This govt will target all Muslim refugees: Colin Gonsalves

Senior Lawyer Colin Gonsalves argues that India’s current Refugee Policy is against both Indian and International law and deviates from the policy of non-discrimination on the ground of religion

Youtube screenshot
Youtube screenshot

Dhairya Maheshwari

While the Union Government has been directed to file its view on the status of Rohingya Muslims in India by September 11, an impleading application on behalf of Rohingya Muslims settled in Jammu has also been filed by Dr Gonsalves.

Excerpts from the interview with NH:

What is the basis for your petition?

The argument is that refugees are not illegal migrants. There are two types of illegal migrants: Economic, like many of those who migrate from Bangladesh and who are afforded no protection, and others who flee persecution. The ones who flee persecution are genuine refugees. These are two entirely different things.

The Indian Constitution also guarantees protection to genuine refugees under Article 21, which concerns itself with the Right to Life of both citizens and non-citizens. Under the article, the state is duty-bound to protect the life of foreigners.

The Right to Life of non-citizens under Article 21 has been accepted in the Indian law, as witnessed in Chakma Case between the state of Arunachal Pradesh and the National Human Rights Commission (NHRC). The Delhi High Court, Kerala High Court, Gujarat High Court and the Guwahati High Court have all recognised the right.

So, Centre's argument that Rohingya Muslims are illegal migrants who need to be deported is not entirely legal when seen in the face of Article 21. The government says they are terrorists who pose a security threat to the country. You just can't generalise for an entire population. If you think that there are terrorists among them, separate them from the rest, file an FIR and institute an inquiry against those individuals. Centre should be taking a more nuanced approach.

Also, as per the principle of non-refoulement, a person fleeing rape, murder and persecution cannot be sent back to the place they are fleeing from. Sending Rohingya Muslims back would be like condemning them to death.

Is there a precedent in Independent India when it has not abided by the principle of non-refoulement?

India has generally been very tolerant towards refugees fleeing persecution. However, there are instances when magisterial courts order deportation of refugees to places they fled from. Several such decisions have been overturned by higher courts, but then not every refugee who is ordered to be sent back by a lower court is able to appeal in a higher court.

Can the government carry out its threat of deporting Rohingya Muslims while the case is sub-judice in Supreme Court?

Technically, it could, unless there is a stay order.

Why hasn't India been a signatory to the UN Refugee Convention of 1951 and the additional protocol of 1967?

I believe it doesn't really matter if the Indian government is a signatory to the Refugee Convention. That is because the principle of non-refoulement has got elevated to the status of jus congens, or a fundamental principle of international law which cannot be abrogated. The Supreme Court has also recognised that international norms should be followed.

While there have been allegations that the current government's refugee policy is biased against Muslims, refugees from say Afghanistan, are not on the line of fire..

There definitely have been fundamental changes in this government's refugee policy vis-a-vis previous governments. If not now, Muslim refugees from other countries, including Afghanistan, Ethiopia and Somalia, will soon start find themselves at the receiving end of the government's refugee policy due to their religion. We are definitely headed in that direction.

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Published: 08 Sep 2017, 1:16 PM