The confinement and uncertain future of the Rohingya in Jammu is a reminder that India lacks a refugee law and exhibits specific animosity to Muslim refugees, at a time when Covid-19 has worsened their already tenuous existence.
New Delhi: Children, some born in India, were separated from parents and left to fend for themselves in tin sheds on the outskirts of Jammu on 7 March 2021, and scores of families fled, as police rounded up, counted and confined 169 Rohingya refugees. And on 1 April 2021, India prepared to deport a 14-year-old Rohingya teenager, the first such deportation after the coup in that county.
The crackdown on the Rohingyas, Muslim refugees who came to India a decade or more ago—fleeing a genocide that began in the 1970s and reached a high point in August 2017—was prompted by a February 2021 Jammu and Kashmir (J&K) High Court order to identify and deport illegal migrants from Myanmar and Bangladesh.
The crackdown was a reminder that India, despite hosting more than 40,000 refugees in 2019, according to United Nations High Commissioner for Refugees (UNHCR) data, from Afghanistan, Myanmar, Tibet, Sri Lanka and Somalia, lacks a refugee law and has grown hostile in the era of Prime Minister Narendra Modi to Muslim refugees.
India is sheltering more refugees than ever, with numbers rising 19.4 % from 2015, according to the UNHCR.
India’s discomfort with refugees has been specifically accentuated during the Covid-19 pandemic, making their economic and health status more tenuous than ever.
The Growing Fears Of Sabber Kyaw Min
Consider the story of Sabber Kyaw Min, a Rohingya refugee who has survived by selling plastic goods in New Delhi.
It’s been 16 years since he fled Myanmar, but the pandemic, he told Article 14, had brought fresh concerns of survival in a country that offers refugees no safeguards.
Min said police crackdowns grew manifold after a lockdown to stem Covid-19 began in March 2020. Unlike Rohingya in Malaysia, Thailand and Bangladesh, who were provided health services to combat the coronavirus, those in India had to face raids.
While India has sheltered many Rohingya, who were thus potentially saved from being hacked to death—about 24,000 Rohingya Muslims were brutalised during systemic episodes of bloodletting in their homeland—the lack of rights is a constant threat.
When in March 2020, foreign pilgrims at a religious meet organised by the conservative Islamic sect Tablighi Jamaat were vilified—wrongly and deliberately to spark a wave of Islamophobia, as Article 14 reported in May 2020—the already fearful Rohingya were anxious to avoid being linked to foreign preachers.
“We were scared,” said Min. “Normally when we fall ill, we would visit hospitals, but during the pandemic we stopped going to places where we would be identified as outsiders and our identities would be criminalised.”
While government hospitals do provide medical treatment to refugees with UNHCR cards, the waiting period for treating serious conditions can be up to half a year. The few private hospitals that do cater to refugees are “simply unaffordable”, said Min. “Our Aadhar cards were also suspended,” he said. “This makes it even more difficult to access adequate facilities.”
The Rohingya Face The Worse Discrimination
As Article 14 reported in January 2020, India is discriminating against refugees by excluding them from essential identity documents, such as Aadhaar, and through separate efforts to collect biometric data from refugees for the purposes of surveillance and possible deportation, as is happening currently in Jammu.
Despite not being mandatory, Aadhaar has become an essential biometric-based ID document for access to basic services like banking, healthcare, education and jobs. Aadhaar does not denote citizenship and is available to non-citizen residents in the country.
Refugees holding long-term visas (LTVs) and UNHCR refugee cards, or ‘blue cards’ as they are popularly known, were issued Aadhaar cards, until 2017, when the Rohingya were not issued LTVs, which meant they could not remain in India. In October 2018, the ministry of home affairs changed the Aadhaar policy to exclude refugee cards as valid documentation to obtain the ID card.
These exclusions stand in contrast to the recent inclusions and protections India has offered non-Muslim migrant groups from Afghanistan, Pakistan and Bangladesh through the Citizenship (Amendment) Act, 2019.
Without Aadhaar and LTVs, Rohingya refugees have been refused access to education, health, banking and other essential services. Some Rohingya have also been arrested or harassed by the police for apparently ‘fraudulently’ obtaining Aadhaar, when they actually received the cards before policy changes.
Although the Rohingya are particularly badly off, their tenuous situation was exacerbated by the pandemic.
A Bad Situation Made Worse By Covid-19
“Despite being a postgraduate I don’t know what my family will eat tomorrow,” said Nabeela*, who is 24, has an MA in social work and is eager to work, but as an Afghan refugee, cannot do so.
Nabeela has no permission for formal employment in India. “All my degrees have been reduced to mere sheets of paper now, nobody is willing to employ me,” said Nabeela. Others who did have work report a worsening after the arrival of Covid-19.
Imdad*, 47, a tarjuman or medical interpreter for Afghans coming to India, survived off informal work and odd jobs that came his way, but Covid-19 changed all that.
“With the shutdown of international travel, I didn’t even have money to feed my kids twice a day,” he said. Imdad’s family survived off the broken pulses, rice and sugar they received monthly from the UNHCR; sometimes, they sold this ration to local shops for money.
Nasra Ali, 24, fled the Somalian capital of Mogadishu in 2011 after terrorists killed her elder brother and grandmother. “Many Indians don’t understand what UNHCR blue cards stand for and deny us services because we lack Aadhaar cards,” said Nasra, who was a student back home and now survives because her mother does odd jobs.
While Covid-19 left millions of Indians without a job, refugees like Salah*, 27, a student in 2011, when he fled the brutalities of the Arab militia Janjaweed in south Sudan, are doubly vulnerable. They have no work permits and lost informal employment during the pandemic.
Shaukat Saifi, 26, said while his family was safer in India than his native Afghanistan, the pandemic realised his “worst nightmare”, of being “without any help”. Saifi lost his job as a helper at a south Delhi pharmacy during the 2020 lockdown.
His family left Afghanistan in 2015, after his father, a political activist, escaped a grenade attack and they were threatened by the Taliban. They sought help from the UNHCR, which resettled them in Tehran, Iran, in 2015, and by 2018 in New Delhi.
With UNHCR cards not widely accepted as evidence of identity for formal employment, as they should be, and the informal sector devastated during the pandemic, livelihood and medical options for refugees are scarce.
Dodging Refugee-Protection Obligations
The lack of access to services because of the absence of a refugee law that spells out their rights plague a large number of refugees currently sheltered in India
Since India is not party to the Convention Relating to the Status of Refugees (1951) and its 1967 Protocol, its refugee protection obligations are limited, as lawyer Malvika Prasad wrote in Article 14 in February 2020.
“In India’s case, whether we are party to the 1951 Convention or not, I believe there is a pressing need for a national asylum law,” said Suraj Girijashanker, assistant professor at Jindal Global Law School and a specialist in international refugee law.
Under customary international law—which arises from the general practice followed by states out of a belief that they are legally so bound to act—asylum seekers fleeing their home countries with a well-founded fear of persecution on account of their race, religion, nationality, membership of a social group or political opinion, may not be sent back to their home countries.
This law requires every nation to offer asylum-seekers a “refugee status determination” process. By this process, asylum-seekers can establish that fear of persecution drove them out of their home countries and receive asylum through identification papers, visas or other documents that recognise their status as “refugees”.
The treatment of refugees falls under India’s Registration of Foreigners Act of 1939, the Foreigners Act of 1946 and the Foreigners Order of 1948. The Indian Evidence Act, 1872, the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973, apply to refugees who are living on Indian soil, but the lack of specific legal protocols to safeguard them in a foreign land makes them particularly vulnerable at uncertain times, such as the Covid-19 pandemic.
The “assimilation and naturalization of refugees” into citizens is an obligation expected only of nations that ratified the Refugee Convention. With the CAA, India has gone above and beyond this obligation but only for only a class of people who are assumed to be persecuted based on their religious identity and nationality.
In other words, a true commitment to refugees would mean India can deport only those asylum seekers who fail to establish a well-founded fear of any type of persecution in their home countries. But India’s treatment of refugees depends on who the refugees are and, increasingly, what religion they profess.
B S Chimni, an expert on Indian and international refugee law, described India’s arbitrary asylum policy as “strategic ambiguity”.
That ambiguity is evident from the fact that Tibetan refugees can form a government in exile in India, but Tamilian refugees who sought asylum during the Sri Lankan civil war in 1983 were placed in strictly monitored camps.
The same ambiguity is evident with Chakma and the Hajong refugees, who have inhabited Arunachal Pradesh for over 50 years now since they migrated from Bangladesh and were granted citizenship after The Citizenship (Amendment) Bill, 2016.
“There is considerable ambiguity in the frameworks which govern different refugee populations,” said Girijashanker, “And this has created a hierarchy in the rights available to refugees based on where they are from.”
Since Indian law does not statutorily define who a refugee is, this allows the government to label all refugees and asylum seekers as “illegal migrants”and deport whoever it wishes, as indeed it has declared it will with the Rohingya.
In 2020, Union Minister of State Jitendra Singh said Rohingya refugees living in Jammu and Kashmir will be deported and will not be able to get citizenship by “any means”.
Devoid of any legal protection and hope, the Rohingya of Jammu—those who have thus far escaped police attention—have little choice but to flee while they can.
Names marked with * have been changed to protect the refugee’s identity.
(Tarushi Aswani is an independent journalist based in Delhi.)