Recently
the discriminatory
arrest of Rohingyas in India (despite other refuges being supported) has
sparked the old debate on the
constitutional and humanitarian obligation of India towards this persecuted
community(Rohingyas).
This
Article aims to highlights the constitutional fallacies associated with this
decision of the state on deportation of Rohingyas from India. This article
describes how various Fundamental Rights of an individual gets violated after
this decision.
Hundreds
of thousands of Rohingya Muslims fled to Bangladesh after Myanmar's army
launched a deadly crackdown on them in August 2017. Many in Myanmar regard the
Rohingya as illegal immigrants, and they face systemic discrimination because
they have had a tense relationship with Buddhists for decades.
They
are treated as stateless people by the Myanmar authorities, who refuse them
citizenship. The Rohingya people's freedom of movement, access to medical
assistance, education, and other basic services have all been severely
restricted 1.1 million Rohingya people live in Myanmar, and are considered the
world's most persecuted
people.
All these fears of persecution are now aggravated by the Military Coup that had taken in Myanmar recently and deportation would mean menacing the lives of an already persecuted minorities.
ARTICLE 14
Within
India's jurisdiction, Article 14 of the Constitution guarantees equality before
the law or equal protection under the law. It states:
"The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India."
Deportation
of Rohingyas to Myanmar is violative of Article 14 of the constitution because
Article 14 is not restrictive only to citizens but extends to every human being
who may or may not be citizens which was held by the Honourable Supreme Court
in the case of National
Human Rights Commission v. State of Arunachal Pradesh (1996)
, where the Supreme
Court held: “Our Constitution
confers... rights on every human being and certain other rights on citizens.
Every person is entitled to equality before the law and equal protection of the
laws…” and said that the state
government is under statutory and constitutional obligation to protect the threatened
group (Chakma’s).
State
is discriminating people only on the basis of religion as it is treating some
people as refugees and some as illegal migrants which can be seen when the Citizenship
Amendment Bill,2019 expressly excludes
Muslims
from its scope, claiming that only Hindu, Christian, Jain, Parsi, Sikh, and
Buddhist immigrants persecuted in Bangladesh, Pakistan, and Afghanistan are
eligible for citizenship because they are facing persecutions in their home
country but the state is doing snow job when it is treats’ Rohingyas as illegal
migrants and project them as a danger
to the national security despite the fact that Rohingyas are also facing
persecution in their home country.
It
also violates the reasonable nexus criteria or classification test which was
established by this honourable Court in the case of Ram
Krishna Dalmia v. Justice Tendulkar, AIR 1958 SC 538 as no reasonable nexus can be established in differential treatment of
persecuted communities.
Thus, the State is discriminating on the basis of religion which is violation of Article 14 as it prohibits discrimination on the basis of religion.
ARTICLE 21
Every person's right to life and personal liberty
is guaranteed by Article 21. Both the words "life" and "personal
liberty" have been given a very broad definition that encompasses a wide
range of rights. Its deprivation is only possible following the legal process.
The Supreme Court has given the term "life" a general interpretation,
giving it a wide range of meaning.
“Protection of life and personal liberty No person
shall be deprived of his life or personal liberty except according to procedure
established by law”.
Article
21 of the Indian Constitution guaranteed the right to life to all people, not
only to Indian citizens, and guarantees their fundamental right to life,
available to them by the constitution which was held by the Honourable court in
case of Chairman,
Railway Board vs. Chandrima Das where
the Honourable Court held that Article 21 applies to foreigners.
Thus
the State is bound to protect the life and liberty of every human-being, be he
a citizen or otherwise.
By deporting the Rohingyas from India to Myanmar it violates the Right to equality enshrined and protected by the constitution to all the people because every person has the right to live with dignity and it does not mean mere a animal existence as held by the honourable court in the case Munn v. Illinois. And if the people are not able to live with dignity then it is the state’s obligation to provide a environment where they (the people) can live with dignity and not discriminate with them and coerce them to go to the same place where their dignity and lives are menaced which happens in the present case as the Rohingyas are being deported to Myanmar where their lives and dignity are jeopardised.
INTERNATIONAL LAW VIOLATED
Honourable
Supreme Court in the case of Chairman, Railway Board
vs. Chandrima Das specifically stated
that international human rights law, The Universal
Declaration of Human Rights and the Convention on the Elimination of All Forms
of Discrimination Against Women, as well as the Article 21 scheme of
fundamental rights, were all in sync.
So
the stand of India deporting Rohingyas back to Myanmar stands contradicted
because According to the Universal Declaration of Human Rights, Article 14,,
everyone has the right to request and receive asylum from persecution in other
countries. Furthermore, Article
51 of the Constitution requires the state to
make every effort to promote international peace and stability. The fostering
of respect for international law and treaty obligations is discussed in Article
51(c).
As a result, the Constitution envisions international law being incorporated into domestic law and the argument that the country did not breach international obligations during the deportation is infelicitous.
RIGHT TO IDENTITY –
Right to Identity is defined as :-
“THE RIGHT TO IDENTITY PROTECTS AN INDIVIDUAL’S SIGNIFICANT AND KNOWABLE PERSONAL ATTRIBUTES AND SOCIAL RELATIONSHIPS”.
The idea of a right to one's own identity is not new. The human right to identity was expressly recognised in the Convention on the Rights of the Child (CRC) almost eighteen years ago, and the right has existed implicitly in treaties and constitutions for much longer.
In 2015, member
states of the United Nations decided to include a target in the Sustainable Development Goals (SDGs) that seeks to “provide legal identification
for all” by 2030.
Democracy, as is well recognised, is not only a
form of government, but also an emphasis on human rights and dignity, implying
rule of law, equality, and liberty, as well as freedom from tyranny,
exploitation, and arbitrary intervention. The Indian constitution respects and
strives to achieve the different aspects of social justice and it is not
limited just to citizens as the basic fundamental rights (Article 14 and
Article 21) are not restricted just to the citizens.
After the forced mass migration of Rohingya Muslims from Myanmar, many have arrived on the shores of Malaysia and Indonesia, highlighting the consequences of unresolved statelessness situations. Statelessness is defined as :-
“Statelessness is legally understood as not being recognized as a national under the operation of the laws of any state”.
Many cases of statelessness are the result of
unjust regimes or policies that keep some groups out of citizenship. The
Rohingya people of Myanmar are an example of in situ statelessness which are
the minority of their native country.
Even though all other rights under Part III are
concomitant with its creation, the Indian Constitution does not recognise the right to identity as a fundamental right.
Thus, our task is not to create a right, but to interpret an established right that, despite being
invoked and applied numerous times around the world, still lacks a simple and
complete meaning in the Indian context.
Furthermore, the Indian Constitution is one of the
few legal documents that establishes a basis for citizenship. In
comparison, citizenship is presumed under the law around the world, while
statelessness is handled by bureaucratic means which can further augments the arbitrary and discriminatory choice of a
Government as seen with the Rohingya’s discrimination.
As a result, many individuals without legal identities live on the periphery of society, unable to find work
without a social security number and without access to physicians and other
forms of social assistance. As a result, this oppressed community is much more
vulnerable to crimes like sex trafficking, which is now the world's third most
lucrative criminal enterprise. These people are denied social services such as
education and health care, as well as their constitutional rights to vote and
fly, and are shut out of the economy because they are unable to open bank
accounts, take out loans, or subscribe to cell phone plans.
The main aim of constitution is the welfare for the
people (not limiting to citizens) and safeguarding their rights so the
constitution should be interpreted in a way to protect the welfare of the
people to accomplish the original aim of the constitution.
The spirit embodied in the Preamble is further
enshrined in the chapter on Fundamental Rights and State Policy Directive
Principles, whose aim is to promote the social welfare of the people by
securing and preserving the social order as effectively as possible, in which
justice—social, economic, and political—informs all aspects of national life.
Supreme
court should have dismissed such petition (which was made for deportation of
Rohingyas) which are violative of Fundamental Rights enshrined and protected by
the constitution to the people and as the Court is the Guardian for protecting
the Fundamental Rights of an Individual and has zealously protected every human
being's most precious rights since independence.
In
India, the rise of right-wing populism, combined with religious
majoritarianism, has only complicated the situation. Many marginalised
citizens, including the Rohingyas, have become a security threat to the state
as a result of society's growing "otherization" and the rising
securitisation of Indian territory.
In
the land of Gautam Buddha, Mahavir, and Mahatma Gandhi, where human dignity and
rights were paramount, the state could not deprive these persecuted people of
basic human needs and compel them to die by deporting them to Myanmar and will
be failing in its constitutional and statutory duty.
At
last, I would like to quote the Father of the Constitution: - “However good a
constitution maybe, if those who are implementing it are not good then it will
prove to be bad. However bad a constitution maybe, if those implementing are good,
it will prove to be good”.
About the Author: This post is prepared by Vinay Kella & Munjal Thakkar, Law Student from Nirma University. They can be reached at vinaykella1@gmail.com & 20bal111@nirmauni.ac.in
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