The Manipur High Court stands up for the rights of refugees

Shortly before the beginning of World War II, the ship, St Louis, left Nazi Germany, carrying on board more than 900 Jewish refugees who were trying to escape anti-semitic persecution. The United States (US), Canada, and Cuba refused to admit the refugees, forcing St. Louis to turn back for Europe. Historians now estimate that at least a quarter of the refugees aboard the St. Louis were eventually murdered in the Holocaust.

Events such as these are legion in the annals of World War II. For these, and other reasons, after the end of the war, an international treaty concerning the rights of refugees was drafted and signed by many nations. At the core of international refugee law is the principle of non-refoulement — that is, refugees fleeing persecution on racial, ethnic, religious, or other grounds, may not be deported back to their country of origin, where their lives will be in danger.

While India is not a signatory to the United Nations Refugee Convention Protection, it is by now widely accepted that the principle of non-refoulement has acquired the status of customary international law, i.e., it is binding on all states that make up the community of nations.

This principle was affirmed in an important judgment by the Manipur High Court (HC) on May 3, in a case concerning the status of seven Myanmarese refugees, who had fled to India after the military coup in their home country.

In granting the refugees safe passage to Delhi so that they could apply to the United Nations High Commissioner for Refugees for a formalisation of their status, the Manipur HC held that Article 21 of the Constitution — which guarantees to all persons the right to life and personal liberty — included within it the right to non-refoulement.

Over the last four decades, the Indian judiciary has achieved worldwide renown for its generous interpretation of Article 21 of the Constitution, expanding it to include a panoply of rights that protect the dignity and freedom of the individual. Relying upon that storied history, the Manipur HC held that Article 21 would continue to apply even in the case of refugees, who had fled to India seeking sanctuary from persecution.

The judgment is particularly important, especially when considered in light of the Supreme Court (SC)’S inaction in a similar case. For the last four years — well before the coup — the Rohingya community in Myanmar has been subjected to genocidal persecution and ethnic cleansing, a fact that was provisionally accepted last year by the International Court of Justice.

Since 2017, a petition has been pending in SC, asking it to clarify that the principle of non-refoulement is part of the Indian Constitution, and that, therefore, the government should not deport refugees back to Myanmar without a determination of their status. However, not only has the apex court not decided the case, but — in two interim orders — allowed deportation to go ahead, pending final resolution. This is starkly reminiscent of the actions of the US and Canadian governments in turning away St. Louis, and consigning Jewish refugees to a terrible fate.

Indeed, the Manipur HC is not the first Indian HC to have held that Article 21 protects the right to non-refoulement. The Gujarat and Delhi HCS have also done so, and indeed, the Manipur HC drew upon a rich tradition of Indian jurisprudence that guarantees the basic rights of refugees, in passing its judgment.

Thus, it is perhaps in contrast to SC’S inaction that HC’S judgment stands out as a beacon of judicial courage and principle, in protecting the rights — and indeed, the lives — of the most vulnerable.