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Critique of a Utilitarian State and India's Response to the Crisis of Rohingya Refugees

A Perspective of Human Rights Law


Abstract: This article aims to understand and analyze the issue of forcible returns of Rohingya Refugees and the underlying religious and racial discrimination that comes along with it. This crisis will be evaluated from the perspective of Utilitarian and Kantian Ethics. As per the existing regime, the State is supposed to assume the role of a guarantor of human rights. The core argument in this paper is that governments on a national level fail to understand the essential nature of human rights and the importance of guaranteeing its universality. For governments, greatest good for the greatest number does not mean greatest good for the greatest number of human beings but rather, securing greatest good for the greatest number of individuals on a racial and religious basis, as well as on the basis of larger political interests. It leads this exploration to examining whether International Human Rights Law can resolve such issues or whether it imperative for the governments to create an effective legal framework that would provide a fair procedure for status determination as well as rights that flow from the Constitution and the international human rights law.


Keywords: Kantian Ethics, International Human Rights Law, Rohingya Refugee Crisis


INTRODUCTION


It all started in 2015 when a group of people, having lived in an environment of persistent persecution for years, decided that there is no home left for them in a land that they had inhabited for decades. A choice to remain in the country is no choice at all if it involves risking your mental and physical well-being, and facing certain violence and death. At the time, the consequences were as grim as the numbers that were an immediate—if not complete—reflection of the apparent situation where hundreds died and 140,000 Rohingyas were left homeless and a huge number ‘sheltered’ in internal displacement camps. The United Nations (“UN”) had predicted that 100,000 Rohingyas had left Myanmar by sea.

Many of them came to India, after a life and journey of overwhelming peril and fear. However, as it turned out, refuge became a distant hope. Kiren Rijiju, who was the Union Minister of India at the time, strongly contended that the all Rohingyas qualify as illegal immigrants and were liable to be deported. Furthermore, he denied their status as refugees, regardless of whether they were registered under the United Nations Human Rights Commissioner (“UNHCR”). By early March this year, 160 people belonging to the Rohingya Muslim community have been detained in Jammu after the local administration had instructed police forces to identify “illegal” Rohingyas living in the desolate city slums. Amongst the larger collective narrative lay the individual narratives of a husband being separated from his wife, a mother from her son, a sister from a brother. The focus of this paper lies in examining and understanding the reasons behind these narratives. The issue of whether the international human rights law is ineffectual in its own capacity to aid the people that it was designed to protect will be taken up. Following the same, it would examine the agency of the State within the purview of International Human Rights regime, as well as its motivation behind their responses. Finally, the exploration ends with exploring possible solutions and the ideal conception of a human rights regime in similar contexts.



A RESPONSE TO UTILITARIANISM: KANT’S PERSPECTIVE ON HUMAN RIGHTS


While the existing universalist conception of human rights law has been severely critiqued, prominently by scholars like M. Mutua, there are some good inferences that could be taken away from a similar perspective of Immanuel Kant. It stems from his self-devised branch of ethics that discusses the “categorical imperative”—a formulation of a moral law which is guided by three primary principles—‘universality, intrinsic value of each person and autonomy’. The jurisprudence propounded by Kant was in fierce opposition to utilitarianism—he believed that a State fuelled by utilitarian philosophy is bound to evolve into an authoritarian, arbitrary and ‘paternalistic despot’. However, in Kant’s perception, the rights of an individual would be circumscribed to the rights of the citizens of a state and by effect, ‘cosmopolitan rights of a world citizen’ could not exist.

The substance of this jurisprudence that arises in Kant’s conception can be utilized in the context of International Refugee Law jurisprudence as well. One of the most seminal legal principles is that of non-refoulement, which ‘prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return....’. This principle is envisaged within customary international law. It means that States would be obligated to not violate such principles, irrespective of their status as signatories. Similarly, he had envisioned the inalienable nature of human rights—where an individual himself cannot waive or nullify the substance of them and neither could a nation do anything that would lead to the same consequence.


UNDERSTANDING THE LIMITATIONS OF INTERNATIONAL HUMAN RIGHTS LAW


On 30 August 2017, a petition was filed in response to the directions for deportation of Rohingya refugees. Specifically, Mohammad Salimullah and Mohammad Shaqir (“collectively to be referred to as the Petitioners”) sought to move the Supreme Court of India under the writ jurisdiction of Article 32 of the Constitution of India (“the Constitution”). The core contention in this case made by the Petitioners was that the proposed deportation of Rohingya refugees was in violation of their Right to Equality under Article 14, Right to Life under Article 21 as well as Article 51(c) of the Constitution, which mandates the Government of India to respect the international law and obligations. While the human rights regime as well as the Constitution conceptualize the State as the guarantor of human rights in the country, such a perception is marred by ideology and politics. Furthermore, such ideology and politics are deeply rooted in religious and ethnic biases along with political motivations. The reason why such a State becomes utilitarian is because it would only strive to serve the interests of the majority of the population that aligns with its religious and political interests.

The ambition of human rights lies in envisioning and guaranteeing rights that are essential to every human being irrespective of their sex, gender, caste, race, ethnicity, religion, nationality or any differentiating criteria. The most interesting body of law could be customary international law that binds all State parties, as their status as signatories does not affect the nature of their obligations under customary international law. Under international refugee law, the prohibition of refoulement is explicitly included in the UN Convention Relating to the Status of Refugees of 1951. However, India remains to be unobligated to this Convention due to its status as a non-signatory. While this does contribute to the overall situation, the inquiry rests deeper within the response of the Government of India to the refugee crisis. The design of an enactment like the Foreigner’s Act, 1946 (“the Act”) is meant to govern the movement of people into as well as from India, people who would fall within the broad ambit of ‘non-citizens’. Section 3 of the Act provides the Government with wide-ranging powers to arrest, detain or deport such individuals. These powers within the domestic legal framework remove the need for the accountability of the State, or the Government of India in this case, to protect refugees in line with the respective international conventions. However, it would be rather unfair to conclude that the Rohingya Refugee crisis in India persists solely, due to the lack of a specific legislation. In reality, this lack of accountability is further reinforced by political interests involving religious and racial biases. . All of these reasons rather represent that parts of a whole.

The dystopia that Kant had imagined is eerily similar to the circumstances of the Rohingya refugees in India. Under International Human Rights Law, the Government of India had argued that it was justified in its actions to identify and order deportation of the Rohingya people on the ground of national security. It is a fact that the State conceives itself to be paternal figure that is resting on the Utilitarian conception of Indian citizen. It perceives good, only for the Indian citizen. The inquiry into the problem in this case is not just restricted to the absence of a rule of law but is complemented by the rule of ideology. The ideology that believes in universalizing the rights, interests and culture by the abject exclusion of the rest. It is the exclusion of a narrative of persecution and refuge of Rohingya Muslims, that is superseded by the one put forth by the Union Minister—which is of anticipated terrorism and a threat to national security.


THE WAY FORWARD: THE NEED FOR A SPECIFIC DOMESTIC LEGISLATION FOR REFUGEES IN SUPPORT OF KANTIAN VIEW OF HUMAN RIGHTS LAW

One of the major reasons why the Government is able to order the deportation of refugees is because there is no procedure or substantive rights that govern their status determination, rights and procedure for identification and safeguards from deportation. The lack of a specific law in this regard severely decreases the accountability of the Government to deal with a refugee crisis in an efficient and just manner. Moreover, the existing legal mechanism aids the Government in enforcing the narrative of terrorism and national security threat in exchange for the actual one of persecution. Notably, it can be argued that this replacement of narratives happens at the foundation of far-right politics, which are supported by the ideals of Hindu nationalism instead of secularism. This pursuit results in administrative and political decisions that are reliant on the religious discrimination and the consequent exclusion of ethno-religious minorities like the Rohingya Muslims. Lastly, the International Human Rights corpus can only achieve so much. It is necessary that such a regime is implemented on the domestic level by the State through a set of constitutional obligations as well as specific refugee law and policy. Without a consistent comity between international and domestic laws, it would be difficult to resolve any issue within the wide ambit of human rights law. Refugees seeking asylum in India would be in a better position than they are now if a specific legislation for refugees is enacted—one that is built on the bedrock of the rights and fundamental duty enshrined within Articles 14, 21 and 51(c) of the Constitution.

Prof. B.S. Chimni has argued that India must shift from a ‘charity-based to a rights-based approach’. In his view, refugees must be supported through a specific legislation that recognizes their rights. Even though such rights are available to them as aliens or non-citizens, such delineation is ignorant of the collective as well as the individual narratives of the Rohingya Muslims. He believes that it would resolve the following concerns—firstly, differentiation of a refugee from an illegal migrant, secondly, include provisions that could prescribe procedures to address security concerns and thirdly, prevent actions by the Government that could result in refoulement.

Therefore, it would be difficult for the legal framework prescribed under the international human rights to deal with such similar instances of refugee crisis. This is because such situations have complex political and historical dimensions that can only be resolved through domestic state intervention. In order to prevent this situation recurring in the future, it is imperative that a specific legislation dedicated to refugees is enacted in India for the two primary purposes—first, the procedure for determining the status of refugees and second, rights that would be conferred to such refugees that flow from the international law as well as the Constitution.



References


Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int'l L. J. 201, 201-245 (2001).


Edward Demenchonok, The Universal Concept of Human Rights as a Regulative Principle: Freedom versus Paternalism, 68 A. J.


ECO & SOCIO 273, 281 (2009).


The Convention Relating to the Status of Refugees art. XXXIII (1), Jul. 28, 1951, 189 U.N.T.S. 137.


Jerry Vang, Limitations of the Customary International Principle of Non-Refoulement on Non-Party States- Thailand Repatriates the Remaining Hmong-Lao Regardless of International Norms, 32 WIS. INTN’L L J 355, 371 (2014).


Salimullah v Union of India, (2021) WRIT PETITION (CIVIL) NO. 793 OF 2017 (SC).


INDIA CONST. art. 51, cl. c.


The Foreigner’s Act, 1946, § 3, No. 31, Acts of Parliament, 1946 (India).


B.S. CHIMNI, REFUGEES AND THE STATE 462 (SAGE 2013).



This piece has been authored by Pranay Dixit.


Pranay is a final year B.B.A., LL.B. (Hons.) student from Jindal Global Law School. He has pursued a compulsory course on “Human Rights Law and Theory” in the past semester.


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