Bound to boomerang

The recent controversy on Rohingya refugees exposes the ad hoc refugee policy of India. It is reported that two Union ministers got involved in a row over the allotment of government flats to Rohingya refugees in Delhi. First, the Union Housing and Urban Affairs Minister Hardeep Puri hailed the decision to shift Rohingya refugees to EWS flats, meant for the economically weaker sections, in the national capital, and provide them with UNHCR IDs and round-the-clock police protection. This triggered a storm on social media with critics of the government's move pointing out that the Centre had previously categorised Rohingyas as illegal migrants. That forced the office of Union Home Minister Amit Shah to issue a clarification that it had given no such instructions to shift 'illegal Rohingya migrants' to EWS flats and that it had already taken up the matter of their deportation with the concerned country, reported Times of India. The Home Ministry, immediately, snubbed the statement by the Union Housing Minister saying that "...It is clarified that the Ministry of Home Affairs (MHA) has not given any directions to provide EWS flats to Rohingya illegal migrants at Bakkarwala in New Delhi."

India is neither a signatory to the 1951 Refugee Convention nor its 1967 Protocol treatment of refugees is determined by political expediency, which is unaccommodating and inconsistent. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol together are the most comprehensive instruments which have been adopted to date on a universal level to safeguard the fundamental rights of refugees and to regulate their status in countries of asylum. As such, they are fundamental to the international regime of refugee protection. They help in ensuring that refugees are granted basic humanitarian treatment. They also facilitate the exercise of the protection function by the United Nations High Commissioner for Refugees (UNHCR). In order to maximise adherence, they are carefully framed to define minimum standards while at the same time not imposing on states any obligations going beyond those which states could reasonably be expected to assume. There are currently 106 State parties to one or both of these instruments.

In the absence of a proper refugee policy of India, based on clearly defined principles and metrics, the treatment of different refugee groups differs. Therefore, there are considerable differences between the conditions of Sri Lankan Tamil refugees, Afghan Muslim refugees, Afghan and Pakistani Sikh and Hindu refugees, Tibetan refugees, and Burmese refugees (Rohingyas)

According to Human Rights Watch, an estimated 40,000 Rohingyas are in India and at least 20,000 of them are registered with the UN Human Rights Commission. Rights groups have criticised India for its attempts to deport the refugees instead of offering them asylum. The Rohingya Muslims are seen by many of Myanmar's Buddhist majority as illegal migrants from Bangladesh. Fleeing persecution at home, they began arriving in India during the 1970s and are now scattered all over the country, with many living in squalid camps. In August 2017, a deadly crackdown by Myanmar's army sent hundreds of thousands of them fleeing across the border. Puri's proposal to provide housing for the Rohingya was "perfectly correct", senior lawyer Colin Gonsalves told the BBC. "The Rohingya cannot be put into detention camps as they have not committed any crime," he said. "They come here because they are forced to flee persecution."

Refugees in India

As of 31 January 2022, more than 46,000 refugees and asylum-seekers are registered with UNHCR India, mainly from Myanmar and Afghanistan. Refugees and asylum-seekers in India primarily live in urban settings alongside host communities. 46 per cent of the refugees are women and girls, and 36 per cent are children. Based on UNHCR records from 2002 to February 2022, it is claimed that 17,933 Sri Lankan refugees (in India) have voluntarily returned to their home country with UNHCR's assistance.

India had been a refuge for people fleeing repression since early times. Jews and Zoroastrians were welcomed with open arms even before India became a nation-state. Since independence, that trend had continued till the Narendra Modi government decided otherwise and brought religion into the equation.

The Narendra Modi government, unlike all previous Indian governments including that of Atal Bihari Vajpayee, has through the Citizenship Amendment Act, made religion a factor in granting citizenship to minorities from Pakistan, Bangladesh, and Afghanistan. While Hindus, Sikhs, Buddhists, and Christians facing repression in any of the three countries will get Indian citizenship, Muslims are exempt. This goes against the Indian Constitution, which does not make religion a criterion for obtaining citizenship. The fact that Shias and Ahmadiyya minorities face persecution in both Afghanistan and Pakistan was conveniently overlooked.

Outlook India writes that despite not signing the refugee convention, independent India was generous in welcoming those fleeing repression. The first major refugee influx was from Tibet. In 1959, when the Dalai Lama, the spiritual leader of the Tibetan Buddhists, fled his home in Lhasa, he was given asylum by the government and welcomed to the country with his followers by Prime Minister Jawaharlal Nehru. The Dalai Lama and his followers settled in Dharamshala from where a Tibetan government in exile took root. Since then, streams of people facing persecution in the neighbourhood have been given shelter in India.

The Buddhist Chakmas from former East Pakistan made a beeline to India by crossing into eastern and north-eastern states. Minority Hindus from the eastern wing of Pakistan continued to stream in whenever there were riots till the massive exodus ahead of the liberation movement of 1971. India hosted 10 million refugees from East Pakistan for ten months before and during the liberation war. The ethnic war in Sri Lanka saw thousands of Tamils leave their homes in the northern and eastern provinces of the island and flock to Tamil Nadu and other southern states.

After the army crackdown in Myanmar in 1988, when Aung San Suu Kyi was placed under house arrest, members of the National League for Democracy took shelter in India. In fact, Atal Behari Vajpayee's defence minister George Fernandes allowed pro-democracy members of the NLD youth wing to operate from a portion of his official residence. They brought out Mizzima, a resistance newspaper from Delhi.

The policy of treating refugees with compassion has changed completely in recent years. In July 2018, the home ministry claimed that there were 40,000 Rohingyas in various parts of India. The ministry dubbed Rohingyas as illegal immigrants and regarded them as a security threat, claiming they had links with Pakistan. But no evidence was offered to prove either their terrorist activities or their connections with Pakistani entities. However, immediate action was ordered. As per a report by Outlook India, state governments were asked to identify and deport these illegal immigrants.

India's highly parochial current refugee policy means that all refugees do not get the same treatment. In 2019, the Union government passed the Citizenship Amendment Act (CAA) which offers amnesty and expedites the path to Indian citizenship for non-Muslim "illegal immigrants" from the neighbouring countries such as Pakistan, Bangladesh, and Afghanistan.

BBC has mentioned that India doesn't have a procedure that allows refugees to seek asylum and those entering the country without a visa are treated as illegal immigrants under the Foreigners Act or the Indian Passport Act. The only protection they have is the right to life under Article 21 and protection against arbitrary abuse of power under Article 14 of the Indian Constitution.

Myanmar's citizenship law and Rohingyas' statelessness

Britain promised the Rohingya people an autonomous state, in exchange for their help in World War II. However, this was never done. Thus, Burma gained independence in 1948 with social disharmony at its core. But the 1948 Union Citizenship Act of newly-independent Myanmar [then Burma] provided a relatively inclusive citizenship framework. Myanmar's first Prime Minister, U Nu, is reported to have referred to the Rohingya by name in a 1954 radio address, as "… our nationals, our brethren". However, a narrative took root that most Muslims in Rakhine state are illegal Bengali immigrants. According to a report published by Newsclick, there was increasing emphasis on the importance of "national races" in Myanmar's public discourse, and the need to deport alleged aliens became popular.

Since the 1970s, citizenship policies have been the source of considerable social and political conflict in the country, particularly in Rakhine State, on the border with Bangladesh. The key shift in policy leading to such problems took place under the regime of General Ne Win (1962-1988) which, via an "authorisation exercise", aimed to "scrutinise" the population to determine who were "full citizens" and who were simply "guests" (e.g., descendants of unrecognised minorities and migrants). This has been since undertaken through a law-making process reflected by the 1982 Citizenship Law and its 1983 procedures.

Under this framework, only full citizens have the possibility of enjoying the protection of a complete set of rights while the "others" – naturalised and associated citizens – are, in practice, banned from higher positions in public office, full access to the liberal professions, and certain areas of higher education. A large number of permanent residents do not even gain access to these lesser forms of citizenship and remain undocumented or stateless.

The stated aim of Ne Win's 1982 Citizenship Law was to create a two-tiered system, which excluded full citizenship persons whose ancestors were deemed to have settled in Myanmar after the First Anglo-Burmese War (1824-26). The idea behind this was the notion that only pre-colonial communities were authentic Burmese citizens (and that certain communities such as the Muslims of Rakhine were newcomers and hence not genuine citizens). The objective was to create an exclusive notion of Burmese national identity based on a pre-colonial primarily Buddhist population, reported Millennium Post.

Myanmar follows a complex citizenship law, in which nationality is based on membership of one of 135 'national races' that supposedly lived within the country's boundaries before the British invaded in 1824. The law, created by Myanmar's military dictatorship in 1982, excludes others from full citizenship but allows them to apply for two lower tiers with fewer rights. Citizens are persons who belong to one of the national races (Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, Shan, Kaman, or Zerbadee) or whose ancestors settled in the country before 1823 — the beginning of British occupation of Arakan State. If a person cannot provide evidence that his ancestors settled in Burma before 1823, he or she can be classified as an associate citizen if one grandparent or pre-1823 ancestor was a citizen of another country. Those persons who qualified for citizenship under the 1948 law, but who would no longer qualify under this new law, are also considered associate citizens if they had applied for citizenship in 1948.

In July 1995, in response to UNHCR's intensive advocacy efforts to document the Rohingyas, the regime moved to regularise the population of northern Arakan by issuing new cards to all Rohingya residents. According to the regime, it was "the first step toward citizenship". The new card, which was called Temporary Registration Card (TRC), was issued under the 1949 Residents of Burma Registration Act and the 1951 Residents of Burma Registration Rules, both of which were superseded by the 1982 Citizenship Law but were reintroduced to be used solely for the registration of Rohingyas. During the elections in 2010, holders of TRC were granted the right to form and join political parties, and to vote.

In September 2014, the Myanmar Parliament amended the Political Parties Registration Law, introducing a requirement for party leaders to be "full" citizens, and for party members to be "full" or "naturalised" citizens. In February 2015, the government announced the expiry of "temporary identity certificates" held by some 7,00,000 stateless people across the country, including the Rohingya, the Chinese, and other minority groups. Millennium Post reported that in May 2015, the right of temporary identity certificate-holders to vote in the general election was revoked. It was followed by extreme cases of violence and genocide against the Rohingya community, forcing millions of them to flee to neighbouring Bangladesh.

The Burmese 1982 Citizenship Law institutionalised the Rohingyas' statelessness. The law does not recognise Rohingyas as one of the ethnic groups of Myanmar, thus denying most of them the Myanmar citizenship. In essence, one of the main characteristics of a "naturalised" or an "associate" citizen in Myanmar is that he or she does not belong to one of the eight legally recognised ethnic groups (Bamar, Chin, Karen, Kayah, Kayin, Mon, Rakhine, Shan — later sub-divided into 135 groups through an administrative instruction) considered to be genuine citizens. Myanmar citizens are required to obtain a National Registration Card (NRC), while non-citizens are given a Foreign Registration Card (FRC). Those who hold FRCs are not allowed to run for public office.

The International Court of Justice has delivered a momentous verdict against Myanmar on the Rohingya genocide issue in a case filed by African nation the Gambia, reported Live Law.

India's CAA: an imitation of Myanmar's law?

The prolonged students' movement in Assam, since the 1970s, to disenfranchise 'foreigners' led to the signing of the Assam accord in 1985. As per the accord, all people who came to Assam before January 1, 1966, would be given citizenship. Those who moved in between January 1, 1966, and March 24, 1971, would be "detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964". Their names would be deleted from the electoral rolls and they would remain disenfranchised for 10 years. Lastly, the accord provided a resolution to the case of those who entered Indian borders after March 24, 1971. "Foreigners who came to Assam on or after March 25, 1971, shall continue to be detected, deleted and practical steps shall be taken to expel such foreigners," said the accord. These provisions strikingly resemble the 1982 Citizenship Law of Ne Win!

The history of Myanmar is critical to assessing the CAA — just as the history of persecution in Afghanistan, Bangladesh, and Pakistan is. Though thousands of Rohingya were seeking refuge in India, the Indian government decided to offer citizenship to every other refugee but them — making it a patently discriminatory law.

Conclusion

India's citizenship act echoes Myanmar's dark path. Myanmar's experiences show discrimination against citizenship policy is counter-productive. The ten-year-long NRC process in Assam has proved very expensive — both in terms of economic and social cost.

Globally accepted UNHCR guidelines may be followed while formulating a proper refuge policy to safeguard the fundamental rights of refugees and regulate their status. Any democratic state like India cannot benchmark Myanmar — a dictatorial state — while framing its citizenship act.

Views expressed are personal