Blog post by Mohd Ayan, a second year law student and Nabil Iqbal, a fifth year law student at Jamia Millia Islamia University, New Delhi.
The Judicial Pronouncement
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.
Contradiction to International Laws
The judgment is contradictory to the provisions of International Law on two points – firstly, although India is not a signatory to the 1951 Refugee Convention, it has signed and ratified several International Conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic and Social Rights (ICESCR) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
These conventions, which provide for non-refoulement under their general rules, have also been reiterated by regional treaties such as Cartagena Declaration on Refugees(1984), Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967. The ICCPR stipulates the principle of non-refoulement explicitly and thus places a duty upon India to comply with its obligations to strengthen this agreement and adhere to International customary Law’s respected principles. Article 6 and Article 37 of the General Comment No. 6 (2005) of UN Committee on the Rights of the Child (CRC) on “Treatment of unaccompanied and separated children outside their country of origin” stipulates that a State must not return children to a situation where they may face persecution, but does not limit non-refoulement to these rights only. Article 3 of the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and Article 13(7) of the International Convention for the Protection of All Persons from Enforced Disappearance (CPPED) explicitly provides for non-refoulement.
Moreover, Indian courts have also relied upon International Laws and their provisions as a matter of judicial interpretation. Although India is not a signatory to the Vienna Convention on the Law of Treaties (VCLT), the Supreme Court of India in Ram Jethmalani High Court v. Union of India relied on the VCLT as it contains many principles of International Law with special emphasis on Article 31 of the Vienna Convention, which provides a broad guideline as to what could be an appropriate manner of interpreting a treaty. Therefore, India is not exempt from obligations under the International Laws by not being a member of the 1951 Convention.
Secondly, the principle of non-refoulement is a matter of International Customary Law; which means that it applies to every nation regardless of whether they are party to a particular agreement or not. This view was iterated by the Supreme Court of India in People’s Union for Civil Liberties v. Union of India, where the court highlighted the importance of customary laws and held that their application should be encouraged in domestic legislation. In another instance, the Supreme Court on the issue of conflict between customary and domestic law has held that customary law would prevail over the Statutory Law.
Given the primacy of non-refoulement in the Conventions to which India is a party, and that previous rulings have highlighted its importance, this judgement is a concerning change in direction, particularly since the judges failed to consider International Laws at all.
The Supreme Court’s decision on the deportation of Rohingya refugees to Myanmar particularly after the recent military coup has also raised a question on the fate of the world’s most persecuted religious refugees. It is noteworthy that the armed forces of Myanmar have previously been blamed for the genocide of Rohingya Refugees by the International Court of Justice.
In the absence of any municipal law for the protection of refugees, the burden lies on the judiciary to extend protections through judicial activism. As previously mentioned on this blog, the Supreme Court of India, by allowing deportation, has not only been anomalous to its previous judgments but also set a new precedent contrary to its International Obligations.
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