Examining the Supreme Court’s approach to Rohingya deportation

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.