As India Washes its Hands of Rohingyas, Will the Supreme Court Step Up?

The SC has been persistent in its refusal to acknowledge the Rohingyas as refugees fleeing war and persecution.

One can only hope that in its next hearing on 31 July, the Supreme Court takes a more humane and context-sensitive view of the whole Rohingya deportation issue.

(Photo: Vibhushita Singh/The Quint)

On 16 May, when presented with a petition citing media reports about the Indian government allegedly abandoning some 40 Rohingya refugees at sea near the southeastern coast of Myanmar, the Supreme Court of India’s immediate reported response was seemingly to doubt the claims.

"A very beautifully crafted story."

That's how Justice Surya Kant, sitting on the bench along with Justice N Kotiswar Singh, verbally referred to the serious allegations, according to Livelaw. 

A detailed investigation by The Quint, based on interviews of the deportees’ family members in Delhi, provides additional confirmation of what appears to be an extraordinarily cruel act of forced deportation of a highly vulnerable refugee group by the Indian government. A local fisherman in Myanmar’s Tanintharyi Region, near whose coast Indian authorities are alleged to have dropped the refugees, told The Straits Times that he saw the refugees “swim to the shore” holding a rope thrown to them by a local ship’s crew.

But the bench appeared not just unconvinced by the evidence presented, but also somewhat indignant at the petition’s timing. On being informed that the petitioner had managed to speak to the deportees in Myanmar over telephone, the judge reportedly said, “When the country is going through a difficult time, you come out with such fanciful ideas!”

Demanding concrete material evidence is a perfectly legitimate ask on the court’s part, as it ultimately did before adjourning the matter to 31 July. However, considering the extraordinary circumstances under which the petition had arrived, the bench’s immediate response of seeming disbelief and even indignation to claims of forced returns was surprising. Yet, this is hardly the first time Rohingya refugees have faced what appears to be apathy at the Supreme Court.

Recent Refusals 

The apex court has been persistent in its refusal to acknowledge the Rohingyas as refugees fleeing war and persecution. Just over a week before the latest hearing, a three-member bench of the Court had, according to Livelaw, flagged the Rohingya in India as ‘illegal immigrants’ who fall under the ambit of the Foreigners Act, 1946.

Justice Dipankar Datta, who shared the bench with Justices Kant and Singh, also verbally dismissed the value of the UNHCR cards based on an earlier order from 2021.

In essence, the court validated the government’s conservative position on the Rohingya issue through an overly textual and counter-humanitarian reading of India’s immigration law.

The most glaring refusal from the Supreme Court to recognise the unique precarity of Rohingya asylum seekers in India came on 8 April 2021, when a three-member bench refused to stay the deportation of some 150 Rohingya refugees detained in Jammu. It did rule that they cannot be deported “unless the procedure prescribed for such deportation is followed”, which evidently was not done in the latest case. But it rejected the refugees’ core claim to not be sent back to their home country, where they face a real threat to life.

This was done by laying greater importance on the fact that the Rohingya are not entitled to the benefits of Article 19 (1)(e) of the Indian Constitution (the right to settle in India) over their protection under Article 21 (right to life).

This is despite the extensively documented threat to life that the Rohingyas face in Myanmar at the hands of the military and Rakhine Buddhist ethno-nationalists. Instead, the Court reiterated the sweeping claim of the Indian government that the Rohingyas are a “threat to internal security of the country” without probing it further.

Non-Recognition of Myanmar Context

The top court’s arguably cavalier approach to the Rohingya issue appears to emanate from its persistent refusal to consider the unique political conditions in Myanmar that continue to force the Rohingya to flee.

These include the racially biased 1982 citizenship law brought in by General Ne Win’s regime that effectively rendered the Rohingyas stateless, the 2017 genocidal violence in Rakhine State that forced 8,00,000 of them to flee to Bangladesh, and the renewed conflict after the 2021 military coup that has pushed them into a new zone of violence and precarity.

In fact, such has been the Court’s ignorance of these factors that while hearing a petition against the deportation of seven Rohingya refugees in 2018, the then Chief Justice of India, Ranjan Gogoi, confidently, summarily, and rather erroneously concluded that Myanmar had “accepted them as citizens.”

In reality, over the last decade, the Bamar-dominated state has only progressively chipped away at whatever little political rights, including franchise, that the Rohingyas had in Myanmar.

Since the 2021 coup, the Rohingya have found themselves trapped in a deadly crossfire between the junta and the Arakan Army, an ethnic Rakhine Buddhist armed organisation that now controls 14 out of Rakhine State’s 17 townships.

Not just that, multiple reports of forced conscription of Rohingyas from northern Rakhine State and the camps of southeastern Bangladesh have also emerged. Yet in its 2021 ruling—two months after the coup—the Supreme Court refused to consider these evolving conditions, stating that it “cannot comment upon something happening in another country.”

This is an odd position to take, for the issue of refugee deportation is directly and logically tied to the political conditions of the home country. The petitioners were not asking the Court to pass judgment on the internal circumstances of another country—which is the executive’s remit—but merely to impartially assess if those circumstances could actively threaten the asylum seeker’s life or well-being if the host government exercises its sovereign right to send them back.

In fact, the apex court has in the past proactively considered the unique social and political conditions of the country of origin of certain asylum-seeking groups, such as in the case of the Chakmas who fled forced displacement and persecution in erstwhile East Pakistan.

It also did so in both, Khudiram Chakma v State of Arunachal Pradesh (1993) and National Human Rights Commission (NHRC) v State of Arunachal Pradesh (1996), emphasising the importance of the non-refoulement principle—which, according to the UN, is the obligation of a state to not return an individual to a country where they would face “torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm.” The Court also categorically asserted that “the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise.”

Averse to External Advice? 

The Supreme Court has also shown an evident reluctance to heed external expertise on the Rohingya issue, especially from "third-parties."

This is most prominently in the case of the UN Office of the High Commissioner for Human Rights (OHCHR) or its Special Rapporteurs. In the latest hearing on 16 May, Justice Kant summoned the upcoming OHCHR inquiry report on the forced abandonment as supporting evidence—but only after remarking that “all these people who are sitting outside cannot challenge our sovereignty.” 

This is not the first time the top court has discouraged external interventions in domestic cases by UN bodies or mechanisms. Ahead of the April 2021 order allowing the deportation of the detained Rohingya from Jammu, the Court refused to entertain a detailed intervention by the UN Special Rapporteur E Tendayi Achiume on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance.

Despite this, one hopes that the top court will not reject all external expertise on the subject. In the latest hearing, to underscore the Rohingya’s ordeal in Myanmar, the petitioners referred to the 2020 provisional measures ruling of the International Court of Justice, which concluded that the Myanmar military may have subjected the minority to ‘genocidal acts’ in Rakhine State in 2017.

International human rights scholar Priya Pillai, writing in her blog Opinio Juris, argues that the ICJ’s ruling, "in a matter that is directly related to the question of genocide, and the well-founded fears of individuals should they be returned to Myanmar, is legally and factually relevant” for Rohingya deportation-related cases in the Supreme Court of India

The hope remains that the final order considers the ICJ’s opinion.

Humans First, Then Refugees

Besides demanding more robust evidence on the latest claims of forced abandonment at sea, Justice Kant also asked whether the Rohingyas in India were refugees at all. 

In a strictly legal sense, this is a legitimate question. Since India does not have a national refugee law and isn’t a state party to the 1951 Refugee Convention, the status of all “refugees” is  de facto governed by the Foreigners Act, 1946, which renders them “illegal immigrants”.

But, in the specific context of the latest petition, Justice Kant’s legally valid inquiry begets a troubling question: even if the Rohingya were not "refugees" and were indeed "illegal immigrants", would it be acceptable for the Indian government to dump them at sea near a war-torn country?

As Colin Gonsalves, counsel for the petitioners, pointed out, 8,000 Rohingyas in India have refugee cards issued by the UN High Commissioner for Refugees (UNHCR). As a country that has not ratified the 1951 Refugee Convention, India is not obligated to officially recognise the UNHCR’s card-issuing authority.

However, should this particular legal aspect deter a top court bench that is hearing a case of sudden and forced abandonment of a large group of individuals at sea? Forced returns of this sort, by all measures, appear to be an act that breach both constitutional norms and international law beyond the remit of the Refugee Convention.

In Dr Malavika Karlekar Petitioner versus Union Of India and Anr (1992), the apex court did recognise the UNHCR’s informal authority in India by stopping the deportation of 21 individuals from Myanmar, whose application for refugee status were pending. So, there is precedent for the bench to take a humanitarian view of the status of the current batch of Rohingya asylum seekers in India.

One can only hope that in its next hearing on 31 July, the Supreme Court takes a more humane and context-sensitive view of the whole Rohingya deportation issue.

More importantly, one hopes that it understands the urgency of addressing the alleged forced sea deportation of the refugees to Myanmar in light of the raging civil war there. The Court has an opportunity here to set a striking precedent in judicial empathy, using the fundamental norms of justice and equality that the Republic of India was founded on.

(Angshuman Choudhury is a doctoral candidate in Comparative Asian Studies jointly at the National University of Singapore and King’s College London.This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)