Rohingya, A Case Study of Their Treatment in India
Rohingya, A Case Study of Their Treatment in India
Rohingya, A Case Study of Their Treatment in India
SUBMITTED BY:
SHASHI BHUSHAN ,B.A.,LL.B.(HONS.)
Semester -5th, Roll no.-2158
SUBMITTED TO:
Ms. Sugandha
FACULTY OF INTERNATIONAL LAW
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TABLE OF CONTENTS
Contents
DECLARATION........................................................................................................................................3
ACKNOWLEDGEMENT...........................................................................................................................4
INTRODUCTION.....................................................................................................................................5
INDIA’S APPROACH TOWARDS ROHINGYA............................................................................................7
INDIA’S INTERNATIONAL LAW OBLIGATIONS........................................................................................8
RATIONALIZING EXCLUSION, NEGLECT, AND DEHUMANIZING OF ROHINGYAS....................................9
INDIA’S RESPONSE TO THE ROHINGYA CRISIS.......................................................................................9
Explaining India’s stance......................................................................................................................13
Conclusion...........................................................................................................................................14
BIBLIOGRAPHY.....................................................................................................................................16
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DECLARATION
I hereby declare that the project entitled “ ROHINGYA, A CASE STUDY OF THEIR
TREATMENT IN INDIA”submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY
is a record of bona fide project work carried out by me under the guidance of our Mentor
Ms. Sugandha. I further declare that the work reported in this project has not been submitted
and will not be submitted, either in part or in full, for the award of any other degree or
diploma in the university or in any other university.
SHASHI BHUSHAN
B.A.,L.L.B.(Hons.)
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ACKNOWLEDGEMENT
Firstly, I am very grateful to, my subject teacher Ms.Sugandha, without the kind support and
help of whom the completion of this project was a herculean task for me. I would like to
thank him for his valuable suggestions towards the making of this project.
I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my
college which assisted me in acquiring the sources necessary for the compilation of my
project.
Last but not the least; I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.
SHASHI BHUSHAN
ROLL NO.-2169
B.A.,LL.B. (Hons.)
SESSION: 2019-2024
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INTRODUCTION
An issue that has come to be known as ‘the Rohingya crisis’ is a tragedy that was in the
making for over several decades and concerns the plight of hundreds of thousands of
people belonging to the Rohingya-Muslim minority community in Myanmar’s Rakhine
State. Myanmar does not recognize the community as its citizens and considers them
“illegal immigrants” from Bangladesh. Recent violence in Rakhine State has displaced
several hundred thousand Rohingyas within Myanmar and driven out some 700,000 of
them to neighboring Bangladesh after the military launched a bloody crackdown triggered
by militant attacks on security posts in late August 2017. 1 The United Nations (UN) has
described the violence against the Rohingya community as a “textbook example of ethnic
cleansing.” The crisis has also acquired a security dimension with concerns being raised
over the infiltration of Islamic extremism amongst the Rohingyas, who have grown
increasingly desperate over their plight. The massive refugee outflow has created a serious
humanitarian crisis that carries implications on regional stability and security.
1
“Myanmar’s Rohingya Crisis Enters a Dangerous New Phase,” International Crisis Group, Asia Report
N°292 .
https://d2071andvip0wj.cloudfront.net/292-myanmar-s-rohingya-crisis-enters-a-dangerous-new-phase.pdf
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multireligious society. The Rohingya Muslims question is part of this larger problem.
Historically, the entry of the military into politics and the continuing struggle for power
between the military and the civilian—with the military seeing itself as the protector of the
nation—is an outcome of the narrowly defined nationalistic outlook. In such a construct of
what makes the Myanmar ‘nation’, the Rohingya-Muslim community are doubly
disadvantaged. First, unlike the rest of the other ethnic minorities, the Rohingyas are
regarded as “illegal immigrants”. Second, the acrimonious relationship between the
Rakhine ethnic group (also Buddhists) and the politically dominant Bamar-Buddhist
majority meant that the Rohingyas are unlikely to be favoured by the central government at
the cost of the Rakhines. Third, the Rohingyas suffer from the general negative sentiment
against Muslims and are easy targets of vitriolic attacks and pronouncements from ultra-
nationalist Buddhist forces. Further, the opening up of the nation with the democratisation
process allowed these sentiments to express themselves more freely, with consequences on
the fragile social fabric of the nation and on the future of the country’s democracy itself.
This brief examines India’s approach towards the Rohingya crisis and explores ways for
India to strengthen its role in finding solutions. India’s Rohingya position has two aspects.
The first concerns the implications of India’s stand on the Rohingya refugees; the second,
how India can play a role in finding a solution to the crisis. Much of the current debate
focuses on the former, while the latter has not received much attention. This brief spells out
some ideas on the second aspect as a way forward. The Rohingya crisis has raised several
questions about India’s approach towards refugees, in general, and the Rohingyas, in
particular. Regardless of how India’s Rohingya approach is viewed, there is a consensus
that it is shaped by various factors, including diplomatic, domestic political compulsions,
humanitarian, security and geopolitical considerations. The importance of these factors has
also changed over time.
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INDIA’S APPROACH TOWARDS ROHINGYA
Trapped in the misery of persecution leading to statelessness and abandonment, the hardship
of the Rohingya Muslims has worsened after fleeing to India. The further victimization of
Rohingya refugees in India is on the ground of religion. Religious right-wing Hindutva trolls
have accused Rohingyas to be an agent of Islamic terrorism and have been accused of
carrying out militant attacks in parts of India (Chaudhury, 2018). Hindu right-wing media
houses such as OpIndia and OneIndia have drawn elaborate conspiracy theories to link
Rohingya involvement with the ISIS, Lashkar-e-Taiba. The generalized criminalisation of
Rohingya Refugees as ‘terrorist’ is clearly caused due to their religion affiliation as Muslims.
In the current report we focus on data surrounding the arrival of the Rohingya Refugees in
India and the subsequent approach of the Indian government. The report also looks at India’s
obligations under International Law to protect Rohingya Refugees and highlights how
through Citizenship Amendment Act, 2019 (CAA), Indian government has ignored its
international responsibility of protection.
As of 2019, the State of Myanmar had a total population of 54 million people (The World
Bank, 2019). It has been estimated that out of these 54 million, about 1.3 million people are
Rohingyas living in Myanmar (Thawnghmung, 2016). Following the persecution several
Rohingya groups have fled to neighbouring states of Bangladesh and India. According to the
Indian Home Ministry and Reuters, an estimated 40,000 Rohingyas sought refuge in India
(Quadir, 2019; The Hindu, 2017). In January 2019, UNHCR India acknowledged the
presence of 18,000 Rohingyas which are registered (UNHCR India, 2019). This means that
several Rohingyas within India are living in protracted refuge conditions and continue to be
stateless and statusless.
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humbly that while India is neither a Party to the 1951 Refugee Convention nor the 1967
Refugee Protocol, India is signatory to several core treaties which requires states to ensure
access to basic human rights and human dignity for all and provide basic protection to people
seeking asylum in India. For example, the Universal Declaration of Human Rights (UDHR)
1948, grants persons a right to seek asylum in other countries if they face the threat of
persecution in their homeland [Article 14]. Similarly, International Covenant on Civil and
Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) and Convention on the Rights of the Child (CRC) provides
affirmative rights to ensure dignity, respect for life and liberty and conducive environment for
children to grow. India is a signatory to all three of these conventions which create binding
legal obligations through Article 51(c) of the Constitution of India which directs the State to
“foster respect for international law and treaty obligations in the dealings of organized
peoples with one another”. Indian courts in various decisions have interpreted Fundamental
Rights incorporated in Part III of the Constitution, according to the contours of International
Law. In the case of People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568,
the Supreme Court of India had held that the provisions of the International Covenant on
Civil and Political Rights (ICCPR) are directly enforceable in India and can be used in
effectuating the provisions of the Constitution. In another case of Vishaka v. State of
Rajasthan2, the Supreme Court of India incorporated the entire CEDAW in Indian Law.
Further, in the case of Vellore Citizens Welfare Forum v. Union of India3 1996, Customary
International Law was held to be automatically incorporated in the domestic law in the
absence of any contrary provision. Nevertheless, the approach of the Indian government in
providing protection and assistant to Rohingyas fall short of its international obligation and
responsibility to protect. It is contended that the neglect of Rohingya refugees is primarily on
grounds of religion and in-line with Indian state’s growing discrimination and persecution of
its own Muslim minorities.
2
(1997) 6 SCC 241
3
1996 5 SCR 241
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line with its wider discriminatory and derogatory approach towards Indian Muslims.
Treatment of Rohingya Muslim asylum seekers is in sharp contrast of India’s treatment of
Buddhist refugees in Tibet and Byllakuppe. In 1951, India welcomed Tibetan (Buddhist)
refugees and granted them asylum in India. Tibetans are given Refugee Certificates in India
which grant them all rights as Indian citizens except the right to vote and right to government
employment . In the 1980s, the Afghan-Soviet war brought about 60,000 Afghan (majority
Sikh and Hindu) refugees in India. Although they have not been granted Indian citizenship,
the government has provided them necessary aid at all times, in association with the UNHCR
and the National Human Rights Commission. The Sri Lankan civil war in the 1980s also
brought the Tamil (Hindu) refugees in India. Currently settled in camps in the southern state
of Tamil Nadu, the Indian Finance Minister assured that about 95,000 Sri Lankan refugees
would be given Indian citizenship under the CAA . In all these instances, the response of the
Indian 8 government is in stark contrast to that of the entry of the Rohingyas who are
primarily Muslims, but equally persecuted.
4
“Visit of UN High Commissioner for Refugees to India”, Press Releases, Ministry of External Affairs,
Government of India (December 19,
2012), http://mea.gov.in/press-releases.htm?dtl/20980/Visit+of+UN+High+Commissioner+for+Refugees+
to+India
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endorsed the position of the UPA government. In 2015, the Rohingya crisis assumed a
regional dimension when Thailand, Malaysia and Indonesia all turned away overcrowded
boats carrying Rohingyas attempting to land on their shores, leaving hundreds in the high
seas. There were calls for Delhi to help rescue the Rohingyas, but India decided to look the
other way. This happened soon after the devastating earthquake in Nepal where India was
quick to extend assistance.
A combination of factors seemed to have shaped India’s approach in the first phase. Delhi
took the side of the Myanmar government because it was concerned that raising the issue
publicly might push Myanmar towards China as it was building relations with the then
newly formed quasi-democratic government. India also has economic interests with its
companies holding stakes in Shwe Gas field off the coast of Rakhine State. Along with
energy interests and plans to build cross-border pipelines, India also has a connectivity
interest to link its landlocked northeastern region with the Bay of Bengal through Rakhine
State under a joint project with Myanmar that includes development of port at Sittwe,
inland-waterway in the Kaladan River, and road construction to connect it with India’s
Northeast. Delhi was wary that instability in the Rakhine State would have adverse effects
on these interests. With growing security cooperation between the two countries,
particularly in tackling cross-border ethnic insurgency in their shared border regions, India
was careful not to upset the Myanmar regime. India’s offer of relief assistance was a token
of support to the Myanmar government as much as it was about its humanitarian concerns
in a neighbouring country. Thus, geopolitics, security and economic interests and
humanitarian concerns were key in moulding India’s Rohingya response during this phase.
The second phase of India’s Rohingya approach began sometime in mid-2017 with
the announcement of the government’s plans to deport the Rohingyas who have
settled in different parts of India. While answering a question in Parliament on 9
August 2017, India’s Minister of State for Home Affairs, Kiren Rijiju said the
government was planning to deport Rohingyas from India because they are “illegal
immigrants.” The minister later clarified that the deportation plan was “not yet
firmed up.” According to media reports citing government estimates, the number of
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Rohingyas in India was 10,500 in 2015 and increased four times to 40,000 in the
following two years. A month after the announcement of the deportation plan and
soon after the Arakan Rohingya Salvation Army (ARSA)—a Rohingya insurgent
group formed in 2013—staged attacks on police and army outposts in northern
Rakhine State, Prime Minister Narendra Modi visited Myanmar. The joint statement
issued during the visit “condemned the recent terrorist attacks” in Rakhine but was
silent about the Rohingya refugee crisis. The one-sided position of the Indian
government had to be nuanced when Bangladesh, the country that bore the brunt of
the refugee outflow, sought India’s help. On 14 September 2017, India launched
“Operation Insaniyat” to provide relief assistance for the refugee camps in
Bangladesh. Delhi’s decision to extend help fits into its desire to de-incentivise Rohingya
refugees entering into India. As Delhi recalibrated its approach, the West Bengal
government adopted a contrary position to the central government by expressing its support
for the Rohingya refugees. Though the West Bengal government’s position did not change
the central government’s Rohingya approach, it sent a message to Delhi that it needed to
take into account voices of state governments on the issue. External Affairs Minister
Sushma Swaraj visited Dhaka on 9 October 2017 and reassured the Bangladeshi
government of Delhi’s support.
In the second phase, apart from geopolitics, humanitarian concerns and non-interference in
internal affairs, two other factors appeared to have driven the Indian approach—the
growing security concerns and the need for diplomatic balancing between Bangladesh and
Myanmar. In the latter part of the second phase, Delhi’s assessment allowed it to formulate
three points that became the basis to drive its Rohingya approach: the first is the assessment
that restoring “normalcy” can happen “only with the return of the displaced persons to
Rakhine state.” This position implied that the return of Rohingyas to Myanmar from
Bangladesh and elsewhere would also mean the return of Rohingyas from India. Officially,
Delhi continues to refer to the Rohingya refugees in Bangladesh as “displaced persons”, but
those in India are seen as “illegal immigrants.” The second point relates to Delhi’s
assessment of the situation that socio-economic development in Rakhine State is “the only
long-term solution.” Therefore, the need for supporting and mobilising resources for
development on its own as well as urging the international community to assist
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development efforts in Rakhine has been prioritised. The third point relates to Delhi’s stand
that it would maintain constructive engagement with both Myanmar and Bangladesh, and
that the international community needs “to handle the situation with restraint, keeping in
mind the welfare of the population.” There is an impression that the initial lukewarm
response of the BJP-led government towards the Rohingya refugee crisis in Bangladesh was
perhaps a signal to Dhaka on the long-standing issue of “illegal immigrants” in India. The
BJP has long championed the issue of deporting Bangladeshi “illegal immigrants” in
India’s Northeast. In its 2014 election manifesto, the party promised to “address the issue of
infiltration and illegal immigrants in the Northeast region on a priority basis.”
Delhi’s approach in the third phase was probably driven by the need to find a role for itself
in finding a resolution to the crisis by strengthening its quiet diplomacy. The phase began
soon after China stepped in with its “three-step solution” to the Rohingya crisis and the
subsequent signing of the repatriation agreement between Bangladesh and Myanmar on 23
November 2017. Delhi’s assessment perhaps was shaped by its calculation that any delay in
stepping up its role might allow other players to leverage the situation for geopolitical
gains, at the cost of its own interests. On 20 December 2017, Foreign Secretary S.
Jaishankhar visited Myanmar and signed an MoU on Rakhine State Development
Programme with Myanmar’s Ministry of Social Welfare, Relief and Resettlement aimed at
“socio-economic development and livelihood initiatives in Rakhine State” that included “a
project to build prefabricated housing in Rakhine State to meet the immediate needs of
returning people.” Under the MoU, India pledged US$25 million for a five-year
development project in Rakhine State. At the invitation of the Myanmar government, India
joined the UNSC delegation that visited Myanmar in early May 2018 along with three other
neighbours—China, Laos, and Thailand. During Minister Swaraj’s visit to Myanmar on 10-
11 May 2018, she stressed the importance of “safe, speedy and sustainable return of
displaced persons to Rakhine State.” This indicates a step forward from the previous
position when it called for “restraint” in handling the situation in Rakhine.
There is a view that with the Western world embroiled in its own challenges, there is a lack
of global leadership. Under these circumstances, perhaps Delhi has framed an approach
towards the Rohingya crisis without the need to concern itself about the reactions of the
Western powers, who otherwise tend to preach to other countries from their self-appointed
high-moral ground. China tried to fill in the leadership gap. However, the Chinese three-
step formula turned out to be of little consequence so far.
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Explaining India’s stance
Broadly, two schools of thought have explained India’s Rohingya approach. Though
differing on most issues, both agree that the lack of a national policy framework on
refugees has complicated India’s handling of the Rohingya crisis. The first school argues
that the current Rohingya approach has some elements of continuity, as it is “consistent
with [India’s] traditional hesitation about automatically designating asylum seekers as
refugees.” According to this line of thinking, India has conventionally “created
disincentives” for refugees to “stay on in India permanently”, citing the case of refugees
from Bangladesh (East Pakistan then) during the 1971 war. India helped Bangladesh but
did not regard those fleeing the country as refugees and that “ensured their return” to
Bangladesh after the war. This school may not be completely wrong when it argues that
India discourages permanent settlement of refugees and that the lack of a national refugee
policy complicated Delhi’s approach towards the Rohingya crisis. However, there seems to
be a big difference between the BJP-led government’s Rohingya approach and older ways
of managing refugees. In the case of the Rohingyas, the government shut the doors to them,
whereas India had always welcomed refugees in other cases. Moreover, no refugees in the
past had been seen as posing a “terrorist threat”, whereas the security concern was the key
argument of the government in the case of the Rohingyas.
The second explanation views the current approach as a departure from the past and
analyses it from the perspective of potential implications on India. This school argues that
the framing of the Rohingya crisis through the security argument is short-sighted as it could
create more security challenges for India, including “greater radicalisation” of a repressed
community that could have serious “spill over” effects on India. According to this line of
reasoning, the government’s Rohingya approach has put at stake the lives of thousands of
Indian diaspora communities in different countries including Myanmar. It asserts that the
government’s silence has allowed “ceding space for other countries to take the lead” in the
Rohingya crisis. Further, the approach has undermined India’s long traditional heritage as
an “open” and “democratic” society that has always kept its doors open for refugees. There
is also a notion that the Rohingya approach might have been driven by a “trend” under the
BJP-led government towards Muslims, citing the proposed 2016 Citizenship Amendment
Bill that recognises “non-Muslim refugees” in India as “citizens” of the country. This
impression gained cogency in late 2017, at a time when security was being beefed up along
the Indian states bordering Myanmar to bar Rohingya refugees, the Indian government
allowed hundreds of refugees, mostly Christians and Buddhists, fleeing violence in
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Myanmar to enter its northeastern state of Mizoram. Some have cautioned India that it
stands “to lose not just [its] good name, but the opportunity of aiding the transformation of
a vast region that is wracked by ethnic strife, poverty and backwardness.” 5
Three issues emerge from the above analysis of the two views on India’s Rohingya
approach. First, the way India has handled the Rohingya crisis has raised questions on its
democratic credentials. Second, India’s reservations in taking the lead may have already
undermined its regional and global leadership aspirations. Third, the approach may have
served short-term security goals, but concentration of thousands of desperate people in the
neighbourhood could create a fertile breeding ground for radicalisation. Taking a hard
position towards the Rohingya refugees makes India a potential target of radical groups.
Conclusion
History may be repeating itself in Myanmar. For many years, the country’s internal political
struggle between the military regime and the pro-democracy supporters divided the
international community: the West led by the US adopted isolation and sanctions policy
towards Myanmar, while Myanmar’s neighbours including India and ASEAN maintained
constructive engagement. When the Myanmar military regime decided to take the path of
democratisation and the country witnessed its first elections in 20 years, both the West and
Myanmar’s neighbours claimed their policies have worked in bringing about change in the
country. Academic debate continues on whether the “isolationist” or the “constructive”
strategy was more effective. Meanwhile, the West led by the US has been increasingly
taking a hard position against the Myanmar government over the Rohingya issue, while
Myanmar’s neighbours including India and ASEAN have taken a constructive engagement.
The international community may be entering into another phase of international divide. If
history is any indication, at best, this will end up with claims and counter-claims over
which strategy was more effective. Meanwhile, the international divide only makes things
more difficult for anyone to help those suffering from conflicts.
The timeline of key responses shows that state has failed to acknowledge and act on its
international legal responsibility to protect and have instead created societal as well as legal
5
“Supreme Court seeks Centre’s stand on plea challenging Rohingyas’ deportation”, The Indian
Express , http://indianexpress.com/article/india/supreme-court-seeks-govts-stand-on-plea-challenging-
rohingyas-deportation-4829246/
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barriers for arrival and acceptance of Rohingya refugees in India. In 2015, the BJP led
government altered the Passport Act, 1967 and the Foreigners Act, 1946 to exclude people
belonging to Muslim community to enter India without passport or in search of asylum. The
2019 amendment through the Citizenship Amendment Act (CAA) reiterates the position of
Indian government from 2015. The enactment of anti-Muslim laws such as the CAA has not
only instilled fear in the minds of Rohingya Muslims but also Muslims who are citizens of
India. In a report by the Anadolu Agency, Ali Johar, a youth Rohingya leader speaking of the
CAA said that the CAA has instilled fears in the minds of the Rohingya Muslims and more
than 3000 persons have left for Bangladesh to avoid the hateful vilification and deportation
on account of being Muslims . He also said that many have also considered converting to
other religions. The fear due to state oppression of minorities clubbed with the main-stream
narrative of Rohingya being terrorist, termites, and unwanted criminal elements with
connection to Islamic terrorism has created a wider narrative which seeks to criminalize and
dehumanize Rohingyas in India.
So far, the Indian approach towards the Rohingya crisis has been viewed as contradicting
its traditional position on refugees. As the Rohingya crisis unfolds, there is still a lot that
India can do to facilitate the finding of long-term solutions. These actions will be key in
determining India’s regional and global standing. Minister Swaraj’s Myanmar visit suggests
that Delhi is committed to remain an active partner in ending the crisis, but this is only the
beginning of what India can and must do. As a rising power with global aspirations, and
with a long tradition in dealing with refugees, India is duty-bound. In the end, India may be
in a better position to shape regional and global discourses on emerging issues affecting
global governance, including on refugees.
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BIBLIOGRAPHY
1) Albert, E., & Maizland, L. (2020, January 23). The Rohingya Crisis. Retrieved from Council on
Foreign Relations: https://www.cfr.org/backgrounder/rohingya-crisis.
2) Chaudhury, D. R. (2018, July 12). Rohingya terrorists linked to pro-Pak terror groups in
Jammu & Kashmir Read more at:
https://economictimes.indiatimes.com/news/defence/rohingya-terrorists-linked-to-propak-
terror-groupsjammukashmir/articleshow/55046910.cms?utm_source=contentofinter.
3) Government of India. (2017, September 9). ituation in Rakhine State of Myanmar. Retrieved
from Ministry of External Affairs:
https://mea.gov.in/pressreleases.htm?dtl/28931/Situation+in+Rakhine+State+of+Myanmar
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