Law

Contrary to SC Ruling, Manipur HC Reading of ‘Non-Refoulement’ Recognises Right of Asylum Seekers

The Manipur HC has granted safe passage to seven persecuted citizens from Myanmar to seek protection of the UNHCR in New Delhi by recognising the right of 'non-refoulement'.

A quarter of a million people have been displaced amidst the military crackdown in Myanmar, with an estimated 4,000 to 6,000 refugees having sought safety in India. The ongoing persecution in the strife-torn country has triggered a refugee crisis in the northeastern frontier. With the United Nations urging neighbouring countries to protect the refugees, India has condemned the violence and reaffirmed its belief in a peaceful democratic transition.

However, the Ministry of Home Affairs has urged the four northeastern states sharing borders with Myanmar to check illegal influx and ensure expeditious deportation. Security forces have ramped up border patrol to curb infiltration even as the responses from states such as Manipur and Mizoram have been contrasting.

India’s equivocal stance prompted a judicial intervention by human rights activist Nandita Haskar to alleviate the plight of refugees. The Manipur high court has granted safe passage to seven persecuted citizens from Myanmar, including three minors, to seek protection of the United Nations High Commissioner for Refugees (UNHCR) in New Delhi by recognising the right of non-refoulement.

Expansive reading of Article 21: The Manipur high court on non-refoulement

As underlined by the high court, ‘non-refoulement’ is a widely accepted principle of international law that provides a refugee or asylum seeker a right against expulsion from the territory in which he or she seeks refuge. It bars the forcible return of a persecuted asylum seeker to the country of origin where he or she faces a threat to life or freedom because of race, religion, nationality, membership in a social group, or political opinion.

Manipur high court. Photo: YouTube

The Manipur high court has clearly identified the seven individuals as ‘asylum seekers’ as against migrants, who faced an imminent threat to their lives pursuant to their links to a media organisation banned in Myanmar. The division bench described India’s refugee policy as ‘opaque’ and deprecated the state practice of branding asylum seekers as foreigners’. Moreover, the court affirmed the findings of the Supreme Court in Louis De Raedt v. Union of India and State of Arunachal Pradesh v. Khudiram Chakma to observe that even a foreigner is entitled to the right to life and personal liberty under Article 21.

Also read: What Is Keeping India on the Wrong Side of History With Myanmar?

India is a party to the Universal Declaration of Human Rights, Article 14 of which guarantees a right to enjoy and seek asylum from persecution in other countries. The Manipur high court has positioned the international obligation on non-refoulement towards the asylum seekers under Article 21 of the Constitution despite India’s non-signature of the Refugee Convention, 1951.The humane approach of the court is in line with several high court precedents.

On non-refoulement, the Gujarat high court has held that there is substantial, if not conclusive, authority that the principle is binding on all states, independently of specific assent of the Refugee Convention. The Delhi high court in 2015 had also extended protection to Myanmarese refugees against immediate deportation by reading non-refoulement as a part of Article 21, subject to a national security exception.

SC’s demonstration of judicial pusillanimity

The Manipur high court’s reading of ‘non-refoulement’ under Article 21 represents a welcome departure from the Supreme Court’s recent demonstration of judicial pusillanimity. The bench led by the former Chief Justice S.A. Bobde upheld the deportation of Rohingya refugees detained in Jammu, subject to the procedure prescribed. The petitioners’ claims of having registered themselves as ‘refugees’ with the UNHCR were overlooked.

The Supreme Court read the ‘right not to be deported’, as concomitant to the right to reside or settle in any part of the territory of India under Article 19(1)(e) of the Constitution, a guarantee limited to citizens. The Centre’s unsubstantiated claims of internal security concerns and the possibility of illegal immigrants being provided a safe passage along porous land borders were acceded to by the apex court without offering any rationale. The gravity of the humanitarian crisis in Myanmar was invisibilised to merely “something happening in another country”.

Supreme Court of India

Supreme Court of India. Photo: PTI

Contrary to the Supreme Court’s decision, the Manipur high court infuses a new lease of life into Article 21 as it recognises the immediate right of asylum seekers against deportation. It offers a breathing space for asylum seekers fleeing atrocities in Myanmar at a time when the COVID-19 pandemic has led to greater assertion of territorial nationalism and offered a potential impetus to dilution of refugee protection around the world.

 The absence of a policy framework for asylum seekers/refugees

India played a key role in envisioning the Global Compact for Refugees which was adopted by the United Nations General Assembly (UNGA) on December 17, 2018. The UNGA has emphasised on affording full respect to the cardinal principle of non-refoulement and taken strong exception to the arbitrary expulsion of asylum seekers. The Global Humanitarian Response Plan of the United Nations has also espoused the cause of rendering assistance to refugees and asylum seekers particularly vulnerable to the pandemic.

The lack of legislative safeguards in India has meant protracted legal battles in the courtrooms for asylum seekers. India’s obligations under the international human rights law regime has enabled courts to occasionally reinvigorate the scope of Article 21 and interpret a constitutional guarantee of non-refoulement. However, a concrete policy framework is required for the Manipur high court’s rights-based approach to translate into a wider spectrum of administrative action at the ground level.

The COVID-19 pandemic exacerbates the challenges for the northeastern states to tackle the inflow of asylum seekers from Myanmar. With the virus increasing the associated risk of contagion, avenues for accessing testing and vaccination must be explored alongside the local populations. The UNHCR’s Delhi office has recently circulated a notice advocating pandemic-appropriate behaviour and independent pursuit of vaccination among Rohingya refugees stationed in Delhi.

Also read: ‘How Can a Human Being Be Illegal?’: Lawyer for Rohingya Questions India’s Deportation Plans

Even though Mizoram has been receptive to the refugee’s concerns on account of ethnic affinity, a spurt in COVID-19 infections among asylum seekers in the past week has caused fresh alarm and the state continues to await directions from the Centre. The Union home minister’s offer for ration and medical supplies is unlikely to provide solace to refugees or the northeastern states in light of India’s position of strategic ambiguity.

In the absence of a national rehabilitation policy in India, the asylum seekers from Myanmar do not have a guarantee of welfare entitlements and are reliant on individual humanitarian efforts of locals or non-governmental organisations. The scarcity of resources in the border-states could lead to forced repatriation in the near future thus rendering the promise of non-refoulement under Article 21 hollow.

As an immediate measure, the Centre must engage in active collaboration with the UNHCR to identify distressed asylum seekers and offer socio-economic assistance. The Union government can consider the possibility of granting annually renewed long term visas (LTVs) to asylum seekers from Myanmar in terms of the standard operating procedure issued for persecuted religious minorities from neighbouring countries Pakistan, Bangladesh and Afghanistan.

The upheaval in Myanmar also offers an ideal opportunity for India to fill in the legislative gaps on refugee protection and strengthen its commitment to the international human rights regime. It is time for the country to look towards a comprehensive refugee policy mirroring global best standard practices such that durable solutions can be implemented.

Rongeet Poddar is a lawyer based in Kolkata and a graduate of West Bengal National University of Juridical Sciences and Shrutika Pandey is working as litigation assistant with MANSA Centre for social development.