By Hemaadri Singh Rana
What does being statelessness mean? What legal recourses are available to the people rendered stateless? How does a person turn stateless? What steps should India take to reduce the production of statelessness? These are the few key questions which Sabyasachi Basu Ray Chaudhury and Ranabir Samaddar’s The Rohingya in South Asia: People Without a State attempts to deal with through the case study of the Rohingya community as a stateless community. The book is written in the backdrop of crackdown of Myanmar’s military on the Rohingya Muslim minorities when hundreds of Rohingya set off on the path to seek refuge in South Asian countries like Bangladesh and India, and also Malaysia, and the continuous exclusion experienced by Rohingya refugees. It takes us back to the historical journey of exclusion and discrimination that has over time turned into present horrific circumstances in which the Rohingya live.
As the title of the book suggests, it investigates the forlorn lives of the Rohingya living in South Asian countries of India, Bangladesh, Myanmar and Malaysia. Detailing the routine struggles where provision of even basic amenities is non-existent, the book presents the narratives based on primary interviews pertaining to their journey. The book offers a historical, anthropological, legal, human rights perspective on the Rohingya situation. It begins with state response to and treatment of the Rohingya refugees and moves on to the Rohingya’s accumulation of social, political and economic capital. It accentuates the intricacies in the provision of humanitarian assistance amidst the discourses of securitization and illegality.
In the post-Westphalian world, the defined relationship between the state and citizens is presumed as sacrosanct to legitimize one’s existence. The link between the two necessitates the presence of a verified identity which legitimizes the existence of a person within the borders of the state. It structures one’s whole being. In lucid terms, statelessness challenges this state citizen relationship which marks the routine of a person’s life. The present book is filled with reflections on the ambiguities of the concept of statelessness, from legal definitions to the suggestions on modifications required in the concept.
Article 1 of 1954 Statelessness Convention defines a stateless person as the one “who is not considered as a national by any State under the operation of its law.” Despite this definition in international law, there is no general consensus over the definition of statelessness. The legal definition engenders a narrow conception of the term. The book sheds light on and clarifies the conceptual ambiguities regarding the concept of statelessness. As defined by Charlotte Anne Malischewski in “Legal Brief on Statelessness: Law in the Indian Context”, “the very notion of statelessness exposes the essential weakness of a political system that relies on the state to act as the principal guarantor of human rights” (p. 134). In her description, she distinguishes between de jure and de facto statelessness. While de jure statelessness occurs due to the non-existence of legal bond between the state and the person, de facto statelessness occurs when nationality is present but the legal bond is ineffective rendering the people vulnerable similar to that of de jure stateless persons. Adding to the exposition of de facto statelessness, Shuvro Prasun Sarker further categorizes de facto stateless into three groups: “1. Persons who do not enjoy the rights attached to their nationality. 2. Persons who are unable to establish their nationality, or who are of undetermined nationality. 3. Persons who, in the context of state succession, are attributed the nationality of a state other than the state of their habitual residence” (p. 163).
De facto statelessness is excluded from the restrictive narrow definition of 1954 Statelessness Convention which remained confined to de jure statelessness. Attempts have been made to render de facto stateless persons the status of refugees. However, it often raises the concern of providing protection to the latter due to the additional requirement of well-founded fear and lack of physical protection about which the book remains silent.
Majumdar tries to reveal the crisis in liberal notions of citizenship in managing diverse ethnicity by developing the essential link between the state and its citizens which needs to be proved, via documents as well as patriotic emotions towards a nation, at every step of an individuals’ routine life. The conception of citizenship is formulated in such a way that exclusion becomes a necessary part of it. Regular exclusion marks the presence of citizenship. Sachismita Majumder writes, “what they (legal citizens) enjoy is one extreme of the continuum between full, effective citizenship and de jure statelessness, in which individuals have neither legal citizenship nor any attendant rights. In between these extremes are millions of de facto stateless persons denied effective protection” (p. 91).
What is missed by the authors is the thin line that separates stateless people and refugees. The Rohingya are stateless refugees. As much as the scope of statelessness is important, so does the conception of what it means to be a refugee under international law and the flaws existing therein. While authors push towards revisiting the definition of statelessness, they do not seem to do the same for the narrow definition of refugees. Moreover, the book does not bring into question the functioning of the international law and the revision of the laws and definitions which develop ambiguities in its interpretation. The international law also grapples with legal positivist interpretation of law which is far from the practical reality. The theory is different from practice.
Embracing the Human Rights Approach
Nationality in India is granted by citizenship laws. Although India is not a signatory to Statelessness Conventions (Convention Relating to the Status of Stateless Persons, 1954 and Convention on the Reduction of Statelessness, 1961), India has acceded to the International Covenant on Civil and Political Rights which also affirms the provision of nationality under international law. Likewise, India has also ratified to the Convention on the Elimination of Racial Discrimination, 1965 under which India cannot racially discriminate during the process of providing nationality. Despite these conventions, however, India can still exclude people from nationality through the tricky deployment and amendment of citizenship laws.
Charlotte Anne Malischewski uses the conceptual division between primary sources or direct discrimination and secondary sources or structural discrimination made by founder of the International Observatory on Statelessness, Brad Blitz, to explain the factors and sources of statelessness. She states that in India, primary sources of statelessness include renunciation, termination and deprivation under the Citizenship Act of India 1955. On the other hand, secondary factors include state succession and lack of access.
The authors argue that not being a signatory to 1954 Statelessness Convention doesn’t give an excuse for India to not recognize the rights of stateless persons as other international instruments like International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), International Covenant on Civil and Political Rights, 1966 (ICCPR), CRC (Convention on the Rights of the Child), and CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) that India has acceded to shield the stateless persons from discrimination on several grounds. To reduce statelessness, authors suggest to make a move towards embracing human rights approach through these international instruments.
According to Malischewski, to reduce and resolve the concern of statelessness, what India needs is not mere accession to statelessness conventions, rather revision of citizenship laws, the application of few provisions of which is bound to produce statelessness. Shuvro Prosun Sarker also accentuates the primary concern for India, which is the relationship between protection of the stateless persons and human rights. He relies on cases decided by the Indian judiciary and debates in the parliament to determine the emergence of a protection regime for stateless in India.
While MPs can be seen showing interest in reducing statelessness through their discussions in parliamentary debates, these discussions do not produce a clear definition of statelessness. “It is derived from the discussion that MPs are considering any group who are present in India without an effective nationality as stateless, as they are continuously insisting the government to grant citizenship, expedite the citizenship granting process, propose a new bill, delegate powers and so forth” (p.165).
In this edited volume, authors can also be seen inclined towards taking up the case studies of different states of India. Focusing primarily on the struggles of Rohingyas who get detained and sent to correctional homes in West Bengal, Suchismita Majumder conducts interviews with 100 Rohingya in these correctional homes. Violence committed against Rohingya in Myanmar, as per the interviews, were of different forms: forced labour, restrictions on movement, restrictions on religious activities, restrictions on marriage, and restrictions on family size. Majumder shared many stories which revealed administrative and legal failure. She also refers to the neglect of UNHCR for ignoring lakhs of Rohingya living outside the camps in Bangladesh and not actively engaging with the self-settled population.
Similarly, from an ethnographic, anthropological and human rights perspective, Priyanca Mathur Velath and Kriti Chopra in their Chapter “The Stateless People: Rohingya in Hyderabad” looks at the challenges faced by the Rohingya in Hyderabad city. The study is done through the lens of their crisis of assimilation. While they point towards the failure of the state to keep a clear record of Rohingya population in Hyderabad, they laud the efforts of Confederation of Voluntary Associations (COVA), an NGO working for the rehabilitation of Rohingya. However, these efforts did not prove enough to address the grievances of Rohingya in Hyderabad. Receiving UNHCR refugee status is the first essential requirement for Rohingya asylum seekers in India. After the refugee status determination process under which the presence of well-founded fear of persecution is indispensable, they either receive a temporary card in three to six months of application process or get rejected. After rejection, they can go for a second appeal.
Madhura Chakraborty presents the situation of Rohingyas in Bangladesh and India using media reports and court judgements. How the bias of media in presenting facts sets the discourse of stateless people like Rohingyas and contributes in deteriorating the condition of Rohingyas turning them into Agamben’s ‘bare lives’ is the central theme of her chapter. “Rohingya become characterized as a ‘problem’, a figurative disease carrier that literally infects Bangladesh (with sexually transmitted diseases, for instance) and metaphorically infects the country by strengthening the cause of Islamist fundamentalism” (p. 114). She argues that “the creation of the Bangladeshi victim necessitates the erasure of Rohingya as victims. Rohingya become footnotes in the Bangladeshi boat people story” (p. 119).
India is neither a signatory to Refugee Conventions or Statelessness Conventions. It takes arbitrary decisions when it comes to refugees surviving in India. Sahana Basavapatna raises significant questions pertaining to the need to adopt refugee law and to allow legal documentation that is not part of Indian law. She fills the lacunae that can be found in the rest of the book, i.e. an assertiveness to call for a solution. She agrees that in the case of Rohingya the status of stateless persons and refugee overlaps. She begins by asking whether such overlap works in favour of Rohingya or they are treated similar to other refugees. Calling the similarity of experiences between Rohingya and other refugees as oversimplification, Basavapatna observes whether the treatment of Rohingya in India also calls for reconsideration of the analytical lens.
However, surviving amidst many illegalities in slums, the Rohingya population have made their survival possible only through many exceptions that the state made. The state in its different forms interacts with the refugees on a regular basis. During this interaction, the state plays its ‘politics of hospitality’, the phrase used by Ranabir Samaddar. Through its arbitrary decisions, it decides which community can prosper within its borders and which community has to follow additional do’s and don’ts. The Rohingya fall in the latter category where additional rules are to be followed. More than a refugee, they are considered a threat to the security of the nation.
As for solutions, the book suggests that decisiveness in India should be marked as per the international instruments it has acceded to. Citizenship Amendment Act of 1955 should be revised so as to remove those elements which produce statelessness. Discourses of securitization and illegality needs to be changed so as to treat Rohingya at par with other refugees. Time is ripe for a uniform refugee law.
While the title of the book The Rohingya in South Asia: People Without a State indicates an analysis of the treatment of the Rohingya community in South Asian countries, the book remains primarily concerned with Rohingya in India and Bangladesh. The term ‘South Asian’ is barely signified with five chapters on India and merely one chapter on Bangladesh and one chapter capturing the Rohingya at sea, i.e. the Bay of Bengal. Other countries that have been overlooked despite being a part of the South Asian subcontinent include Nepal, Bhutan and Sri Lanka. There are around 300 Rohingya living in Kathmandu with 600 scattered in other parts of Nepal (Prasanna 2020). In Sri Lanka, accommodations of Rohingya came under attack by the native Buddhist population (DD News 2017). The treatment of Rohingya population in these countries also calls for an in-depth research. However, with its cogency on legal instruments on statelessness in India and robust arguments on the need to change the condition of Rohingya, the book is of contemporary relevance and may attract legal scholars and policymakers working in the field of refugee studies and social sciences.
Prasanna, Mahat (2020): “The Rohingya in Nepal”, Kathmandu Post, 1 January, https://kathmandupost.com/columns/2020/01/01/the-rohingya-in-nepal
DD News (2017): “Buddhist monks protest accommodation of Rohingya refugees in Sri Lanka”, 27 September, http://ddnews.gov.in/international/buddhist-monks-protest-accommodation-rohingya-refugees-sri-lanka
Hemaadri Singh Rana is a Ph.D scholar at Centre for Political Studies, Jawaharlal Nehru University, New Delhi, India. Email: email@example.com
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