The Rohingyas are a Muslim minority community that have coexisted with the Buddhists in Myanmar. For decades, this community has been a victim of systemic oppression and communal violence at the hands of the majoritarian State. In 2017, the Burmese military aided by the members of the Buddhist community initiated a genocidal attack upon the Rohingyas, killing thousands. These instances of gross violence resulted in a mass exodus of the Rohingyas from Myanmar to its neighbouring countries like India. However, the Indian government has been critical of providing refuge to Rohingyas and has made efforts towards their deportation back to Myanmar. In the case before the Supreme Court, the petitioners challenged (¶8) the government’s order on the following grounds:
- Firstly, the deportation of Rohingyas is violative of the constitutional guarantees provided by the Indian Constitution to non-citizens of the country.
- Secondly, the principle of non-refoulement is an integral part of Article 21 of the Constitution and protects the Rohingyas from deportation.
- Lastly, even though India is not a signatory to the UN Convention on the Status of Refugees, it still has an obligation to not deport the Rohingyas under various international norms and conventions.
The Supreme Court of India, regrettably, gave its approval to the order initiating the deportation of Rohingyas in April 2021. Over the course of this piece, I argue that this decision of the Supreme Court not only disregards the provisions of the Indian Constitution but also overlooks India’s binding international obligations.
A Constitutional Perspective
In its short analysis, the Supreme Court acknowledged that fundamental rights enshrined in Article 14 (equality before law and equal protection of law) and Article 21 (right to life and personal liberty) of the Indian Constitution are available to both citizens and non-citizens (¶13). However, instead of protecting these rights of Rohingyas which they are constitutionally entitled to, the Court held that the right to not be deported is ancillary to the right to reside and settle in any part of the territory of India which is explicitly guaranteed to citizens only under Article 19(1)(e) (¶13). Thus, Rohingyas, being foreigners, have no such right and are liable to be deported by the procedure prescribed for the same.
This reasoning of the Court is reminiscent of its overruled decision in A.K. Gopalan v. State of Madras wherein it had held that fundamental rights dealt with distinct matters and should be considered in isolation. Thus, when a law satisfied the requirements of the corresponding fundamental right, then it could not be examined for violating other fundamental rights guaranteed under the Constitution. Applying the same rationale, if the order of the government to deport Rohingyas did not violate Article 19(1)(e) (the right concomitant against deportation), it could not be tested for violating other fundamental rights even those that are guaranteed to non-citizens. However, this line of interpretation has long been overruled.
In Maneka Gandhi v. Union of India, the Supreme Court set aside the Gopalan judgement and held: “isolation of various aspects of human freedom, for the purposes of their protection, is neither realistic nor beneficial” (¶3). It acknowledged that a legislation, in order to be constitutional, cannot violate any of the guaranteed fundamental rights. Thus, the Supreme Court’s decision to allow the deportation of Rohingyas without analysing whether or not the same would violate their constitutional rights under Article 14 and 21 is in clear contradiction to the Maneka Gandhi judgement.
Implications and Obligations under International Law
In allowing the deportation of Rohingyas, the Supreme Court failed to acknowledge India’s international law obligations under both customary international law and various international conventions. The Court observed that since India is not a party to the United Nations Convention on the Status of Refugees, 1951, it has no international obligation to provide refuge to Rohingyas. Preventing and punishing genocide is an inherent part of peremptory norms of general international law (jus cogens) which are universally binding on all countries without any derogation. The International Tribunal for the Former Yugoslavia stated that jus cogens have a hierarchical superiority to both conventions and customary international law and must be adhered to by all nations irrespective of their international obligations. The International Court of Justice pursuant to its Advisory Opinion in Croatia vs Serbia affirmed the peremptory status of preventing genocide and referred to it as an obligation owed egra omnes.
Recently, Myanmar’s elected government has been overthrown by the country’s military. It is the Burmese military that attempted the crimes of genocide against Rohingyas which led to their fleeing and displacement. Sending the Rohingyas back to the mercy of those scheming their genocide would be in violation of India’s peremptory obligation to prevent and punish genocide (see here).
The Apex Court, in its judgement, did not discuss the implications of deporting Rohingyas upon India’s obligation to uphold the international legal principle of non-refoulement. The United Nations Refugee Agency (UNHCR) defines non-refoulement as the obligation to not “return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. It further states that this principle is applicable to all forms of forced removal including “deportation, expulsion, extradition, informal transfer or renditions, and non-admission.” The Rohingyas are one of the most persecuted minority groups. Since 2017, they has been inflicted with inhumane violence, torture, rape and mass murder. Moreover, violence against the community is still ongoing as the Burmese military was recently found burning Rohimgya establishment in the Rakhine state of Myanmar. Deporting the Rohingyas back to Myanmar would gravely endanger their life and freedom, thereby violating the principle of non-refoulement.
It is pertinent to state that the principle of non-refoulement has attained the status of customary international law and is therefore binding on all countries including India. Moreover, the Article 6 of the International Covenant on Civil and Political Rights (ICCPR) embodies the principle of non-refoulement and obligates all the State Parties to prevent genocide both inside and beyond their borders. India has ratified the ICCPR and therefore is also under treaty obligation to not deport the Rohingyas to Myanmar. Lastly, India is also a signatory to the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance. Both these human rights conventions explicitly include the prohibition of refoulement. Thus, in spite of not being a signatory to the UN Convention on the Status of Refugees, India is obligated to not deport the Rohingyas under both customary international law and various international conventions.
There is currently no legislation in India that recognises the principle of non-refoulement. However, the Supreme Court in Vishaka v. State of Rajasthan (¶7) held that international conventions “not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.” In Vellore Citizens Welfare Forum v. Union of India (¶15), it held that customary international law that is not contrary to any domestic law is deemed to be a part of the municipal law. Thus, in allowing the deportation of Rohingyas, the Court has failed to adhere to its own precedents.
India’s Constitution was drafted with the vision of protecting the liberty and dignity of all individuals. Pursuant to the same, the right to life and personal liberty was guaranteed to not only citizens but also to non-citizens. The Supreme Court’s approval of the government’s order to deport Rohingyas disregards the Constitution’s mandate to protect the liberty of individuals, regardless of their citizenship status. Moreover, the Court also failed to take into account India’s obligations vis-à-vis non-refoulement, which embody the core values of the international community to prevent genocide and protect the persecution of refugees. Lastly, the Court has let down a community that has been at the receiving end of inhumane violence for decades by returning them to the mercy of the perpetrators.
Utkarsh Krishna is a recent graduate from Symbiosis Law School, Pune, and is currently working as a Judicial Clerk cum Research Assistant at the High Court of Jharkhand. He has a keen interest in constitutional law, human rights, and gender justice.
Image: Associated Press, Channi Anand.