Context: The Supreme Court on Thursday ruled that Rohingya refugees detained in Jammu shall not be deported to Myanmar without following the prescribed procedure.  A bench headed by Chief Justice of India S A Bobde delivered its order on a plea filed by a Rohingya refugee through Advocate Prashant Bhushan. The plea had stated that “these refugees have been illegally detained and jailed in Jammu and face deportation back to Myanmar following verification by their embassy”. Referring to reports of their “imminent…deportation”, the plea had said, “This goes against India’s commitment to refugee protection and its obligations against refouling refugees to a place where they face persecution and is a violation of the Article 21 rights of all Rohingya persons living in India.”

• However, the top court’s order also means that now Rohingyas can be deported back to Myanmar, rejecting a clause in the plea which had sought to stall the deportation process and providing refugee cards to Rohingyas. In this edition of Big Picture, we will analyze the issue of the detained Rohingya, matters of internal security, and refugee rules.

What refugee problems India have?

• The issue of refugees often gets included under illegal immigration. These two different issues get jumbled together. Policies and solutions to deal with these issues suffer from a lack of clarity.

Firstly, confusion in policies is because as per Indian law, both categories of people are viewed as the same. They both are covered under the Foreigners Act, 1946. The definition of a foreigner in the act is a person who is not a citizen of India.

• Secondly, India lacks legal provisions to deal with them separately. India is not a part of the 1951 Refugee Convention and its 1967 Protocol. The absence of such convention and its legal framework leads to policy vagueness.
• It also increases the risk of the domestic politicisation of protecting the refugees.
• Thirdly, informal methods allow the government to pick and choose the refugees it wants to admit or send back.
• Fourthly, India is concerned that their decision might annoy the Generals in Myanmar. Further, protecting refugees will also bring closer China-Myanmar ties. This will hurt India’s interests in Myanmar.
• Fifthly, The CAA is not the solution to the refugee problem. Because it is discriminatory in nature based on religion. The CAA is an act of refugee avoidance, not refugee protection.

Should India become a part of the refugee convention?

• India has the largest number of refugees in the world. Even though, it was not a part of the 1951 Refugee Convention and its 1967 Protocol.
• The definition of refugees in the 1951 convention only refers to the violation of civil and political rights, but not economic rights. If economic rights were to be included, then it would pose a major burden on the developed world.
• Scholar B.S. Chimni suggested that India should not agree to the 1951 convention when the European countries themselves violating the provisions of it. He mentioned the no entry regime of Western countries as a clear violation of the 1951 convention.

The non-entrée regime is constituted by several legal and administrative measures. This includes Indirect policies to reject refugees like,

• Visa restrictions, carrier sanctions and interdictions.
• Restrictive interpretations of the definition of a refugee.
• Removal of social welfare benefits to asylum seekers etc.

Suggestion to improve the Refugee situation in India

• India must  use its history of refugee protection to begin a global conversation on the refugee problem.

Creation of New domestic law aimed at refugees.  In the absence of proper legal measures, refugee documentation, and work permit, refugees may end up becoming illegal immigrants. So, such a law should include certain essential provisions. Such as,

• Allowing refugees for temporary shelter and providing work permits.
• Differentiate between temporary migrant workers, illegal immigrants and refugees.
• The law should deal with each of them differently through proper legal and institutional mechanisms.

Note: An asylum seeker is a person looking for protection because they fear persecution, or they have experienced violence or human rights violations. A refugee is a person who asked for protection and was given refugee status.

• Indian law does not classify any illegal immigrant as a refugee. Since India is not a signatory to the 1951 Refugee Convention, the United Nations's principles of non-refoulement and impediment to expulsion do not apply in India.