Is SC’s Rohingya Order Compliant with India’s Legal Obligations?

Was the Supreme Court right in allowing the 7 Rohingya men to be deported to Myanmar despite the persecution there?

India deports 7 Myanmarese nationals who allegedly fled religious persecution.

(Photo Courtesy: Sunzu Bachaspatimayum/Altered by The Quint)

Seven men crossed the border from India into Myanmar on Thursday, 5 October 2018. Escorted by police officers, they shuffled out through the border gates at Moreh, near Imphal, swapping one detention centre for another.

We don’t know what these men expected when they entered India in 2012, but presumably they left their homes and illegally entered a foreign country with the objective of escaping the troubles in their hometown of Kyauk Daw in the Rakhine state, which was one of the places affected by severe communal clashes in 2012.

It is probably safe to assume that they weren’t expecting to be considered criminals and so incarcerated and deported, but that is what they got.

These men were not terrorists. They were not spies. They were not thieves. Nonetheless, they were convicted (correctly) under the Foreigners Act for entering India illegally in 2012. They were sentenced to three months of imprisonment for this, but ended up spending six years in Silchar Central Jail.

And yet, what awaits them across the border could be even worse, because these men are from the Rohingya community.

The Plight of the Rohingya

According to the UN Fact-Finding Mission on Myanmar, the Rohingya community has faced discrimination in their own homeland for decades. Its members are excluded from citizenship because they aren’t one of the accepted “national races”. They don’t have equal access to birth registration for children. Members of the community have been subjected by security forces to theft, extortion, arbitrary arrest, forced labour and sexual violence.

None of this matters to the Indian government, of course, which wants instead to send all the Rohingya, who have fled to India to escape this persecution, back to Myanmar. Home Minister Rajnath Singh has termed them illegal immigrants rather than refugees, and instructed state governments to track their movements and obtain their personal details so they can be deported. Given the Rohingya are Muslims, this doesn’t spring any surprises.

What is surprising, however, is that the Supreme Court of India decided to ignore all these factors on Thursday morning, when it refused to stay the deportation of these seven men. A bench headed by Chief Justice of India Ranjan Gogoi dismissed an application filed by senior advocate Prashant Bhushan asking for the deportations to be put on hold, on the basis that the men were illegal immigrants and that Myanmar was willing to take them back.

Now, to be clear, India is entitled to send illegal immigrants back to their country of origin, and when the country of origin has no problems with this, there should be no controversy over such a course of action. In normal circumstances, doing so would not violate India’s obligations under international law, or the responsibilities of the State under the Constitution.

But the circumstances in Myanmar are not normal. Not only have the Rohingya faced persecution and abuse for decades, but also the violence against them, including the Myanmar military’s “clearance operation” in 2017, had the hallmarks of genocide, according to the UN Fact-Finding Mission. The Mission has recommended investigation and prosecution of those responsible for these actions.

The actions against the Rohingya don’t just indicate possible genocide (which no doubt has a high burden of proof), but also crimes against humanity and war crimes, and this hostile environment has not yet dissipated. The UN High Commission for Refugees (UNHCR), while criticising the actions of the Indian government, has categorically stated that:

“Current conditions in Myanmar’s Rakhine State are not conducive for safe dignified and sustainable return of stateless Rohingya refugees.”

In such circumstances, the Supreme Court’s willingness to send these men back to Myanmar is extremely troubling.

Problems With the Supreme Court’s Decision

CJI Gogoi gave two reasons for the decision in court:

1. that the men had been convicted by a competent court for illegally crossing the border under the Foreigners Act; and
2. that Myanmar had recognised them as citizens and was willing to take them back.

The relevance of both these issues is questionable, to say the least.

Irrelevance of Status as Illegal Immigrants

Most refugees cross over into other countries illegally, and are unlikely to have the documentation to prove otherwise. The plight of the Rohingya was not very well-known back in 2012 in the international community, so it is no surprise that there weren’t any formal arrangements for them to escape and claim asylum at the time.

Furthermore, there has been no attempt to ascertain from these men whether or not they wished to claim asylum and obtain official refugee status – their detention in Silchar made this practically difficult, and the UNHCR has raised concerns that the men were not given legal assistance or asylum counselling.

The fact that these men were found to be illegal immigrants doesn’t mean they couldn’t have also been found to be refugees, and the least that could have been done to ensure clarity about their status was to let UNHCR officials speak to the men. The UNHCR says they were refused access by the government, and the apex court didn’t consider allowing this despite being requested in the application argued by Bhushan on Thursday. Just because India doesn’t have a law on refugees doesn’t mean these men couldn’t be found to be refugees.

Rohingya as Myanmar Citizens?

The next reason is far more specious since it relies solely on an affidavit filed by the Ministry of Home Affairs, in particular paragraph 11. This paragraph includes the government’s primary assertions, including that:

“The said persons are accepted to be nationals and citizens of Myanmar by the said nation.”

The problem is, Myanmar does not recognise members of the Rohingya community as citizens under its 1982 Citizenship Law. It is, therefore, extremely implausible that Myanmar would agree to consider these seven men from this community as citizens. Indeed, the media briefing released by the Ministry of External Affairs indicates that Myanmar “was able to establish the identity of these individuals as residents of that country” (emphasis supplied).

This means that the affidavit submitted by the MHA is either deliberately misleading, or was made without understanding the status of the Rohingya in Myanmar. Either scenario is embarrassing and dangerous, and would cast serious doubts on the process followed to deport the men. Since the Supreme Court should have questioned this submission, rather than relying on it wholeheartedly.

The Principle of Non-Refoulement

Moreover, the willingness of Myanmar to take the men back does not in any case make a difference to whether or not it is correct to deport them. India has the authority to deport illegal immigrants, but cannot do so if this violates any binding legal obligations on us.

This leads us to the contentious issue of ‘non-refoulement’. Simply put, the principle of non-refoulement in international law says that a country cannot send refugees to a country where their life and freedom would be under threat, because of their race, religion, nationality or social or political opinions.

Indian government figures like Rajnath Singh and Kiren Rijiju have previously tried to argue in the past that India is not obliged to adhere to the principle of non-refoulement since it is not a party to the 1951 UN Convention Relating to the Status of Refugees, which includes this principle in Article 33.

However, the principle does not just come from the Refugee Convention, but is widely considered to be a part of customary international law – legal principles binding on countries regardless of whether they have signed treaties or conventions relating to them. The UNHCR has published a detailed opinion taking this view, and it is an implicit part of numerous treaties and resolutions that India is a party to, including the International Covenant on Civil and Political Rights (in the prohibition against sending someone to a country where they may face torture, for instance).

India’s Non-Refoulement Obligation

As discussed in a previous article in The Quint, India has also had a history of asserting the importance of non-refoulement at the UN, including by Ajit Kumar, Ambassador and Permanent Representative to the UN Offices, Geneva, and Anil Kumar Rai, Counsellor (Humanitarian Affairs) at the Permanent Mission of India to the UN.

The Delhi High Court and the Gujarat High Court have previously held non-refoulement to be part of the guarantee under Article 21 of the Constitution of India, as an aspect of protecting the life and liberty of a human being. Crucially, Article 21 does not only apply to citizens, but any person in India, irrespective of nationality and status. They also note that India has to respect international law under Article 51 of the Constitution, and should do so as long as there is no inconsistency with domestic law.

Given the principle of non-refoulement, the willingness of Myanmar to take back the seven men is irrelevant if conditions exist there that pose a threat to the life and freedom of those men because of their race and religion. The UNHCR has taken this view, and it is further buttressed by the Fact-Finding Mission’s report.

The Supreme Court failed to even consider this issue when passing its order, despite it being raised by Bhushan when arguing his application. Perhaps the judges felt that it was unnecessary to consider non-refoulement since the men were being termed illegal immigrants, not refugees, but as pointed out above, there are good grounds to be concerned over whether or not these men had the chance to even apply for refugee status.

Regardless of what the court would have held or not held, the failure to consider these issues of grave importance is worrying, and could bode ill for the manner in which other such cases are going to be evaluated.

After all, the Supreme Court still has to make a broader ruling on the Rohingya in India (including those who are officially registered as refugees with the UNHCR), having conducted several hearings on their status since September 2017. While this order doesn’t affect that case per se, one can only hope the court will take a more comprehensive view of those issues when considering the main case.

No Assessment of Voluntariness

Another disquieting aspect of the way this case went down was that while arguing on Thursday, ASG Tushar Mehta told the court that the seven men were willing to return to Myanmar, something which was also mentioned in the MEA media briefing and has found its way into the media coverage of the deportations.

Curiously, this was not asserted in the MHA affidavit, and so there is currently no material on record that indicates they were willing to return to the country – something which again should be important given the treatment of the Rohingya in Myanmar.

Even assuming the men had agreed to return, making this a voluntary repatriation rather than a deportation, however, this does not mean all concerns about the treatment of Rohingya in Myanmar disappear. The consent to return in such situations needs to be informed consent, and ideally, the country from where the person is being repatriated should allow the UNHCR to ascertain whether it is truly voluntary (as per the UNHCR Handbook on Voluntary Repatriation).

These men have been detained for six years with minimal access to family, the outside world or legal aid; they probably don’t even know the details of what has happened recently in Myanmar, including the mass exodus last year. If so, any consent on their part to return is in no way informed, and relying on this would be unjust..

Surely the appropriate thing to do in such a situation would have been to just delay the deportation for a day or so, and allow the UNHCR to meet them? What possible harm could have come from allowing this, that the CJI and the other judges refused to allow such a measure?