On 8 April, Thursday, the Supreme Court of India allowed the central government to deport the hundreds of Rohingya refugees currently detained in Jammu’s sub-jail, back to conflict-hit Myanmar.
In the order passed by a bench headed by the Chief Justice of India SA Bobde, which runs into six pages, not a single paragraph takes into account that allowing for such a mass deportation, will push hundreds of Rohingya refugees back to a land where they face imminent persecution and violence.
By refusing to comment on the ongoing situation in Myanmar while allowing the deportation, the Supreme Court shrugged off its responsibility to protect the right to life under Article 21 of the Constitution, which also extends to non-citizens.
Blind Eye Towards 'Non-Refoulement'
The principle of non-refoulement in international law states that a person seeking asylum cannot be sent back to a place where s/he faces risk of persecution. It is widely accepted, that the principle of non-refoulement has the status of ‘jus cogens’, which makes it binding on all states regardless of whether they are signatories to the Refugee Convention or not.
In the present order, the Supreme Court accepted the central government’s argument that the principle of non-refoulement is not binding on India as it is not a signatory to the Refugee Convention.
The point that the principle of non-refoulement being jus cogens completely missed the court. However, even if we don’t accept non-refoulement as jus cogens, there are judgments by the Delhi High Court and the Calcutta High Court, which clearly state that the ‘principle of non-refoulement should be read as part of right to life under Article 21 of the Constitution’.
So it seems the Supreme Court completely overlooked existing jurisprudence which supports the claim that the principle of non-refoulement forms a part of Article 21 of the Constitution.
In the order, the court says that “national courts can draw upon international conventions/treaties, so long as they are not in conflict with municipal law." However, it stopped right there.
In India, there is no law that clearly prohibits the application of non-refoulment. Therefore, the court could’ve “drawn inspiration” from various international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights (UDHR), which espouse the principle of non-refoulement.
In the Vishakha case, the Supreme Court relied upon international conventions to set out guidelines on sexual harassment at the workplace as there was no law in India to address the issue. However, the apex court refused to take the same route in the case of the Rohingya refugees.
'We Will Not Comment On Situation In Another Country'
The Supreme Court’s refusal to comment on the situation in Myanmar underpins the injustice served in allowing deportation of Rohingya refugees. The petitioners were not against deportation, they just did not want to be sent back to a country where they face an imminent threat of persecution. Therefore, by refusing to comment on the situation in Myanmar the Supreme Court completely negated the petitioners' primary reason for approaching the court.
Refusal to comment on situation in Myanmar, despite there being no law or practice that precludes the court from doing so, shows how the Supreme Court’s reasoning was disproportionately skewed towards the interests of the central government, while shrugging off the duty to assess the claims of the refugees seeking constitutional protection.
Compartmentalising Rights
The Supreme Court has reasoned that the issue of deportation in the present case does not fall under Article 21 (right to life and liberty), but under Article 19(1)(e) (to reside and settle in any part of the territory of India). This reasoning is flawed for two reasons:
a. The case of the petitioners is not about seeking a complete prohibition on deportation to any state. They just did not want to be deported to Myanmar, where they face an imminent threat of persecution. Therefore, the petitioners did not claim a right to reside or settle in any part of India, but simply protection of their right to life.
b. In the landmark case of Maneka Gandhi v. Union of India, the Supreme Court had clearly observed that the fundamental rights enshrined under Articles 14, 19 and 21 of the Constitution form a “golden triangle” and cannot be interpreted disjunctively.
Therefore, the Supreme Court’s move to juxtapose the present case as issue under Article 19(1e) instead of Article 21, suggests that it looked away from its own jurisprudence, and in the process did not do justice to its duty to protect right to life - the only right that formed the basis of the plea moved by the Rohingya refugees.
Rhetoric Over Rights
The 6-page long judgment of the Supreme Court in the present case seems to be based more on unfounded rhetoric peddled by the central government than on a reasoned assessment of human rights.
The court justifies its decision by saying that the central government has made “serious allegations” about Rohingya refugees being a threat to “national security” and that their “illegal immigration” is supported by “agents and touts for making money”. Despite recognising them as “allegations”, the court accepted their veracity without any questioning.
When a court of law relies on rhetorical claims instead of evidence on record for making a judgment, it amounts to a gross “miscarriage of justice”.
It is unbecoming of a constitutional court to shy away from adequately addressing the concerns of those seeking protection of their right to life. The least a court of such a stature should’ve done is to give reasoning that is not flawed, that is not contrary to its own jurisprudence, and which privileges due process over prejudicial rhetoric.
The Supreme Court’s decision to allow deportation of Rohingya refugees to a country where they face threat of persecution raises more serious questions than the answers it purports to provide.
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