As discussed earlier,<\/a>\u00a0there is an ongoing dispute as to which country the Rohingya belong to.\u00a0Section 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.<\/p>\nSection 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,\u00a0the last country to which the foreigner was connected.<\/p>\n
Which means in case of the Rohingya \u2014 whose nationality is uncertain because the Burmese government refuses to recognise them as citizens nationals \u2014 the test boils down to\u00a0the 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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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\u00a0the UNHCR has recognised them as refugees fleeing persecution and registered them as such. Deporting them to such a place may violate their constitutional rights.<\/p>\n
India’s has two types of fundamental rights. Some rights \u2014 civil and political rights such as freedom of speech and assembly \u2014 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.<\/p>\n
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\u00a0DK Basu versus State of West Bengal (1997) 1 SCC 416<\/em>\u00a0held that Article 21 includes within it a right against cruel and degrading treatment.<\/p>\nThis is similar to a provision under Article 3 of the European Convention on Human Rights. In\u00a0Soering versus United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989)<\/em>\u00a0the 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.<\/p>\nThe reason was that the execution was incompatible with Article 3 and that\u00a0the 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.<\/p>\n
Therefore, there can be a potential constitutional challenge to block any move by the government to deport the Rohingya.\u00a0If 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.<\/p>\n
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.<\/p>\n
India, thanks to the events of the last two hundred years, is going to have to deal with this issue.\u00a0Whether she likes it or not.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":19151,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_oct_exclude_from_cache":false,"footnotes":""},"categories":[241,203],"tags":[250,220,366,227,245,249,215],"_links":{"self":[{"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/posts\/19150"}],"collection":[{"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/comments?post=19150"}],"version-history":[{"count":0,"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/posts\/19150\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.rohingyapost.com\/wp-json\/"}],"wp:attachment":[{"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/media?parent=19150"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/categories?post=19150"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.rohingyapost.com\/wp-json\/wp\/v2\/tags?post=19150"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}