By Ajay Kumar, First Post

Editor’s note: Over 40,000 Rohingya live in India as refugees. The Indian government has recently decided to deport them. In part two of this three-part series, Ajay Kumar focusses on their connection with India. Part three looks at the legal trouble India may face regarding their deportation.

The ‘forgotten’ partition of 1935 left an entire people in limbo [Part I]

By the old Moulmein Pagoda, lookin’ lazy at the sea,
There’s a Burma girl a-settin’, and I know she thinks o’ me;
For the wind is in the palm-trees, and the temple-bells they say:
“Come you back, you British soldier; come you back to Mandalay!

Mandalay by Rudyard Kipling

The opening lines of Kipling’s famous poem about life in British Burma paints a picture of a peaceful colony of Englishmen mixing freely with the local populace. But the reality was quite different. Unlike other parts of the British Empire, Burma had few British settlers.

Burma, on the other hand, was faced with massive amounts of immigration from other parts of the British Empire, particularly India.

The British administration of Burma began with the First Anglo-Burmese War (1824 – 1826). The war ended with the Treaty of Yandabo signed between the Kingdom of Ava and the British East India Company. The Burmese ceded Assam, Manipur, Arakan and parts of the Tenasserim coast to the East India Company. These newly acquired territories would become a part of the Bengal Presidency.

The British would fight three more wars with the Burmese.  In 1885, Burma became a province of British India and was made a major province in 1897.

As Burma and India were part of the same country, there was a massive wave of migration from India to Burma. Up in the Arakan Mountains, much of this migration was plantation labour.

The lives of many people are governed by events outside their wildest imaginations. For those living between British Bengal and British Burma, their futures were set in stone more than a million years ago: By plate tectonics.

When the Indian Plate collided with the Eurasian Plate around fifty million years ago, it made a natural boundary between the subcontinent and the rest of Asia. This boundary is known to most of us in the Indian mainland as the Himalayas but in the western part of the subcontinent they are known as the Hindu-Kush and the Karakoram and on the eastern borders they are known as the Mizo Hills, the Chan hills that eventually lead all the way down the Burmese coast line as the Arakan Mountains.

The Arakan Mountains is the natural boundary between the Indian subcontinent and Burma. This meant, that until modern times, it was quite difficult for people on one side of the mountain to get to the other side. That’s why people in the subcontinent speak Indo-Aryan languages and people up in China speak Sino-Tibetan languages. That’s also why our food, culture and writing systems are completely different. Crossing a mountain range is hard work and until recently (the 19th and 20th centuries), very few made the journey across.

In this Wednesday, Aug. 16, 2017, file photo, a Rohingya refugee girl looks through a mesh window at a camp set up for the refugees on the outskirts of Jammu, India. A day after the U.N. chief voiced concern about Indian plans to potentially deport tens of thousands of Muslim Rohingya refugees, an Indian government official said Wednesday that authorities are only working to identify those who fled persecution in neighboring Myanmar, not expel them. An estimated 40,000 Rohingya Muslims have taken refuge in various parts of India, though fewer than 15,000 are registered with the U.N. High Commissioner for Refugees. (AP Photo/Channi Anand, File)

There had always been some form of contact between the two sides of the mountain. Arakanese king Min Saw Mon fled to the Bengal Sultanate for 24 years and retook his kingdom with the help of the Sultan. For the assistance, he ceded some territory and became a vassal of the sultan, thus creating the first Muslim presence in the region.

However, this was short lived as the king’s successor ended the vassalage. The Burmese kingdom reoccupied Arakan in 1785 and expelled the natives known as the Rakhine, many of whom fled to neighbouring British India. By the time the British entered Arakan, it was sparsely populated.

When Burma was a part of the Bengal province and even later when it was part of British India, the border between the regions was porous. So there was an urgent need for cheap labour to harvest paddy grown in the Irrawaddy Delta. The East India Company’s solution was to import ethnic Bengali plantation labour from the neighbouring province of East Bengal, though this was a part of a broader phenomenon that was occurring all over the country.

By 1927, Rangoon had overtaken New York City as the greatest immigration port of the world, witnessing over 480,000 arrivals out of a population of 1,300,000 that very year.

In 1935, the Imperial Parliament passed the Government of India Act. The act comprised the Government of India Act and the Government of Burma Act.

It split India and Burma into two separate entities within the British Empire but it did not clearly define the boundaries between British India and British Burma.

The act defined Burma as: “Territories lying to the east of Bengal, the state of Manipur, Assam, and any tribal areas connected with Assam.”

Consequently, it did not answer the question of Rohingya nationality.

While the people of the empire were unified by their status as British subjects, India’s “first” partition led to the statelessness of a people called the Rohingya.

It also resulted in a post-colonial independent India having some very curious residual obligations.

As governments squabble over their post-colonial identity, refugees have nowhere go to [Part II]

Indian immigration into Burma created a lot of resentment among the local population.

The influx of cheap migrant labour lowered standards of living and also reinforced Burma’s status of being under colonial administration.

At the outset of hostilities in 1939, Burma was under threat from Japanese invasion.

As the Japanese advanced on Burma, they were supported both by the local populace and the Burma National Army (BNA), a local force which was raised to fight against British and enjoyed the support of ethnic tribes.

For their part, the British armed the Muslims in northern Arakan to fight against the ethnic Rakhine who harboured Japanese sympathies. This resulted in atrocities being committed by both sides and left deep communal divisions that linger till this day.

But helped largely by the Indian Army, the British managed to squeeze the Japanese from Burma. By the time the Japanese surrendered in 1945, the British reoccupied Burma and created the British Military Administration.

Due to political reasons, the British found themselves unable to prosecute BNA leader General Aung San for war crimes and treason.  So they chose to negotiate. On 27 January 1947, the famous Aung San-Atlee Agreement was reached, which paved the way for Burmese independence. Aung San managed to unite Burmese minorities at Panglong in February 1947 and the Union of Burma was soon birthed.

Burma’s formation gives insight into the Rohingya situation. Burma was founded on ethnic identity rather than a constitutional one. Article 10 of the 1948 Burmese Constitution enshrines the principle of citizenship by descent from one of the ingenious races of Burma.

Section 3 of the 1948 Union Citizenship Act of Burma makes it clear that to be an indigenous race of Burma, you have to have been settled there prior to 1823 AD, the year prior to the outbreak of the First Anglo-Burmese War, which resulted in parts of modern Burma being occupied.

Needless to say, neither the 1948 constitution nor the Citizenship Law of Burma recognised the Rohingya as Burmese citizens or nationals. The 1982 revision to the Burmese nationality law didn’t recognise them as citizens either.

As events were unfolding in the 1940s, a movement calling for the Muslims who resided in Arakan to join Pakistan (East Pakistan) moulded itself into the Arakan Muslim League. However, Jinnah declined to support it, stating he was unconcerned with Burmese affairs. Which led to an armed insurgency seeking a Muslim homeland in the region. That movement was put down by the army.

This operation resulted in many refugees fleeing to neighbouring Bangladesh. After the India-Bangladesh War of 1971, many refugees fled Bangladesh and returned to Burma. The Rohingya thus found themselves in a peculiar situation: They can’t be Bangladeshi as the government doesn’t consider them Bengali. However, the Burmese government insists the Rohingya are Bengali migrants and therefore they cannot be Burmese. The Rohingya are effectively a people without a state.

A Rohingya refugee takes a nap as a child lies next to him outside a temporary shelter in New Delhi, India, Wednesday, Aug. 16, 2017. A day after the U.N. chief voiced concern about Indian plans to potentially deport tens of thousands of Muslim Rohingya refugees, an Indian government official said Wednesday that authorities are only working to identify those who fled persecution in neighboring Myanmar, not expel them. An estimated 40,000 Rohingya Muslims have taken refuge in various parts of India, though fewer than 15,000 are registered with the U.N. High Commissioner for Refugees. (AP Photo/Altaf Qadri)

Over time, the Rohingya have started asserting themselves as an ethnic group of Burma and demanding equal rights. They claim descent from the sultanates that briefly occupied the region and have tried to build a narrative that ties them to the area. This has been subject of intense public debate in Burmese academic circles, with many accusing them of revisionism.

Many have been confusing them with ethnic Rakhine Muslims who predate the First Anglo-Burmese War. But though some sections of the media have tried to paint this as a Buddhists versus Muslims debate, this isn’t a religious issue.  Many ethnic Rakhine are Muslim. At the core, this is an ethnic issue. The Rohingya have their own language, which branches out of the Indo-Aryan language family.

Ethnic Rakhine, the major population of the Rakhine state, (which is what Arakan is called) speak Arakanese or Burmese, both branches of the Sino-Tibetan language family. These ethnic populations evolved on both sides of the natural boundary that separates the subcontinent from the rest of Asia.

The issue, an ethnic one, has resulted in large-scale violence being inflicted on the Rohingya, much of it sponsored by the State. Without being accepted as citizens in a country that they have inhabited for generations, the Rohingya face threats to their life, liberty and property every day.  They live in constant fear and in conditions that do not befit the dignity that that human beings are entitled to.  The violence is, in part, led by the Burmese military who wish to use the communal situation to ensure their relevance.

This situation has resulted in a large-scale refugee crisis which has engulfed neighbouring states since 2012. States such as Bangladesh and Thailand, which share a border with Burma, are bearing the brunt of it. But refugees are also pouring in on boats. The world has often woken up to images of desperate refugees on wooden planks.

Over time, many of these refugees have also made their way to India, which is home to over 40,000 Rohingya.

Our government calls them illegal migrants.

Onus to find a solution to this refugee crisis is on the Centre [Part III]

India has always welcomed immigrants and refugees.

The Syrian Christians who fled persecution found a safe home here. As did the Malabar Jews. A few years later, the Baghdadi Jews followed and so did the Parsis of Iran.

Under Indian law, the only way to get a long-term permanent residence visa is to either be married to an Indian citizen, to be of Indian descent and be eligible for a Person of Indian Origin Card or an Overseas Citizenship of India.

India is home to over 40,000 Rohingya Muslims. The refugees claim they are ethnically Burmese even though Burmese government denies that claim and says they are not citizens.

Representational image.

Violence in the Rakhine state has resulted in many Rohingya having to flee their homes and seek refuge elsewhere. The Centre considers them illegal immigrants and not refugees.

Union minister Kiren Rijju told Parliament that the Centre has directed state governments to constitute district-level task forces to identify and deport the Rohingya.  Many of these refugees hold registration cards issued to them by the United Nations High Commission for Refugees (UNHCR).

India is not a party to the UN Convention Relating to the Status of Refugees 1951 nor the 1967 optional protocol to the convention. The UNHCR helps facilitate long-term visas for Refugees based on UNHCR recommendations.

These are ‘X’ category visas issued with special long-term stay endorsements. India doesn’t have a refugee visa category, neither does it have a clear system of refugee travel documents.

A UNCHR determination of refugee status is meaningless under Indian law as the final decision to issue a visa rests with the Centre alone.

Which means that refugees are treated on par with every other foreigner under the Foreigners Act, 1946 and unless they have the permission of the Centre to remain in India, they may be arrested, interned and deported to their country of origin. It is here where the issue of deporting the Rohingya gets very tricky for the Centre.

Say tomorrow, a US national comes to India on a tourist visa and is found working as a trapeze artist in the Great Bombay Circus. The immigration officer could arrest him, place him in a holding cell and put him on the first fight back to the United States.

All our Bureau of Immigration will do is take his passport, neatly stamp it with “Deported from India” and if they’re feeling especially nasty, affix an endorsement saying “Entry into India Banned” and send him home. It’s pretty straight forward. It isn’t a matter of where the person is from if he’s violating the conditions of his stay.

But with the Rohingya, the nationality of the person forms the crux of the matter. As discussed earlier, there is an ongoing dispute as to which country the Rohingya belong to. Section 9 of the Foreigners Act, 1946 puts the burden of proof of proving nationality on the person who is being charged under the act. So if an Indian were charged with being a foreigner it would be for the Indian to prove that they were in fact Indian.

Section 8 says that where the nationality of a foreigner is uncertain, the nationality ascribed shall be the one with which the foreigner seems to be most closely connected to for the time being in interest or sympathy. Or if the nationality is uncertain, the last country to which the foreigner was connected.

Which means in case of the Rohingya — whose nationality is uncertain because the Burmese government refuses to recognise them as citizens nationals — the test boils down to the last place with which they could prove a substantial connection and the interest of sympathy that was also recognised by the place with which they assert as their own.

This roundabout situation could result in them arriving at India as their nationality. If they trace their origin to labour that came in from Bengal Presidency, they trace their origin to India and having not acquired any other nationality, India would be the answer to the question posed under Section 8.

Article 8 of the Constitution also gives a right to people residing outside India with a grandparent born in India as a defined under the Government of India Act, 1935 (excluding Burma) to register as Indian citizens. If a Rohingya qualifies under this category, he can claim Indian citizenship via registration with the appropriate authorities.

In this case the Rohingya claims citizenship as a matter of constitutional right, the evidentiary presumptions as to parentage will work in the favour of the Rohingya.

But on a broader note, if India is to deport the Rohingya, the first logistical hurdle she will face is trying to figure out where she will deport them. These refugees face a very real risk of violence if they return to their home countries. Which is why the UNHCR has recognised them as refugees fleeing persecution and registered them as such. Deporting them to such a place may violate their constitutional rights.

India’s has two types of fundamental rights. Some rights — civil and political rights such as freedom of speech and assembly — are solely for citizens. Another set of rights apply to all people: The right to life and equality. The Rohingya who live in India are entitled to exercise these rights.

One might argue that knowingly sending refugees to a place where they will be persecuted violates their right to life under Article 21 of India’s Constitution. The Supreme Court in a catena of cases starting from DK Basu versus State of West Bengal (1997) 1 SCC 416 held that Article 21 includes within it a right against cruel and degrading treatment.

This is similar to a provision under Article 3 of the European Convention on Human Rights. In Soering versus United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989) the European Court of Human Rights interpreted Article 3 in a manner that prevented the UK from deporting a prisoner to the US where the prisoner would likely face execution.

The reason was that the execution was incompatible with Article 3 and that the UK’s action would facilitate a violation of the prisoner’s rights. Similarly, if the Rohingya were to be sent back to Burma by India, their Article 21 rights would be violated as they would also be subject to cruel and degrading treatment.

Therefore, there can be a potential constitutional challenge to block any move by the government to deport the Rohingya. If the government manages to facilitate an agreement with a neutral third country where the Rohingya would be entitled to a safe environment and then proceeds with the deportation, such an effort may be legally tenable.

Though, the quickest possible solution to this crisis would be for India to use its mandarins at the Ministry of External Affairs to sit down with the Burmese and the Bangladeshis and hash out a solution.

India, thanks to the events of the last two hundred years, is going to have to deal with this issue. Whether she likes it or not.