SC ruling on Rohingya is against India’s commitments to international law

The Indian government has in the past differentiated between illegal immigrants and refugees in the absence of domestic legislation, such as, in its treatment of Afghan, Sri Lankan or Tibetan refugees. They have been granted the right to apply for long-term visas for refugees in accordance with the government’s 2011 protocol, thereby reaffirming its respect for the institution of asylum. The sudden volte face with respect to the Rohingya is clearly on account of them being Muslim. They are also excluded from the purview of the Citizenship Amendment Act, despite their fleeing what has been described as a “textbook example of ethnic cleansing”.

The Chief Justice of the Supreme Court, while hearing the application seeking a restraint on the deportation of those detained in Jammu jail, and their immediate release, asked how refugees could invoke Article 32 rights. He had to be reminded that Article 14 and 21 constitutional protections were equally available to every “person”, including refugees. This set the tone for the order that followed. The court first decided to distance itself from the genocide in Myanmar, with which four Indian states share borders stating that it “cannot comment upon something happening in another country”.

This abdication of responsibility is shocking in light of the fact that the killing of hundreds of innocent civilians by the military junta since the coup on February 1 this year, along with the ongoing ethnic cleansing of the Rohingyas, has raised an international outcry. Earlier on January 23, 2020, the International Court of Justice (ICJ) gave a landmark judgment of grave significance in the context of the ethnic atrocities faced by the Rohingya in Myanmar. The court found that the Rohingya had suffered genocide and ordered the government of Myanmar to restrain their military forces from continuing with the oppression. This order was unanimously issued by a 15-member bench of the ICJ on a petition brought before it by the state of Gambia against the state of Myanmar, alleging that the crimes against the Rohingya violate the Convention on the Prevention and Punishment of the Crime of Genocide. India ratified the convention in 1959; in fact, India, along with Panama and Canada was the force behind the adoption of the Genocide Convention on December 9, 1948. Despite India’s binding obligations, the Supreme Court chose to turn a blind eye to this factual reality of genocide and ethnic cleansing facing the Rohingya. The court ignored India’s binding commitment to non-refoulement and obligations in prohibiting genocide, both non-derogable norms of international law, on which the petitioner had based the application.

The petitioner had pointed out how, as a matter of legal principle, refoulement or sending refugees back to a place where they face persecution, has been held to be a breach of Article 21. In Ktaer Abbas Habib Al Qutaifi v Union of India, the Gujarat High Court held, “This principle [of non-refoulement] prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects the life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution.” The same was held by the Delhi High Court in Dongh Lian Kham v Union of India (2016).

The court then went on to state that the petitioners’ claim to a right against deportation is concomitant with the right to reside in any part of the country (an Article 19 right available only to citizens). This is a misconceived compartmentalisation of these rights by the court when the guarantee of these rights flow from each other and form what is called the golden triangle of the Constitution. The Rohingya refugees have never claimed the right to reside or settle in any part of India but they have prayed for the right to life — to reside in a camp without being threatened to be deported into a country where they face genocide, and the right to liberty by being afforded protection from arbitrary arrests, harassment and intimidation. By displaying such ignorance and insensitivity, the court’s human rights jurisprudence has plummeted to an unpardonable new low.

Most striking, however, is the court echoing the government’s submissions on the Rohingya posing an internal security threat, which the government raises as a bogey without any evidence. By reiterating the government’s allegations in the operative part of its judgment and ordering the Rohingya be deported only in accordance with the procedure prescribed for such deportation, the Supreme Court has betrayed its lack of judicial consciousness with regard to the human rights violations of persecuted refugees and has displayed its capitulation to the government’s divisive agenda.

This column first appeared in the print edition on April 17, 2021 under the title ‘Persecuting the persecuted’. The writers are counsel for the Rohingya refugees in the case before the Supreme Court.