Plight of Rohingya Muslims: India Accepting Jus Cogen Norm of Non-Refoulement?
One of the most prominent ethnic groups that once found its residing territory in Myanmar's Rakhine State is homeless now and to safeguard themselves from the horrific persecution by their own State, they fled from Myanmar to Bangladesh, India, Bhutan, Nepal, China, and other neighbouring countries of Myanmar. However, in India, the Rohingyas became a political, economic, social, cultural, and legal issue masquerading all major issue existing in the country. Time and again arguments are raised in front of the Hon'ble Apex Court that nearly 50 million-odd Rohingyas are exhausting India's resources and creating raucous all across the country.1 The Government of India is eager to deport them to their countries while the question of non-refoulement is still in limbo at the Apex Court to decide.2
The Rohingya issue is not a recent one rather the Supreme Court of India in the case of Mohammad Salimullah & Anr. v. Union of India & Ors.,3 have already dealt with the question of deportation of Rohingya refugees. In the said case, the Court has stated that Rohingya refugees cannot claim Articles 14 and 21 under the Constitution of India as both these rights relate to Article 19(1)(e) of the Constitution that provides for the fundamental right to settle and reside in India to the citizens and Rohingyas, not being citizens of India, cannot claim Article 19(1)(e).4 Moreover, the Hon'ble Court also acknowledged that India is not a signatory to the United Nations Convention on the Status of Refugees 1951 (1951 Convention) and/or to the Protocol of the year 1967 (1967 Protocol),5 thereby the principle of 'non-refoulement' is not applicable on India as it is applicable only to the contracting states of the said Convention/Protocol.
An Interlocutory Application was filed in the pending Writ Petition of 2017.6 Both the Writ Petition and Interlocutory Application prayed to the Hon'ble Apex Court that the detained Rohingya Refugees be released, and a direction should be passed to the Union of India to not deport the Rohingya refugees detained in the jails of Jammu and Kashmir. The petitioner in the present matter approached the Hon'ble Court challenging a letter issued by the Ministry of Home Affairs to Chief Secretaries of all the State Governments to sensitise all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes.
As per the reports presented even before the Hon'ble Court, nearly 170 refugees were detained in Jammu in 2021 and send to a "holding centre" for verification process in 2022 however whether they are deported by now or not is known to none.7 The reports also mentioned nearly 6500 Rohingyas are detained in Jammu.8
The petitioner argued that the principle of non-refoulement is a part of Article 21 of the Constitution of India, and the rights under Articles 14 and 21 are also available to the non-citizens. Moreover, though India is not a signatory to 1951 Convention and/or 1967 Protocol, the Universal Declaration of Human Rights 1948, Covenant on Civil and Political Rights 1966 and Convention of the Rights of the Child 1992 provide for the same that have binding effect on India. Time and again the arguments are raised that Rohingyas will be in a danger if they are deported as the 'genocide' of Rohingya is still in existence and International Court of Justice has also taken noted of the same in the pending case of The Gambia v. Myanmar.9
The Apex Court though considered their submissions but refused any relief considering the threat to internal security and an already established precedent in the Interlocutory Application of 2018,10 wherein the Apex Court rejected the same relief prayed by the Rohingyas detained in Assam. Moreover, the Hon'ble Court noted that India is not a signatory to 1951 Convention and further said nothing with regards to the applicability/non-applicability of the principle of 'non-refoulement'. It also stated that the rights guaranteed under Articles 14 and 21 are concomitant and ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19. Thereby the Hon'ble Court disposed both the Writ Petition and Interlocutory Application without granting nay interim relief/relief prayed for.
This paper would analyse the principle of Judicial Restraint observed by the Hon'ble Apex Court in the aforementioned judgment. The paper will not delve into the contention with respect to the Golden Triangle that whether the petitioner had any remedy under Articles 14 and 21 irrespective of unavailability of Article 19 to them as there is already a plethora of literature present on the same subject.11
Application of Judicial Restraint by the Hon'ble Supreme Court of India
The Hon'ble Apex Court has time and again utilised both 'transformation' as well as 'incorporation' theory to give effect to any international law as the municipal law. However, in the instant case, the Hon'ble Court erred in its judgment by stating that India is not a party to 1951 Convention and its 1967 Protocol, thereby non-refoulement principle cannot be claimed by the petitioners. The Hon'ble Court failed to appreciate the jurisprudence behind 'non-refoulement' principle being regarded as jus cogens.
This might be an argument that the Supreme Court can only interpret the municipal laws and international laws has to be incorporated though transformation theory however the case Jolly Varghese12 took place in the year 1980 and the Vishaka case13 is of 1997 in which the Court adopted incorporation theory. Thus, considering the theory adopted in the recent case, the Hon'ble Court should have noted the existing jurisprudence regarding non-refoulement and should not have rejected the contentions of the petitioners by merely stating that Article 51(c) cannot be invoked.14
In the instant matter, the Hon'ble Court must have given due consideration to the existing jurisprudence concerning the 'non-refoulement' as a pre-emptory norm and have given adequate protection and relief to the petitioners in light of the international law. However, adequate protection and relief does not mean India should host refugees that can be a serious threat to the internal security of the country rather adequate measures shall be taken to return them to their origins by ensuring that they shall not face any persecution, threat, or violence, which the said pre-emptory norm also aim at.15
1. Samanwaya Rautray, Some issues best left to executive: Supreme Court on Rohingya refugees, The Economic Times (Apr. 08, 2022, 12:46 AM), https://economictimes.indiatimes.com/news/india/some-issues-best-left-to-executive-supreme-court-on-rohingya-refugees/articleshow/90714896.cms.
2. Rohingya Deportation, Supreme Court Observer, https://www.scobserver.in/cases/mohammad-salimullah-rohingya-deportation-case-background/ (last visited Mar. 08, 2023).
3. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296.
4. The Constitution of India, 1950, art. 14, 19, 21.
5. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, UN High Commissioner for Refugees (UNHCR) (Sep. 2011), https://www.refworld.org/docid/4ec4a7f02.html.
6. Interlocutory Application No. 38048 of 2021; Writ Petition (Civil) No. 793 of 2017.
7. Supra note 03, ¶ 07; Haziq Qadri, India Begins Deporting Rohingya Refugees, The Diplomat (Apr. 06, 2022), https://thediplomat.com/2022/04/india-begins-deporting-rohingya-refugees/.
8. PTI, Rohingyas detained in Jammu shall not be deported to Myanmar without due process, says SC, The Print (Apr. 08, 2021, 04:36 PM), https://theprint.in/judiciary/rohingyas-detained-in-jammu-shall-not-be-deported-to-myanmar-without-due-process-says-sc/636432/.
9. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), The International Court of Justice, General List No. 178. (Jul. 22, 2022), https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-ORD-01-00-EN.pdf.
10. Interlocutory Application No. 142725 of 2018.
11. Suhrith Parthasarathy, Article 21 In A Time Of Genocide: The Rohingya Case Before The Supreme Court, Live Law (Mar. 29, 2021, 07:24 PM), https://www.livelaw.in/columns/article-21-genocide-rohingya-case-supreme-court-171896.
12. 1980 AIR 470, 1980 SCR (2) 913.
13. AIR 1997 SC 3011.
14. The Constitution of India, 1950, art. 51(c).
15. Supra note 24.
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