This article is written by Priyam Mittal, 3rd Year Student, B.A. LL.B. (Hons.), WBNUJS Kolkata.
In early April, the Supreme Court (“SC”) passed an interim order in the pending case of Mohammad Salimullah and Anr. v. Union of India, denying the release of detained Rohingya refugees in Jammu. The petitioners had filed an interlocutory application requesting the Union to not deport the detained refugees till the main case concerning basic human amenities to the refugees was decided. However, the SC held that the refugees “shall not be deported unless the procedure prescribed for such deportation is followed”, thus setting into motion the deportation proceedings.
Rohingyas are the largest Muslim ethnic group in Myanmar, described by the UN Secretary-General “as one of, if not the, most discriminated people in the world”. The Rohingyas have been facing increasing discrimination in Buddhist-majority Myanmar since the 1970s. Since 2017, they have fallen prey to a systematic campaign launched by the Myanmar armed forces with the sole purpose of inflicting physical, psychological, and emotional violence on the Rohingyas. The widespread cruelty and the change in citizenship laws have left them stateless and resulted in close to a million Rohingyas fleeing to neighbouring countries. An estimated 40,000 Rohingyas have also sought shelter in India.
This blog analyses the issue from two perspectives. First, it critiques the SC’s holding that India has no international law obligation to protect the refugees from deportation. Second, it argues that the refugees were also entitled to Constitutional protections, but the ruling failed to extend the same.
A Travesty of International Human Rights
The SC has brought in the applicability of Customary International Law (“CIL”) into the domestic regime and stressed interpretations consistent with the international commitments, so long as it does not contravene the municipal law. Ironically, in its order, the SC also admitted that national courts could “draw inspiration from international conventions/treaties” but stopped short at that. It refused to take into account international law obligations, particularly non-refoulment, that India owed to the Rohingyas.
Non-refoulement is expressly embodied in Art. 33 of the Convention Relating to the Status of Refugees, 1951 (“Refugee Convention”), which India is not a party to. Under non-refoulement, States are proscribed from expelling or deporting refugees to territories where there is a significant threat to their lives or other rights because of their race, religion, nationality, etc. Any State in the process of expelling refugees must first assess the conditions prevailing in the receiving country and ensure there is no threat to their lives or rights.
While India may have no municipal law that adopts the principle of non-refoulement into the domestic regime, it is still required to adhere to it. This is on two accounts. First, there is a consensus that non-refoulement is CIL. While further elaboration is outside the scope of this blog, there is sufficient evidence in the actions of States to show a consistent state practice and the regard for non-refoulement as legally obligatory or opinio juris. Thus, it fulfils both requirements of CIL.
Second, while India may not be a party to the Refugee Convention, it has ratified several other international treaties which also uphold the essence of non-refoulement and make it squarely applicable to the present case. For instance, Art. 6 of the International Covenant on Civil and Political Rights (“ICCPR”) mandates that no person be arbitrarily deprived of his life, while Art. 7 prohibits persons from being subject to inhuman, degrading treatment, cruelty, or torture. The 44th Session of the Human Rights Committee interpreted this provision to mean that individuals must not be exposed to inhuman treatment upon refoulement to another state. Further, the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) has also been interpreted to give voice to non-refoulement. India has signed and ratified both the treaties and unequivocally accepted its commitment under them.
Further, under Art. 3(1) of the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (“CIDT”), state parties are prohibited from refouling persons to states where he/she could be subjected to torture. Art. 3(1) of the CIDT has been held to be a peremptory norm by the ICJ, and cannot be derogated from under any circumstance. Therefore, the Government should have been accountable for not fulfilling their duty of providing the Rohingyas with a fair and efficient asylum procedure that guarantees sufficient protection to their life.
Apart from non-refoulement, India might risk violating its international human rights obligations under ICERD and related treaties if it deports the Rohingyas. States are required to neither be complicit in racial discrimination nor introduce foundationally discriminatory programs, and the same must be adhered to as peremptory norm. Thus, India must not only not discriminate against the Rohingyas but also prevent them from being subject to discrimination in Myanmar. However, deporting them to Myanmar would inevitably mean leaving them vulnerable in a territory that has systemically perpetrated human rights abuse on them.
Most importantly, this order would also lead to violation of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). Prohibition of genocide is an obligation ergo omnes, that is, it is owed to the international community as a whole. States must act in a manner that upholds their objectives of preventing, prosecuting, or punishing genocide. An independent fact-finding mission, a UNHRC report, and several human rights scholars and activists have all concluded that the actions of Myanmar amount to committing genocide against the Rohingyas. An order of deportation to Myanmar will thus amount to a failure to prevent genocide.
Transgressing the Ethos of Art. 21 of the Constitution
The court’s primary reasoning on the Constitutional contentions is that the “right not to be deported” forms part of Art. 19(1)(e) of the Constitution of India, which gives only citizens the right to settle or reside in any part of the country freely. Since the Rohingyas do not possess citizenship, they cannot claim a Fundamental Right not to be deported, and Arts. 14 and 21, albeit available to non-citizens, have no application in the current case. This understanding completely ignores Art. 21, which prohibits depriving a person of his life and liberty except according to a procedure established by law.
The Rohingyas, as persons, possess a right to seek asylum in Indian camps without facing deportation to a country where they will most likely be victims of genocide. Both in Maneka Gandhi v. Union of India and Govind v. State of MP, it was emphasised that Art. 21 is an elastic concept and consists of a penumbra of un-enumerated components, which must be determined from case to case. A similar approach has also been previously adopted by the Gujarat and Delhi HCs to read non-refoulment into Art. 21, and protect refugees from being subject to life-threatening mistreatment. Unfortunately, the SC chose to walk down a different path and consequently lost out on a golden opportunity to concretise the presence of non-refoulment within Art. 21.
Moreover, the manner in which the SC ruled out the applicability of Arts. 14 and 21 is inconsistent with existing jurisprudence. Art. 14, 19, and 21 form the golden triangle of Fundamental Rights and must not be looked at as isolated islands. Even if it is accepted that the primary issue is that of Art. 19(1)(d), it must also satisfy the thresholds under Arts. 14 and 21, per the reasoning employed in Maneka Gandhi. Right to equality under Art. 14 prohibits executive or legislative actions that are manifestly arbitrary. That is if they lack a “clear determinative principle or encapsulate a capricious or irrational measure”. Further, “procedure established by law” under Art. 21 has to comply with procedural due process – it should be just, fair and reasonable.
In this interim order, the SC concluded that the refugees would be deported according to the appropriate procedure. It tacitly accepted the Union Government’s contention that the Rohingyas are foreigners within the meaning of § 2 of the Foreigners Act, 1946, and must be deported under § 3(1). The statute primarily governs acts of illegal entrants but has also been used to deport refugees, even when the international legal status of both is very different. It gives absolute discretion to the Government to decide on matters of deportation and provides for no safeguards like non-refoulement or legal aid. Arresting and deporting the Rohingyas to Myanmar, where they face a significant risk of persecution and torture, by utilising a statute that provides no procedural safeguards is by no standards just, fair or reasonable, or non-arbitrary.
In contrast, the Manipur HC in the recent Nandita Haksar case held that non-refoulement forms part of Art. 21 and Rohingyas must be permitted to claim refugee status from the UNHCR as they had been in the past. It took note of several instances where Courts had granted protection of life and liberty to asylum seekers and prevented their deportation till a decision was made on their UNHCR application. The Manipur HC reiterated an expansive interpretation of Art. 21 to ensure that it upholds its fundamental identity – protecting life. It also clarified that the primary issue arose out of Art. 21 and not Art. 19(1)(d), an argument that was not accepted by the SC, while also rejecting the application of the Foreigners Act. In other words, the Manipur HC did what was expected of the SC – uphold procedural due process and put a hold on deportation till the situation in Myanmar continues to persist.
The conditions persisting in Myanmar are a “textbook example of ethnic cleansing” and are too brutal for Rohingyas to return. Buddhist nationalists have carried systematic flushing out of Muslims using draconian laws and measures, under the pretext that Muslims were taking over the country. In such a situation, the Manipur HC sets a good example in the way it handles the issue in the Indian context and is worth emulating. However, the SC failed to take cognisance of the principle of non-refoulment, even when there was sufficient backing in international law. Under domestic law too, the apex court adopted a restrictive reading of the Constitution. It missed out on the chance to trace the right of Rohingyas to not be subjected to arbitrary procedures of deportation in a holistic interpretation of Arts. 14, 19 and 21. Unfortunately, this has come at the cost of a great deal of uncertainty about the future of the Rohingya refugees in India.
 See also International Covenant on Civil and Political Rights, December 16, 1966, Art. 2(1); International Covenant on Economic, Social and Cultural Rights, January 3, 1976, Arts. 2(2) & 3; Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979, Art. 2; Convention on the Rights of the Child, September 2, 1990, Art. 2(1); United Nations Charter, October 24, 1945, Art. 1(3).
 See also Barcelona Traction, Light & Power Co. (Belgium v. Spain), Judgement, I.C.J. Reports 1970, p. 32, ¶ 34.
 See also Beth Van Schaack, Determining the Commission of Genocide in Myanmar: Legal and Policy Considerations, 17 JICJ 285, 292-293 (2019).
 See also Steven Kiersons, Burma: State Apparatus at the Center of Recent Violence and Persecution, December 22, 2014, available at https://thesentinelproject.org/2014/12/22/burma-state-apparatus-at-the-center-of-recent-violence-and-persecution/ (Last visited on May 15, 2021).
 See also Asia News, Three mosques closed near Yangon following threats by Buddhist nationals, May 17, 2019, available at http://www.asianews.it/news-en/Three-mosques-closed-near-Yangon-following-threats-by-Buddhist-nationalists-47042.html (Last visited on May 15, 2021); Myanmar Times, Muslims seek reopening of 100 mosques across country, September 25, 2019, available at https://www.mmtimes.com/news/muslims-seek-reopening-100-mosques-across-country.html (Last visited on May 15, 2021); Adam Bensaid, Myanmar blames the Rohingya for Covid-19, and that’s a death sentence, September 18, 2020, available at https://www.trtworld.com/magazine/myanmar-blames-the-rohingya-for-covid-19-and-that-s-a-death-sentence-39843 (Last visited on May 15, 2021); Christianity Today, Myanmar Christians Split Over Canadian Pastor Arrested for Violating COVID-19 Restrictions, May 22, 2020, available at https://www.christianitytoday.com/news/2020/may/myanmar-coronavirus-pastor-arrest-david-lah-persecution.html (Last visited on May 15, 2021).