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The ‘Inside–Outside’ Body
In the context of the stand taken by the National Human Rights Commission of India on the Rohingya refugees, this article probes its location as an “inside–outside” institution. As an institution of “internal restraint” to exercise vigilance over the state, the commission is both constrained and empowered by the Protection of Human Rights Act, 1993, which brought about its existence, as well as its location within the domain of the state, which often reduces it to performing a legitimisation function. Yet, over a period of time, though unevenly and sometimes ineffectively, it has carved out triumphal moments that have opened up state actions to judicial and public scrutiny.
On 18 August 2017, the National Human Rights Commission (NHRC) issued a notice to the Ministry of Home Affairs over its move to deport “illegal Rohingya immigrants to their native country.” The NHRC had taken suo motu cognisance of media reports stating that the Government of India planned to deport about 40,000 illegal Rohingya immigrants from Myanmar, who were residing in different parts of India. Indeed, it was reported that the government was already in conversation with the governments of Bangladesh and Myanmar about this, and was planning to set up detention centres for refugees to be able to “push them back” to Myanmar when required. An advisory issued by the union government had delegated to state governments the power to “identify and deport the foreign nationals.”1 The NHRC gave the government four weeks to respond. The notice stated that while the Rohingyas were foreign nationals, they were human beings first and that they feared persecution if they were pushed back to their native country. In addition, the NHRC also pointed out that the fundamental right to life and personal liberty in Article 21 of the Indian Constitution applied to all whether they are citizens of India or not.
Indeed, the NHRC’s notice to the central government was in consonance with the position of the United Nations (UN) on refugees and stateless persons. It is not surprising, therefore, that soon after the Indian minister of state for home stated the Indian government’s position on the Rohingya refugees, calling them “illegal migrants,” and declaring them a threat to national security, the United Nations High Commissioner for Refugees (UNHCR) reacted strongly. The UNHCR made two points. First, the fact that India had not signed any of the UN conventions, only meant that it did not have an obligation under international law on the matter; it did not mean that the question of protection could not be considered by it as a matter of “basic human compassion.” Second, the UNHCR pointed to other sources from which the Indian government’s responsibility to protect the Rohingyas as refugees could be drawn: customary law, the International Covenant on Civil and Political Rights which India had ratified, and finally the “obligations of due process and the universal principle of non-refoulement,” which stated that a state could not expel people, compelling them to return to a place where they were at risk of their lives and violation of their human rights.
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