On Monday, 4 September 2017, the Supreme Court will hear a plea filed by Rohingya refugees, in which they have requested the Court to ensure that members of the Rohingya community in India will not be deported to Myanmar.
The petition, filed by senior advocate and activist Prashant Bhushan, is being heard on an urgent basis by a bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud.
But why do the Rohingya fear deportation? And what can the Supreme Court do about this?
Who Are the Rohingya and why Are They in India?
The Rohingya are a minority Muslim community in Myanmar (mainly in the Rakhine state), that have faced persecution there from the Buddhist majority for many years.
Things have been particularly bad for them since 2012, when the Myanmar armed forces began cracking down on the community in the name of security operations, killing and torturing many Rohingya and forcing them out of their homes.
There are an estimated 40,000 Rohingya in India, of whom 16,500 are registered as refugees with the United Nations High Commissioner for Refugees (UNHCR).
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Why Are They Being Deported From India?
On 11 August 2017, Union Minister for Home Affairs, Kiren Rijiju, reportedly informed Parliament that the Centre had directed state governments to constitute task forces at district levels to identify and deport the illegal immigrants. The reasoning given for this was that illegal immigrants (with specific reference to the Rohingya) pose grave security challenges as they are vulnerable to being recruited by terror groups, and also infringe on the rights of Indian citizens.
Rijiju told Reuters, in a 14 August interview, that the Centre considers all Rohingya in India as illegal immigrants, including refugees registered with the UNHCR and asylum seekers. He has subsequently clarified:
We are not going to shoot them, nor we are planning to throw them in the ocean.
Regardless, it is clear that the government is planning a major drive to deport illegal immigrants, and even after the Union Minister’s clarification, it looks like Rohingya refugees will be included in this drive.
Is The Government Really Planning This?
Kiren Rijiju may have dismissed the issue as being one that was hyped up by the media; but the National Human Rights Commission (NHRC) has taken suo moto cognisance of the matter.
On 18 August, the NHRC issued a notice to the Union Home Ministry, seeking a detailed report on the plans to deport Rohingya within four weeks.
The NHRC noted all the allegations raised by the media and explained that it was intervening in the matter from a human rights angle.
What's Wrong With Sending the Rohingya Back to Myanmar?
The Rohingya people face severe persecution in their home country, where they are denied citizenship since Myanmar does not consider them to be among its official ethnic groups. The UNHCR states that nothing has changed for the Rohingya under Aung San Suu Kyi.
In February this year, the Office of the UN High Commissioner for Human Rights (OHCHR), found that widespread human rights violations had been committed against the Rohingya population by Myanmar’s security forces, likely indicating the commission of crimes against humanity. According to the OHCHR, these violations took the form of:
...mass gang-rape, killings, including of babies and young children, brutal beatings, disappearances and other serious human rights violations...
The violence continues unabated, with another 400 Rohingya killed and tens of thousands forced to flee.
In such circumstances, it would be morally wrong to send the Rohingya back to Myanmar – a concern that has been overlooked by those demanding their deportation from India.
Is India Legally Prohibited From Deporting the Rohingya?
The short answer is yes, India is prohibited from deporting the Rohingya.
But the judges will not have the luxury of giving this short answer, and will have to arrive at it in a pretty complex way.
The petition has asked the SC to issue a writ, order or direction, prohibiting the Centre from deporting members of the Rohingya community to Myanmar. They have requested the Court to direct that the Rohingya community be provided with the basic amenities required under international law on the treatment of refugees.
For the Supreme Court to do any of these things, it would need to determine what legal rules apply to the treatment of refugees in India; Within this framework, India has obligations towards Rohingya refugees that include not deporting them to Myanmar.
This is much more difficult than it looks.
What Rules Apply to the Treatment of Refugees in India?
Unfortunately, India has no domestic legislation dealing with the treatment of refugees. This is galling, given the high number of refugees who have flocked to India over the decades, whether from Tibet, Bangladesh or Myanmar now.
The absence of a domestic legislation is problematic not only because it means there is no defined procedure to be followed by the domestic authorities to deal with refugees, but also because India is a dualist country when it comes to international legal obligations.
This means that we generally need domestic laws to give effect to any international legal obligations, such as those on refugees – they don’t apply automatically.
As the Supreme Court observed in its Vishakha judgment (that created guidelines on sexual harassment in the workplace), certain international legal standards can apply to the country even in the absence of a domestic enactment.
Are Any International Law Standards on Refugees Applicable to India?
India has not signed the 1951 UN Convention Relating to the Status of Refugees, which is the flagship treaty in international refugee law. If India had been a party to the 1951 Convention, we would have been expressly prohibited from deporting the Rohingya because this would have violated the principle of non-refoulement under Article 33 of the Convention.
The principle of non-refoulement, in simple terms, says that no refugee can be sent to a country where their life or freedom would be under threat, because of their race, religion, nationality or social or political opinions.
From Kiren Rijiju’s statements, however, it looks like the Centre will say that it is not obliged to adhere to the principle of non-refoulement because it isn’t a party to the 1951 Convention, which allows it to do as it pleases with refugees like the Rohingya.
Luckily for the Rohingya, this is not correct, because of a concept called customary international law. Customary international law is a set of legal principles binding on all countries regardless of whether they have signed treaties or conventions relating to them.
If it can be shown that non-refoulement is a principle of customary international law, then it does not matter that India has not signed the 1951 Convention – we would still be prohibited from deporting the Rohingya to Myanmar because of the persecution they would face there.
Is Non-Refoulement Part of Customary International Law?
It is difficult to say this with absolute certainty, but there is overwhelming support for non-refoulement as a customary norm amongst international legal scholars and jurists. The UNHCR has also published detailed opinions stating that non-refoulement constitutes a rule of customary international law.
For something to be a principle in customary international law, there are two requirements:
- Widespread and consistent state (country) practice reflecting that principle; and
- that this state practice arises out of a sense of legal obligation (opinio juris).
The UNHCR believes that these requirements are met for non-refoulement, given its widespread inclusion in international treaties as well as conclusions of the UNHCR Executive Committee and resolutions of the UN General Assembly.
It is possible that the Union government could contest this view, but this would fly in the face of existing Indian state practice.
Indian Recognition of Non-Refoulement
Since 1995, India has been a member of the UNHCR Executive Committee – that has considered non-refoulement a customary principle. On 30 March 2016, Ajit Kumar, Ambassador & Permanent Representative of India to UN Offices, Geneva, had this to say at a high level meeting about admission of Syrian refugees:
It is important that this meeting should reinforce States’ responsibility required to be shouldered in accordance with their international obligations in providing asylum and protection to the people in need. It is also equally important to recommit to the core principle of non-refoulement.
As recently as 10 July 2017, Anil Kumar Rai, Counsellor (Humanitarian Affairs), provided an official statement by India at the first Thematic Discussion Towards a Global Compact on Refugees, in which he said:
We support the concept of Burden Sharing, including relocation of refugees on case to case basis, that too with the consent of the refugees. While doing so, we need to be cautious not to open the path for re-defining the Refugee Convention and its protocol, and in no case diluting the principle of ‘non-refoulment’.
The NHRC has pointed out India’s practice towards protection of refugees, despite not being a signatory to the 1951 Refugee Convention.
Does That Mean the SC Will Stop the Centre From Deporting the Rohingya?
Just because India may be prohibited from deporting the Rohingya under international law, doesn’t necessarily mean that the Supreme Court can pass an order forbidding the Centre from doing this.
Legal Precedent
Numerous decisions of the SC have held that protection of life and personal liberty under Article 21 the Constitution is guaranteed to non-citizens as well (see for example NHRC vs State of Arunachal Pradesh in 1996).
Further, the Delhi High Court, and the Gujarat High Court have expressly recognised that the principle of non-refoulement is encompassed in Article 21 of the Constitution, and passed directions to the government.
This means that the Supreme Court cannot say that there is any procedural bar on the case being brought before it.
National Security Exception?
However, the government does have one last rabbit it can pull out of its hat. Even in the 1951 Convention, non-refoulement is not absolute and states can impose limitations on it. If a refugee poses a threat to national security of the nation or disturbance of public order, they can be deported to their country of origin.
This is something that will be argued by the government, as Kiren Rijiju’s statements have indicated. However, for the government to limit what is effectively a Constitutional protection under Article 21, they must do so by a procedure established by law, and this must be “just, fair and reasonable.”
As the Supreme Court’s landmark privacy judgment demonstrated, this is not a formality and the government must ensure this standard is met.
Claiming that all Rohingya in India are a threat to national security, including the 16,500 officially registered as refugees with the UNHCR, and the numerous children who are numbered among them, is nothing short of absurd, and should be rejected by the Supreme Court.
The customary international standard in fact generally requires a final conviction of a refugee of some crime demonstrating their threat to a host country before they can be deported to their country of origin. In the Dongh Lian Kham case at the Delhi High Court, the two Rohingya refugees who argued against their deportation had been convicted of crimes, and even then the Delhi High Court said the government should try to deport them to a third country rather than Myanmar.
Conclusion – Compassion Should Prevail
We can, therefore, be reasonably confident that the Supreme Court should issue a direction to the government, prohibiting them from deporting any of the Rohingya, except for those who can be reasonably shown to pose a threat to national security.
This depends on the petitioners making their case, of course, but they have filed a strong writ petition. And surely, surely neither the government nor the court will want the blood of children on their hands.
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