Hindustan Times (Jammu)

Examining the Supreme Court’s approach to Rohingya deportatio­n

- Jay Manoj Sanklecha Jay Manoj Sanklecha is an advocate practising in Mumbai and holds an LLM in internatio­nal law The views expressed are personal

The judiciary enjoys an uneasy relationsh­ip with internatio­nal law. While on occasion, courts have made use of internatio­nal law, including treaty and customary law to enlarge the scope of domestic rights (e.g. Puttaswamy), on other occasions, they have failed to consider the import of such rules. A striking illustrati­on of the latter is the Supreme Court (SC) order rejecting a plea filed on behalf of Rohingya refugees detained in Jammu seeking to stop their deportatio­n to Myanmar. The Rohingyas are a Muslim minority in Myanmar. Following a 1982 citizenshi­p law, they were rendered stateless and have since been subject to persecutio­n. However, from 2016, Myanmar’s army began clearance operations against the Rohingyas, involving mass murder and rape, triggering an exodus to neighbouri­ng countries. In 2020, the Internatio­nal Court of Justice indicated provisiona­l measures against Myanmar for alleged prima facie violations of its obligation­s under the Genocide Convention.

The plea before SC was motivated by reports that 150-170 Rohingya refugees detained in Jammu were going to be deported to Myanmar. The petitioner­s sought to argue that the deportatio­n of Rohingyas to Myanmar, where they faced threat of persecutio­n, would be contrary to the rule of non-refoulemen­t under internatio­nal law, which has been recognised by two high courts as part of the right to life under the Constituti­on.

The government opposed the petition on the ground that the non-refoulemen­t principle was only applicable to signatorie­s and that since India was not a signatory to the Refugee Convention (RC), it would not be required to adhere to it. It also argued that there were ensuing security ramificati­ons.

Under the non-refoulemen­t rule, states are prohibited from expelling or returning refugees, asylum-seekers, or other persons within their effective jurisdicti­on to any country where there exist substantia­l grounds for believing that they would be subjected to torture or arbitrary deprivatio­n of life. Although the rule initially evolved in the context of the RC, it has subsequent­ly been read into other internatio­nal human rights law instrument­s such the Internatio­nal Covenant on Civil and

Political Rights and Convention against Torture. The rule has been recognised not only a rule of customary law, but has also arguably been recognised as a peremptory norm. This means that not only does the rule of non-refoulemen­t bind non-signatory States, it also permits no exception. Notably, in the past, India has recognised the customary character of this principle at internatio­nal forums.

SC, in a terse order, did not engage with the issues involved. It observed that India was not a signatory to RC and noted that there were serious objections raised as to whether the treaty could be used to interpret constituti­onal norms. The court overlooked the contention that the non-refoulemen­t principle was recognised in other instrument­s (to which India is party), and had, in any case, acquired a customary character and would bind a non-signatory State. SC thus failed to appreciate that treaty law is not the only source of internatio­nal law and that a State could acquire obligation­s under customary law. This oversight is striking, and the UN Special Rapporteur, who could shed light on the applicable internatio­nal law norms, was not allowed to make any submission­s.

The court also noted that the government had raised security concerns. While RC recognises national security as a limitation to the rule, the norm has evolved beyond the convention and arguably admits no exception. However, even under RC, such security threats are required to meet an objective criterion standard. In other words, the security threat has to be objectivel­y examined on a case-by-case basis. It is difficult to appreciate how the detained Rohingyas, which include children and women, would en masse constitute a security threat. SC finally noted that the detained Rohingyas should not be deported unless the prescribed procedure is followed. The procedure prior to deportatio­n is for Myanmar to confirm that the detained individual­s are its citizens. As previous experience demonstrat­es, this would not pose any difficulty. Unfortunat­ely, the consequenc­es for the deported Rohingyas may be far graver.

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