The ruling of the Supreme Court is reminiscent of the jurisprudential baggage that India has been carrying since partition
The Supreme Court of India, by way of an order dated 8 April 2021, allowed the deportation of the Rohingya from the Indian territory. The government of India had argued that these people were illegal migrants who had crossed the borders from the neighbouring state; and though they enjoyed the equal protection of laws and the right to life, their right to movement was essentially attached to their ability to demonstrate their link with the Indian territory.
The court proceeded to deal with the case in a somewhat convoluted manner. Despite observing that “there should be no genocide in earth” and that “if they go back to Myanmar they will be slaughtered”, the Chief Justice of India essentially took a U-turn by subsequently allowing the deportation of the Rohingya immigrants. The court’s reiteration of the ‘prescribed procedures’, also does not add any value to the cause since the imminent danger facing the Rohingya has greatly intensified in the light of the recent coup d’etat in Myanmar.
The ruling of the Supreme Court is reminiscent of the jurisprudential baggage that India has been carrying since partition. Post-partition, the issue of migration into the Indian territory from Pakistan (East and West) was looked at from two different prisms – the Hindus who migrated to India were categorised as refugees and were given protection under the law, whereas Muslims who had initially migrated to Pakistan and wanted to come back to India were identified as illegal migrants, unless proven otherwise. The apprehensions had been part of the constitution drafting process as well. Three major reasons were highlighted during the Constituent Assembly debates – first, that the people coming from Pakistan might pose a security threat to India as their intention of coming back could not be ascertained; second, that giving them citizenship might devalue the status which the Indian citizenship must hold in post-partition India; and finally, that providing citizenship to such immigrants might become a practical burden since, in many instances, the evacuee property that they had left behind would be required to be returned back to them, after it had been dispensed with. Articles 6 and 7 of the Citizenship Act, 1955 were only the legal representation of such constitutional anxieties.
Nationhood in India has been a contested issue. The cultural, religious, ethnic and social diversity forced the framers of the Constitution to de-link the issue of nationality from citizenship of the newly constituted state. The idea of membership that India adopted gave primacy to the British principle of territoriality (jus soli). However, there were also traces of the descent principle (jus sanguinis) being adopted in circumstances that demanded special treatment – for instance, the influx of Hindu migrants from neighbouring Pakistan and the grant of membership to the overseas Indians who could not be assimilated into the membership of their host states.
The recently adopted Citizenship (Amendment) Act, 2019 is an example of a further shift towards the descent principle, where the post-partition anxiety is transferred to the present times. The amendment reminds one of the long drawn migration and the differential classification of Hindu ‘refugees’ and Muslim ‘migrants’ once they entered the territory of India. In the latter category, intention becomes central to determine one’s membership of the State, while the former receive legal protection once they gain access to the Indian territory. The assumption of persecution is attached to one but not the other.
The Rohingya problem is an associated one. Studies demonstrate that in most instances, the Rohingya entered India out of fear of persecution and not merely to gain a foothold into Indian territory. It, however, seems that the psyche of the partition, which required Muslim migrants to demonstrate intention, casts a shadow over the situation of the Rohingya community as well. Additionally, the media portrayal of its members as a security threat, which has been challenged by many studies, has ended up categorising them not as persecuted individuals but as a security threat to the Indian state itself.
The Rohingya people are classified as one of the most persecuted communities in the world by the United Nations. The International Court of Justice (ICJ) in The Gambia vs Myanmar judgment (dated 23.01.2020) has recently held that the group faces gross human rights crises, in violation of international law, on account of the stateless status of most of its members.
The growth of right-wing populism in India coupled with religious majoritarianism has added fuel to the fire. The increasing securitisation of the Indian territory makes many a vulnerable lot, including the Rohingya, who are perceived as a security threat to the State. This categorisation does nothing but to attack the very foundations of the international refugee law and the doctrine of ‘non-refoulment’, which seeks to protect the persecuted individuals from actions of States and not to threaten their lives by rendering them stateless.
The Supreme Court’s order on deportation of Rohingya migrants is, therefore, a violation of the very essence of human existence, as it renders human dignity a non-existing value at the hands of the state machinery.
Nizamuddin Ahmad Siddiqui is Senior Research Fellow at Jindal Global Law School and Abu Zar Ali is pursuing his undergraduate studies at NUJS, Kolkata.
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