Aug 26, 2017
Drawing the attention of the Government of India to a 1996 landmark verdict of the Supreme Court of India, the Commonwealth Human Rights Initiative (CHRI) urges the Ministry of Home Affairs (MHA) to consider withdrawal of an advisory with regard to the proposed deportation of Rohingya Muslims to Myanmar.
Article 21 of the Constitution guarantees the 'right to life' to all persons and not just Indian citizens. This has repeatedly been affirmed by the Supreme Court, most particularly in National Human Rights Commission v State of Arunachal Pradesh. The court also held that state governments are under constitutional obligation to protect threatened groups of foreign nationals. This case related to demands to push out members of the Chakma tribe who had been settled in the state since 1964.
The Advisory titled, ‘Identification of illegal migrants and monitoring thereof’was issued on August 8, 2017, and runs contrary to India’s constitutional and international commitments. As far as the latter is concerned, India is a state party to Article 6 of International Covenant on Civil and Political Rights (ICCPR), which upholds the right to life. In addition, the deportation of Rohingya Muslims back to Myanmar would also be a violation of Article 7 of the ICCPR in as much as it prohibits states “to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm."
The Rohingya are a Muslim ethnic minority of Myanmar who live in the western state of Rakhine. They do not find mention in that country’s official listing of 135 ethnic communities, and are thus not recognised as citizens by Myanmar. In a bid to drive them out, government agencies force these people to seek permission prior to getting married, seek employment, avail health services and even for recording births. The permissions usually cost them thousands of Kyat, the local currency, of bribe money.
Over the past years, Myanmar military forces allegedly in connivance with extremist Buddhist groups have launched major crackdowns on Rohingya Muslims, driving over 74,000 refugees to seek shelter in Bangladesh by February this year, according to the UNHCR.
International human rights groups and the UN have reported wide-scale human rights violations against the Rohingya Muslims, including extrajudicial killings, gang rapes, arsons and other violence.
Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar, has repeatedly raised her concern on the targeted violence against the Rohingya Muslims in Rakhine.
The issue is so sensitive that Aung Sang Suu Kyi, Myanmar’s State Counsellor and pre-eminent political leader, had appointed former UN Secretary General Kofi Annan to head an Advisory Commission on the Rakhine. Mr. Annan’s Commission is expected to turn in its final report during his current visit to Myanmar.
Madhurima Dhanuka, Coordinator, Prison Reforms Programme, CHRI said that “While countries have a right to expel foreigners under international law, to deport someone requires another country to acknowledge his/her citizenship. As Myanmar refuses to acknowledge Rohingya Muslims as citizens, it becomes impossible for the Indian Government to deport them there, making the advisory infructuous.”
The MHA Advisory 2017 emphasizes the detection and deportation of illegal migrants from Rakhine State i.e. Rohingyas. It asks states to take “prompt steps in identifying the illegal migrants and initiate deportation processes expeditiously and without delay.”
While the advisory lists their vulnerability for getting recruited by terrorist organizations as a major security concern, the mere possibility is not a valid reason to deport them out of the country where they could face severe consequences.
“Under the principle of non-refoulement, countries are under obligation not to send back refugees to their country of origin should circumstances of grave human rights violations prevail, there,” said Sanjoy Hazarika, CHRI’s Director.
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Coordinator, Prison Reforms Programme, CHRI
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