Law of politics

Author: Dhakshayanee Srinivasan



Refugees are subjected to inhumane and cruel treatment not only in the home country but sometimes in the host country as well. Mass influx of refugees are often perceived as a burden to the economy and as a threat to the national security for refugees are often linked to terrorism and terrorist activities. The case of Rohingya refugees in India is no different. The Rohingyas migration to India can be traced via two routes: first through Bangladesh and second by north Eastern states such as Meghalaya and Mizoram. A study conducted by the Mixed Migration Centre had identified that most of the refugees who come into India are fearful of being apprehended by the Border security force. A recent order of the government to deport 40,000 Rohingyas had sent shockwaves across the country and pursuant to that order a Public interest litigation was filed by two refugees stating that India was in violation of established principles of international law. The author through this paper would like to discuss the othering techniques and securitization language used by the government of India in constructing the Rohingya refugees as the ‘other’. This is discussed in three folds. Firstly, the conceptual framework and academic debates surrounding the concept of othering and securitization of migration. The works that are relied upon are of Susan J. Stabile and Giorgio Agamben. Secondly, the paper analyses how the aforementioned concepts of othering is employed by the Indian government. At this juncture, the focus is placed on how the refugees are stripped off of their rights legally by analysing the Foreigners Act,1946. Finally, the author discusses and recommends legal and political suggestions to effectively regulate and abolish the practice of othering


This section of the paper deals with the theories and the academic debates surrounding them as a setup to the case study with India and its approach to the Rohingya Refugee crisis. The framework is discussed in three folds: Firstly, the concept of othering and the factors that contribute to othering are discussed; secondly, the through the concept of identity, the process of constructing refugees as “undesirables” is discussed and finally, causal link between terrorism and migration is discussed. At this juncture it becomes imperative to note that the study and conceptual framework that underpins this essay are those of Agamben and Susan. J. Stabile.

1.1.1 Religious Underpinnings

Susan. J. Stabile highlights that regrettably religion has often been used as a  tool to divide and segregate people. This can be attributed to the fact that for many, religion operates as the single truth and views contrary to those expressed, are considered inferior and false. In order to establish their “superior” faith, violence was often resorted to by men and even in circumstances which do not culminate in violence, a religious fundamentalist approach would more often than not lead to othering. She highlights the incidents of the crusades, Islamic jihadists, the conflict in northern Ireland and ISIS

1.1.2 Cultural Underpinnings

Relying on the work of David Brooks where he emphasizes on the need for an establishment which cuts across the ethnic, racial and social backgrounds of people, Stabile highlighted that although cultural pluralism is much needed in a society, there exist ideologies that harbour a sense of segregation by turning cultural identity into a political section.

1.1.3Legal Underpinnings

Susan. J. Stabile brings to the light the fact that law (which not only includes legislation but also the executive who implements the law and the judiciary) may legitimize and institutionalize othering. Drawing from the examples of post-World War 2 effects in USA towards Japanese origin people and “ugly law” concepts of Cathleen Kavney she highlights that legislations and judicial actions more often than not legitimize othering. Furthermore, she contends that via the speeches and tone, the government

1.2 Refugees as Undesirables

At the core of this section lies the concept of identity and how refuges are ascribed certain identity which connotes them as the “other” or as undesirables. Refugees are often subject to the laws of the country that they seek refuge in. Owing to the difference in political structure and the difference in the laws that exist in different countries, they (the refugees) often find themselves in difficult and conflicting situations. The UNHCR defines this as “identity reformulation” and states that in the case of refugees, the “othering” often manifests in multitudinous folds. Crucial to constructing refugees as undesirables, are the 4 pillars of manifestation of othering coined by Grove and Zwi .The four pillars are: “the language of threat; queue jumping and uninvited guest; charity and choice; overload”. Firstly, in constructing them in the language of threat, extraordinary and extreme measures against them such as detention and pushbacks are often justified. Secondly, the notion of uninvited guests and jumping the queue further solidify the concept of othering by differentiating people who go through an immigration channel and those who claim international

protection. Grove and Zwi, note that tags such as “uninvited guests who jump the queue” often undermine the experience of the refugees and the situation from which they hail. Moreover, owing to the dynamic nature of refugee flow, the laws and policy on refugees often shifts the focus on the reasons as to their movement to the state’s sovereignty and guard its borders. Thirdly, the notion that the host government are doing a charity when they assess an asylum claim suggests that refugees are often perceived as a burden. Furthermore, despite international law claiming it to be an obligation, in practice it is often perceived as an act of charity. Finally, the approach of the host countries generally lean towards characterizing the limit of accepting refugees to be at their maximum capacity and often “overloaded”. Consequently, such overloading would result in shortage of resources.

Stemming from the four pillars we then are forced to divert our attention to the question as to why they are considered as undesirable. From the above discussion we can point out that the answer is two-fold: they are considered as a threat to the economy and as a threat to the national security. The scope of this paper is limited to analysing the construction of refugees as a threat to the national security.

  1. Securitization debates: A causal link between terrorism and forced migration

The securitization theory was developed by the Ole Waever of the Copenhagen school. He opined that the act of securitization is a “speech act” i.e. the security is neither a subjective nor an objective but rather constructed socially through “speeches”. The speeches here entailan interaction between the actor (the government) and the audience ( the people in the country).The securitization act focuses upon the acceptance of the audience (i.e. the people of the country) accede to the fact that there exists a threat for which the proposed extreme measures seem acceptable. Subsequently, this leads us to the fact that securitization not only involves speech acts but political situation of the specified country and as well as the policy practice. Thus it becomes important to study the brief history of how the “actor” came into being. Thus when securitizing migration, the rhetoric mentioned above ( threat to economy and national security) are the tools often employed by the actor (the government). Furthermore, in terming them as a threat to national security, a preconceived notion as to that there might be terrorists among these refugees calls for an extreme measure. In analysing the need for

securitization of migration, Boswell had noted that often such measures are taken up in lieu of ‘power maximization’.Terming such an issue as onethat involves threat to national security can often gain the approval and legitimacy it requires to implement extreme measures. Consequently, it leads to a situation where the human rights of an individual would often be undermined for the sake of legitimizing security measures. When discussing the legitimization of security measures, due consideration must also be given to Giorgio Agamben’s Homo Sacer.


This section of the paper deals with India’s policy on the Rohingya refugees. This is approached in a three folds. Firstly, a brief outline as to the Rohingya refugees is highlighted. Secondly, the indian stance is described by taking into consideration the political factors (Indo-Myanmar relations; the presumptions on the present Bhartiya Janata Party led government (hereinafter referred to as BJP) as a predominantly a Hindu Nationalist government and how the government’s speech acts helped in construing the Rohingya Refugees as the other (perceived and construed as a threat to the national security is discussed and at the core of this analysis is the interview given by Rajnath Singh, the then Home Minister of India. Finally, how the refugees are ascribed as “other” legally by focusing on the Foreigners Act is analysed.
2.1A Brief history of the Rohingya Refugee Crisis

The Rohingyas are a Muslim community who live in the Rakhine state in Myanmar. Even within the country they are considered to be stateless and thus lack access to rights and guarantees. Owing to their ethnic and religious backgrounds in a Buddhist majority state they were excluded from the census and the first democratic elections as well.They were construed as illegal immigrants from Bangladesh.The military crackdown  in August 2017 acted as a catalyst to the movement of Rohingyas from Myanmar to Bangladesh. Following the report published by the UN in August 2018 which termed the mass exodus as a genocide, the International Court of Justice in January 2020, had delivered an interim order to the Myanmar government to take measures to protect the Rohingyas from being persecuted. Furthermore, the International Criminal Court had taken Suo motu cognizance of the issue and had approved an independent investigation alleging that the Myanmar government had committed crimes against humanity and war crimes. At this juncture it becomes imperative to highlight the role played by Indian government.

2.2India’s role in the issue

This section i.e. the role played by the Indian government will primarily focus on the executive limb of the government and the role it played. It is analysed in two folds: firstly, as a foundation for analysing the speech acts of the government, the rise of BJP to power is highlighted. Furthermore, the “presumption” as to the government being a Hindu Nationalist as opposed to being secular is crucial to understand the speech acts and hence being highlighted. Secondly, India’s Refugee policy with respect to Rohingyas is discussed. At the core of this issue is the Indo-Myanmar bilateral relationship and the interview (which is considered as speech acts) given by Rajnath Singh, the then Home Minister aid to construing the refugee as the other by using securitization language.

  1. A Hindu Nationalism or Secular?: BJP’s rise to power

A presumption as to the nature of the BJP as a Hindu Nationalist government i.e. which appeases or caters to Hinduism is prevalent not only in the western media but within the country as well. At this juncture it becomes imperative to briefly venture into how the BJP set its footprint in indian electorate in 2014 and for the second term in 2019. In order to understand the political background in India, it becomes important to understand the concept of secularism from the indian perspective. As opposed to the traditional western school of thought on secularism which advocates a strict separation of the church and the state, India on the other hand practices the concept of principled distance i.e. it recognizes that religion often manifests as a practice in the public domain and serves as an identity to many, however it does not necessitate that religion acts as a ground for discrimination or distribution of rights and guarantees. In other words, religion may intervene in the state only if such intervention advances the concept of freedom, equality or any other quality central to secularism. Whether the two main national parties (the Indian National Congress and the BJP) are secular is not within the scope of this paper. A Hindu nationalist organization in 1925 named the Rashrtiya Swayamsevak Sangh (hereinafter referred to as RSS) was established in as a response to the colonial rule and the brewing riots between Hindus and

Muslims. Although initially it was not established with an intent to manifest as a political organization, in 1951 it changed its character and established its political wing the Bhartiya Janata Sangh (BJS). Following the Sikh riots, recognizing Aligarh Muslim University as a minority institution and invoking sharia law as a framework in the wake of Shah Bano case, the INC was accused of being pseudo secular and appeasing one particular  religion to gain vote banks. Following the break in BJS, BJP was established in 1980.The idea on which the party operated went from positive secularism to Hindutva to being liberal. Owing to its founding organization being affiliated to RSS it was often perceived as promoting Hinduism and thus against other religions. Furthermore, the stand it took against issues like Ramjanmabhoomi (which centres around the contention that Babri Mosque was built on the demolished temple of Ayodhya, the birthplace of Lord Ram. The Supreme Court recently had ruled that the site was in fact the birthplace of Lord Ram based on the archaeological evidence), beef ban ( which centres

around banning illegal slaughter houses), abolishing triple talaq (which forms a part of condemnable practice in Islami.e. talaq-ul-biddat) and the recent citizenship amendment act solidified the fact that the government was often perceived to take on an Hindu agenda. This brings us to the question as to how a political party which was perceived to be anti-secular manage to capture a single party majority in both 2014 and 2019 general elections. The Carnegie Endowment for International Peace in its study of indian democracy and religious nationalism had noted that the elections in India are majorly fought on two axis namely politics of statism (which deals with the level of state interference in moderating societal norms) and politics of recognition (which deals with addressing pre-existing inequities present in the society). In the 2014 election, statistics show that the party had not only swayed the “upper class” members but also marginalized voters. The corruption scandals committed by the INC led coalition, the perception that the party was “dynasty” oriented added fuel to the fire. Departing from the traditional views of Hindutva that the party represented, the candidacy of Narendra Modi as Prime Minister banked upon economic and business friendly policies which was modelled out of the success in Gujarat and the representation of marginalized communities was made more prominent. Continuing the “modi wave”, in 2019 the party was set to form the government for the second term. The key factor as identified was linked to not only to economic performance of the country but as well as taking a stand against terrorism that the country is plagued with unlike the soft approach taken by the opposition.

2.2.2 India’s Rohingya Policy

Within the framework of Hindu Nationalism that the government is presumed to be acting on as the focal point for understanding the stance taken in the Rohingya issue. This will be dealt in two folds. Firstly, the obligation of the country under international law will be highlighted. Secondly, the stance taken by India (by focusing on the speech acts of the government agent) and the factors that contributed to it are considered.
2.2.3 International Obligations

India neither a signatory to the Refugee Convention, 1951 nor its optional protocol, has signed and ratified various human rights conventions such as the International Convention on Civil and Political Rights and the Convention Against Torture and Cruel Inhumane or Degrading Treatment which mirrors the principle of non-refoulement mentioned in the Refugee Convention. Even in such a circumstance, the principle of non-refoulment has evolved to be a customary international law i.e. a country has to abide by the principle irrespective of the status of ratification.The principle of non-refoulment however is subjected to the limitation provided under Article 33(2) which states that in light of public order or national security a country may deviate from the principle of non-refoulement. Constructing the Rohingyas as a threat to National Security

It is this provision (Article 33(2)) that India banked upon to justify the deviance from the principle of non-refoulement. This section of the paper will deal with the three phases of stance taken by the Indian government and the factors contributing to the such stance.

India’s response to the Rohingya issue can be dealt in three phases. The first phase( in 2013) was characterized by a marked sympathy towards the Myanmar government. The Indian government characterized the conflict as an internal matter and did not choose to intervene. Despite them being characterized as such, the refugees were let in the country and the principle of non-refoulement and voluntaryrepatriation was strictly adhered to. However, even with the change of government in 2014 (rise of BJP), the stance taken by the previous government was accepted and remained unchanged. The driving factor behind the stance is the fact it might push Myanmar towards China furthermore. Myanmar was ignored in 1980s which helped China establish its footprint. Additionally, the establishment of commercial ports (which are used for military purposes) in Srilanka, Pakistan and Myanmar (countries that surround India) setIndia in the backfoot.The second phase is marked by the plans of the government to deport the refugees, who were termed as illegal immigrants back to Myanmar

The factors behind the decisions taken by the government is marked by the security risks and the need to diplomatically balance between both Bangladesh and Myanmar as well. At this juncture, the construction of Rohingyas as a threat to national security is of importance. For analysing the securitization rhetoric surrounding the issue, the speech given by the then Home Affairs Minister Rajnath Singh in a seminar organized by the National Human Rights Commission (hereinafter referred to as NHRC) in September 2017. Excerpts from the speech (which are translated to English) are as follows:

We have to think about human rights of our own people before talking about human rights of people from other countries…

The Home Ministry has clarified its position via an affidavit to the supreme court that they (Rohingyas) are illegal immigrants and they will be deported. They are not refugees. Furthermore, there is a procedure to grant them the status of refugee and none of these procedures have been followed. They have neither applied for international protection nor received any asylum in India….

people say that India is in contravention of International law. I say there is no contravention of international law. The law which governs refugees i.e. the Refugee Convention, 1951 has not been signed and ratified by India…

the issue of national security is often linked to the illegal immigration and the affidavit provided to the Supreme Court states that they have ties to Islamic State and other terror outfits…” By looking at the excerpts from the speech made by the government agent, it can be clearly construed that the Rohingyas via the language of securitization, are being branded as the “other”. However the author would like to point out that as a response to the statement made by the Minister, due consideration must be given to the decision of the

Supreme Court in Vishaka vs. State of Rajasthan[1] where it was held that the in absence of a domestic law in the field, the contents of the international convention can be used for interpreting the rights. Furthermore, this adds to argument that the government led by BJP is anti-muslim.

The third phase[2] of response from the government starts soon after (November 2017 onwards) the speech made by the then Home Minister Rajnath Singh, when China proposed a three step plan addressing the Rohingya issue. With geopolitical interests in mind, the country was quick to initiate the plan of ensuring safe return of the Rohingyas and of building and maintaining standard conditions of living to those who returned back to Myanmar

2.3 Foreigners Act: Bringing Agamben’s sovereign ban to life

As mentioned earlier, India lacks a specialized domestic legislation which deals with refugee status recognition. Also it isnot a signatory to the Convention on Status of Refugees, 1951. Currently, refugees are termed as foreigners or illegal immigrants who act as a burden on the economy or pose a threat to the national security. Legally stripping of rights vested with those who are termed as refugees is a concept explored by Agamben in his work “Homo Sacer”. This concept will be applied in the Indian context by taking into consideration the plight of Rohingya refugees. A slew of Public Interest Litigation cases were filed in the Supreme Court of India in 2017 challenging the order of deportation of Rohingya refugees to Myanmar.  The petition was filed by two refugees who banked on the report by Reuters that the government had intended to deport the 40,000 refugees from India. It was contended by the petitioners that the said order under Section 3(2)(c)

of the Foreigners Act,1946 violates not only the constitutional guarantees but as well as the principles of international law. Apart from testing the legality of the order, a question as to the degree of applicability of fundamental rights to non-citizens was also raised. The respondents (the state) in the instant case contended that Article 19 does not extend to non-citizens and owing to the reason that India is not a signatory to the Refugee Convention, they are bound by the principle of non-refoulment. The direction of the government dated 08 August 2017 had instructed the state governments to report on Rohingyas who were suspected of engaging with terror outfits and deport all of them was also placed under scrutiny. On October 04, 2018 the Supreme Court refused to interfere with the government’s decision to deport 7 refugees back to Myanmar. A fresh petition was filed and along with the initial one filed by Mohammand Salimullah. Currently as of 10 January 2019, the Supreme Court had combined all the existing petitions challenging the deportation of Rohingya refugees and had posted them for hearing.  At this juncture it becomes imperative to analyse the laws which deals with refugees. This will be dealt in two folds: firstly, the laws governing refugees in India are discussed and secondly, the Foreigners Act,1946 is focused upon and analysed

2.3.1 Laws governing Refugees

Although there exists no specialised legislation dealing with refugees, the Passport (Entry into India) Act,1920; Passport Act, 1967; Registration of Foreigners Act, 1939; Foreigners Act, 1946 and Foreigners Order, 1948

deal with “foreigners”. Within the ambit of the term ‘foreigners’, lies people who seek asylum in India as well.

The Passport (Entry into India) Act,1920 and the Passport Act,1967 require that the person who is entering India to have a valid passport. The former vests power with the central government to make rules and orders regarding the passports and may in certain circumstances (analysed on case to case basis) provide for an exemption However this act was repealed by the Passport Act, 1967. The Passport Act,1967 deals with rules and regulations regarding issuing and impounding a passport of a person. Generally, one of the main prerequisite for obtaining an indian passport is that the person be a citizen of India. However, in the interest of public and pursuant to the notification of the central government, passports may be issued to non-citizens.

The Registration of Foreigners Act, 1939 was enacted with an intent to register the foreigners stating in India. The act requires that any foreigner entering India present, on demand, valid documents and identity cards Furthermore, the act vests powers with the central government to exempt a person or class of persons from the ambit and scope of the act The Foreigners Act,1946 was enacted by the imperial legislative assembly which grants the interim government powers to deal with foreign matters. A detailed overview of which will be discussed in the subsequent section. The Foreigners Order, 1948 vests power with the state government to grant or refuse entry into India on certain grounds: which includes lack of valid passport, public safety and or the conditions under the Foreigners

2.3.1 Analysis of Foreigners Act,1946

At the outset, the author would like to highlight the fact that the limiting the scope of analysis to Foreigners Act,1946 is in light of the case pending before the Supreme Court as mentioned earlier.

The Foreigners Act,1946 was enacted by the Imperial Legislature (before independence) in the wake of second world war in order to deal with matters regarding foreigners. The act reproduces the provisions of the Foreigners Act, 1940 which was deemed to vest wide and unfettered powers in the hands of the government.The act vests power with the central government to regulate and make rules regarding entry, presence and departure of foreigners into India. The act defines a foreigner as a person who is not a citizen of India. At this juncture it is imperative to note that since India does not have a domestic legislation that explicitly deals with refugees, they are categorized as ‘foreigners’ under the act.

The focal point of the act revolves around the wide and unfettered powers vested with the government Section 3 of the act vests the government the power to make orders regarding entry, presence or departure with respect to an individual foreigner or a class of foreigners. Additionally, such an order by the government can entail that the foreigner enter or not leave India “only by such routes and places or ports”as prescribed by the government. The section provides for restricting freedom of movement (in addition to detain, arrest or confining them) and right to life. The penalty for contravention of the provisions of the act includes arresting the concerned person up to 5 years and is also levying fine.

The act at the outset, ascribes a different legal personality for a refugee. By including refugees within the ambit of the term ‘foreigners’ not only violates the rights vested with them under the Refugee Convention but also the fundamental guarantees of Right to equality under Article 14, right to life as envisaged in Article 21 and freedom of movement as envisaged in Article 19. Additionally, owing to the lack of a specialised legislation dealing with refugees, other penal or criminal legislations ( which includes Indian Penal Code, 1860, Indian Evidence Act etc) would be made applicable to the refugee) which given their individual circumstance may hamper their rights and guarantees. Furthermore, the act vests wide discretionary powers to the state. At this juncture it becomes imperative to note that the Foreigners Act, 1946 was amended in 2015, which included provision 3A.[9]This provision stated that the people belonging to the minority communities in Bangladesh and Pakistan, which explicitly includes Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek refugee (by reason of fear of religious persecution) were allowed to enter with or without valid travel documents.Currently, the petition challenging the validity of the Amendment Order,2015 is pending in the Supreme Court.

Transposing the provisions to the Rohingya issue, the order of deportation was made pursuant to Section 3(2)(c) of the Foreigners Act,1946not only vitiates their rights but raises the two folds argument that the law brings to life the concept of sovereign ban (where the state’s sole power relies on the power to include or exclude people within its bios) and has led to a circumstance where the rights of the refugees are stripped of legally as proposed by Giorgio Agamben and the present government is engaged in othering especially towards the Muslims.

In a situation where the legislation ( or lack thereof) or governments fails to protect the rights of refugees, the duty dawns upon the judiciary to uphold these rights. However the courts in Louis De Raedt&Ors vs. Union of India& others ; Vincent Ferrerr vs. District Revenue Officer,Anantapur have upheld the government indeed has unfettered rights to expel a foreigner. Quoting the judgment “ The power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. The legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner.


The two factors that drive the refugee policy in India are political recognition of the refugees and humanitarian relief measures. The so called vote bank politics to appease certain sections of the society has often characterized by disinclination of the legislators to act on the refugee issues. The Institute of Peace and Conflict Studies had highlighted this phenomenon by using the vetoing the repeal of Illegal Migrants (Determination by Tribunals) Act, 1983. The act was enacted with a view to regulate theinflow of illegal immigrants from Bangladesh who settled in Assam posing as  citizens of the country. Although India’s approach to refugees have been quite welcoming and inclusive, the decisions of the present government with respect to the Rohingya refuges have been quite contrary to the established position of India. Use of the securitization language and construct them as others (by speech acts and as well as using legislations), violate their rights and the guarantees vested with them. In a circumstance where the law confers unfettered and wide range of powers to the central government  (vide section 3 of the Foreigners Act,1946) and lacks clarity, it becomes the role of the judiciary to uphold the rights of refugees. Subsequently, the role that has been taken up by the judiciary has been restrictive and limiting the scope of the rights applicable to that of the refugees as aforementioned. This raises the need for an domestic legislation which specially deals with identifying and dealing with refugee inflow along with proper authorities and organization structure that supports the refugees.

Although the government, as mentioned above in previous sections, has been engaged in the act of othering legally and through its political discourse, a recent bill that has been put forward for consideration of the Rajya Sabha (Upper house of the Parliament) can be considered as a step in the right direction. The Refugee and Asylum Bill,2019 had been introduced by the Husain Dalai, as a private member bill, which is now being considered in Rajya Sabha . The bill seems to unify the varied state practices with respect to refugees and bring in  uniform standard of identification and other processes with respect to a person seeking protection. The bill mirrors provisions of the Refugee Convention, 1951with respect to recognizing the principle of non-refoulement, voluntaryrepatriation, cessation of the refugee status, rights and guarantees (for instance, family reunification and right to legal assistance etc.) vested with them and the role of United Nations High Commission for Refugees(hereinafter referred to as UNHCR). Furthermore, for effective implementation of the provision of the bill, it proposes establishment of a commission that will assess the applications for asylum, cessation of refugee status and revocation or cancellation of the status. The refugee can further appeal against the decision of detention, repatriation or any other order as prescribedunder the bill. Such a commission is to consist of a chairperson (whose rank should be that of a judge of a High court), ten to twenty full time judicial members, ten to twenty expert members and a member of the UNHCR, persons having specialized knowledge on matters before the commission (appointed on case to case basis).

Although legally introduction of such a bill serves as a giant leap in the right direction, politically certain changes are to be incorporated so that the rights of the refugees are protected. The following are certain recommendations put forth by the author:

  • The plight of refugees are not to be seen as vote bank politics or in the larger scope not to be politicised. Unfortunately, such is the current practice in India.
  • The current practice in India is to turn a deaf ear to mass influx of refugees and they are grouped into one category. However such should not be the case and each must be assessed individually.
  • The author concedes that India faces difficulties with respect to terrorism. However, usage of securitization language to construct all refugees are terrorists or constructing them as threats violates not only their rights but affects them psychologically as well.


Giorgio Agamben in his work the Homo Sacer had discussed the concept of sovereign ban and othering. He had stated that the sovereign’s sole power rests on the fulcrum of its ability to include or exclude people within its bios (or territory). Furthermore, he states that refugees are people who are deemed to have no rights. Unfortunately, this practice of othering is still being employed by the states to regulate the mass influx of refugees into their country and circumvent the international conventions and practices. Key to constructing the idea of “Us vs. Them” is the usage of speech acts, legislations and constructing the refugees as a threat to national security. This space where the refugees are legally stripped off of their rights is what Agamben terms as “ refugee camps”. This paper analysed the concept proposed by Agamben and transposed it to the current situation of Rohingya refugees in India.

In order to analyse the refugee policy of India, a brief profile as to the current political scenario was discussed. The BJP lead government is often perceived as being anti-muslim and keen on establishing a “Hindu” state. Since the majority of the Rohingya refugees practice Islam this forms the core background of the stand taken by the government. This perception of the government coupled with the lack of specialised domestic legislation leaves the refugees at a disadvantageous and vulnerable position. To further strengthen the argument that India is moving towards a phase of othering and exclusion, is by analysing the legislations with deals refugees (either implicitly or explicitly) and the judicial decisions surrounding the area. A slew of judgements such as Louis De Raedt & Ors vs. Union of India & others; Vincent Ferrerr vs. District Revenue Officer, Anantapur had always stated that despite the availability of rights to refugees under the constitution, the right to reside and remain in India is not applicable to them and the government has absolute and unfettered rights to expel or include any foreigner into the country. Furthermore with respect to the Rohingya refugees the public interest litigation filed by two refugees challenging the deportation order passed by government pursuant to Section 3(2) (c) of Foreigners Act,1946 in 2017. At this juncture it became crucial to analyse the term ‘foreigner’ and the usage of the term with respect to refugees. It was found that the Foreigners Act,1946 was archaic and ascribed a different legal characteristic (within the wide ambit of the term foreigner which used to connote all persons who are not citizens of India) to the refugee.

At this juncture the need for a concrete domestic legislation was recognised and the Refugee and Asylum Bill,2019 can be construed as a step in the right direction. Furthermore, the author suggested that the refugees are not to be politicised and the practices of the securitization language ideally become outdated or banned, if not, must be kept at its minimum.



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