The Supreme Court’s Interim Order in the Rohingya Deportation Case: A lost Opportunity?

Introduction

On April 8, 2021, the Indian Supreme Court allowed for the deportation of thousands of Rohingya refugees to Myanmar by way of an interlocutory order. Starting in August of 2017, a campaign of systematic discrimination and persecution led to the exodus of Rohingyas from Myanmar to neighbouring countries. Since then, they have continued to face acute violations and severe deprivation of their fundamental rights. A considerable chunk of these refugees – approximately forty thousand – have settled in India. On August 14, 2017, the Central Government of India announced the refoulement of these refugees back to Myanmar. A petition was filed by certain Rohingya refugees in response to calls for their expulsion for seemingly illegitimate or absent grounds to a state where they have faced widespread persecution. This petition has culminated in the present interim order in discussion.

The order represents a catastrophic loss of opportunity as it fails to recognize and, more importantly, respect the age-old principle of non-refoulement. This is in contradiction with India’s international law obligations and its history of accepting refugees and integrating them into mainstream life. The six-page decision is ill-analysed, poorly researched, and seemingly biased towards the position adopted by the Central Government.

This paper will focus predominantly on the principle of non-refoulement. Section II of this paper will analyse this principle as an integral part of not just refugee law and customary international law, but also its crucial intersection with human rights, morality, and humanitarian spirit. Section III will analyse this principle within the constitutional framework of the country focusing on its protection under Article 21 of the Constitution and its tussle with national security. Non-adherence to the same by the judiciary is testament to judicial bias and deference which erodes the sanctity of India’s grundnorm – its Constitution.

Non-Refoulement and International Jurisprudence

In a lackadaisical analysis of India’s international law obligations, the interim order states that the universally acknowledged principle of non-refoulement is not binding on the country as it is not a member of the Convention Relating to the Status of Refugees (‘Refugee Convention’). While this principle may have first found mention in the Refugee Convention, it has subsequently been an essential part of multiple other ratified treaties as well as customary international law, which are undoubtedly binding on India. For instance, the principle finds expression in the International Covenant on Civil and Political Rights as well as the UN Convention against Torture. However, the order does not engage with this proposition and undertakes no analysis of India’s international law and treaty obligations to support the bench’s conception of non-refoulement and its waivable nature. Any court of law, most of all the highest court in the country, is obligated to carry every decision to its logical conclusion and to not leave any proposition hanging. Yet, curiously, the Supreme Court refrains from carrying out this very elemental duty. It presents an unwillingness to discuss the systemic discrimination that the Rohingyas face in Myanmar through a string of laws, policies, and practices which have rendered them stateless. By glibly stating that they cannot comment on the events in another country, they erode the purpose of the principle of non-refoulement which requires an examination of the plight of refugees in their home states.

While the ubiquitous nature of international law should be reason enough for the Supreme Court to respect and adhere to the principle of non-refoulement, the judiciary’s history with international law, in particular its customary elements, has been less than encouraging. While India has predominantly followed the principle of dualism wherein international law’s application is affected by way of domestic legislation, there have been several digressions as well. In general, it can be said that international law, even its customary elements, is only given effect to when it fulfils the interests of the state and reflects more benefits than costs. A convenience-based approach has been followed vis-à-vis international law which has led to Courts drawing selfish conclusions and acting in blatant self-interest, a practice evidenced in the interim order as well. The order represents a lost opportunity as it does not engage with the underlying rationale of the principle of non-refoulement – morality and human rights – two elements which are (or at least, should be) inextricably woven with the law.

Non-Refoulement, Human Rights, and Morality

While non-refoulement is a principle emanating from refugee law, it finds its basis in the allied fields of human rights and natural justice. It is grounded in the idea that the state has a natural duty, inculcated by way of its participation in the international polity, to not cause harm to any innocent individuals. In the context of refugees, this involves active protection of their pre-political rights. Pre-political rights are those rights to which everyone is entitled to if they reside in a state of nature. This includes elemental rights such as the right not to be harmed or the right to life, which even within the Indian constitutional sphere is provided to all, irrespective of citizenship or any other factors. If a state prevents the admission or protection of refugees seeking assistance and does not accord them due process, they will be guilty of violating these pre-political rights.

Non-refoulement, at its core, only requires that the entry of refugees into the country should not be hindered and that they should not be deported to a country persecuting them. The unpopularity of the refugee or their community cannot play a relevant factor. Moreover, since refugees on admission would be subject to the policies of the host state and their coercive power, they cannot be treated differently than any other citizen when it comes to the provision of basic, pre-political rights. Every state has a duty to protect these refugees stemming from their monopoly on them. A state’s basic duties towards its citizens stem from more than just their citizenship. It also stems from general respect for human rights and dignified living. This is also the rationale for allowing certain fundamental rights to be available with every individual in India, such as the rights afforded by Article 21. India owes the same basic obligations to its citizens and refugees in the arena of protection of the right to life and liberty. Thus, any derogation from providing these essential rights to refugees would be nothing short of complicity in the acts of the refugee’s home state, which forced them to flee in the first place.

When the Supreme Court’s order is examined in this context, the apathetic approach taken by the Court is glaring and deplorable. Not only do they fail to give effect to a universally acknowledged customary principle, but they openly and blatantly support the crimes against humanity that the Rohingyas have been victim to in Myanmar. Their silence on commenting on the situation in Myanmar is their acquiescence to the discriminatory ideologies and policies of the Central Government which is actively fighting for their deportation.

Lessons from Bangladesh

While India may have seen a considerably large influx of refugees from Myanmar, the number does not come close to the refugee influx in Bangladesh, squashed between India and Myanmar. By a recent estimate, Bangladesh’s Cox Bazaar currently holds almost 1.3 million Rohingyas. To put this number into perspective, an equal number of refugees fled to Europe in 2015 triggering the 2015 refugee crisis in Europe which caused severe political turmoil in the continent.

Just like India, Bangladesh is not a party to the Refugee Convention. Yet, they cherish the principle of non-refoulement as an integral part of customary international law. For a country with limited means and widespread poverty, they have managed to not only establish refugee camps for the Rohingyas but have also announced policies to secure their integration with mainstream Bangladesh. These include policies that will allow Rohingya children to be admitted to schools in Bangladesh. Rohingyas suffer from over 70 percent illiteracy and therefore, such announcements not only reflect the atmosphere of inclusivity within Bangladesh but also showcase their willingness to contribute to the development of the Rohingyas as a community.

The interim order, viewed in this light, falls shamefully short of providing the Rohingyas a safe home and a chance to escape persecution and a campaign intent on destroying them.

Non-Refoulement and Domestic Jurisprudence

What makes the Supreme Court’s order even more curious and confusing is their unwillingness to acknowledge India’s rich history of respecting the principle of non-refoulement by consistently allowing refugees. Since the 1960s, India has accepted hundreds of thousands of refugees from Burma (now, Myanmar) and has made active efforts to secure their integration with mainstream India by establishing refugee camps, supporting their pro-democracy agendas, and providing them with financial support.

The interim order makes two major assumptions which shall be dealt with in this section. These are – non-refoulement as a principle belongs under Article 19 of the Indian Constitution, and not Article 21, and that national security is the reason for deporting the Rohingyas. By acceding to the position taken by the Central Government on both counts without so much as referring to precedents or analysing the claims, the Supreme Court displays a staggering amount of deference and bias towards the Centre.

Non-Refoulement and the Indian Judiciary

The Delhi and Gujarat High Courts have both upheld the fundamental principle of non-refoulement as an integral part of Indian law, specifically Article 21 of the Constitution. They place a caveat of law and order and national security. A refugee’s right not to be deported if their life is in danger in their home state has also been consistently recognized. Countless cases have stayed their refoulement, always based on rights accorded to them under Articles 21 and 14 of the Constitution.

In light of this, it is extremely inconsistent and possibly bad law by the Supreme Court to hold that non-refoulement is a principle only under Article 19 of the Constitution. They substantiate this categorization by saying that non-refoulement requires residing and settling in the country which is a right afforded by Article 19(1)(e). However, such a contention is untenable as Article 19 rights are only available to citizens and a citizen would never need to avail of the principle of non-refoulement. This principle, first and foremost, seeks to protect a refugee from persecution which is undoubtedly a part of their right to life and liberty protected by Article 21. Forcing the principle to hide under the umbrella of Article 19 exclusively is reminiscent of the dictum in A.K. Gopalan v. State of Madras which held that fundamental rights can have no overlaps. Indian jurisprudence on the matter has seen a hefty change since then with recognition of the “golden triangle” in Maneka Gandhi v. Union of India. This principle postulates and advocates for the often inseparable nature of Articles 14, 19, and 21 of the Constitution. Non-refoulement must be seen as a conjunction of rights. Any digression from the same should, at the very least, be properly justified – a practice which has been ignored in the entirety of the order.

Non-Refoulement and National Security

One of the Centre’s main arguments for the deportation of the Rohingyas is that their influx has posed “serious national security ramifications”. They believe that some refugees may have links to Pakistani and Bangladeshi militant organizations and are also vulnerable to radicalization and recruitment by the Islamic State. They claim that their involvement has been suspected in a terrorist attack in Sunjuwan, Jammu in early 2018. It is important to note that the Central Government has provided no credible evidence or links to definitively prove their allegations, apart from the random blanket statements. While one may argue that providing evidence may be counterproductive to maintaining national security as it may reveal confidential information, the government has not made any attempts to establish the objective measurable risk of harm that the Rohingyas pose as a community. As per the standard in the Refugee Convention which has come to be the generally accepted standard in international law as well, an objective measurable risk must be shown. This risk must run into long-term threats. While India, undoubtedly, has a right to prioritize its national security, it must do so after taking into consideration long-term consequences for the refugees, who they owe responsibilities to under international and domestic laws.

While sovereignty is the foremost consideration for any nation-state, it cannot exclusively be put on a pedestal. The judiciary has a crucial role to assess the legitimacy of claims made by the Central Government and be assured that some rational basis lies for the same. The Supreme Court, following a pattern of disappointing conclusions in the order, once again fails to examine the veracity of the claims made by the Centre.

Judicial Deference

The order by the Supreme Court has exposed the dangers of undue deference to the executive. Deference is a practice adopted by courts where they transfer matters involving questions of policy or technical matters to the government for decision-making. The rationale for the same is that the government has the requisite competence and legitimacy to deal with such questions. Deference is hardly ever adopted when the question involves the determination of fundamental rights of individuals. Recently, the Supreme Court’s reputation has been tarnished by a policy of judicial evasion coupled with judicial deference. Either the Court fails to take cognizance of a matter by delaying it indefinitely or it simply sides with the Centre’s perspectives without carrying out any independent analysis. Evidence for the same is present in numerous recent judicial decisions dealing with migrant rights after the imposition of national lockdown or even the historically-long internet shutdown in the Kashmir valley. In both these cases, the Supreme Court either easily accepted the contentions of the Centre, as is the case with the former, or continuously delayed the pronouncement of a decision, as is the case with the latter.

The Supreme Court was given a great opportunity to reform its image in the present case. It failed to do, thereby abdicating its constitutional duties of doing natural justice, by simply accepting each contention put forth by the Centre. The order dismisses inviolable rights held by every individual – citizen or refugee – with an uncomfortable amount of ease. While one may argue that the wisdom of unelected judges should not be relied on in every matter, especially in matters purportedly involving national security risks, the complete dismissal of basic human rights is not in line with India’s constitutional philosophy and ethos.

Conclusion

The order represents a strange pattern of reluctance to analyse critical international and domestic principles in the context of refugee rights. The principle of non-refoulement is fundamental to the existence of vulnerable and fragile refugee communities and must be lent support to by the judiciary, even when there exists strong pressure not to. Making a string of blanket statements such as “we cannot comment upon something happening in another country”, the Court has evaded its constitutional responsibilities. It capitalizes on India’s vague refugee policy which can be best described as a “strategic ambiguity” to deliver a judgement lacking adequate justifications. The order is a crucial loss of opportunity for the development of refugee law in India which needs a rights-based approach. It further diminishes human rights principles and fails to respect age-old constitutional principles which have left the Rohingyas helpless, abandoned, and in fear of harm.

(This post has been authored by Ishita Mundhra, a third year student at the West Bengal National University of Juridical Sciences.)

Cite as: Ishita Mundhra, ‘The Supreme Court’s Interim Order in the Rohingya Deportation Case: A Lost Opportunity?’ (The Contemporary Law Forum, 5 July 2021) <https://tclf.in/2021/07/05/the-supreme-courts-interim-order-in-the-rohingya-deportation-case-a-lost-opportunity/> date of access. 

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