June 20th marks World Refugee Day, a crucial event that seeks to bring attention and solidarity to the millions of refugees worldwide. This poignant reminder underscores the challenges that displaced individuals face and emphasises the pressing need for compassion, understanding, and solidarity. The global community is currently facing an unprecedented refugee crisis of historic proportions. Amidst conflicts, violence, persecution, and natural disasters, an alarming number of individuals have been compelled to flee their homes, resulting in millions of forcibly displaced people. These brave souls, confronting unfathomable adversity, yearn for security, sanctuary, and an opportunity to reconstruct their existence.
Despite the presence of Rohingya refugees in the Jammu region of India, there are numerous misconceptions and falsehoods surrounding their situation. There have been allegations that the Rohingya community has settled in Jammu for the purpose of gaining proximity to the border, leading to concerns about demographic changes, involvement in serious crimes, and uncertainty regarding their population size.
Understanding the Reasons Behind the Rohingya’s Migration to Jammu
Since 2008, approximately 21,000 Rohingya refugees have fled to India due to persecution in Myanmar and settled in various locations like Delhi, Haryana, Rajasthan, Uttar Pradesh, Telangana, Tamil Nadu, and Jammu. The Rohingya refugees cross the border and reach Delhi to register themselves with the United Nations and thereafter find a safe location to stay and explore livelihood options to survive.
In 2009, just a handful of Rohingya refugee families embarked on a journey to Jammu with the aim of exploring fresh prospects for a livelihood. The Rohingya refugees secured employment as contractual labourers with Reliance Communication Ltd. Subsequently, the contractors at Reliance communicated to the Rohingya refugees the urgent need for supplementary manual labour to expedite the construction of the cable network in Jammu, as stated by a Rohingya refugee leader. The tranquil and harmonious environment, in conjunction with enhanced opportunities for livelihood, facilitated the initial settlement of the Rohingya community in Jammu. From the onset, the Rohingya refugees have exhibited a willingness to furnish their personal particulars to the local police authorities and the Crime Investigation Department.
The Rohingya refugees were engaged in various forms of low-skilled labour, such as sewage cleaning, daily contractual work, and ragpicking, while coexisting in a state of peaceful harmony. In contrast to other Indian states, the Rohingyas did not encounter discrimination from the local populace or governmental authorities, and their means of subsistence were accessible to everyone. They were provided employment opportunities based on the validity of their UNHCR refugee card.
Facilitating Aadhaar Card Issuance through Aadhaar drive
Subsequently, in 2016, the government initiated the implementation of the Aadhar Card campaign across numerous districts and states throughout India, including Jammu. The preliminary requirements to apply for Aadhar solely entailed the provision of an identification verification in conjunction with the specification of an address verification. Also. the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act of 2016 unambiguously stipulates that any person who has been domiciled in India for a period exceeding 182 days is eligible to make an application for the Aadhaar Card. During the months of September and October in the year 2016, a number of individuals from the Rohingya community who took part in the drive, received their Aadhaar cards from the government authorities.
The impact of Hunar Gupta’s case: Fuelling hate and triggering the exodus of Rohingya refugees from Jammu
However, in 2017, Advocate Hunar Gupta filed a Public Interest Litigation (PIL) before the High Court of Jammu, with the aim of seeking the removal of Rohingya and Bangladeshi nationals from Jammu. Subsequent to the occurrence, a number of leaders from the Rohingya community submitted an impleadment application in the capacity of an affected party in a PIL. According to the impleadment application, Jammu city accommodated a total of 23 settlements in 2017, which provided shelter to an estimated 1600 families. This corresponds to an estimated population of approximately 7,000 individuals.
Following the aforementioned incident, a sequence of campaigns characterised by inflammatory slogans, such as “identify and kill Rohingya,” were launched. It was followed by several mysterious fire incidents causing the deaths of Rohingya women and children at the settlements, culminating in the relocation of several Rohingya refugees to adjacent states in order to ensure the safety and well-being of their kin.
In the 2017 Budget Session of the Legislative Assembly, the government of Jammu and Kashmir clarified that no Rohingya (Burmese) have been found involved in militancy-related incidents or serious crimes. The government also stated that there have been no instances of radicalization and that all the details of Madarsa, along with the list of teachers and students, were with the police department.
The ripple effects of India’s identification and deportation order: Anxieties, fears, and suffering among the Rohingya in Jammu
Thereafter, in August 2017, the Indian government issued a deportation order against the Rohingyas, thereby impeding the cessation of the suffering and fear experienced by the Rohingya families in Jammu. The order was expeditiously contested before the Supreme Court of India by Salimullah, a leader of the Delhi Rohingya settlement, followed by, Mohd Yunus, a Rohingya from Jammu, in addition to a number of activists and Rohingya refugees hailing from diverse regions of India.
On October 4, 2017, the High Court of Jammu issued a ruling in Hunar’s PIL that “The issue involved in the present petition also appears to be subjudice before the Apex Court. It is deemed appropriate that the matter will be kept pending till the final outcome of the proceedings before the Apex Court.”
Furthermore, according to the testimonies of Rohingya leaders in Jammu, in 2017, government officials solicited the provision of a six-page questionnaire that sought to obtain fundamental information. The dataset compiled by the authorities comprised a diverse array of personal particulars, encompassing the individual’s name, patronymic, country of origin, domicile in Myanmar, and the temporal aspect of their sojourn in Jammu.
In the year 2018, the governmental authorities initiated a process of biometric data collection pertaining to the Rohingya population. It is noteworthy to observe that the entirety of the Rohingya populace domiciled in Jammu exhibited a high degree of cooperation with governmental entities throughout the aforementioned procedure.
Interestingly, in 2021, the Hunar’s case was mentioned and subsequently, the High Court of Jammu issued a directive to establish a mechanism for the detection of all undocumented migrants and to compile a roster following their identification, without factoring in the court’s previous order from October2017. The lawyers and Rohingya individuals assert a lack of information regarding the aforementioned hearing, and furthermore, contend that the impleadement application was not concomitantly discussed with the primary petition.
Detention of vulnerable Rohingya refugees: 2021 administration drive in Jammu
For a period exceeding ten years, the Rohingya community has been living in peaceful coexistence with the indigenous population of Jammu. The verification conducted by the local police and the Criminal Investigation Department (CID) was concluded on March 1, 2021. However, on March 6th, 2021, the police issued a summons to individuals of the Rohingya community, requesting their presence at the Maulana Azad Stadium located in Jammu, at approximately 9:00 a.m. For the purpose of performing biometric authentication. In accordance with recent advancements, the authorities have provided an all-encompassing roster to the officials in charge. The aforementioned roster encompasses pivotal particulars, including the name, father’s name, and UNHCR card. As per a Rohingya refugee, the Senior Superintendent of Police and the Station House Officer of the Police Station have purportedly made a request to the Chairman of the Rohingya Community in Jammu to convene a gathering of the community members. The chairman, with a sincere intention, engaged in cooperation with the state authorities and mobilised the entire populace of their community to assemble at the Maulana Azad Stadium located in Jammu.
As per the government’s purported “drive,” the outcome was the apprehension of Rohingyas who possessed legitimate refugee cards granted by UNHCR, India. The plight of the Rohingyas continues to be a cause for concern as reports emerge of their detention in Harinagar Jail, Kathua. According to the reports, 271 Rohingyas, including 74 women and 70 children, have been detained at the sub-jail since March 2021. The sub-jail was notified as a “holding centre” on March 5, 2021, for lodging illegal immigrants as defined under Section 2(b) of the Citizenship Act, 1955.
The Rohingyas approached the Supreme Court of India, contesting their detention and the prospect of being repatriated to their country of origin, where they face a credible threat of persecution. The Union of India employed a confrontational discourse in the Supreme Court with regards to the distressed and impoverished Rohingya refugees. Notwithstanding, the Supreme Court has issued an order authorising deportation subsequent to the formulation of a procedural framework by the government. In the present day, several decades after the verdict in Maneka Gandhi’s case, it is incumbent upon the Supreme Court to acknowledge that a procedure must not only exist, but, furthermore, be equitable, impartial, and rational. The issuance of an enigmatic directive in a precipitous manner, accompanied by the exclusion and disregard of all but a single submission, engenders significant inequity.
Distinction and plight: Economic migrants and refugees in light of legal precedence and humanitarian crisis
There exist two distinct categories of foreign individuals: those who migrate for economic reasons and those who seek refuge due to persecution or other forms of violence in their home country. Economic migrants are individuals who migrate with the primary objective of seeking employment opportunities. The individuals in question are unable to lay claim to a legitimate entitlement to continue their presence. The legal precedent established in the matter of Louis De Raedt, as pronounced by the supreme court of the land, is that which is being referred to. Refugees are situated on a distinct foundation. The individuals in question are compelled to migrate to India, having been subjected to acts of homicide, sexual assault, incendiarism, and maltreatment in Myanmar. The aforementioned occurrence has been recorded in the Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, which was disseminated by the UN Human Rights Council in the current year. The report delineates that 33 Rohingyas, comprising 3 women and 15 children, were subjected to fatalities, while 39 others were wounded in the past year, due to military-led assaults that were either targeted or indiscriminate in nature. The cadavers of the deceased exhibited physical evidence of blunt force trauma, electrical shock, fractures to the extremities, and cranial gunshot wounds.
The Rohingya community has experienced significant displacement, with over 100,000 individuals affected. Additionally, a substantial portion of this population, approximately 130,000 individuals, are stateless. Many members of this community have been confined to desolate internment camps, while a staggering 600,000 individuals continue to live under highly repressive conditions.
Is it within the purview of constitutional law to extend the protection of rights to refugees?
The Indian Constitution’s Article 21 provides a guarantee of the right to life to all individuals located within the territorial boundaries of the nation. The recognition of this fundamental principle of human rights is widespread and accepted globally. The principle of non-refoulement, which refers to the entitlement of individuals to not be repatriated to a nation where their life and freedom are at risk, has been recently recognised as a jus cogens norm. The aforementioned principle is widely acknowledged on a global scale and is deemed an essential standard that no democratic nation can stray from, even in situations where there are no legal provisions in place to safeguard refugees.
Consequently, the lack of India’s endorsement of the Refugee Convention has no significant impact. The Supreme Court of India acknowledged the displacement and subsequent resettlement of the Chakma/Hajong tribal community in 1996. The Supreme Court has opined that individuals of foreign origin are entitled to the protection of Article 21 of the Constitution in response to the issue of deportation. The fundamental governing principle of our country is the Rule of Law. According to the legal doctrine, it is the responsibility of the State to ensure the protection of the life and liberty of all individuals, regardless of their citizenship status. In 1994, the Apex Court expressed its opinion in the Khudiram Chakma case that the fundamental right of every individual includes the right to seek and enjoy asylum in foreign countries to escape persecution. The Delhi High Court rendered a decision in the matter of Donghlian Kham, wherein it affirmed the safeguarding of Chin refugees in India and underscored the importance of the principle of Non-Refoulement as a fundamental element of the assurance enshrined under Article 21. The legal doctrine of Non-Refoulement was incorporated into the constitutional jurisprudence of India through the ruling of the Gujarat High Court in the case of Ktaer. Likewise, the Kerala High Court has implemented legal protective measures for Sri Lankan refugees.
In the case of Hirsi, the European Court of Human Rights determined that the customary international law principle that prohibits refoulement is a mandatory obligation for all states, regardless of their status as signatories to the UN Refugee Convention. The High Court of Kenya, the Court of Final Appeal of Hong Kong, and the Australian High Court arrived at similar determinations. The Supreme Court of Bangladesh has issued a ruling that prohibits the deportation of Rohingya refugees and orders their release from detention, despite the fact that Bangladesh has not yet ratified the Convention.
Despite not ratifying the Convention, India has incorporated the principle of non-refoulement into its constitutional law. Consequently, it has undergone a transformation into a principle that can be applied universally. The concept of constitutional obligations was reinforced by the highest court in the Gramophone Company case, where it was expressed, that India should act in accordance with its constitutional responsibilities.
Undoubtedly, the Rohingyas are refugees and not mere migrants. As many as 20,000 individuals have been interviewed by the UNHCR in New Delhi and granted refugee identity cards. As a result, they are shielded from the risk of being deported. Furthermore, the process outlined for the expulsion of refugees as stated in the Supreme Court’s ruling is already in place. Regrettably, the highest court in the land was unable to allocate sufficient time to consider the matter at hand. The Indian government has issued “Internal Guidelines” dated December 29, 2011 that require a thorough evaluation of refugees’ accounts, including their reasons for leaving their home country and how they arrived in India. When a person is deemed to be a refugee, the guidelines state that they will be recommended to the Ministry of Home Affairs for the issuance of a long-term visa. This will enable them to seek employment, and they will not be considered illegal immigrants.
In 2018, the Union made a sudden request to the Supreme Court to deport a small group of Rohingyas who were allegedly willing to return. It’s difficult to confirm voluntariness, a crucial requirement for the repatriation of refugees. Legal aid was not provided to them. The petitioners were denied access to meet with them. The Supreme Court’s decision to accept the Union’s submission without proper verification was a grave error, leading to the unfortunate deportation. This is the cunning manoeuvre that the Union will attempt once more. Voluntary repatriation is a well-established international practise that involves assessing the refugee’s will and providing comprehensive information on the situation in their home country. The UNHCR has recommended, and the Indian government has agreed, to have the UNHCR oversee Sri Lankan refugees in India. The prescribed protocol ought to be adhered to in the instance of the Rohingya refugees too.