• Aryan Uppal

Deportation of Rohingya Refugees

A sign of India’s Wavering Commitment to Human Rights and International Obligations

Abstract: This paper reviews and analyses the recent Supreme Court order permitting the deportation of the Rohingya refugees within India while providing a background to the Rohingya issue in India. It details India’s past feats in granting refuge to those fleeing persecution in their homelands while delving into the highlights of the Supreme Court order and the reasons behind it and analyzing competing international obligations India might have to refugees.

Keywords: Human rights, Rohingya Refugees, Deportation order, Supreme Court

India has historically been a proud ally to refugees from across the globe, opening its doors to aid those facing humanitarian violations in their own nations, be it Afghans, Sri-Lankans, Tibetans or Bangladeshis. Much like the Rohingyas many of these refugees form ethnic minorities in their home nations and as a result, are targeted by their national government and militaries who see them as immigrants rather than citizens. In spite of India’s proud humanitarian roots, the apex court of the nation vide a recent order permitted the deportation of Rohingya refugees seeking asylum within the nation, effectively sentencing these refugees to their demise. A simple analysis of the order clearly depicts that not only was it inconsistent with India’s past practices with regards to refugees and humanitarian crises, but it also failed to justify itself on valid legal grounds. This order further signified a moral shift in India’s outlook towards refugees transitioning from a secular and standardized approach to an abstract and pious one.

The Rohingyas are an indigenous Muslim ethnic minority from the Rakhine region in Myanmar who constitute the largest Muslim percentage in Myanmar. They have faced constant and consistent discrimination from the predominantly Buddhist nation of Myanmar which has denied them citizenship, failed to include them in the national census and has subjected them to abuses by the nation’s security forces. In late August 2017 Rohingya Arsa militants attacked several police posts which led to troops accompanied by local Buddhist mobs burning and ransacking Rohingya villages, while killing several civilians. The national government claims that all clearance operations against the militants seized on 5th September, 2017. However, this claim has been disputed by several organizations such as the BBC and Amnesty International who hold that atrocities continued well after this date. This gruesome violence led to the death of 6,700 Rohingyas many of whom were children and even resulted in nearly 288 villages in Rakhine being destroyed by the fires. As a result of this violence the Rohingyas were forced to escape to neighboring nations such as Bangladesh and India in hopes of safety.

India’s home ministry gauges that nearly 40,000 Rohingya refugees have made their way to India and currently reside without any documentation in the states of Jammu & Kashmir, Haryana, Delhi and Rajasthan. Two such refugees filed a Petition based on a Reuters article which claimed that the central government was ready to deport all Rohingyan refugees within India. Having no national framework/guidelines on refugee protection and being neither party to the 1951 Refugee Convention nor the 1967 Protocols, India is not obligated to subscribe to the provisions detailed in either of these eminent treaties. Yet, historically India has granted asylum to numerous refugees, regardless of their faith, on various political and humanitarian grounds, dating as far back as 1959. Most of these refugees have originated from Tibet, Afghanistan, Sri Lanka, and Bangladesh, with many of them being allowed to reside in India on a permanent basis.

The Plea filed by the two Rohingyan refugees through advocate Prashant Bhushan, contested that any deportation would violate their Constitutional rights of Equality (Article 14) as well as their right to life and personal liberty (Article 21), and the obligation to foster respect for International Law and treaty obligations (Article 51(c)). They also contended that deporting Rohingya refugees would violate the principle of ‘non-refoulement’, which is considered to be customary to international law. This principle constrains a country from sending refugees and asylum seekers back to the country where they face persecution and is generally seen to be binding on all nations regardless of whether or not they are party to the Refugee convention of 1951. The petition also advocated for interim relief for nearly 150 Rohingya refugees who had been detained and placed in holding centers in Jammu on 7th March 2021. The Union of India conversely took the stance that these Rohingyas are not refugees but rather foreigners who pose a threat to the security of the nation and that ‘non-refoulement’ is only applicable to contracting states.

A bench comprising Chief Justice of India S.A. Bobde and Justices AS Bopanna and V Ramasubramanian passed the order holding that it was not possible to grant the interim relief that had been prayed for. The court further stated that deportations would not take place unless the prescribed procedure is followed. With regard to the current state of Myanmar, the court stated that it could not “comment on something happening in another country.” In spite of all the reasons stated in the order, not one successfully addressed the argument of non-refoulement which was raised by the petitioners. The Honourable court appeared to evade this principle entirely by stating that they “cannot comment upon something happening in another country”. This rationale lacks any logical consistency whatsoever, as being the Supreme Court of the nation often requires comments to be made about occurrences and circumstances in other nations, especially in matters pertaining to human rights. Human rights transverse the laws of any single country and often require nations to take notice of violations occurring outside of their boarders in order assist the victims of these atrocities. India's own laws and international obligations require India to equally protect the life of each person, this cannot be upheld if the apex court of the nation itself refuses to recognise and comment upon these atrocities occurring in other nations. This in turn, seriously limits India’s ability to assist refugees from such nations and uphold the high standard of human rights it claims to subscribe to. Additionally, by making this evasive statement the court failed to analyse and truly consider the petitioners claims since the heart and soul of their argument relied upon the principle of non-refoulement. It also raises the question whether the court will further take up matters pertaining to non-refoulement since all such matters requires comments to be made about the happenings in another country.

The apex court further took this opportunity to state that while Articles 14 and 21 of the Constitution are available to all and not just citizens; “the right to not be deported is ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” Yet, the petitioners never asked for their deportation to be called off all together but rather were requesting that they not be deported back to the nation which single handedly posed the greatest threat to their lives. The genocide stands testament to this fact and should be adequate to secure protection under Article 21 of the Constitution of India by itself, which mandates that the life and liberty of all persons must be protected. Many Scholars such as Suhrith Parthasarathy have elucidated on this very issue, highlighting that the Court had previously taken note of the UNGA (United Nations General Assembly) resolution passed in December 2019 which expressed concern on the Rohingya issue. To send these refugees back to a nation which the Court has itself recognised to pose a threat to their life, would prima facie violate their Constitutional right to have their life protected. Moreover Article 21 also been held to include a right against refoulement for asylum seekers in the matter of Nandita Haksar v. State of Manipur and ors, thereby highlighting that the petitioners are entitled to protection under Article 21. The Courts contention that India is not bound by the principle of non-refoulment owing to India not being party to the 1951 Refugee Convention cannot be maintained either. The Statue of the International Court of Justice lists international custom evidencing a general practice in law as a source which binds all nation states, and not just nations which are party to a particular convention. This aspect would have been abundantly clear to the Court had they taken the time to duly consider the non-refoulement argument raised by the petitioners.

While the Court acknowledged and upheld the security contentions raised by the Union of India, without even requiring any evidence of these claims, it failed to substantiate or deal with these contentions in any capacity whatsoever. The attempted submissions by Chander Uday Singh, who was the learned senior counsel appointed by UNHCR (United Nations High Commissioner for Refugees) to represent the UN special rapporteur, were dealt with in a similar manner by citing, “serious objections were raised to his intervention.” Yet, what these objections were, how they impacted the matter at hand, and on what grounds they were upheld was not divulged by the apex court of the nation.

This decision taken by the Supreme Court of India seems to represent a change in the nation’s position vis-a-vis refugees. There appears to be a transition from a secular refugee policy to an ‘anti-Muslim’ one, as has been inferred by several commentators in light of the Citizenship Amendment Bill 2016. This bill accelerates the naturalization process for certain minorities like Hindus, Christians, Sikhs etc., who face persecution in Pakistan, Bangladesh, and Afghanistan while expressly excluding Muslims facing persecution in similar neighboring nations. The Rohingyas, who are predominantly followers of Islam, appear to have become victim to this policy.

While the validity of this may be debated, it is undeniable that this decision is one which drastically differs from the nation’s past refugee commitments. As a nation, India has consistently recognized the prevailing humanitarian predicaments and not shied away from protecting refugees, regardless of their religious identity or the impact it would have on their foreign relations. Additionally, India chose to ratify the ICCPR (International Covenant on Civil and Political Rights) while also accepting the principle of non-refoulement as stated in the Bangkok Principles on the Status and Treatment of Refugees 1966. The ICCPR goes so far as to grant everyone the right to leave their own country and enjoy asylum from persecution in another country. The Bangkok Principles, which is a product of the African-Asian Legal Consultative Organization based in New Delhi, of which India is a member, clearly lays down that states shall take measures to improve the protection of refugees while providing proper resources to them and ensuring their integration. Yet neither of these were duly considered by the Court, who set aside the petitioners’ contentions in the absence of any authoritative justification and without adequately considering them.

Thus, it remains curious why the nation would choose to send these refugees back to a country that is in the midst of a military coup and has maintained that the Rohingyas are illegal immigrants in their nation rather than citizens. Even though India does not have an obligation to the refugees stemming from the 1951 Convention and 1967 Protocols, it does have a constitutional responsibility towards these refugees which stems not just from Article 21 (as held by Nandita Haksar v. State of Manipur and ors) but also from ancillary international commitments made by the nation and a constitutional obligation to respect these commitments as envisaged by Article 51 (c).

Furthermore, despite dealing with refugee and asylum seekers regularly, all the while serving as home to the largest refugee population in South Asia, it is alarming that India has no legislation, framework or guidelines which lays down a standardized methodology on how to process and deal with refugees and asylum seekers. The absence of such norms creates opportunity for discriminatory practices to take place and provides the Government the ability to nit-pick which refugees it wants to grant asylum to, effectively removing any transparency from the process altogether. Such discrimination can be seen to exist in the case of the Rohingya refugees as well and serves as a fitting representation of the growing xenophobia across the nation which is perhaps the biggest threat to the Constitution’s secular foundation.

Political aspirations cannot be allowed to alter our nation’s commitment to human rights and international obligations. Human lives must be treated with the highest level of concern. Reservations with regard to race and religion must be discarded to ensure the protection of lives above all else. As such, it is vital for India to devise a standard comprehensive framework to deal with incoming refugees to ensure that their lives are saved from the persecution they face and that they are not made victims of abstract and inconsistent application of the law by the Judiciary. The Rohingya deportation order crucially depicts how threatening ambiguity within the judicial system can be to an individual’s life and therefore, cannot be allowed to persist any longer. A standard comprehensive framework to deal with refugees would go a long way in protecting their rights while ensuring that each refugee is subjected to a standardized system which leaves no room for any prejudice and ambiguity to exist. Such a policy is long overdue in our nation and cannot be delayed any longer by its leaders.

This piece has been authored by Aryan Uppal.

Aryan Uppal is a 2nd year Law Student currently studying at Jindal Global Law School pursuing his B.A. L.L.B degree. Aryan spends most of his free time furthering his interest in Human rights, Intellectual property law, mediation and dedicatedly giving back to the community in any way possible. Aside from these academic pursuits Aryan is a Dogaholic who enjoys reading and aggressively binging shows late into the night.

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