The Supreme Court on Wednesday slammed the Assam government for the delay in the deportation of migrants back to their country.
The bench comprising of Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna rebuked the government for not complying with its previous order with regard to the deportation of migrants. Prior to that, the Supreme Court had on January 28, 2019, directed the Assam government to disclose the details regarding the number of foreigners detained, who had been deported from the detention centres.
On January 3, 2019, India deported a Rohingya Muslim family of five, which had been in the Tezpur Detention Centre in Assam since 2013, to Myanmar. This was the second such group expelled in four months, after seven men who were lodged at the Silchar Detention centre in Assam since 2012, were deported to Myanmar in October 2018.
The UN has also expressed concern over the forcible repatriation of the Rohingya back to Myanmar. A UN fact-finding mission categorically accused the Myanmar army of committing acts with genocidal intent against the Rohingya in northern Rakhine. The violent military campaign ultimately led to the expulsion of more than 800,000 Rohingya men, women and children into neighbouring Bangladesh, triggering one of the worst humanitarian crises in modern history.
Yet the Indian government and Supreme Court failed to comply with the international humanitarian obligations. Moreover, the UN special rapporteur on racism, E. Tendayi Achiume expressed alarm over the Narendra Modi government’s decision to deport seven Rohingya men to Myanmar on 3 October 2018. She said in a statement that forcing the men to leave India was “a flagrant denial of their right to protection and could amount to refoulement.”
Legal efforts to thwart their deportation failed when the Supreme Court on October 4 last year rejected the victims’ petition, upholding their status as illegal immigrants. The fear of additional arrests forced many Rohingyas who were living in India for generations to step out.
Why is the government so keen on deporting Rohingyas?
The government has framed its approach towards the deportation of Rohingyas as a national security issue – a claim that the Supreme Court rejected as a basis for deportations in October 2017. The Supreme court stated that the government “must strike a balance between human rights and national security interests.”
However, on 1 October 2018, the government had ordered states to begin collecting biometric data from the Rohingyas, after which the government was to “initiate action through diplomatic channels with Myanmar” to “get it resolved,” according to home minister Rajnath Singh.
The Indian government has insensitively termed the deportation of Rohingyas as a routine procedure and has further categorically stated that the Rohingya are being deported in accordance with their wishes. The Supreme Court denied the UNHCR access to the men to determine whether they needed international protection as refugees.
Deportation of Rohingya violates international obligations
There is no domestic procedure or law that governs the protection of refugees in India. There is also no regional agreement, binding nature like the Organization for African Unity (OAU) Convention, 1974 or a detailed declaration for refugee protection such as the Cartagena Declaration (1984) enacted in Central America.
As Angshuman Choudhury has noted,”In several affidavits submitted to the apex court since last year, the Centre has argued that India can legally deport the Rohingya to Myanmar since it is not party to the 1951 Convention on Refugees and its 1967 Protocol. Both these legal instruments enshrine the principle of non-refoulement or the obligation of state parties to not return refugees to countries where they face a clear threat of persecution.”
Whilst it is understood that India is not a state party to the 1951 Refugee Convention and does not have domestic legislation recognising refugees, protection from refoulement then relies on general human rights law. India, for example, is party to the ICCPR (International Covenant on Civil and Political Rights) and CAT (Convention against Torture).
Non-refoulement is today almost universally considered to be customary international law. This principle of non-refoulment is also a part of the so-called jus cogens which is a fundamental principle of international law, accepted by the international community of states as a norm, from which no derogation is ever permitted.
At the international level, Article 3 (1) of the UN Declaration on territorial asylum unanimously adopted by the General Assembly in 1967 states that:
“No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.”
A customary norm is based on widespread state practice supporting the rule and on opinio juris, states’ sense of legal obligation to adhere to the rule. This means that, irrespective of whether India is a state party to the 1951 Convention on Refugees, it is under obligation to abide by the rule.
Past precedents in India
“Besides international law, India’s own courts – including the Supreme Court – have set multiple case precedents on non-refoulement,”, notes Chowdhury. “For example, inKtaer Abbas Habib Al Qutaifi and Anr. v. Union of India (Uoi) and Ors, the Gujarat high court explicitly recognised the principle (under a distinct sub-section) in context of the proposed deportation of two Iraqi refugees to their home country. Remarkably, the judgment not only meticulously cites provisions under international law that prohibit countries from undertaking such deportations, but also argues that Article 21 of the Indian constitution (right to life) encompasses the non-refoulement principle.”
Remarkably, the judgment not only meticulously cites provisions under international law that prohibit countries from undertaking such deportations and sending the asylum seeker back to their country, but also argues that Article 21 of the Indian constitution (right to life) encompasses the non-refoulement principle.
In Dongh Lian Kham & Anr. v. Union of India & Anr, the Delhi high court upheld the principle of “non-refoulement” and further observed that it is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as “non-refoulement” affects the life and liberty of a human being, irrespective of his nationality.
In the case of Khudiram Chakma v. State of Arunachal Pradesh, the apex court, emphasising upon the Article 14 of the UDHR, 1948, stated that any person who is seeking asylum in a state cannot be sent back to the state from where he has come if there is the risk of persecution is embedded. Establishing the same position on the principle of non-refoulement, the Bombay high court in the case of Syed Ata Mohammadi v. Union of India, pointed out that Iranian refugees cannot be ostracised to Iran where they face a fear of persecution.
Further, in National Human Rights Commission v. State of Arunachal Pradesh & Anr. & in State of Arunachal Pradesh v. Khudiram Chakma, the Supreme Court observed the principle of non-refoulment and held that India is under obligation to not deport vulnerable refugees and is bound by certain international and municipal (domestic) laws.
Although there is no municipal (domestic) law under the purview of which deportation of Rohingyas could be dealt with specifically, India is bound by international obligations. There may be no statutory legal framework that categorically addresses the issue of the forced return of refugees. Yet, the deportation of Rohingyas back to Myanmar in the face of the continuing threat of persecution, would, as zchoudhury notes, violate “India’s international legal obligations and domestic judicial precedents laid down by several apex court verdicts.”
The issue of deportation raises further concerns about life and security as UN investigators said on October 24, 2018, that genocide is still taking place against Rohingya Muslims in Myanmar.
The BJP government has cited “security threats” as one of the main reasons for deporting the Rohingya back to Myanmar in its public pronouncements as well as in its response to the Supreme Court. However, the government has failed to place even a single piece of evidence that would validate these claims.
It can be clearly construed that it is the majoritarian and communal world-view of the ruling BJP which assumes that Muslim identity in itself is a threat. But India, being a secular and democratic state, should uphold the values of the Constitution.
Lokesh Mewara is a third-year law student at the National University of Study and Research in Law, Ranchi.
Note: In an earlier version of this article, quotations from Angshuman Chowdhury’s article in The Wire were not properly acknowledged or referenced,