A Short Guide to Rohingya Deportation Case in the Supreme Court of India

An image is worth a thousand words. The image of Hamida crying over her infant, who died after their boat capsized during fleeing; or a young Rohingya carrying his parents in a basket slung over his shoulder as they try to escape Myanmar can move anyon. . But India has proved itself to be just a geographical construct incapable of sensing and responding to loss and suffering. What else can justify the legal position taken by the government in the Rohingya Deportation Case (Salimullah v UOI) claiming that Rohingya immigrants, facing existential threat have to be deported. The Centre’s affidavit in the case came in wake of condemnation by UN Human Rights Envoy, where he “deplored” the Indian government’s plans to deport Rohingya refugees “at a time of such violence against them in their country”.

The legal position of the government mirrors the political line that Rohingya are a national security threat and should be deported. Specifically, the Centre bases its claim on fourfold arguments – first, Deportation is a ‘policy decision’ dealing with national security so the Supreme Court should not intervene; second since rohingyas are non-citizens so the fundamental rights of movement and residence doesn’t apply to them; third, the non-applicability of Refugee Convention and 1967 Protocol as India is a non-signatory to these conventions and lastly, the suspicion of Rohingyas having links with Let, ISIS necessiates deportation of 40,000 Rohingya. The affidavit is conspicous by its ‘silence’ on Right to Equality and Right to Life, which applies to non-citizens also. This post will focus on these four propositions and Centre’s ‘silences’ to bring legal clarity to the issue.

Constitutional Position – On Rohingya Deportation

First, the government’s claim that deportation is a ‘policy matter’ within exclusive domain of executive doesnot hold weight. The fact that a policy decision has the effect of infringing fundamental rights of Rohingyas – right aginst discrimination and right to life, make it a justiciable matter. Also, the government’s drift that “national security” matter automatically qualifies as policy decision is an increasingly disturbing trend. It would imply that human rights cases flowing from AFSPA abuse, encounters, toture in conflict zones should all fall outside the judicial ambit. Human rights don’t cease at the altar of national security. Second, the government claimed that deportation policy only affects the right of movement and residence and Rohingya being noncitizens don’t enjoy these rights. While this argument itself is weak, but we will first deal with Centre’s ‘silence’ on applicability of Art 14 and Art 21, both available to non-citizens which gets triggered by deportation of Rohingyas.

Rohingya petitioners have argued that they are being targeted because of their religious identity as ‘Muslims’. They claim that similarly placed refugees who are ‘Non-Muslims’ are not deported but instead their citizenship claims are expedited. The proposed changes to Citizenship Act which automatically expedites citizenship claims of “persecuted Hindus” point towards the shift from ‘secular’ to ‘anti-Muslim’ bias in Indian citizenship jurisprudence. This ‘differential’ treatment of ‘similarly’ placed people – persecuted immigrants –on account of reliigion alone makes the Rohingya deportation under Foreigners Act, 1946 suspectible of violating Art 14.

On the issue of Right to Life under Art 21, the SC dealing with Chakma Refugees in NHRC v Arunachal Pradesh had held that immigrants, even those termed illegal, were entitled to protection of their life under Art 21. So, if the effect of their deportation is real possibility of perceution, then it cant be allowed. The Centre in its affidavit has relied on Dr. Louis De Raedt v UOI to buttress their deportation claim. In this case, the SC held that a foreigner, even though living in India for a long period do not enjoy Right to Movement and Residence under Art 19(1) (d) and (e) and State has unrestricted power to deport them relying on Foreigners Act 1946. However, this case has to be distinguished from Rohingya Deportation case – Dr. Louis De Raedt, the person holding American passport wasn’t facing percecution threat on deportation. In numerous cases from Maneka Gandhi to recent Privacy case, the SC has stressed that fundamental rights should not be read in silos; so if the effect of denying them ‘reidence’ is taking way their ‘right to life’, then Rohingyas have a right of residence in the country.

International Law Position – On Deportation

Apart from protection under Art 14 and 21, there is strong international law jurisprudence which will stand in way of deportation of Rohingyas. The application of International Law into constitution flows from Art 51(c). It mandates that the State will “foster respect for international law and treaty obligations”and it is by reliance on this provision that India’s commitment to sources of International Law can’t be brushed aside. The third argument in Centre’s affidavit is that since India is not a party to 1951 Refugee Convention or its 1967 Protocol, so its not bound to follow its commitments. Prohibition from returning asylum seekers to the country of persecution or “Non-Refoulment” is a core principle of Refugee Convention under Art 33. While it is true that India is not bound by Convention, but the principle of Non-Refoulemnt has evolved into customary international law, which all countries are obligated to follow. Besides, India is also a signatory to International Conventions – UDHR, International Covenant on Civil and Political Right (ICCPR), the Convention Against Torture, Convention for the Protection of All Persons from Enforced Disappearance, all of  which have “Non-Refoulment” as specific legal commitment. So, India is wrong in claiming that its not treaty bound to respect Non-Refoulment principle. However, the government is bringing its shameful human rights record to its defence – India has signed but not ratified Convention Against Torture in 20 years and Enforced Dissapearsnce in last 10 years, – to argue that they are not treaty bound by Non-Refoulment principle.. Lastly, the centre has also claimed that suspected links of some Rohingyas to groups like LeT and ISIS necessiates their deportaion. Even if India is bound by Non-Refoulment principle, it is not an absolute. Art 33 of the Refugee Convention makes exception that a refugee can be expelled if owing to his conviction of a serious offence, there are reasonable grounds for considering him threat to security of the country. Though there is this national security excption, but government action of deporting Rohingyas do not satisfy the “national security” exception for following reasons :- first, while keeping the larger humanitarian ends of the treaty in consideration, the court should do strict examination of terror links on a case by case basis. Secondly, sacrificing 40,000 lives as the result of just suspected terror links of few individuals is an extreme, unreasonable reponse. PM Rajiv Gandhi was killed by Sri Lankan Tamils, but we gave refuge to Sri Lanka Tamils. So, this double standard of stereotyping community as criminals for alleged terror links is blatant discrimination. And lastly, there has been no conviction , only suspicion of terror links and ‘exception’ warrants conviction in a serious crime to be considered for expulsion from country. Also, the nature of tragedy has shifted from being refugee crisis to ethnic cleansing and has been described as “textbook example of ethnic cleansing” to “crimes against humanity” to “slow genocide” by UN as well as International Human Rights Observers. This elevating nature of crisis demands greater share of responsibility from neighbouring countries like Bangladesh and India. If the scale of violence and targeting is being seen as “slow genocide” or “ethnic cleansing” and the Myanmar government is behind the systematic violence, then there does exist a (Responsbility to Protect )R2P on neighbouring countries. Though it is not a crystallisaed legal norm but, being unanimously adopted by GA in 2005, it does have substantive normative power. India can prevent persecution of 40,000 lives by allowing Rohingya to reside and it would do so without breaching “non-interference”principle, which is cited in criticism of R2P.

The force of the law –both constitutional and international law tilt towards the giving Rohingyan Immigrants refuge in face of existential threat. The Supreme Court, hopefully when it hears the matter will value the legal weight of the argument favouring their stay.

Beyond Law, It’s a Moral Question

However, we need to look beyond ‘law’ and frame it primarily as a moral question of human loss and suffering. Lets close our eyes. Imagine a mob outside our house baying for our neighbour’s blood. We go down and close the gate leaving the neighbour to his fate. At the least, we would feel moral culpability as individual. Now, reimagine the situation .We allowed the neighbour safe shelter in our houses anticipating the mob threat. The mob arrives and then we grab the neighbour by the neck , throw her our of our house and close the gate. The moral guilt will overpower any individual, the sinister deign of being collaborators.

Transpose this dilemma on our nation, replace neighbour with Rohingya. Today, India is at the threshold of making a choice – selfish, perhaps wise but definitely immoral. The cost attached is 40,000 lives – humans first, Rohingyas later, Muslims later, geo-political pawns later. Just people born on the wrong side. Since long, we believed that India’s moral core is larger than the sum total of its parts but we are on the verge of being proved wrong. Unfortunately, Rohingya refugees, with 40000 lives on the line have also become sites upon which larger debate on nation and morality have to be carried out. The test of nation’s character is at the doorsteps and can’t be avoided anymore.