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A deportation and India's Rohingya challenge

pallab Bhattacharya
WHEN India deported seven Rohingyas back to Myanmar on October 4, it brought out certain fresh dimensions to New Delhi's stand on the issue with its legal, ideological and diplomatic ramifications. The seven Rohingyas from Myanmar's Rakhine province, from where hundreds of thousands of members of the ethnic group fled to Bangladesh, had entered India without proper documents in 2012 and were booked under the Foreigners Aa and sentenced to three months of imprisonment. On completion of the sentence, they were shifted to a detention centre awaiting deportation.
It was only in 2016 that the Rohingyas wrote to the Myanmar Embassy in New Delhi through the Silchar district magistrate seeking travel documents so that they can return to their homes. The Assam government took reconfirmation of the Rohingyas' willingness to go back and with the concurrence of Myanmar mission in New Delhi arranged for their deportation. The Myanmar Embassy verified the identity of the seven Rohingyas as their residents. The deportation happened after the Indian Supreme Court refused to uphold a public interest petition filed by noted rights aaivist-lawyer Prashant Bhushan who had tried to block the deportation taking humanitarian considerations into account and international agreements that bar the repatriation of people back to places where they face the risk of persecution.
The deportation drew strong reaction from rights group Amnesty International saying it set a "dangerous precedent’ for all asylumseekers in India. The UN Special Rapporteur on Racism Tendayi Achiume had criticised the deportation as "flagrant denial’ of the Rohingyas' right to protection and which could amount to refoulement. India responded by saying that despite not being a signatory to the international agreement on refugees, it has a long history of hosting them using its own resources.
India's External Affairs Ministry too made it dear that the seven Myanmar nationals were sent back "in accordance with the established procedures and precedents’ and on double checking of their willingness to go back. India's emphasis was on two key aspects: adherence to established procedures and to the Rohingyas' own volition.
But despite the deportation, there are some issues which need to be resolved. A case challenging the Indian government's move to deport an estimated 40,000 Rohingyas is pending in the apex court The questions that arise are: (i) Will the sending back of the seven Rohingyas on Oaober 4 have any bearing on the pending case? (ii) Will India be in violation of the international principle of nonrefoulement in the event of mass deportation of the Rohingyas? (iii) Will that principle be applicable to Rohingyas in India, many of whom are yet to be registered with the UNHCR
and therefore not entitled to refugee status?
It is interesting to note that the seven Rohingyas repatriated have not been officially termed by either India or Myanmar as Myanmarese "citizens" but "residents" of the latter. That was only expeaed because the citizenship issue is at the core of the whole problem. In upholding the sending back of the seven Rohingyas, the Supreme Court, quoting from the Indian Home Ministry's affidavit, pointed to the faa that "they have been identified as residents of Myanmar." But there is a huge difference between checking the resident status of seven Rohingyas and their willingness to return home and the hundreds staying in India, given the enormity and complexity of the task.
The repatriation of the seven Rohingyas is an important political statement by India's Bharatiya Janata Party-led government, as a key election pledge of the party is to aa against illegal immigrants. The additional gain for the party and the government led by it is that Myanmar agreed to take them back as per law. The deportation of the seven Rohingyas comes at a time when the BJP, in the run-up to the parliamentary elections due early next year, has been expressing its determination to identify and deport all illegal immigrants from Bangladesh. The BJP may find it useful to underline the faa that the deportation showcases its will to firmly deal with illegal immigrants and drive home its ideological narrative.
In the pending case before the top court about the en masse deportation of Rohingyas, the BJP-led government has already projeaed them as a threat to national security. A peek into what could be the BJP-led government's additional grounds in the Supreme Court can be had from Home Minister Rajnath Singh's remarks during an event of India's National Human Rights Commission on Oaober 12. The crux of Singh's speech there was that action against illegal immigrants should not be seen from the prism of human rights. In this context, he did mention the deportation of the seven Rohingyas. Later, a senior official of the Indian Home Ministry said the non-refoulement principle, which basically relates to human rights, was applicable to those who seek asylum and that no Rohingya has so far sought it
On the other hand, Roshni Shaner, who is a part of the legal team representing the petitioners in the Rohingyas case in the Supreme Court, wrote in a newspaper article that "it is important to not overstate the implications" of the apex court order of allowing the deportation of the seven Rohingyas because that order "was based on the notion that the men had consented to return. Where there is no consent, this cannot apply as a precedent." All in all, an interesting legal battle is on the cards when the Indian Supreme Court takes up the pending Rohingya deportation case.