethnicity and/or race; or arbitrary deprivation of nationality. As per the UNHCR[13], statelessness may occur as a result of conflict of laws, transfer of territories, laws relating to marriage, administrative practices, discrimination, laws relating to registration of birth, jus sanguinis (nationality based solely on descent, often only of the father, which in some regions results in the inheritance of statelessness), denationalisation, renunciation and/or automatic loss by operation of law. Notwithstanding its impetus, morosely, statelessness perseveres as one of the core reasons for discrimination, exploitation, and forced displacement in all the regions of the world. It is, in fact, widely conceded that statelessness leads to solemn humanitarian implications, denuding those under its garb from legal protection or the right to participate in political process, besides, engendering[14], “poor employment prospects and poverty, little opportunity to own property, travel restrictions, social exclusion, sexual and physical violence, and inadequate access to healthcare and education”. At the same time, it is widely and aptly discerned[15], “statelessness is both a cause and a consequence of trafficking. Without legal identity, stateless people can be vulnerable to trafficking”. Undoubtedly, statelessness[16], characteristically, “leaves people unable to enjoy basic rights that most people take for granted, including the ability to go to school, see a doctor, get a job, open a bank account, vote, get married, and pass on nationality to their children. It can lead to desperation making victims vulnerable to extreme forms of exploitation and abuse”. Significantly, the UNHCR[17], while dealing with the issue of statelessness, lamentably observed, “statelessness can have a severely detrimental impact on the lives of the individuals concerned…the negative effects of statelessness are not limited to the persons immediately concerned, but may also affect their families, the wider community, the State and even inter-State relations”. Predictably, the sting of statelessness overwhelms persons’ generations to come, divesting them of basic human essentials and in majority cases, their sheer existence.

Divestment of Nationality: Arbitrary versus justifiable grounds

Article 15(2) of the Universal Declaration of Human Rights[18] (UDHR) provides, “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Noticeably, the embargo provided under the UDHR relates to arbitrary deprivation of nationality, in distinction to a divestment which serves a legitimate purpose and complies with the principle of proportionality. As a matter of fact, international law is not averse to and in fact, acknowledges dispossession of nationality under certain circumstances, such as, voluntary renunciation, relinquishment, etc. However, in order for a privation of nationality not to be termed as arbitrary, such deprivation must[19], “be in conformity with domestic law and in addition comply with specific procedural and substantive standards, in particular the principle of proportionality. Measures leading to deprivation of nationality must serve a legitimate purpose that is consistent with international law and in particular the objectives of international human rights law”. As a corollary, the term(s), “arbitrary/arbitrariness” may, reasonably, be understood to include acts which are not only in violation of explicit legal provisions, rather, also those tainted with elements of inappropriateness, injustice, lack of predictability, etc. Therefore, where the basis of divestment of nationality is premised on barbaric grounds, such as; ethnic cleansing, pogrom, persecution, genocide, etc., it cannot be denominated as a valid forfeiture. It is, correspondingly quite understandable that the incidents of arbitrary deprivation of nationality, inter alia, on racial, national, ethnic, religious, political or gender grounds were, appropriately, labelled as violation of human rights and fundamental freedoms by the United Nations Human Rights Council (UNHRC) in its Seventh Session[20], subsequently, reaffirmed from time to time.[21]

Conventions on Reduction of Statelessness and Status of Stateless Persons

Conspicuously, earlier to the UNHRC’s declaration(s) on statelessness, provisions, inter alia, relating to prevention of statelessness and conferment of citizenship by contracting States to avoid/minimise such instances were envisaged under the Convention on the Reduction of Statelessness, 1961 (the 1961 Convention)[22]. Significantly, in this regard, Article 8(1) of the 1961 Convention cautioned and bound its contracting States/parties, subject to the provisions under Articles 8(2) and (3) thereof, not to, “deprive a person of its nationality if such deprivation would render him stateless”. At the same time, Article 9 of the 1961 Convention vividly avowed, “A contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.” In fact, the 1961 Convention, favours the grant of nationality to persons born within the territory of contracting State or even those born outside, in terms of or as per the manner envisaged under Articles 1 and 4 respectively, thereof, in order to avoid the incidents of statelessness. Articles 5, 6 and 7 of the 1961 Convention further ensure that the event of loss of nationality by virtue of incidents specified therein would be consequent and conditional only upon the possession or acquisition of nationality of other State by such individuals.

Clearly, the 1961 Convention envisioned both affirmative and proscriptive measures so that the incidents of statelessness may be exterminated or curtailed to a significant range. Further, perceptibly, in order to, “overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives,” provisions of equal import, to those existing under the 1961 Convention, were earlier adopted under the 1954 Convention Relating to the Status of Stateless Persons (the 1954 Convention). Outstandingly, the 1954 Convention provided for several measures to warrant basic human rights to stateless individuals, inter alia, acknowledging an imminent need to, “regulate and improve the status of stateless persons by an international agreement”.

Markedly, while on one hand, Article 2 of the 1954 Convention obligated stateless persons to, inter alia, conform with the laws and regulations of the country in which they find themselves, on the other hand, Article 3 thereof bound the contracting States to, “apply the provisions of this Convention to stateless persons without discrimination as to race, religion or country of origin”. At the same time, the 1954 Convention, not only contained provisions regarding the endowment of right to freedom of movement; right of association and access to courts; offering administrative assistance, identity papers and travel documents to stateless persons within the limits of contracting States, etc., in the manner as provided therein, rather, also prohibited expulsion of stateless persons, existing lawfully within the territory(ies) of such signatory States. Understandably, the various directives under the 1954 Convention were aimed towards the alleviation of the plight of stateless persons by, inter alia, equating certain rights of such individuals with that of the nationals of such contracting States at several instances. However, regardless of numerous resolute manifestations, admonitory declarations and obligatory exhortations against statelessness, deplorably, the problem of statelessness has not only continued to subsist, rather, propagated to monstrous proportions across the globe. Increasingly concerning is the fact that impetus to the evil of statelessness in majority instances is predicated on severe crimes against humanity, such as genocide, persecution, mass extermination, ethnic cleansing, etc. Undoubtedly, though, sporadic States around the world have presently consummated or acceded to deliver their commitments under the international laws and conventions to minimise the occurrence of statelessness and its consequent ill-effects, however, despite their tenacious endeavours, neither has the leviathan of statelessness been exterminated, nor the plight of those persistently enduring under its talons and fangs, truncated. Consequently, extremely barbaric and merciless incidents of human extermination and banishment continue unabated across several regions of the world, leading to millions of individuals being rendered stateless, without a refuge, protection, sanctuary or any hope thereof, forthcoming from any part of the world.

Genocide and ethnic cleansing: Grave crimes against humanity

The term “genocide” is commonly understood as[23] “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, which may manifest in the form of assassination or causing serious bodily or mental harm to members of a group; deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and/or forcibly transferring children of the group to another group. Similarly, “ethnic cleansing”, though, not specifically defined under the international law, connotes, coercive means[24] such as “mass murder, torture, rape and other forms of sexual assault; severe physical injury to civilians; mistreatment of civilian prisoners and prisoners of war; use of civilians as human shields; destruction of personal, public and cultural property; looting, theft and robbery of personal property; forced expropriation of real property; forceful displacement of civilian population”, devised to remove civilian population from given area, often with an intent of making a region ethnically homogeneous. Unfortunately, history is replete with episodes of mass genocide, ethnic cleansing, etc., being continually adopted as means of extermination of countless individuals or subjecting them to grave outrages. It is, as a matter of fact, difficult to envision anyone who is not aware of the extreme savagery administered by the Nazi regime on the population of Jews during the period in and around the Second World War i.e. early to mid-twentieth century. Sorrowfully, the ravages and ill-effects of this dark-era are still being endured by millions of people and families around the globe. Agonisingly, the repercussions of Hitler regime were so striking that the concepts of genocide and crimes against humanity[25], “came about as a reaction to the horrors committed by the Nazis during the Second World War–genocide being more particularly associated with the holocaust”. Though, the Nazi crimes should have proved to be of everlasting deterrence for generations of human beings, however, owing to several incoherent reasons, regrettably, human annihilation and bloodbath perseveres as a melancholic reality.

Woefully, and as another exemplification of this madness and delinquency, during the period between the months from April to July 1994, vast majority of members of the Tutsi minority ethnic group, as well as some moderate Hutu and Twa, were senselessly massacred by the Rwanda armed militias. While chronicling the severity of atrocities administered on children during this period, Human Rights Watch[26], observed,

[t]hose who planned and executed the genocide of 1994 violated children’s rights on a massive scale. Not only did they rape, torture, and slaughter children along with adults in massacre after massacre around the country. Carrying their genocidal logic to its absurd conclusion, they even targeted children for killing – to exterminate the “big rats”, they said, one must also kill the “little rats”. Countless thousands of children were murdered in the genocide and war. Many of those who managed to escape death had feared for their own lives, surviving rape or torture, witnessing the killing of family members, hiding under corpses, or seeing children killing other children. Some of these children now say they do not care whether they live or die.

Unfortunately, these incidents are not only recurrent manifestations of grave hatred against fellow individuals, solely on the basis of race, cast, ethnicity, etc., rather, the savagery and extreme brutality of the manner in which the propagandist implement their nefarious designs, befittingly, designate them as nothing less than crimes against the entire human race.

Genocide Convention: Dawning of a new era-hassle recognition and management

Markedly, while appreciating that genocide is a crime under international law and contrary to the spirit and aims of the United Nations necessitating condemnation by the civilised world, the General Assembly of the United Nations, approved and proposed for signature and ratification, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) on 9-12-1948[27]. Pertinently, the said Convention was conceived largely in response to the Second World War and the adoption thereof is often acknowledged as[28], “a crucial step towards the development of international human rights and international criminal law as we know it today. It was the first human rights treaty to be adopted by the General Assembly of the United Nations and signified the international community’s commitment to “never again’ after the atrocities committed during the Second World War”. Laudably, Article II of Genocide Convention not only defines the term, “genocide”, rather, Article III thereof further provides that the acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide shall all, be punishable as offences. Further, strikingly, Article IV of the Genocide Convention ensures that the persons committing genocide or any of the other acts enumerated in Article III thereof shall be punished, notwithstanding the fact, “whether they are constitutionally responsible rulers, public officials or private individuals”. Additionally, Article VII of the said Convention excludes the offences delineated therein from the definition of political crimes for the purpose of extradition. In fact, Article VII of the Genocide Convention encumbers and obliges the contracting States thereof to grant extradition, in accordance with their laws and treaties in force under, “such circumstances”. Concomitantly, Article VIII of the Genocide Convention empowers any contracting party thereof to call upon any of the competent organs of the United Nations to take, “such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III”. Further strikingly, the method of dispute resolution, between the contracting parties to the Genocide Convention in relating to the interpretation, application or fulfilment of terms/commitments thereof, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, by the invocation of jurisdiction of the ICJ, is stipulated under Article IX of the said Convention.

Imploration for safety delivery and waning commitment of nations

Appositely, the ICJ, while dealing with the provisions under the Genocide Convention, inter alia, avowed[29] that the, “Contracting Parties are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III. Thus if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred.” Subsequently, the UNHRC in the year 2015[30], while inter alia, reaffirming the significance of the Genocide Convention as an effective international instrument for the prevention and punishment of the crime of genocide, reiterated the responsibility of each individual State to protect its population from genocide, “which (responsibility) entails the prevention of such a crime, including incitement to it, through appropriate and necessary means”. Additionally, the States that had not, till then, ratified or acceded to the said Convention were urged to ratify or accede to the Genocide Convention as a matter of high priority and, wherever necessary, to enact national legislation in conformity with the provisions thereof. UNHRC simultaneously, implored States to, “deter future occurrences of genocide, to cooperate, including through the United Nations system, in strengthening appropriate collaboration among existing mechanisms that contribute to the early detection and prevention of massive, serious and systematic violations of human rights”.

Markedly, in another instance, the Independent International Commission of Inquiry on the Syrian Arab Republic (Commission) in its report[31], while reckoning and delving into multiple crimes against humanity, genocide, war crimes, etc., committed by the Islamic State of Iraq and Al-Sham (ISIS) against the Yazidis, observed, “[l]ike all genocides, it is born of the warped thinking that the world, as the perpetrators understand it, would be better without a particular group of people in it and that by doing the work of destroying what they consider impure, the perpetrators are creating a more perfect society.” Accordingly, the Commission endorsed several recommendations to United Nations Security Council, Governments of Syria Arab Republic, Iraq and the Kurdish Regional Government, international community, etc., inter alia, to ensure the release of captive Yazidis; protect the pre-existing Syrian Yazidi community from attack; investigate and prosecute ISIS members involve in crimes, perpetrated in Syria against the Yazidis; recognise ISIS’s commission of the crime of genocide against the Yazidis of Sinjar; accelerate processing of asylum applications of Yazidi victims of genocide; etc. Deplorably, despite such recommendations, crimes against the Yazidis’ community continue unabated, replete with countless reminiscence of abominations and grave atrocities against men, women and children, separated from their families or abducted, forced into sexual slavery, massacred, and so forth. Increasingly dismal actuality seems to be a sheer and apparent failure of civilised societies and the contracting parties to the Conventions and Covenants of like-kind to deliver their oath of sanctuary and refuge to the masses, most of whom claim their ties and allegiance with such nations. Irrefutably, it is the withdrawal of States and civilised nations from their commitments to acknowledge the acts of such viciousness and massacre, owing to nothing less than an extremely perverted thought process, which provides an impetus to the perpetuation and continuance of such crimes against human race.

Memoir of Rohingyas: A tale of horrors and despondence

Regrettably, notwithstanding the existence of countless disconsolate recollections of horrors, several indelible incidents of bereavement and numerous international commitments aimed towards the eradication of the monsters of genocide and ethnic cleansing, these abominations persevere to rear their ugly heads from time to time. Incontestably and forlornly,  this time, in form of transgression and mass extermination of the Rohingya people of Myanmar/Burma[32] (Rohingyas), primarily, residents of the Rakhine State of the country. Inconsolably, the memoir of Rohingyas is one brimming with infinite chronicles of travesties and cataclysms, precipitated by those in whom the community placed their trust for aegis and tutelage. The scarred and brutalised community of Rohingyas, unfortunately, owns a legacy of enduring paramount savagery, cruelty and sadism that is bequeathed to succeeding generations from quite early in their existence. Instead of stories of hope, love and kindness, sadly, Rohingya toddlers are compelled to be prepared for the worst and manoeuvre strategies for sustenance in extremely docile surroundings. Further, besides been deprived of their nationality and identity, these individuals are compelled to bear constant resentment from their peers, neighbours, etc. Sadly, Rohingyas are often denominated[33] with awfully degrading and spiteful expletives such as, “poisonous plants”, “catfish” and a “black tsunami” and oft-times accused of conducting a “slow invasion” to the country. Needless to mention that such prejudice emanates not only from the general public of the country, rather, from its top officials, consuls, etc. Sadly, in one such instance, Ye Myint Aung, Consul General of Myanmar in Hong Kong, while addressing a letter[34] to the heads of Mission, Consul Corps, Hong Kong and Macau SAR, brazenly, remarked, “[i]n reality, Rohingya are neither ‘Myanmar People’ nor Myanmar’s ethnic group. You will see in the photos that their complexion is ‘dark brown’. The complexion of Myanmar people is fair and soft, good looking as well.” Grievously, those who endeavour to raise their voices against such resentment and bitterness are mercilessly deprived of their homes, possession and in majority instances, lives. In variance, the so-called “fortunate” enough to escape such enduring desecrations and scarring of bodies and minds alike from extreme gruesome acts of murders, violence, rapes, arson, etc., are extorted to live a nomadic life, fending for basic necessities of life and escaping threats of incumbent demise of self or one or the other surviving family members on an everyday-every second basis.

Significantly, the United Nations Secretary-General, António Guterres, on his visit to Cox’s Bazar, Bangladesh, remarked[35], “… the Rohingya population was… extremely discriminated against, very probably the most discriminated population in the world”. Similarly, in one of its publications,[36] Human Rights Watch, noted, “Burmese authorities have systematically persecuted the Rohingya, a Muslim minority who live primarily in western Arakan State, for more than 30 years….” However, despite international consciousness of tribulations of Rohingyas and ubiquitous censures and condemnation of the Burmese regime, sadly, hardly any assistance is forthcoming from the worldcommunity for the elevation of the plight of these individuals and for the suppression of perilous crimes against the community.

Enactment of 1982 citizenship law and the sequential intensification of Rohingyas’ quandaries

Ominously, though, the Rohingyas of Burma have been shadowed with misfortune as early as 1970s[37], however, their repression, lamentably, gained acute momentum around the year 1982, with the enactment of the Burma Citizenship Law[38](1982 Citizenship Law). Considerably, at the said point in time, Burma was under the regime of General Ne Win, who was reigning over Burma as its military dictator and by which time, the country had adopted a new Constitution[39]. Pertinently, under its earlier citizenship laws, especially under the Union Citizenship Act, 1948 (the Union Citizenship Act), all those persons who were designated as citizens under Sections 11(i), (ii) and (iii) of the (earlier) Constitution of the Union of Burma, 1948(1948 Burmese Constitution) or entitled to elect for citizenship under Section 11(iv) thereof and were granted a certificate of citizenship under the Union Citizenship (Election) Act, 1948 (Citizenship Election Act); or individuals conferred with a certificate of naturalisation or citizenship or a status of ‘citizen(s)’ under the Union Citizenship Act were entitled to, “continue to be a citizen of the Union, until he or she loses that status under the provisions of this Act”. Simultaneously, as per Section 4(2) of the Union Citizenship Act, “[a]ny person descended from ancestors who for two generations at least have all made any of the territories included within the Union[40] their permanent home and whose parents and himself were born in any of such territories” was deemed to be a Burmese citizen. Notably, the incidents and rights accruing out of citizenship till that point in time were further, contemplated to be uniformly available to all such individuals as per Chapter II[41] of the 1948 Burmese Constitution. However[42], with the enactment of the 1982 Citizenship Law, the thitherto observed single citizenship status of the (then) “nationals” with a consistent set of rights, irrespective of the mode by which citizenship had been acquired, was arbitrarily and instantaneously substituted with three categories of citizens i.e. citizens by birth[43] or by race/ethnicity[44] (true or pure blood nationals); associate citizens[45] and naturalised citizens[46]. Furthermore, though Sections 30[47] and 53[48] of the 1982 Citizenship Law, shockingly, qualified the enjoyment of rights by associate and naturalised citizens, respectively, to certain exceptions, which may be stipulated by the Council of State[49] from time to time, however, no such embargo was envisioned under the said enactment for the enjoyment of rights by persons designed as Burmese citizens by virtue of their birth or ethnicity (“true or pure blood citizens”). Markedly, as per Section 3 of the 1982 Citizenship Law, “Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period anterior to 1185 BE, 1823 AD.” were denominated as Burmese citizens. At the same time, Section 4 of the said enactment empowered the Council of State to decide whether any ethnic group could be termed as a Burmese national or otherwise. Further, as per Section 5 of the 1982 Citizenship Law, for a person to be christened a citizen by birth, both the parents of such an individual were required to be the nationals of Burma. Correspondingly, only the foregoing categories of individuals were designated as citizens or “true-citizens” under the 1982 Citizenship Law and for the remaining individuals, limited citizenship rights under the denomination of “associate” or “naturalised” citizen(s) was envisioned. Therefore, clearly, while on one hand, ethnicity was made the basis of acquisition and denomination of true citizenship rights of the country, on the other hand, entitlement of deemed citizenship was abolished under the 1982 Citizenship Law.

General Ne Win’s declaration: A web of trickery and duplicity

Significantly, an insight into the impetus and objectives behind the enactment of the 1982 Citizenship Law may be derived from the speech of General Ne Win in a meeting held on 8-10-1982[50]. Relevantly, in his speech General Win outrightly professed Burma to be a nation, which was composed of only “true nationals” or “pure blood citizens” prior to 1824 and it was only pursuant to series of subsequent annexation or dominion under foreign rule(rs), the population of country, at the time of its independence in 1948, was professed to comprised of nationals/pure bloods, guests, issues of unions between nationals and guests and issues from unions between guests and guests. Regrettably, General Win, at the same time, while expressing serious doubts and grave prejudice towards any individuals who did not align with the “true national” status, evinced a yearning to rebuild a nation of true and pure blood, inter alia, by the means of the 1982 Citizenship Law and under a declaration,“[r]acially, only pure-blooded nationals will be called citizens” and that limited citizenship rights would be conferred to the remaining persons.

In furtherance of such propaganda, it was further elucidated by General Win that with the enactment of the 1982 Citizenship Law, “citizenship will… be granted in three categories (i) citizens; (ii) eh-naing-ngantha; (iii) naing-ngan-tha-pyu-khwint-ya-thu.”As per Ne Win, eh-naingngan-thaand naing-ngan-tha-pyu-khwint-ya-thucomprised of individuals who came as guests to Burma prior to its independence in 1948 and eventually could not go back, having decided to reside in the country for the rest of their lives. The distinction, if any, between these two denominations was further expounded to lie in the fact that while the former individuals had already applied for citizenship under either the Union Citizenship Act or Citizenship Election Act, at the time of enactment of the 1982 Citizenship Law, the latter group failed to do so, out of ignorance or otherwise. Lamentably, while further expressing serious apprehensions regarding the conduct of eh-naing-ngantha, General Win justified his assertion by observing,

… we accept them as citizens…But leniency on humanitarian ground cannot be such as to endanger ourselves…. We are aware of their penchant for making money by all means and knowing this, how could we trust them in our organisations that decide the destiny of our country? We will therefore not give them full citizenship and full rights. Nevertheless, we will extend them rights to a certain extent. We will give them the right to earn according to their work and live a decent life. No more.

Unmistakably, General Ne Win’s avowal determined that the innate principle behind the enactment of the 1982 Law was to segregate people on the basis of race and ethnicity and, eventually, to pave way for atrocities which were to, sadly, follow against the communities and individuals, not conforming with the “pure or true-blood” tag. Ludicrous, General Ne Win, despite being cognizant of the serious repercussions of his declaration and the said new law on citizenship, as an exemplification of his extreme duplicity, cautioned the so-called true Burmese citizens that “they should not treat such persons arrogantly, saying they came from abroad or they are guests, but should realise that one day they will become one with us and all will be travelling in the same boat”. Appreciably, such declaration explicitly reinforced the fact that General Win was well aware of the horrors that were to follow the enactment of 1982 Citizenship Law. Nevertheless, the country went ahead with the enactment of the 1982 Citizenship Law and, subsequently the stringent implementation of the provisions thereof.

Loss of citizenship and subjection to systemic persecution: Rohingyas’ double jeopardy

Palpably, notwithstanding the sugar-coated assertions by General Ne Win and the seemingly “welfare provisions” under the 1982 Law, agonisingly, with the enactment of the 1982 Citizenship Law, life and reality for millions of Rohingya inhabitants of Burma retrogressed overnight. Firstly, the Rohingyas were intentionally not identified as one of the recognised ethic groups/national races of Burma, out rightly, divesting them from placement under the class of “pure or true blood” nationals. At the same time, unfortunately, the prerequisites for procuring status of associate or naturalised citizenship of Burma had become quite onerous and bigoted, by that time. Needless to mention, concurrently, with the omission to acknowledge the “deemed citizenship” status under the 1982 Citizenship Law, as earlier prevalent under the Union Citizenship Act, Section 6[51] of the 1982 Law too could not be of any recourse to/rescue of the Rohingyas. Distressingly, though, the Rohingyas persistently asserted themselves as one of indigenous races of Burma, having roots in the country from period, way prior to 1823, however, these claims were blatantly rejected by the Burmese Government. In fact, the regime in power designated Rohingyas as trespassers and illegal migrants from neighbouring countries, such as Bangladesh. Unfortunately, the plight and miseries of Rohingyas exemplified astronomically due to the absence of any documentation to substantiate their claims or demonstrate their allegiance with Burma. Accordingly, it goes without saying that while on one hand, Rohingyas were stripped of their identity as nationals of Burma and corresponding rights accruing pursuant to such acknowledgement, contemporaneously, the Government and military of the country proceeded with their orchestrated master plan to evict these individuals from Burma by subjecting them to grave tortures. Evidently, commencing 1982, with the enactment of the Citizenship Law and their consequent loss of status as citizens(hip)[52], “Rohingya have been systematically persecuted and oppressed. They have been particularly targeted for atrocities committed by the Burmese army (the tatmadaw) such as torture, cruel, inhuman and degrading treatment and punishment, extrajudicial killing and summary execution, arbitrary arrest and detention, rape, destruction of homes, forced labour, forced relocation and eviction, and confiscation of land and property.”

Flight of humanity and a forced gypsy life

Consequently, owing to such extreme gruesome acts, the surviving members of the Rohingya community were compelled to flee in haste to foreign lands, such as Bangladesh, India, Thailand, Malaysia, etc., abandoning their country, ties and affinities of relations, property, wealth, etc. As per one of the reports[53] of the Equal Rights Trust, hundreds and thousands of Rohingyas were forced to flee Burma in order to evade repression and persecution to Bangladesh, which has been, “burdened by an ongoing steady flow of Rohingya refugees into the country, and two mass refugee exoduses of about 2,50,000 Rohingya refugees each in 1978 and 1991-1992”. Further, in one of the publications of the Refugees International[54] it was noted, “State-orchestrated violence in Myanmar in 2012 forced the displacement of 140,000 people and the death of more than 200 Rohingya. Since then, more than 1,00,000 Rohingya have fled Rakhine State by boat, and more than 1000 have died during the journey.” Similarly, the Human Rights Watch[55] observed,

… Rohingya have been denied full citizenship rights because the discriminatory 1982 Citizenship Law made it almost impossible for Rohingya to prove their claims to citizenship. In 1991, Burmese security forces again violently expelled hundreds of thousands of Rohingya into Bangladesh…. The Burma Government has refused to accept the term ‘Rohingya’ and refers to them as “illegal Bengalis”.

Subsequently, in the year 2017 pursuant to a study conducted by Amnesty International[56] it was divulged that at that point in time, there were about, “32,000 registered Rohingya refugees in Bangladesh, as well as an estimated 3,00,000-5,00,000 unregistered Rohingya refugees, living mainly in the southeastern Cox’s Bazar District.” Understandably, with the huge influx of Rohingyas to the limited, overcrowded and unhygienic makeshift camps in Bangladesh and the consequent scarcity of basic resources, these individuals were compelled to pursue a sanctuary in other parts of the world, including India. In fact, it is commonly fathomed that the harsh conditions in Bangladesh served as a significant compelling factor for Rohingyas’ migration in India from Bangladesh. This movement was further fueled[57] by the fact that the conditions of living at theBangladeshi camps escalate the vulnerability of women and adolescent girls, either subjecting or threatening them with risks of sexual violence/offences, forced prostitution, forced marriages, human trafficking, etc.

Markedly, taking a note of such nomadic migration of Rohingyas to India, UNHCR in its 2018 publication[58] noted, “[a]s of April 2018 around 17,705 Rohingya refugees are registered with UNHCR in India, in addition to an unknown number who remain unregistered.” However, under the said report, it was bewailed, “Rohingya live across different urban/semi-urban locations in the country. They often live in impoverished slum-like settings in poor sanitary conditions with limited access to water and toilets…. Most Rohingya refugees in India lack skills and are poor, only being able to find low skilled jobs in the informal sector.” According to one of the recent promulgations[59], India as on date, “hosts about 40,000 Rohingya living in camps and slums in many cities and regions, including Jammu, Hyderabad, Nuh and New Delhi.”

 

Fact-finding and unheeded appeals

Exigently, in order to scrutinise the veracity of the allegations of several incidents of human rights violation in Myanmar, UNHRC established an Independent International Fact-Finding Mission on Myanmar (IIFFMM/Fact-Finding Mission) in March 2017. Appositely, the Fact-Finding Mission in its report in the year 2018[60], abysmally, noted, “gross human rights violations and abuses committed in Kachin, Rakhine and Shan States are shocking for their horrifying nature and ubiquity. Many of these violations undoubtedly amount to the gravest crimes under international law. They are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades. They are shocking for the level of denial, normalcy and impunity that is attached to them”. Subsequently, IIFFMM in its detailed findings[61], while inter alia observing that the history of Burma since 1948, “has been marred by decades of armed conflicts between the military, now called the Tatmadaw, and armed organisations based in Myanmar’s ethnic minority regions. Each conflict has invariably entailed widespread killings and injury to civilians, torture and ill-treatment, gender-based violence, forced labour, displacement and restrictions on the use of land and livelihoods, access to education, health services and other basic services, and other severe consequences for the people of Myanmar”, concluded, “on reasonable grounds that the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention”.

In the meanwhile, the United Nations General Assembly adopted a resolution[62] (the 2018 Resolution), inter alia reiterating its concern on the fact that, “in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.” Simultaneously, while expressing extreme disquietude over the continuing reports of serious human rights violations and abuses in the Rakhine State, the Government of Myanmar was urged by the UN to imminently adopt necessary measures to address the spread of discrimination and prejudice and to combat the incitement of hatred against Rohingya Muslims and other persons belonging to minorities; expedite efforts to eliminate statelessness and the systematic and institutionalised discrimination against members of ethnic and religious minorities; dismantle the camps for internally displaced persons in Rakhine State, ensuring that the return and relocation of internally displaced persons is carried out in accordance with international standards and best practices, etc. However, these implorations, failed to deliver any response from Burmese regime or beget any transformation in the conditions of Rohingyas in Burma, as anticipated.

The Gambia v. Myanmar: Rohingya Genocide case

Latterly, the Republic of The Gambia (The Gambia), as a signatory to the Genocide Convention[63] and pursuant to several reports, publications, resolutions, etc., regarding the acts of genocide and ethnic cleansing directed towards the Rohingya community, initiated a proceeding against the Republic of Union of Myanmar (Myanmar/Burma) before the International Court of Justice (ICJ), in terms of Article IX of the Genocide Convention. Appositely, in the said proceedings, The Gambia, while alleging violation and persistent breach of the provisions under Articles I, III(a), III (b), III (c), III (d) & III (e), IV, V and VI of the Genocide Convention by Myanmar, inter alia, prayed for an adjudication and declaration to the said effect. Simultaneously, The Gambia, further entreated ICJ for certain provisional measures against Myanmar, such as, directions refraining Myanmar from the commission of act of genocide, conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group; commandments ensuring that Myanmar shall not destroy or render inaccessible any evidence or the remains of any member of the Rohingya group who was a victim of alleged genocidal acts, etc.

Strikingly, in the said proceedings, ICJ out rightly negated[64] Myanmar’s objection to its jurisdiction under Article IX of the Genocide Convention, inter alia, to the effect that The Gambia had failed to prove any exclusive loss to itself, owing to such alleged violations and further that the instant proceedings were in a nature of “proxy” litigation by The Gambia on behalf of the Organisation of Islamic Cooperation (OIC). In context of the former argument, ICJ, while observing that in view of the shared values of the Contracting States to the Genocide Convention and that all the State parties to the Genocide Convention, “have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity”, held that any State party to the Genocide Convention, “and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to  comply with its obligations erga omnes partes, and to bring that failure to an end”. At the same time, dismissing Myanmar’s latter objection, ICJ noted, “the fact that The Gambia may have sought and obtained the support of other States or international organisations in its endeavour to seise the Court does not preclude the existence between the parties of a dispute relating to the Genocide Convention”. Accordingly, ICJ reached a conclusion that The Gambia has, “prima facie standing to submit to it the dispute with Myanmar on the basis of alleged violations of obligations under the Genocide Convention”.

Findings of ICJ and grant of provisional measures

Further, ICJ, in light of the unearthing in several reports and transcripts of various international organisations and bodies, including the Fact-Finding Mission, conveyed a prima facie opinion regarding a link between, “the rights claimed and some of the provisional measures being requested by The Gambia”. Contemporaneously, while determining a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia, ICJ was pleased to allow certain/indicate certain provisional measures, “for the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof”. Consequently, ICJ while opining, “Rohingya in Myanmar remain extremely vulnerable”, inter alia, directed Myanmar that in relation to the members of the Rohingya group in its territory, the country shall take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, in particular, restraining; “(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group”, etc. Clearly, this determination by ICJ, befittingly, exemplifies an ostensible recognition by the world community of paramount disregard of human rights and grave apathy towards Rohingya community by the Burmese administration.

Notably, these observations of the ICJ are even more valued as earlier, one of country’s top leaders and Nobel laureate, Aung San Suu Kyi, shockingly and audaciously defended Burmese military’s several discernible incidents of genocide, massacre, etc., directed against Rohingyas at the ICJ. Sadly, in her speech[65] Ms Suu Kyi not only intentionally refrained from using the term “Rohingya”, stripping these individuals of their identity and rights, rather, blatantly disputed, The Gambia’s charges, terming them as, “an incomplete and misleading factual picture of the situation in Rakhine State in Myanmar”. Simultaneously, the attitude of country’s general passivity and outright negation of the Rohingyas’ plight became apparent from Aung San Suu Kyi’s comments, “Rakhine today suffers an internal armed conflict between the Buddhist Arakan Army and Myanmar’s Defence Services. Muslims are not a party to this conflict, but may like other civilians in the conflict area, be affected by security measures that are in place. We pray the Court to refrain from taking any action that might aggravate the ongoing armed conflict and peace and security in Rakhine.” Evidently, considering the flagrant indifference of country’s top leaders towards their own nationals, it emerged as no surprise that notwithstanding several unremitting censures, condemnations and reprimands by the world community and numerous international organisations such as, the United Nations and ICJ, there has scarcely been any vicissitude in Rohingyas’ status. Grievously, even as on date, millions of Rohingyas are constrained to endure extreme inhumane and vicious conditions, as refugees in foreign lands, impelled to survive on bare minimum necessities, holding on to the last shreds of their lives. As Mr Phil Robertson, Deputy Director of Human Rights Watch, Asia remarked[66], “These latest satellite images show why over half a million Rohingya fled to Bangladesh in just four weeks. The Burmese military destroyed hundreds of Rohingya villages while committing killings, rapes, and other crimes against humanity that forced Rohingya to flee for their lives.”

Refugee, migrant and stateless: Discerning the heterogeneity

The term, “refugee” under the Constitution of the International Refugee Organisation[67] relates to a person, “who has left, or who is outside of, his country of nationality or of former habitual residence and who, whether or not he had retained his nationality, belongs to one of the following categories: (a) victim of the nazi or fascist regimes or of regimes which took part on their side in second world war,… (b) Spanish Republicans and other victims of Falangist regime in Spain… (c) persons who were considered refugee before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion.”

Similarly, from a conjoint reading of the provisions under Article 1(A)(2) of Convention Relating to the Status of Refugees[68] (the 1951 Refugee Convention) and Article 1(2) of the Protocol Relating to the Status of Refugees[69] (the 1967 Refugee Protocol), refugee denominates any/a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it”.

Clearly, in layman’s term, refugees are individuals who are devoid of sanctuary as well as the protection of their nation and State and who are compelled or opt to cross international borders in fear of persecution, genocide, etc. Pertinently, refugees are in slight variance with the internally displaced persons (IDPs), who, though may be subjected to same or similar atrocities or fears, are unable or elect not to cross a border between States/countries. Concomitantly, refugees are also in variance with migrants[70], who are commonly understood as persons, “who moves from one country to another to live and usually to work, either temporarily or permanently, or to be reunited with family members”. Clearly, the stimulus behind a migrant’s movement is primarily premised on aspirations of better opportunities, in contrast, with that of refugees who are forced to flee from a country/region under a well-founded fear of persecution and the fact that their Government cannot or will not protect them.

Concurrently, it must be appreciated that the persons denominated or classified as “refugees”under the 1951 Refugee Convention may not always coincide with individuals who are classified as stateless persons under international law. Relevantly, in this regard, the New Zealand’s Refugee Status Appeals Authority[71], observed, “[b]eing without a nationality does not necessarily signify persecution under the terms of the Refugee Convention. The definition of a stateless person was, in fact, chosen with the intent to exclude the question of whether the person faces persecution, as there are conflicts of laws issues which might result in statelessness without any wilful act, discrimination or violation on the part of the State.”

Similarly, as per Carol Batchelor[72], “majority of de jure and de facto stateless persons requiring assistance on their nationality status are not, today, refugees”. Therefore, it may be easily conceived that though, statelessness may in certain cases, beget a fear of persecution to individuals, on return to such country of habitual residence, etc.; however, all stateless individuals cannot be casually equated with refugees. In fact, the basis of designation of an individual as a refugee inheres in it, a well-founded fear of persecution in a State where such an individual was habitually resident or even was a national of. Undeniably, it has more to do with a reasonable and a prospective risk of persecution which an individual bears, in contrast with a national denomination, if any. However, regrettably in cases of Rohingyas, the gravity of situation is exemplified prolifically as the community suffers under the afflictions of statelessness and refugee crisis with equal proportions.

1951 Refugee Convention: Endorsement of non-refoulement principle

 

Significantly, there is a prodigious similarity between the provisions under the 1951 Refugee Convention and that under the 1954 Convention and understandably so, for the latter Convention was principally modelled on the basis of the former. However, notwithstanding the close association and relationship between the said two Conventions[73], “both of them are formally and materially independent international treaties: they apply to different groups of persons and grant divergent benefits to them”. Exceptionally, in this regard, reference may be made to the provisions under Article 31(1) of the 1951 Refugee Convention that are designed to confer protection on refugees, from imposition of penalties against illegal entry or presence into the country of refuge, “who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

Further, as per Article 31(2) of the said Convention, the contracting States thereof are prohibited to apply restrictions on the movements of such refugees, other than those which are necessary and ensuring, “such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country.” In fact, Article 31 of the 1951 Refugee Convention obligates the contracting States to afford refugees a reasonable period and all the necessary facilities to obtain admission into another country. Another noteworthy provision under the 1951 Refugee Convention pertains to the prohibition of expulsion or return of refugees by contracting States, under the situations as envisaged under Article 33 thereof, embracing the principle of “non-refoulement”.

In this regard, Article 33(1) of the 1951 Refugee Convention provides, “No contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” However, an exception to the said rule is encapsulated under Article 33(2) of the said Convention, inter alia, to the effect that the benefit of the principle of non-refoulement may not be claimed by or accrue upon a refugee against whom there are reasonable grounds for being regarded as a danger to the security of the country in which he is, or who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.

Aside from these variations, the 1951 Refugee Convention, akin to the 1954 Convention, makes provisions regarding the protection of rights of religion, continuity of residence, association, access to courts, gainful employment, etc., of the refugees. At the same time, Article 38 of the 1951 Refugee Convention, stipulates, “Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.”

 

Non-ratification of Refugee Convention/Protocol and lack of refugee policy in India

 

Outstandingly, as on date, one hundred and forty-six nations around the world have acceded to the provisions under the 1951 Refugee Convention and one hundred and forty-seven nations, signed the 1967 Refugee Protocol. Additionally, in furtherance of their commitment under the said Convention and Protocol, laudably, various countries have enacted laws to incorporate the provisions thereof under their respective domestic legislations. Illustratively, the Republic of Ireland enacted the Refugee Act, 1996[74], inter alia, containing provisions relating to the extension to refugees of certain rights; dictates governing grant of travel documents and prohibition of refoulement, etc., under Sections 3, 4 and 5, respectively, thereof.  Unquestionably, the pre-eminence of the provisions under the 1951 Convention and 1967 Protocol cannot be overemphasised. However, despite the widespread realisation about the significance thereof, India has lamentably remained to be one of few countries, which has till date, failed to ratify these provisions. Though, the inherent reasons of India’s reluctance to endorse the provisions under the said Convention/Protocol are undocumented, however, as per some authors[75], the country’s reservation primarily stems from the restricted meaning assigned to the term “refugee” under the 1951 Refugee Convention; a reasonable fear/threat to India’s sovereignty in light of the provisions under Article 35 thereof, etc.

However, notwithstanding its rationale behind the non-ratification of the said provisions, India has always remained in the forefront, offering sanctuary and protection to millions of refugees who find themselves in the country, permeating its porous borders. In fact, it is well renowned and documented that with the partition of country in the year 1947, there was a huge influx of refugees and asylum seekers from Pakistan, who found sanctuary in India. Similarly, in the year 1959, India was quite forthcoming in offering haven to Dalai Lama and the massive influx of Tibetan refugees who migrated to India in view of the Chinese invasion. In another illustration, the Chakmas and Hajongs, who were displaced from the area that became a part of East Pakistan (now Bangladesh)on the construction of Kaptai Dam, around 1964-1969, were allowed to be rehabilitated in India under the decision of its then prevailing Government. Correspondingly, India granted asylum to several Tamils from Sri Lanka in an around the years 1983-1995, Afghans in the year 1980, etc. Conspicuously, as per one report[76], at the end of 1999, “more than 2,92,000 refugees were living in India, including 1,10,000 from Tibet (China), 1,10,000 from Sri Lanka, 42,000 from Burma, 15,000 from Bhutan, 14,500 from Afghanistan, and more than 400 from other countries. Sixty Afghans repatriated from India in 1999.”

Further, the UNHCR[77], has resolutely avowed that despite India, not being a signatory to the 1951 Refugee Convention, 1967 Refugee Protocol and a lack of any national refugee protection legislation in place in the country, “has a long-standing tradition of hosting refugees and the Government largely respects the principle of non-refoulement”. At the same time, the Supreme Court of India[78] (Supreme Court)while appreciating the factum of lack of a refugee policy and statutory provisions regarding the same in India, nevertheless, acknowledged, “refugee status can be granted and has been granted in India through executive orders passed by the Central Government”.

Indian constitutional provisions and country’s commitment towards international law

Undoubtedly, though legislation would have gone a long way in explicitly itemising and enumerating the rights of refugees in India, however, even in the absence of such an overt law, the Indian Constitution[79] (Constitution) envisions ample safeguards to secure the rights of every person(s), including that of expatriates who traverse through international borders, seeking a sanctuary in the country. Strikingly, in this regard reference may be made to the provisions under Article 14 of the Constitution[80], which obliges the State, “not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Simultaneously, Article 21 of the Constitution[81] provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Further, Article 20 of the Constitution guarantees protection to all persons from the retrospective operation of penal laws (expost facto law), besides conferring fortification against double jeopardy and self-incrimination. Similarly, protection against arrest and detention and rights to freedom of conscience, free practice and propagation of religion, etc., are conferred to all persons, whether citizens or not of the country, under Articles 22 and 25-28, respectively, of the Constitution[82]. The enforcement of these rights, in turn is sheltered under the provisions of Article 32 of the Constitution[83], vesting right on any aggrieved persons to move the Supreme Court of the country by means of appropriate proceedings.

Additionally, Article 51(c) of the Constitution[84] endeavours State to, foster respect for international law and treaty obligations in the dealings of organised peoples with one another”, besides Article 253 of the Constitution[85] empowers Parliament of the country to, “make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”.

Remarkably, the Supreme Court, acknowledging India’s commitment towards the world community and human rights issues has persistently stimulated the courts across the country to dynamically adopt the principles and rules of international law in appropriate cases, in accordance with the principles of comity of nations, unless their adoption and espousal is overridden by the clear rubrics of domestic law. As per the Supreme Court[86],

  1. 58. … If Parliament has made any legislation which is in conflict with the international law, then Indian courts are bound to give effect to the Indian law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.

In fact, in light of this guiding principle, there have been several instances where the Indian courts have been extremely enterprising in taking aid, assistance and recourse to several international conventions and norms to fill in the lacunae under the India’s domestic law and to meet the exigent societal and humanitarian demands. Illustratively, the Supreme Court in Vishaka v. State of Rajasthan[87], while articulating measures to contain the evil of sexual harassment at workplace, exemplified the imminence of international conventions and norms as guiding canons, in the absence of domestic laws governing a field. Verily, in the instant case, the Supreme Court reiterated,

  1. 7. … [a]ny international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.[88]

Declarations to similar effect have subsequently been rendered by various courts across the country, seeking recourse to international covenants, conventions and treaties, whether ratified or not by India, in cases where the provisions thereof were not found  to be in conflict with the extant Indian laws. Clearly, in light of the repeated declarations by the Supreme Court, it is quite understandable that despite the absence of domestic legislation pertaining to refugees in India, the principles enshrined under the international covenants/conventions/norms, whether ratified or not, could have and have, in fact, often been invoked by the Indian courts to confer aegis and security to refugees.

State’s refugee policy: Aggravation of refugees’ disconcertment

Insofar as the policy of the Indian Government regarding refugees is concerned, the provisions under the Passport (Entry into India) Act, 1920[89]; the Passports Act, 1967[90]; the Registration of Foreigners Act, 1939[91]; the Foreigners Act, 1946[92]; the Foreigners Order, 1948[93]; the National Security Act, 1980[94]; etc., have often been espoused by the Central and State Governments to determine upon the issues regarding the entry, stay and expulsion of such individuals. Appreciably, reference in this regard may be made to Section 2(a) of the Foreigners Act, 1946[95] which defines “foreigner” as a person who is not a citizen of India. Further, Section 3(1) of the said enactment[96] empowers the Central Government of India (Central Government) to make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, “for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.”

Conspicuously, Section 14 of the Foreigners Act, 1946[97], inter alia, penalises the contravention of the provisions of the said enactment or of any order made thereunder or any direction given in pursuance thereto with imprisonment for a term which may extend to five years along with fine. Similarly, the Registration of Foreigners Act, 1939, while providing an identical definition of foreigner under the said enactment, confers power on the Central Government to make rules, inter alia, requiring any foreigner entering, or being present in or about to leave India to report his presence or the date of his intended departure, as the case may be, to a prescribed authority within such time and in such manner and with such particulars as may be prescribed. As per Preamble to the said enactment, the provisions thereof are aimed towards, “registration of foreigners entering, being present in, and departing from India”.

Further, the Passports Act, 1967, inter alia, provides for the issuance of passports and travel documents; procedure to regulate departure from India of citizens of India and other persons, etc. Significantly, Section 20 of the said enactment confers a power on Central Government to, “issue, or cause to be issued, a passport or travel document to a person who is not a citizen of India if that Government is of the opinion that it is necessary so to do in the public interest”.

Notably, the provisions under the Passports Act, 1967 attain gravity when read in light of that enumerated under the Passport (Entry into India) Act, 1920, conferring power on Central Government to may make rules requiring that persons entering India shall be in possession of passports, etc. Similarly, provisions related, inter alia, to the Central and State Government’s power to make orders detaining certain persons; regulation of place of detention; revocation of detention orders; etc., are envisaged under the National Security Act, 1980.

Perceptibly, the Supreme Court has time and again upheld the validity of these enactments, besides highlighting the prominence thereof. In one such instance[98], the Supreme Court, while conjointly reading the provisions under the Foreigners Act, 1946 and the Constitution, observed,

  1. [t]he Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.[99]

Undoubtedly, the significance of these enactments cannot be overstated for their provisions are primarily aimed towards ensuring the safety and security of country and even more so, to tackle the problem of illegal migrants in India. However, when the provisions under these enactments have been mindlessly applied to the refugees, experience has shown that the same have, lamentably, proved to be grossly inadequate to account for the difficulties faced by these personages and bestow adequate respite to their travails. Increasingly agonising is the fact that the Government, while taking recourse to the provisions under these legislations usually fail to appreciate the fact that these enactments do not distinguish between refugees, foreigners and illegal migrants, usually, treating them alike. In fact, in majority of such instances, it is brazenly disavowed that perplexities of refugees are primarily dictated by the doctrine of necessity, in contrast with any intention or a ploy on the part of these individuals to jeopardise the safety and security of the country of retreat.

Needless to state that in the absence of discrete statutory provisions regarding refugees in India, these enactments have proved to be a source of extreme hardships and perturbations to several classes of these individuals. Further, though these enactments were passed in furtherance of momentous objectives, however, deplorably, their provisions have every so often been misused and discriminatorily applied by the Indian Government, aggravating the quandaries and disconcertment of refugees.

Indian courts as guardians and saviours of refugees’ rights: Traversing beyond statutory realms

Notwithstanding the often capricious and desultory government policies and subterfuges to deal with refugees, felicitously, in several instances, the Indian courts have traversed beyond the statutory realms, pivoting on the constitutional provisions and international regimes to determine the fate of these individuals. Outstandingly, in majority of such instances, the courts have bestowed their patronage to refugees notwithstanding an adamant and unswerving attitude of the governments to hurl refugees out of the country by strictly and mindlessly invoking the provisions under the existing laws on foreigners, passport, detention, etc.

In fact, on several occasions[100], the Supreme Court has been extremely spirited in granting interim protection to the refugees against deportation, police custody and detention, etc. Contemporaneously, the Court has oft-times asserted[101] that the protection conferred under Article 21 of the Constitution[102] is available not only to every citizen of the country, rather also to persons who may not be Indian citizens. In this regard, the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh[103], while resorting to the provisions under Articles 14 and 21 of the Constitution, observed,

  1. 20. [w]e are a country governed by the rule of law. 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….

Similarly, the Supreme Court, whilst accentuating that a foreigner’s right to life in India including a right to live with human dignity, avowed[104],

  1. even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions. They also have a right to “life” in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.

 

However, the Supreme Court has, simultaneously, asserted and cautioned that the foreigners though conferred with the protections as envisaged under Article 21 of the Constitution, are, however, not entitled to claim a right of residence or settlement in any part of India. In fact, in this regard, it has been persistently explicated by the  Court[105],

“fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country”.

Non-refoulement: Inherent in Article 21 of the Indian Constitution

Impressively there have also been several instances where the Indian courts have interpolated the principles of non-refoulement within the ambit of fortifications conferred under Article 21 of the Constitution. Illustratively, the High Court of Gujarat in Ktaer Abbas Habib Al Qutaifi v. Union of India[106] outrightly pronounced that the principle of non-refoulement is encompassed in Article 21 of the Constitution of India. As per the Court,

  1. …principle (of non-refoulement) prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India….

 

Similarly, High Court of Delhi in Dongh Lian Kham v. Union of India[107], observed,

  1. [t]he principle of “non-refoulement”, which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as “non-refoulement” affects/protects the life and liberty of a human being, irrespective of his nationality. This protection is available to a refugee but it must not be at the expense of national security.

Following suit, the High Court of Manipur in Nandita Haskar v. State of Manipur[108] iterated that the far-reaching and myriad protections afforded by Article 21 of Constitution encompasses the right of non-refoulement, “albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or adverse to the security of this country.” In fact, in the instant case, while granting interim protection (safe passage) to the Rohingya refugees to approach the office of UNHCR at Delhi, the Court clarified that though, India may not be a signatory to the 1951 Refugee Convention, however, its obligations under various other international declarations/covenants, read with the provisions under Article 21 of Constitution, “enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere”.

In a similar vein, reference may be made to the decision in State v. Chandra Kumar[109], wherein one of the District Courts in the country held,

“principle of non-refoulement is a part of customary international law, and binds India, irrespective of whether it has signed the convention on refugees or not inasmuch as it is a party to other Conventions which contain the principle of non-refoulement.”

Rohingyas’ predicament, natheless Supreme Court’s closefisted approach: Mohd. Salimullah case

Unquestionably, appreciating the indispensability of non-refoulement principle, it seems quite reasonable that this ideology has been read into the provisions of Article 21 of the Constitution by the various High Courts and trial court(s) of the country from time to time. However, lamentably, the Supreme Court, in its recent decision in Mohd. Salimullah v. Union of India[110](Mohd. Salimullah case) has expressed a diametrically opposite perspective, adopting an extremely regressive and closefisted approach.

In fact, in the instant case while deciding on a prayer for interim relief by Rohingya migrants/refugees in India, the Supreme Court, untroubled and unsympathetically, remarked, “[r]egarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.” In fairness, though the Court reiterated that the protections under Articles 14 and 21 of the Constitution are available to all persons who may or may not be citizens, however, peculiarly, accorded supremacy to the provisions under Article 19(1)(e)[111] of the Constitution over these provisions by iterating that the foreigners cannot claim residence in India as a matter of right. Inconsolably, while denying the urgent prayer of Rohingyas against deportation by the Indian authorities, the Supreme Court not only failed to observe its responsibility as a guardian of rights, rather, outwardly negated to acknowledge the plight these personages. Concomitantly, while reaching its conclusions the Supreme Court further did not even discuss several earlier decisions of various courts wherein non-refoulement was affirmed to be inherent under Article 21 of the Constitution and simultaneously therein, the courts had expressed their inclination to apply the principles of international law in appropriate cases, to satiate exigent needs. Increasingly, bizarre was the fact that the Court’s observations in the instant case seem to be influenced by the government’s contention that the presence of Rohingyas in India would result into a threat to country’s internal security, besides providing an impetus to touts and agents to assist illegal immigrants in procuring a safe passage to the country. The same is manifested from the fact that the Court in one of its concluding remarks/passages in its orders recorded such contentions, though deliberately refrained from rendering any observations and independent finding thereupon, cognizant of the aspect that the proceedings in the instant case were at an interim stage and that no tangible evidence in favour of government’s said contentions was forthcoming. Needless to say, the decision of Supreme Court in Mohd. Salimullah case[112] has created waves and come under a lot of criticism and disapproval from those within and outside the legal fraternity, inter alia, on a rationale that despite India’s impressive past record of welcoming refugees, the Court’s reticence to exercise its jurisdiction in favour of Rohingyas has virtually determined the fate of these individuals for the worst. Simultaneously, it is objurgated by such critics that despite the hitherto enthusiasm of the Indian courts to adopt an altruist and humanitarian approach, Supreme Court’s exposition in this instance has, in effect, obliterated the judicial headway achieved till date and turned the wheels of progression rearwards. Per contra, proponents favouring this dictate have legitimised their beliefs on the ground that the right of deportation, being an exclusive domain and discretion of government, cannot be fettered on foreigners’ trifling fear of persecution abroad. At the same time, it is advocated by such exponents that repatriation of foreigners from India per se does not amount to a violation of these individuals’ right to life and liberty, which is environed within and sheltered only to the extent of such immigrants’ legal permissible presence within the country. Obviously, akin to the Supreme Court, these averments are sought to be further fortified by taking recourse to the provisions under Article 19(1)(e) of the Constitution, asserting that residence in India cannot be claimed as a matter of right by anyone except Indian citizens. However, considering the all-embracing and recurrent past proclamations by the various courts, including the Supreme Court, these rationalisations seem to fall flat as antagonistic to not only the provisions of Indian Constitution, rather to the country’s obligations under several other international conventions, treaties, etc., other than the provisions under the 1951 Refugee Convention. At the same time, the arguments in favour of the Supreme Court’s avowal fail to discern that the extant law cannot be envisaged as “procedure established by law” under Article 21 of the Constitution as none of said laws deal with the refugees.

Principle of non-refoulement: Not exclusive to 1951 Refugee Convention

Markedly, the principle of non-refoulement is not exclusive to the 1951 Refugee Convention. In fact, analogous to the provisions under Article 33(1) of the 1951 Refugee Convention, Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[113] (Convention against Torture) provides,

“No State party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture[114].”

Similarly, Article 13 of the International Covenant on Civil and Political Rights[115] (ICCPR) stipulates,

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.

The principle of non-refoulement is further recognised by the UNHCR as a part of the international customary law, inter alia, under an observation[116],

[t]he view that the principle of non-refoulement has become a rule of international customary law is based on a consistent practice combined with a recognition on the part of States that the principle has a normative character. This conclusion is supported by the fact that the principle has been incorporated in international treaties adopted at the universal and regional levels to which a very large number of States have now become parties.

In furtherance to this declaration by UNHCR, it is often supposed[117] that being a part of the customary international law, the States are bound by the principle of non-refoulement, “whether or not they are party to the Convention relating to the Status of Refugees”. Significantly, India ratified the provisions of the ICCPR in the year 1979 and is a signatory to the Convention against Torture. Therefore, as a ratifying and a signatory State to the provisions of the respective conventions, the country is obligated to act in consonance with the objectives of the said Conventions, by bestowing adequate concession to the principle of non-refoulement. Even otherwise, when the said ideology is palpably accepted as a part of customary international law, India cannot shirk from its responsibility of endowing a fair and reasonable veneration thereto. This is especially true when the Supreme Court[118] of the country has time and again asserted that rules of customary international law, which are not contrary to the municipal law, shall be deemed to be incorporated in the domestic law. Wherefore, taking into account all these elements the inherent shortcomings in the observations of the Supreme Court in Mohd. Salimullah case[119] are quite discernible. Despite the same, till the time these observations of the Supreme Court are set aside or clarified by a lager Bench of the Court, mournfully, the same would persevere to serve as steering guidelines for any forthcoming litigation on similar lines, leading to serious ramifications in coming times.

The Asylum Bill, 2015: Fervent endeavour towards statute enactment

 

Interestingly, in the year 2016, the Asylum Bill, 2015[120] (the 2015 Bill) was introduced in one of the houses of the Indian Parliament, inter alia, aimed to provide for the “establishment of an effective system to protect refugees and asylum seekers by means of an appropriate legal framework to determine claims for asylum and to provide for the rights and obligations flowing from such status”. Significantly, Section 2(1)(u) of the 2015 Bill defined refugee to mean, “an applicant whose application for asylum has been determined to meet the criteria under Section 4[121] by the Commission or the Appellate Board, as the case may be, under the terms of this Act or who has been declared to be a refugee by a notification under Section 30”.

Further under the said Bill, principle of non-refoulement was explicitly specified under Section 8 thereof, inter alia, to the effect that there shall be no expulsion or return of any refugee present within the national territory of India, in any manner whatsoever to any country where the life or freedom of such persons would be threatened on account of his or her race, religion, sex, nationality, ethnicity, membership of a particular social group or political opinion. Significantly, Section 5 of the 2015 Bill excluded the protection sought to be accorded under the proposed enactment, inter alia, to persons guilty of commission of crime against peace, a war crime or a crime against humanity as defined under any international legal instrument dealing with any such crimes, which India has acceded to; or in case such person has committed a serious non-political crime outside India, prior to his entry into the national territory; or to an individual who has committed inhumane acts for any reason(s), whatsoever, outside of India. At the same time, the persons involved in instigation, abetment or otherwise involved with the commission of said acts or those who pose a serious threat to public order or national security, subject to the riders envisaged under the said section, were denied the protection and sanctuary envisioned under the provisions of the 2015 Bill.

Provisions relating to the rights and duties of the refugees and asylum seeker were further encapsulated under Chapter VII (Sections 35 to 37) of the said Bill. At the same time, appreciating a possibility of a “mass influx situation”, provisions to deal with such contingency were provided under Sections 30 to33 of the said Bill. Laudably, the 2015 Bill incorporated several postulates and fundamentals, compatible with international norms and conventions; however, unfortunately, the same could not be adopted in a statutory format.

Fall of Refugee and Asylum Bill, 2019 and the hastened enactment of the Citizenship (Amendment) Act, 2019

Subsequently, in the year 2019, the Refugee and Asylum Bill, 2019[122] (the 2019 Bill) was introduced in the Upper House of  Parliament, containing similar provisions, inter alia, relating to non-refoulement; exclusion and cessation of refugee status; processing of applications for asylum; etc. Strikingly, Section 8 of the 2019 Bill, while dealing with the principle of non-refoulement, endeavoured to accord protection not only against expulsion, extradition or deportation, rather, also against the refusal of entry into India of person, where as a result of such refusal, expulsion, extradition, deportation, return or other measure, such person is compelled to return to or remain in a country where;

“(a) his life or freedom would be threatened on account of his race, religion, gender, sex, sexual orientation, nationality, ethnicity, membership of a particular social group or political opinion; or

(b) there are serious and indiscriminate threats to his life, physical integrity or freedom resulting from armed conflict, generalised violence or internal conflicts, massive violation of human rights against which the State is unable or unwilling to protect.”

Evidently, the extent of patronage envisioned under the 2019 Bill was quite wide and comprehensive. However, as in the past, this Bill, too, was shelved and failed to transmute into a statute. In contrast, recently, Parliament dashed ahead and enacted the controversial Citizenship (Amendment) Act, 2019[123] (CAA), inter alia, granting exemption to Hindu, Sikh, Jain, Parsi, Buddhist, and Christian migrants from Afghanistan, Bangladesh and Pakistan, who entered India before 2014 following their religious persecutions, from the definition of illegal migrants under Section 2(1)(b) of the Citizenship Act, 1955[124]. Notably, considering the limited applicability of the sanctuary under the CAA to only a few religious communities, understandably, this enactment has been widely criticised as discriminatory on the basis of religion, by meticulously and consciously excluding the Muslims from the auspice accorded therein. Simultaneously, the legislation of CAA has exacerbated the fear in the minds of the poor as well as the Muslim community of India that they might be rendered stateless, leading eventually to their detention.

Ominously, seen in this perspective, the decision of Supreme Court in Mohd. Salimullah case[125] has subliminally not only succoured the ploy and bigotry of the Government as manifest under the CAA, rather added fuel to fire by hastening the deportation of Rohingyas from India, majority of who are Muslims, to lands where their life and existence would reasonably be under jeopardy and endangerment. Further, the said dictate of the Supreme Court and concomitant enactment of CAA have often been interpreted by certain sections of the society as country’s metamorphosis into a religious State, which runs contrary to the constitutional ethos and India’s indispensable spirit of secularism. Unquestionably, the State and courts of India cannot afford such a perspective to persist.

Needless to mention, the hasty enactment of CAA by the present Government is quite incongruous for the reason that previously in the year 1949, proposal of one of the members of the Constituent Assembly to amend the provision under Article 5 of the draft Constitution to define Indian citizenship on religious lines[126]was out rightly reprobated[127]and denied. Clearly, even as on date the Indian Constitution does not envision grant of citizenship on the basis of religion and stands by the principle of secularism, even in its Preamble. Ergo, seen in this context, the legislatures’ reluctance to enact suitable legislation for refugees’ ameliorations, per contra enactment of a law in the form of CAA, which does not coincide with the heart and nucleus of the country’s Constitution, is quite perplexing.

Devotion to non-refoulement principle: Need of solidarity for triumph of humanity

Someone[128] once remarked, “No one leaves home unless home is the mouth of a shark.” Indubitably, it would not be an exaggeration to state that nationality and citizenship are not merely phraseologies of legal import, rather, sentiments and bonds which are ordinarily established long before a person’s birth. Nationals and citizens pride over their relatedness and association with their respective nations and build their entire world in and around their “motherland(s)”. Therefore, every act that unfairly, unjustly and arbitrarily seeks to deprive an individual or a community from such associations is nothing less than a transgression and worthy of universal reprimand. Though, it would be ideal that the instances of persecution, genocide, ethnic cleansing, etc., are nipped in the bud, however, where such situations, nevertheless arise, it becomes incumbent on nations of the world to exhibit solidarity and humanitarian approach, notwithstanding the absence of any specific statutory laws facilitating a grant of sanctuary to refugees. In fact, under such circumstances it becomes peremptory that even the stringent procedural requirements regarding the entry, refuge, sanctuary of foreigner/migrants, etc., are bypassed to permit the triumph of altruism, compassion and humanity. Concomitantly, adoption of such an approach must never be permitted to hinge upon the existence of a specific domestic enactment, especially, where the countries across the world have universally recognised rights to life and liberty of all individuals as inherent to the core of their existence and rule. Needless to emphasise, the international community and States are required to demonstrate their absolute devotion to the principle of non-refoulement so that the world becomes a refuge for those in imminent need of hope, protection and shelter.

Conclusion: Need for enactment and hope for Rohingyas’ amelioration

In the Indian context, it is world-renowned that the country has never shirked from its responsibility towards its citizens and world community alike. In fact, Indians pride themselves as a nation built on compassion and a heritage explicating the adoption of an ideology based on the unity and oneness of the world family: “Vasudhaiva Kutumbakam[129]. Therefore, perceiving in this frame of reference, India’s present approach towards the strained and harried community of Rohingyas does not acquiesce with the virtues and ideals of the Indian society nor is the same compatible with the persistent avowals of several courts and the provisions of the Indian Constitution. Unfortunately, even the recent declaration of the Supreme Court is blatantly antagonistic to several international conventions, treaties and obligations to which India is a signatory or a ratifying State, and which imbibe the principle of non-refoulement, even otherwise than its manifestation under the unratified provisions of the 1951 Refugee Convention and/or 1967 Refugee Protocol.

Doubtlessly, the recent dictate of the Supreme Court and the Government’s policy towards Rohingyas would have been justified and defensible had the Supreme Court and the State reached a perspicuous conclusion regarding the threat to country’s safety and security in case Rohingyas are permitted to stay in India. However, in the absence of any such conclusion or reasonable apprehension against the presence of Rohingyas in India, the country’s prevailing closed-door policy and denial of non-refoulement principle are difficult to comprehend and concede to. Understandably, not only has this approach been censured by the world community, rather, evinces a transformed approach of the present government, state and judicial setup, directed toward rebuffing refugees, heedlessly of the perils and quandaries awaiting such personages on their deportation from India. Consequently, appreciating the gravity of the situation and the possible implications of India’s existing strategy towards refugees, the need of country’s ratification of the Refugee Convention and Protocol and consequent enactment of a suitable legislation, in tune with the international principle, is more than ever needed so that not only the distinction between a refugee and foreigners under the existing laws of India is explicated, rather their resultant rights are satisfactorily vouchsafed.

Needless to iterate that considering the inalienability of the non-refoulement principle and the factum that the same has been persistently been avowed as implicit under Article 21 of the Constitution, need for such an enactment may not have been of imminence had the Supreme Court not adopted an extremely regressive approach in its recent declaration. However, appreciating the Supreme Court’s glaring precedent in Mohd. Salimullah case[130] and the unbridled/unguided exercise of powers by the Indian Government, while dealing with Rohingyas, the impendence of a suitable law on refugees in India cannot be over-stressed. Consequently, time is ripe for the country to realise its obligations and the place which it enjoys in the world map as a paradigm for others to follow and, accordingly, to substitute its extant “closed-door policy” with that of a “welcoming approach”. In the meanwhile, one can hope that sanity and justice prevails in Burma so that the instances of massacre and bloodshed are ceased and Rohingyas are able to unite with their motherland.


*Advocate, Supreme Court and High Court(s) of India. The author can be reached at abhigoyal85@gmail.com.

[1]Susan Abulhawa, Mornings in Jenin.

[2]Nottebohm case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6-4-1955, available at <https://www.refworld.org/cases,ICJ,3ae6b7248.html>  (accessed on31-7-2021).

[3]Advisory Opinion on Proposed Amendments to the Naturalisation Provision of the Constitution of Costa Rica, OC-4/84, Inter-American Court of Human Rights (IACrtHR), 19-1-1984, available at <https://www.refworld.org/cases,IACRTHR,44e492b74.html> (accessed on11-8-2021).

[4]1958 SCC OnLine US SC 61 : 2 LEd 2d 603 :356 US 44 (1958).

[5]Castillo Petruzzi et al. case, Inter-American Court of Human Rights, 30-5-1999, available at <https://www.refworld.org/cases,IACRTHR,44e494cb4.html> (accessed on 3-9-2021).

[6] However, under such state of forcible intervention it has been recurrently cautioned, “The protection involves removal of the foreign nationals, not the establishment of order out of chaos. The intervening State is not able to establish a non-consensual presence in the host State for any longer than is required to remove its citizens.” Refer to Andrew W.R. Thomson, Doctrine of the Protection of Nationals Abroad: Rise of the Non-Combatant Evacuation Operation, 11 Washington University Global Studies Law Review 627, 668 (2012), <https://openscholarship.wustl.edu/law_globalstudies/vol11/iss3/3> (accessed on 3-9-2021).

[7]Art. 1(1) of the 1954 Convention Relating to the Status of Stateless Persons.

[8]The United Nations High Commissioner for Refugees (UNHCR), Expert Meeting —The Concept of Stateless Persons under International Law (Prato Conclusions), May 2010, available at  <https://www.refworld.org/docid/4ca1ae002.html> (accessed on31-7-2021).

[9] UN High Commissioner for Refugees (UNHCR), Convention Relating to the Status of Stateless Persons. Its History and Interpretation, 1997, available at< https://www.refworld.org/docid/4785f03d2.html> (accessed on 31-7-2021).

[10]UN High Commissioner for Refugees (UNHCR), Nationality and Statelessness: A Handbook for Parliamentarians, 20-10-2005, available at <https://www.refworld.org/docid/436608b24.html> (accessed on17-7-2021).

[11]UN High Commissioner for Refugees (UNHCR), Overview of Statelessness: International and Japanese Context, April 2010, available at <https://www.refworld.org/docid/4c344c252.html> (accessed on 22-7-2021).

[12] Weis, Nationality and Statelessness in International Law, p. 164; Further, refer to UN High Commissioner for Refugees (UNHCR), UNHCR and De Facto Statelessness, April 2010, LPPR/2010/01, available at <https://www.refworld.org/docid/4bbf387d2.html> (accessed on 22-7-2021).

[13] UN High Commissioner for Refugees (UNHCR), Information and Accession Package: The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness,  January 1999, available at <https://www.refworld.org/docid/3ae6b3350.html> (accessed on 21-7-2021).

[14]Refugees International, Lives on Hold: The Human Cost of Statelessness, February 2005, available at

<https://www.refworld.org/docid/47a6eba00.html> (accessed on 21-7-2021).

[15]Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness, 11-3-2009, available at <https://www.refworld.org/docid/49be193f2.html> (accessed on27-7-2021).

[16] UN High Commissioner for Refugees (UNHCR), Good Practices in Nationality Laws for the Prevention and Reduction of Statelessness, November 2018, Handbook for Parliamentarians N° 29, available at <https://www.refworld.org/docid/5be41d524.html> (accessed on 17-7-2021).

[17]UN High Commissioner for Refugees (UNHCR), The Situation of Stateless Persons in the Middle East and North Africa, October 2010, available at <https://www.refworld.org/docid/4cea28072.html> (accessed on 25-7-2021).

[18] UN General Assembly, Universal Declaration of Human Rights,10-12-1948, 217 A (III).

[19] UN Human Rights Council, Arbitrary Deprivation of Nationality: Report of the Secretary-General, 26-1-2009, A/HRC/10/34, available at <https://www.refworld.org/docid/49958be22.html> (accessed on17-7-2021).

[20] UN Human Rights Council, Report of the Human Rights Council on its 7thSession, 14-7-2008, A/HRC/7/78, available at <https://www.refworld.org/docid/49997ae80.html> (accessed on 17-7-2021).

[21]UN Human Rights Council, Human Rights and Arbitrary Deprivation of Nationality: Resolution /adopted by the Human Rights Council, 16-7-2012, A/HRC/RES/20/5, available at

<https://www.refworld.org/docid/5016631b2.html> (accessed on27-7-2021).

[22]Convention on the Reduction of Statelessness, 1961.

[23] Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. Further, refer to Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda, available at < https://www.refworld.org/docid/4b5438802.html> (accessed on18-7-2021).

[24]UN Security Council, Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780 (1992), 27-5-1994, s/1994/674, available at <https://www.refworld.org/docid/582060704.html> (accessed on18-7-2021).

[25]Prosecutor v. Goran Jelisic (Trial Judgment), IT-95-10-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 14-12-1999, available at <https://www.refworld.org/cases,ICTY,4147fe474.html> (accessed on 18-7-2021).

[26] Human Rights Watch, Lasting Wounds: Consequences of Genocide and War for Rwanda’s Children, 3-4-2003, 1505A, available at <https://www.refworld.org/docid/3f4f595a12.html> (accessed on 18-7-2021).

[27]Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

[28]Factsheet on the Convention on the Prevention and Punishment of the Crime of Genocide (1948), available at <https://www.un.org/en/genocideprevention/documents/Genocide%20Convention-FactSheet-ENG.pdf> (accessed on19-7-2021).

[29]Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43.

[30] UN Human Rights Council, Prevention of Genocide: Resolution Adopted by the Human Rights Council, 7-4-2015, A/HRC/RES/28/34, available at <https://www.refworld.org/docid/558ac6f04.html> (accessed on 27-7-20211).

[31]UN Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis, 15-5-2016, A/HRC/32/CRP.2, available at <https://www.refworld.org/docid/57679c324.html> (accessed on 25-7-2021).

[32]Myanmar and Burma have been used interchangeably throughout this article, though officially, the country is presently designated as the Republic of the Union of Myanmar.

[33]International Court of Justice, Application Institution Proceedings and Request for Provisional Measures, Republic of the Gambia v. Republic of the Union of Myanmar, 11-11-2019, available at <https://www.icj-cij.org/public/files/case-related/178/178-20191111-APP-01-00-EN.pdf> (accessed on 31-8-2021).

[34]Letter dated 9-2-2009, available at <https://www.newmandala.org/wp-content/uploads/2009/02/the-consul-generals-letter.pdf> (accessed 1-9-2021).

[35]Transcript of Secretary-General’s Remarks at Press Encounter with President of the World Bank, Jim Yong Kim,2-7-2018, available at <https://www.un.org/sg/en/content/sg/press-encounter/2018-07-02/transcript-secretary-general%E2%80%99s-remarks-press-encounter> (accessed on19-7-2021).

[36] Human Rights Watch, Thailand: Give UN Access to Rohingya “Boat People”, 2-9-2011, available at <https://www.refworld.org/docid/4d4ba5391a.html>  (accessed on19-7-2021).

[37]“The 1974 Emergency Immigration Act stripped Burmese nationality from the Rohingya. In 1977, Operation Nagamin (Dragon King) constituted a national effort to register citizens and screen out foreigners prior to a national census. The resulting military campaign led to widespread killings, rape, and destruction of mosques and religious persecution. By 1978, more than 200,000 Rohingya had fled to Bangladesh. The Burmese authorities claimed that their flight served as proof of the Rohingya’s illegal status in Burma.” Refer to; Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness, 11-3-2009, available at <https://www.refworld.org/docid/49be193f2.html> (accessed on31-8-2021).

[38]Burma Citizenship Law, 15-10-1982, available at <https://www.refworld.org/docid/3ae6b4f71b.html> (accessed on 25-7-2021).

[39]Constitution of the Union of Burma, 1974.

[40]As per S. 2 of the Union Citizenship Act, 1948, “ ‘Union’ means the Union of Burma.”

[41]Refer to the Constitution of the Union of Burma, 1948 which, inter alia, envisages  right to equality (Ss. 13-15), right to freedom (Ss. 16-19), rights relating to religion (Ss. 20-21), cultural and educational rights (S. 22), economic rights (S. 23), rights in relation to criminal law (S. 24), rights of constitutional remedies (Ss. 25-29).

[42]Myanmar’s 1982 Citizenship Law in Context, by Peggy Brett and Kyaw Yin Hlaing Policy Brief Series No. 122 (2020), available at <https://www.toaep.org/pbs-pdf/122-brett-kyh/#:~:text=Article%203%20of%20the%201982,1823%20A.D.%20are%20Burma%20citizens> (accessed 25-7-20210.

[43]Burma Citizenship Law, 1982, S. 5, “Every national and every person born of parents, both of whom are nationals are citizens by birth.” Also refer to S. 7 of the said enactment.

[44]Burma Citizenship Law, 1982, Ss. 3, 4 and 6.

[45]Burma Citizenship Law, 1982, Ch. III. In particular, S. 23 thereof, which provides, “Applicants for citizenship under the Union Citizenship Act, 1948, conforming to the stipulations and qualifications may be determined as associate citizens by the Central Body.”

[46]Burma Citizenship Law, 1982, Ch. IV. S. 2(d) thereof provides, “ ‘Naturalised citizen’ means a prescribed by this law;.”

[47]Burma Citizenship Law, 1982, S. 30 —“An associate citizen shall—(c) be entitled to enjoy the rights of a citizen under the laws of the State, with the exception of the rights stipulated from time to time by, the Council of State.”

[48]Burma Citizenship Law, 1982, S. 53 —“A naturalised citizen shall—(c) be entitled to enjoy the rights of a citizen under the laws of the State, with the exception of the rights stipulated from time to time by, the Council of State.”

[49]Constitution of the Union of Burma, 1974, Ch. V, Arts. 64 to 82.

[50] Meeting held in the Central Meeting Hall, President House, Ahlone Road, 8-10-1982. Translation of the speech by General Ne Win provided in The Working People’s Daily, 9-10-1982, available at <http://www.netipr.org/policy/downloads/19821008_Gen-Ne-Win-speech-on-Citizenship-Law.pdf> (accessed on 31-7-2021).

[51]S.6 of the Burma Citizenship Law, 1982 “A person who is already a citizen on the date this Law cones into force is a citizen. Action, however shall be taken under S. 18 for infringement of the provision of that section.” [Clearly, as per this section, no acknowledgement to citizenship status is provided under the 1982 Citizenship Law to persons who were deemed to be Burmese citizens under S. 4(2) of the Union Citizenship Act, 1948.]

[52]Minority Rights Group International, World Directory of Minorities and Indigenous Peoples — Myanmar/Burma: Muslims and Rohingya, October 2017, available at  <https://www.refworld.org/docid/49749cdcc.html> (accessed 1-8-2021).

[53] Equal Rights Trust, Burning Homes, Sinking Lives: A Situation Report on Violence against Stateless Rohingya in Myanmar and their Refoulement from Bangladesh, 2-7-2012, available at  <https://www.refworld.org/docid/5034fadb2.html> (accessed on1-8-2021).

[54]Refugees International, Malaysia: Rohingya Refugees Hope for Little and Receive Less, 17-11-2015, available at <https://www.refworld.org/docid/564b3d5b4.html> (accessed 1-9-2021).

[55]Human Rights Watch, Southeast Asia: Accounts from Rohingya Boat People, 27 May 2015, available at  <https://www.refworld.org/docid/556868b94.html> (accessed on1-8-2021).

[56] Amnesty International, Bangladesh: Submission to the United Nations Human Rights Committee, March 2017, available at <https://www.refworld.org/docid/58de16e84.html> (accessed 1-8-2021).

[57]Mixed Migration Centre, Rohingya Migration to India: Patterns, Drivers and Experiences, April, 2019, available at <https://mixedmigration.org/wp-content/uploads/2019/04/063_briefing-paper_Rohingya_India.pdf>  and UN Women, Gender Brief on Rohingya Refugee Crisis Response in Bangladesh, January 2018, available at <https://asiapacific.unwomen.org/-/media/field%20office%20eseasia/docs/publications/2017/10/gender-advocacy-paper-for-rohingya-refugee-crisis-response-in-bangladesh-r10.pdf?la=en&vs=2521> (accessed on 1-9-2021).

[58] UN High Commissioner for Refugees (UNHCR), Culture, Context and Mental Health of Rohingya Refugees: A review for staff in mental health and psychosocial support programmes for Rohingya refugees, 2018, available at <https://www.refworld.org/docid/5bbca9377.html> (accessed on 1-9-2021).

[59]Dozens of Rohingya Camping outside UNHCR Office in India Detained, 11-3-2021, available at <https://www.aljazeera.com/news/2021/3/11/dozens-of-rohingya-camping-outside-unhcr-office-in-india-detained> (accessed on 4-8-2021).

[60]Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12-9-2018, available at <https://undocs.org/en/A/HRC/39/64> (accessed on 1-8-2021).

[61]Detailed findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, 16-9-2019, available at <https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf> (accessed on1-8-2021).

[62]Resolution adopted by the General Assembly on 22-12-2018, UN doc. A/RES/73/264, 22-1-2019, available at <https://undocs.org/en/A/RES/73/264> (accessed on1-8-2021).

[63]The Gambia and Myanmar are, both, parties to the Genocide Convention. Significantly, Myanmar ratified the convention with the deposit of its instrument of ratification on 14-3-1956, expressing reservations to Arts.VI and VIII (however, no reservation was expressed towards Art. IX thereof). Subsequently, on 29-12-1978, The Gambia acceded to the Convention without entering any reservation.

[64]ICJ-Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Request for the Indication of Provisional Measures, 23-1-2020, available at <https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf> (accessed on 2-8-2021).

[65]Transcript: Aung San Suu Kyi’s Speech at the ICJ in Full, available at <https://www.aljazeera.com/news/2019/12/12/transcript-aung-san-suu-kyis-speech-at-the-icj-in-full/> accessed on 15-8-2021).

[66]Burma: New Satellite Images Confirm Mass Destruction, available at  <https://www.hrw.org/news/2017/10/17/burma-new-satellite-images-confirm-mass-destruction> (accessed on 15-8-2021).

[67]United Nations, Constitution of the International Refugee Organisation, 15-12-1946, United Nations, Treaty Series, Vol. 18, p. 3, available at <https://www.refworld.org/docid/3ae6b37810.html> and <https://treaties.un.org/doc/Treaties/1948/08/19480820%2007-01%20AM/Ch_V_1p.pdf>  (accessed on 2-8-2021).

[68]UN General Assembly, Convention Relating to the Status of Refugees, 28-7-1951, United Nations, Treaty Series, Vol. 189, p. 137.

[69] UN General Assembly, Protocol Relating to the Status of Refugees, 31-1-1967, United Nations, Treaty Series, Vol. 606, p. 267.

[70]Amnesty International, Italy: Beatings and Unlawful Expulsions amid EU Push to Get Tough on Refugees and Migrants, 3-11-2016, available at <https://www.refworld.org/docid/5825d5514.html> (accessed on 17-8-2021).

[71]Refugee Appeal No. 72635/01, 72635/01, New Zealand: Refugee Status Appeals Authority, 6-9-2002, available at <https://www.refworld.org/cases,NZL_RSAA,402a6ae14.html> (accessed on11-8-2021).

[72]Statelessness and the Problem of Resolving Nationality Status, International Journal of Refugee Law, Vol. 10, Issues 1-2, January 1998, pp. 156-182, available at <https://doi.org/10.1093/ijrl/10.1-2.156> (accessed on11-8-2021)

[73]UN High Commissioner for Refugees (UNHCR), Convention relating to the Status of Stateless Persons. Its History and Interpretation, 1997, available at <https://www.refworld.org/docid/4785f03d2.html> (accessed on11-8-2021).

[74]Refugee Act, 1996 (last amended in 2003) (Ireland, 15-7-2003, available at  <https://www.refworld.org/docid/3ae6b60e0.html> (accessed on14-8-2021).

[75]Why India Did Not Sign the 1951 Refugee Convention, available at <https://www.hg.org/legal-articles/why-india-did-not-sign-the-1951-refugee-convention-41414> (accessed on14-8-2021).

[76] United States Committee for Refugees and Immigrants, US Committee for Refugees World Refugee Survey 2000 – India, 1-6-2000, available at <https://www.refworld.org/docid/3ae6a8d02c.html> (accessed on 14-8-2021).

[77] UN High Commissioner for Refugees (UNHCR), UNHCR Submission on India: UPR 27th Session, August 2016, available at <https://www.refworld.org/docid/5a12b5420.html> (accessed on 14-8-2021).

[78]Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

[79]Constitution of India.

[80]Constitution of India, Art. 14.

[81]Constitution of India, Art. 20.

[82]Constitution of India, Arts. 22 and 25-28.

[83]Constitution of India, Art. 32.

[84]Constitution of India, Art. 51(c).

[85]Constitution of India, Art. 253.

[86]National Legal Services Authority v. Union of India, (2014) 5 SCC 438, 486. Refer also to Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534.

[87](1997) 6 SCC 241.

[88]Vishaka v. State of Rajasthan, (1997) 6 SCC 241, 248-249.

[89]Passport (Entry into India) Act, 1920.

[90]Passports Act, 1967.

[91]Registration of Foreigners Act, 1939.

[92]Foreigners Act, 1946.

[93]Foreigners Order, 1948.

[94]National Security Act, 1980.

[95]Foreigners Act, 1946, S. 2(a).

[96]Foreigners Act, 1946, S. 3(1).

[97]Foreigners Act, 1946, S. 14.

[98]Hans Muller of Nurenburg v. Supt., Presidency Jail, AIR 1955 SC 367.

[99]Hans Muller of Nurenburg v. Supt., Presidency Jail, AIR 1955 SC 367.

[100]Mailwand’s Trust of Afghan Human Freedom v. State of Punjab, WP (Crl.) No. 125 and 126 of 1986, order dated 28-2-1986, available at: https://www.refworld.org/cases,IND_SC,3f4b8cfd4.html [accessed 24 August 2021]; N.D. Pancholi v. State of Punjab, WP (Crl.) No. 243 of 1988, 9-6-1988, available at: https://www.refworld.org/cases,IND_SC,3f4b8e224.html [accessed 24 August 2021] and Malavika Karlekar v. Union of India, 1992 SCC OnLine SC 249.  [Pending uploading]

[101]O. Konavalov v. Commander, Coast Guard Region, (2006) 4 SCC 620.

[102]Constitution of India, Art. 21.

[103](1996) 1 SCC 742, 751.]

[104]Railway Board v. Chandrima Das, (2000) 2 SCC 465, 484.

[105]Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665; State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615 and Louis De Raedt v. Union of India, (1991) 3 SCC 554.

[106]1998 SCC OnLine Guj 304.

[107]2015 SCC OnLine Del 14338.

[108]2021 SCC OnLine Mani 176.

[109]2011 SCC OnLine Dis Crt (Del) 1.

[110]2021 SCC OnLine SC 296.

[111]Constitution of India, Art. 19(1)(e) —“All citizens shall have the right – (e) to reside and settle in any part of the territory of India;”

[112]2021 SCC OnLine SC 296.

[113]UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10-12-1984, United Nations, Treaty Series, Vol. 1465, p. 85, available at  <https://www.refworld.org/docid/3ae6b3a94.html> (accessed on28-8-2021).

[114]Art. 1(1) of the Convention against Torture provides, “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[115] UN General Assembly, International Covenant on Civil and Political Rights, 16-12-1966, United Nations, Treaty Series, Vol. 999, p. 171.

[116]UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31-1-1994, available at  <https://www.refworld.org/docid/437b6db64.html> (accessed on 28-8-2021).

[117]The Principle of non-refoulement. What is its standing in international law, JU Dr Kamil Šebesta, MBA, available at <http://www.elaw.cz/clanek/the-principle-of-nonrefoulement-what-is-its-standing-in-international-law>  (accessed on28-8-2021).

[118]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.

[119]2021 SCC OnLine SC 296.

[120]Asylum Bill, 2015, Bill No. 334 of 2015.]

[121]Asylum Bill, 2015, S. 4

  1. Criteria for recognition as a refugee.—(1) A person qualifies as a refugee for the purposes of this Act if such person-

(a) is outside his country of origin and is unable or unwilling to return to or avail himself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnicity, membership of a particular social group or political opinion; or

(b) has left his country owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalised violence or events seriously disturbing public order.

(2) Dependants of a person who qualifies as a refugee under sub-s.(1) shall also be deemed to be refugees.

(3) In the case of a person who has more than one nationality.

[122]Refugee and Asylum Bill, 2019, Bill No. 70 of 2019.]

[123]Citizenship (Amendment) Act, 2019.

[124]Citizenship Act, 1955, S. 2 (1)(b).

[125]2021 SCC OnLine SC 296.

[126]Art. 5 of the draft Constitution was proposed to confer Indian citizenship, inter alia, to every person,

“(iii) who is a Hindu or a Sigh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India.”

[127]Mr Mahboob Ali Baig Sahib (Member of Constituent Assembly) in this regard, condemned, “It is very strange that Dr Deshmukh should contemplate giving citizenship rights only to persons who are Hindus or Sikhs by religion. He characterised the provision in the article granting citizenship rights as ridiculously cheap. I would say on the other hand that his conception is ridiculous. Therefore let us not follow the example of those countries which we are condemning everywhere, not only here but also in the United Nations and complaining that although Indians have been living in those countries they have not been granted citizenship rights there.” Further, Mr Jawaharlal Nehru (Former Prime Minister and member of Constituent Assembly), remarked, “You cannot have rules for Hindus, for Muslims or for Christians only.”

[128] Warsan Shire, Teaching My Mother How to Give Birth.

[129] Sanskrit phrase found in Hindu texts such as the Maha Upanishad, which means “the world is one family”.

[130]2021 SCC OnLine SC 296.

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