Deporting Rohingyas to the slaughter house: Dilution of the “Non- Refoulement” Principle

On April 8, 2021, the Supreme Court through a 6-page order in Mohammad Salimullah v. Union of India (UoI), rejected Rohingya refugees’ constitutional right to remain in India and allowed their deportation by the Government of India, following the legal procedure. During the hearing, the Chief Justice of India (CJI), Justice Sharad Arvind Bobde commented, “Possibly that is the fear that if they go back to Myanmar, they will be slaughtered. But we cannot control all that. . . We are not called upon to condemn or condone genocide”. Such an apathetic remark from the CJI is appalling.

Despite the fact that India is neither a party to 1951 UN Refugee Convention nor its 1967 Protocol and does not have any national legislation on refugee protection, it has accommodated lakhs of refugees on humanitarian grounds. India hosts around 40,000 Rohingya refugees, predominantly Muslims. Only about half of them are registered with the United Nations High Commissioner for Refugees (UNHCR) – the UN agency mandated to aid and protect refugees.

Following the 2017 brutal crackdown on the Rohingyas by Myanmar’s army, approximately 6,000 of them have taken refuge in Jammu. As the Government of India appeared determined in deporting them back to Myanmar (erstwhile Burma), two Rohingyas approached the Supreme Court claiming that the proposed deportation would violate the constitutional protection of right to equality under Article 14, right to life and personal liberty under Article 21 (both provisions available to non-citizens also) and fostering respect for international law and treaty obligations under Article 51(c) of the Constitution of India. The petitioners also claimed that the deportation would be in contradiction with the principle of “non-refoulement”, generally considered to be a part of Customary International Law (CIL).

While rejecting the petition, the Court disassociated Article 19 from Article 14 and 21, and held that the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens which is concomitant to the right against deportation. In the process, it accepted the Government’s claim that the Rohingyas are a threat to the internal security and a cause of illegal immigration.

The principle of non-refoulement constitutes the cornerstone of international refugee protection, enshrined under Article 33(1) of the Refugee Convention. “Refouler” means to expel or return. The essence of the principle is that a State may not oblige a person to return to a territory where he may be exposed to persecution (meaning: systematic mistreatment of an individual or group, especially because of their identity). Exceptions to the principle are available under Article 33(2) of the Convention when there are “reasonable grounds” to consider that the person concerned is either convicted of any serious crime or is a danger to the security of the host country.

On the issue of non-refoulement principle, the Court acknowledged the genocide, yet it didn’t delve deep. It simply noted that Article 51(c) is only applicable when India is a party to a convention. India being a non-party to the Refugee Convention, the principle is inapplicable.

Curiously, it went on to observe: “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law”. As the Court didn’t consider the applicability of non-refoulement, the debate over the exception doesn’t arise. Nonetheless, the Government didn’t substantiate the “reasonable grounds” before the Court to validate the threat perception of the Rohingyas.

For a rule to become part of CIL, two elements are required: (i) consistent State practice and (ii) opinio juris, i.e., the understanding held by States that the practice is obligatory due to the existence of a rule requiring it. In response to the questions posed by the Federal Constitutional Court of the Federal Republic of Germany in 1994, the UNHCR was of the opinion that the principle of non-refoulement satisfies the above requirement and constitutes a rule of CIL. It has been systematically reaffirmed in the UNHCR Executive Committee conclusions and UN General Assembly resolutions. It has been either explicitly or implicitly incorporated in international treaties even during the period of the League of Nations; in the Refugee Convention which has overwhelming number of State parties spread across the globe; and in other international human rights treaties, including those India has ratified. This gives the principle a significance beyond that of a mere contractual obligation limited to a particular treaty.

In UNHCR’s experience, States, whether party to the Refugee Convention or not, have overwhelmingly indicated the binding nature of the principle, by providing explanations or justifications in cases of actual or intended refoulement. In order to deduce the existence of customary rules, the International Court of Justice has aptly observed in Nicaragua v. United States of America (1986) through the following words: “If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications . . . whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”

This order of the Supreme Court is a far cry from the pro-refugee approach of the Indian judiciary. In K. A. Habib v. UoI (1999), while staying the deportation of Iraqi refugees, the Gujarat High Court quoted Guy Goodwin-Gill to hold: “There is substantial, if not conclusive, authority that the principle [of non-refoulement] is binding on all states, independently of specific assent”.

Even earlier, in N.D. Pancholi v. State of Punjab (1988) and Dr. Malvika Karelkar v. UoI (1992), the Supreme Court had stayed the deportation order issued against Burmese refugees and allowed them to seek refugee status from the UNHCR office in New Delhi. Similar order was issued by the Gauhati High Court in Bogyi v. UoI (1989). The Andhra Pradesh High Court in P. Nedumaran v. UoI (1993) prevented forced repatriation of Sri Lankan refugees.

The list goes on.

In National Human Rights Commission v. State of Arunachal Pradesh (1996), the Supreme Court took exception to the fact that Chakma refugees (from Bangladesh) were persecuted by sections of the citizens of Arunachal Pradesh and directed the Government to consider their cases for conferment of Indian citizenship. It held: “We are a country governed by the Rule of Law. . . The State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise.”

We have to read this present order in the context of India’s changing refugee policy from being ‘secular’ to ‘anti-Muslim’, especially in the wake of the Citizenship (Amendment) Act, 2019, which excludes persecuted Muslims in the neighbouring countries, including Rohingyas. Thus, by allowing their deportation to the slaughter house, Justice Bobde-led bench has only endorsed that policy shift.