Deportation of Rohingya Refugees, Indian Law and Politics of Hospitality

By Hemaadri Singh Rana

Few months ago, the apex court of India passed a judgement allowing the deportation of seven Rohingya refugees, under detention in Assam since 2012, back to Myanmar on the ground that the Myanmar government has identified and accepted them as its citizens. The judgement came as a response to the petition filed against Central Government’s decision to deport more than 40,000 Rohingya refugees living in India on the pretext of the threat to national security. The judgment is subjected to criticism by the intelligentsia for not only its lack of humanitarian and ethical reason, but also legal obligation. In addition to ethical and humanitarian concerns, few other questions that are required to be attended include: What explains the reason behind the judgement? What kind of politics goes behind the arbitrary actions of the government? Is national security the only concern of the government behind essentializing the deportation? What all fears and insecurities of the local community indeed trigger such repugnance towards refugees? The present article attempts to engage with some of these questions in order not to confine our analysis to humanitarian concerns only but go beyond and understand the politics of the state.

Assessment of the Judgement

Over the past few years, up until the month of September 2017, India had continued to be a ‘temporary shelter’, if not an official refuge in the absence of refugee legislation, for roughly 40,000 to 50,000 Rohingya refugees. In the nick of time, however, these refugees were deprived of that refuge taken under Indian administration in the name of national security. The Indian authorities, while defending their decision, had equated the illegal migration of Rohingyas with the threat to national security. Hardly any reference had been made to the lack of in-depth analysis of the nature of such migration on the part of the Indian government. In the name of defending the Indian state from external threats, India has succeeded in setting the example of being a state accustomed to taking arbitrary legislative actions despite the prevailing constitutional system.

The absence of parliamentary legislation to deal with refugees has also tied the hands of the Indian courts, which are left with no other option but to interpret the question of refugees under the constitutional law such as Art. 14 (right to equality before the law), Art. 21 (right to life and liberty), Art. 25 (practice and propagate own religion), or other legal provisions provided for foreigners – Foreigners Act of 1946, Registration Act of 1939, Passport (Entry into India) Act of 1920 – thereby, fusing the two distinct contexts, that of coercion and violence experienced by the refugees, with the non-coercive context of other migrants. Despite legal constraints, however, in few cases, the courts have proved themselves as saviours of refugees by securing such rights as entitled to foreigners in the constitution.

Such cases include: Dr. Malvika Karlekar vs. Union of India; Bogyi vs. Union of India; National Human Rights Commission vs. State of Arunachal Pradesh; Zothansangpuri vs State of Manipur; U Myat Kayew and Nayzan vs. State of Manipur. As the space does not allow a comprehensive discussion on each of these cases, specification of the common element in these judgements would suffice, i.e. recognition of human rights. In all these cases, the courts had refrained from prioritising the nation’s security over human security, an individual’s life. The refugees had been permitted to apply for refugee status under UNHCR, restraining the coercive actions by the state, despite the fact that they were illegal migrants.

These cases, however, were more like exceptions to the rule than norm setters for the principle of non-refoulement. Deportation of refugees had been part of Indian government’s strategy towards refugees in the name of national security, may it be deportation of 5000 Burmese refugees between 1995 and 1997 or repatriation of thousands of Sri Lankan refugees in 1987, more or less, with or without their consent.

Omar Chaudhary, in his article “Turning Back: An Assessment of Non Refoulement under Indian Law”, comments on the over-optimism legal and academic scholars develop in the light of such judgements pertaining to the principle of non-refoulement. These scholars, he argues, cite such judgements along with Art. 21 and Art. 51 of the constitution without realising that in the absence of explicit legal provisions for the category of refugees, courts possess hardly any power to counter the legislative decisions and guarantee the right of non-refoulement for refugees. While Art. 51, that obligates the state to abide by international treaties and laws, continues to remain a non-enforeceable directive principle, Art. 21 does not guarantee non refoulement as a fundamental right even at the cost of state security.

This is not to say that courts have no role to play in the case of refugees at all, but that role is restricted in the state of non recognition of the separate category of refugees. As the absence of refugee law continues to be a fact, uncertainty remains for all refugee groups, including for Tibetans and Sri Lankans which have unofficially been perceived as refugees by Indian government. Not only refugees, we can also find the persistence of such uncertainty for citizens itself evident through the National Register of Citizens in Assam. The question, thus, remains as to what explains the arbitrariness in state’s action.

Politics of Hospitality and Signification of ‘Other’

While most of the scholars have accentuated the existential threat to different refugee groups and their ground level socio-economic realities, their primary purpose remains to persuade the government to enforce a refugee policy and make it the centre of focus through the revelation of routine struggles of refugees. Several reasons have been put forth while deliberating over the reluctance exhibited on the part of the Indian government for refugee policy making. These reasons range from geopolitical reason – fearing the subsequent rise in refugee inflow, if India joins one of those very few countries in the South Asian region like Philippines which legally allow the entry of refugees – to issue of international, particularly North-South, politics.

Although the reasons set forth by the scholars succinctly produce the sense behind the absence of refugee policy in India, the arbitrariness visible in the state’s practice of inclusion/exclusion or variations in treatment/responsiveness towards different refugee groups is left out without justification. Such arbitrary practice of state exemplifies what Ranabir Samaddar calls ‘politics of hospitality’.

India’s way of dealing with refugees signifies a kind of politics, which takes cognizance of one’s identity prior to humanitarian concerns, while ascribing them refugee status. The treatment one receives as a refugee is contingent on her group’s ethnic identity. The politics of hospitality itself poses one of the constraints in the formulation of refugee law and provides an explanation for the reluctance of India.

The reluctance to adopt a uniform refugee law in India does not only reflect a geopolitical, strategic necessity and concerns for national security as has been reiterated by the Indian government. Rather the absence of a uniform law allows the state to play a latent politics of identification (read ‘negative’ identity, in Amy Gutmann’s terms, which is more or less imposed), inclusion, exclusion and the nature of entitlements and treatment of refugee groups. Such politics of hospitality is practised through the state’s establishment of the conception of ‘selfhood’ and ‘other’. The conception of ‘other’ does not represent a homogenous category. The politics based on such conception not only restricts the formulation of law, but also refuses to produce a legal mechanism with an ethical basis.

The politics of hospitality, i.e., the politics of inclusion/exclusion of refugee groups and variations in their treatment, is grounded in the manner in which the state identifies refugees. The usage of the concepts of ‘self’ and ‘other’ with reference to citizens and refugees/aliens respectively categorizes refugees as a group of homogenous ‘other’. This, in one sense, implies that the state’s idea of ‘other’ is similar for almost all the groups. But, this idea of a homogeneous ‘other’ gets repudiated if we empirically gauge various strategies state employs in the treatment of different groups, characterizing how state draws distinctions amongst them, despite their commonality of being the ‘other’ that is often used to place them apart from citizens and denizens. Thus, the classification and politics of signification of the ‘other’ is not as simple and easy to grasp as it seems.

Few Practical Concerns

There has been debates over the ethics of hospitality developed to resolve the quest of how the self should respond to the call of a stranger, or the ‘other’ knocking at our door. Philosophers like Ricoeur, Levinas, Kearney and Derrida hold the common ground that a sense of responsibility and obligation gets evoked in the self as soon as it comes in contact with the other. The point of contention revolves around positioning the self and the other in a relation, or whether such relation is even possible. That is, what course the self should adopt to fulfill that responsibility.

Advocates of refugee policy arguing solely on the grounds of humanitarianism often neglect the cost of substantive support required for the sustenance of refugees. On the other hand, advocates of national security, unsupportive of refugee policy, lack an essentially ethical relation with people, transcending borders. Both the stands are extremes in one sense, where the former, like Levinas, lacks practicality and the latter, like Kearney, lacks ethical reasoning.

Levinas, in his book Totality and Infinity: An Essay on Exteriority, perceives the self as passive and argues that the ‘Otherness’ of the other overwhelms the self to the extent that the well-being of the Other becomes the priority even at the cost of self’s well-being. The generosity of the self transcends from merely being sympathetic to sacrificial. Kearney, on the other hand, prioritizes the self over the ‘other’. His idea of practical discernment justifies state’s arbitrariness and risks authorizing and legitimizing the xenophobic action of the state.

India’s response to refugee migration and accommodation follows similar practice of practical discernment. The threat to national security posed by Rohingya refugees, as stated by the Indian government, is quite an unsatisfying justification, when Tibetan freedom activists are spatially accepted despite being radicals. The process of detention, thus, under government’s rationale, could contain Tibetan activism, but the same would not suffice for the Rohingyas in case of their involvement in any radical activity, despite the fact that both possess equal potential to cause ‘terror’. The point is neither to support the legal process of detention, nor to eulogise or denounce any form of activism by any group. Rather that the practical discernment among refugee groups is on unreasonable grounds. Legal provisions, thus, are present to counter the national security threat argument.

However, there are other important matters of concern which need attention regarding the issue of refugees: the question of resources and the question of liability. Local population is not inherently in animosity with the refugees. They either remain indifferent or are seen welcoming refugees initially in most of the cases. With the passing time, however, sharing of resources emerges as one of the major conflictual problems between the refugees and the locals. An on and off conflict between Tibetans and locals in Dharamshala is one such instance. Second is the question of liability. No government wishes to carry the burden of refugees as liabilities, especially a country which keeps dwindling in economic sphere. The UNHCR plays a pivotal role in this sense by providing training, developing skills and entrepreneurship among refugees. Refugees could, thus, also support the economy of the host country to a certain extent from entrepreneurship, refuting the liability argument. An extensive study pertaining to the extent of economic benefits from refugees is yet to be done.

There are no two views that refugee crisis could only be resolved collectively at the regional level and not by the individual efforts of a particular country. Repatriation of refugees back to the violent atmosphere can never be an answer, neither ethically nor pragmatically. Only a well-formulated refugee law could counter the arbitrariness of the Indian government. Here, Derrida’s conditional hospitality supported with Ricouer’s idea of reciprocity could help understand the kind of refugee policy that can help produce an ethical legal mechanism. It implies that while the obligation to provide refuge and basic support to refugees wherever necessary falls on the state, a similar obligation in reciprocity should also develop in refugee groups so that they don’t turn into liabilities. Uniformity of law, therefore, is a necessity.

Photo: Waseem Hussain

References

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Chaudhary, O. (2004). Turning Back: An Assessment of Non-Refoulement under Indian Law. Economic and Political Weekly, 39(29), 3257-3264. Retrieved from https://www.epw.in/journal/2004/29/special-articles/turning-back.html

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Lawlor, L. (2018, April 16). Jacques Derrida (Stanford Encyclopedia of Philosophy). Retrieved from https://plato.stanford.edu/entries/derrida/

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Samaddar, R. (Ed.). (2003). Refugees and the State: Practices of Asylum and Care in India, 1947-2000. Thousand Oaks, CA: SAGE.

Bio:
Hemaadri Singh Rana is Ph.D. Scholar at the Centre for Political Studies at Jawaharlal Nehru University, New Delhi, India. Her research interests include inter community conflict, forced migration, refugee crisis, philosophy, climate change, feminist theory and practice. Her articles and book reviews are published in reputed journals including Third Concept, Café Dissensus and Mainstream Weekly. She has also contributed two chapters to the anthology titled Modern South Asian Thinkers, published by Sage Publications. She can be reached at hemaadri.rana@gmail.com

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