Blog post by Jay Ramasubramanyam, Department of Law and Legal Studies, Carleton University, Canada.
In August 2017, the Government of India directed authorities to identify ‘illegal immigrants’, including Rohingya refugees, and commence deportation procedures. A writ petition was filed in the Supreme Court of India to prevent the forced return of Rohingya.[1] Almost 4 years later, on April 8, 2021, in his last salvo as the Chief Justice of India, Sharad Arvind Bobde rejected Rohingya refugees’ right to non-refoulement. In rejecting the petitioners’ plea, the Court ordered that since “India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967”, the principle of non-refoulement is inapplicable (para 10). The Court referenced “national security ramifications” and considered the arrival of refugees as “a continuous threat of influx of illegal immigrants” (para 10). Finally, in ordering the government to allow for deportations, the Court said that “rights guaranteed under Articles 14 [equality before the law] and 21 [protection against deprivation of personal liberty] may be available to non-citizens, [but] the fundamental right to reside and settle in this country is available only to citizens” (para 10). This decision is not only anomalous to the past judgements of the Supreme Court (see below) but has emerged in light of the Indian Government’s increasing isolationist agenda and anti-Muslim sentiments.
Past practice
Over the years, the Indian judiciary’s engagement with international refugee law has been uneasy. However, it is also crucial to note that despite such contestations, in the past, both the Supreme Court and High Courts in India, have interpreted and expanded the scope of domestic legal provisions to include asylum seekers within their purview. They have provided relief in cases where individuals had intentions of seeking asylum or were facing deportation to a State where they may face serious threats or were facing detention. However, the latest Supreme Court order neither acknowledges past decisions nor India’s recognition of the overall objectives of international refugee law that have translated into ad-hoc mechanisms of refugee protection. Instead, the decision to deny the petitioners’ request was framed as an issue of illegal immigration. In doing so, the Supreme Court has not only exacerbated their vulnerability, but has also made it more difficult for Rohingya refugees to access constitutional protections that were afforded to other groups in the past. Simultaneously, the Court signalled that “the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law” (para 12). However, this six-page order does not follow through with this observation. Instead, the Court, in denying the petitioners their request, indicated that as a non-signatory State, India was not bound by the principle of non-refoulement and further contended that it was unable to comment on the prevailing situation in Myanmar.
In declaring the inapplicability of the principle of non-refoulement, the Court has overlooked past instances in which it had prevented deportation of refugees by drawing on both constitutional provisions and international law principles. For instance, the Court in N.D. Pancholi v State of Punjab stayed the deportation order issued against a refugee from Iran and allowed time for them to seek protection from the UNHCR office in New Delhi.[2] Similarly, in Malavika Karlekar v Union of India, the Court stayed the deportation of 21 Burmese Nationals from the Andaman Islands, pending their refugee status determination by UNHCR.[3] The case of Khudiram Chakma v State of Arunachal Pradesh emerged from a petition filed by Chakmas, a group that sought refuge in India from Bangladesh in 1964, in response to their forced repatriation.[4] The Supreme Court of India considered article 14 of the UDHR (right to seek asylum) in holding that Chakma refugees who had escaped persecution in Bangladesh could not be forcibly sent back, on account of the on-going threats they might face. The court further held that this could result in the deprivation of their right to life under article 21 of the Constitution of India. This approach was reinforced in the case of National Human Rights Commission (NHRC) v State of Arunachal Pradesh.[5] This emerged from a public interest petition, filed by the NHRC, which sought to enforce the provisions of article 21 of the Constitution. The court stated that the Constitution “confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws” (para 20).
The jurisprudential developments outlined here indicate that in the past India has recognized the significance of providing relief to persons of concern by reshaping international refugee law principles in accordance with subcontinental experiences of forced migration. However, the current government has been very selective about who deserves protection. The Hindu-nationalist Indian government under Narendra Modi passed the controversial Citizenship Amendment Act in December that explicitly barred Muslims from guaranteed fast-track citizenship. In August 2019, Article 370 of the Indian constitution that extended special status to the Muslim majority state of Jammu and Kashmir was scrapped. Such policy and legislative moves have successfully created an underclass of citizenry, who are mostly Muslims. Coupled with such developments, the absence of a national refugee law has become more of an issue in recent years given the draconian executive action undertaken by the ruling government in India that has hurt several groups of refugees like the Rohingya. The recent Supreme Court order is also an example of how legal institutions have become servile to the ethnonationalist interests of the current government. Among the many transgressions of the Modi regime, the legacy of ethnoreligious nationalism continues to reinforce discrimination towards minorities. Legal institutions in the country have been brazenly weaponized in order to bolster the nascent image of a Hindu nation. The most recent decision by the Supreme Court is yet another egregious move that has placed refugees in an uninviting and ambiguous domestic legal and policy environment. This presents a flagrant reversal of India’s past benevolence towards persons of concern and blatant contravention of international legal norms.
[1] Mohammad Salimullah v Union of India, Writ Petition (Civil) No 793 of 2017, 30 August 2017 (Judgement on 8 April 2021) (Supreme Court of India).
[2] N.D. Pancholi v State of Punjab and Others, Writ Petition (Criminal) No 243 of 1988, 9 June 1988 (for Prel. Hearing) (Supreme Court of India).
[3] Malavika Karlekar v Union of India, Writ Petition (Criminal) No 583 of 1992, 25 September 1992 (Supreme Court of India).
[4] State of Arunachal Pradesh v Khudiram Chakma, 1994 AIR 1461 (Supreme Court of India).
[5] National Human Rights Commission v State of Arunachal Pradesh, 1996 SCC (1) 742 (Supreme Court of India).
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