Case Law Analysis

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This Blog is written by Harshit Rai from Amity Law School, Lucknow. Edited by Oshin Suryawanshi.

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BACKGROUND

A petition has been filed before the Supreme Court, challenging the decision to expatriate Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar.

Rohingyas are an ethnic minority from Myanmar’s Rakhine state, who have been facing aggressive persecution at the hands of the Myanmar government, military and Buddhist nationalists. Several Lakhs of Rohingyas have fled their country in the recent past to seek refuge in neighbouring countries. While the Rohingya claim that they are indigenous to the Rakhine region of Myanmar, the Myanmar government has, for more than a century, considered them to be the Bangladeshi refugees. The situation of Rohingyas has led several human rights organisations to describe them as the ‘most persecuted community’ in the world.

According to the estimate of Indian Home Ministry, there are at least 40,000 Rohingya Muslims living illegally as undocumented refugees in various parts of India. The Ministry claims that about 10,000 Rohingyas live in Jammu and Kashmir, with rest spread out in Delhi, Haryana, Rajasthan etc. The petition has been filed by two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, who relied on a Reuters Report which claimed that the Central Government has decided to deport 40,000 Rohingyas back to Myanmar, the country of their persecution.

India is not a signatory to Refugee Convention of 1951 or its 1957 Protocol and also does not have a national refugee protection framework. India has always been accommodative to refugees on humanitarian grounds as was evident during the Tibet Crisis of 1959, the creation of Bangladesh in 1971 and civil wars in Sri Lanka and Afghanistan, where India gave shelter and protection to lakhs of refugees.

The petitioners have claimed that the proposed deportation violates the constitutional protection of Right to Equality under  Article 14, Right to Life and Personal Liberty under Article 21 and fostering respect for international law and treaty obligations under Article 51(c). The petitioners also claimed that the deportation would be in contradiction with the principle of ‘non-Refoulement’, generally considered to be a part of Customary International law. The principle of ‘non-Refoulement’ forbids a country from sending back asylum seekers or refugees to a country where they face persecution and is seen as binding on all countries, irrespective of not being a signatory to the 1951 Refugee Convention. The Indian government maintains that a large number of Rohingya migrants represents a national security threat and hence, they should be deported. However, some commentators believe this deportation exercise depicts an underlying change in India’s refugee policy from ‘secular’ to ‘anti-Muslim’. The Indian government has proposed amending the Citizenship Act, 1955 to make the naturalisation process easier for all except Muslim immigrants. The Citizenship (Amendment) Bill, 2016  expedites naturalisation process of persecuted minorities i.e. Hindus, Christians, Jains, Sikhs, and Zoroastrians from Pakistan, Bangladesh and Afghanistan. It specifically excludes Muslims persecuted in these countries e.g., Ahmadiyas in Pakistan or Rohingyas in Myanmar. This petition, apart from deciding the fate of 40,000 Rohingyas in India will also clarify the extension of Fundamental Rights to the case of non-citizens like Rohingyas and the degree to which customary international norms are binding on municipal law.

The matter was mentioned by Advocate Prashant Bhushan before the bench comprising of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud. On 2 October 2018, Chief Justice Misra retired and new Chief Justice Ranjan Gogoi took over.

On 7th March 2021, there were newspaper reports that 150-170 Rohingya refugees in Jammu had been detained and placed in holding centres. There are 6,523 Rohingyas in Jammu, who are concerned about the situation. They feared they would be deported to Myanmar. The petitioners thus filed an interim application to release the detainees. The Government of India has denied that they are detained.

The case next came up for a hearing before a new bench of CJI Bodbe, Justices Bopanna and Balasubramanian on 26 March 2021. They pronounced their order on 8 April.

FACTS

The writ petition was filed praying for the issue of an appropriate writ directing the respondents to provide basic human amenities to the member of the Rohingya Community, who have taken refuge in India. The petitioners who claim to have registered themselves as refugees with the United Nations High Commission for refugees, have come up with the present interlocutory application seeking

(i) the release of the detained Rohingya refugees; and

(ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub jail in Jammu.

ISSUES

1. Does the deportation of Rohingya Muslims violate the right to equality under Article 14, considering that similarly placed immigrants are not being deported?

2. Does the proposed deportation of Rohingya Muslims – who face an existential threat in Myanmar – violate their right to life under Article 21?

3. Do fundamental rights apply to non-citizens?

4. Is India bound by the ‘non-Refoulement’ principle which is considered a part of Customary International Law, despite not signing the 1951 Refugee Convention?

RULES

The Supreme Court of India cited 3 Articles from The Constitution of India, 1949

• Article 19(1)(e)

to reside and settle in any part of the territory of India.

• Article 51(c)

foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration Part IVA Fundamental Duties.

• Article 21

Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

CONCLUSION

In a significant order passed by the Supreme Court of India on 8 April 2021 in Mohammad Salimullah and Anr v. Union of India and Ors., the court refused to grant interim relief in a petition seeking the temporary release of Rohingya refugees from detention in the State of Jammu and Kashmir and their pending deportation from India to Myanmar. In its six-page order, the three-judge bench refused to authorize the release of nearly 150 Rohingyas, currently detained in Jammu detention centres and allowed their deportation to Myanmar in the face of imminent genocide.

In this judgment, the Supreme Court clarifies that India is not a signatory to the United Nations 1951 Refugee Convention and Protocol, indicating that this is sufficient for the non-compliance of the non-refoulement policy. Therefore, it cannot be compelled to comply with its obligations under Article 51 (c) of the Constitution of India unless it has expressly agreed to comply with the international agreement.  Further, the Court in Paragraph 12 noted that the Courts could refer to the International Conventions and Agreements, as long as they do not conflict with the State Law.