On 8 April 2021, a three-judge bench of the Supreme Court of India, in the case of Mohammad Salimullah v. Union of India refused to authorize the release of approximately 150 Rohingyas, currently detained in holding centres in Jammu. Furthermore, the court permitted their deportation to Myanmar where they face an imminent genocidal threat. The defence for such refusal is that of the National Security but the grounds to prove the same have been frivolous. Article 21 of the Indian Constitution, concerning the right to life, gives protection of life and personal liberty which extends to non-citizens of India such as Refugees. However, it has certain reasonable restrictions, with an important one being that of National Security.
DEFENCE AGAINST NATIONAL SECURITY
To decide whether this reasonable restriction applies to the Rohingya scenario, the test for reasonableness must be taken. The essential requirements for this test are (i) a procedure established by law under which the encroachment can be accorded, (ii) the law should not suffer from evident arbitrariness as per Article 14, and (iii) there should be proportionality between the means adopted by the legislature and the object that is required to be fulfilled by law. The government of India has taken the view that it is necessary to deport the Rohingya as they are a “threat to national security”. However, contentions have not been substantiated for the reasonableness test (or in any cogent manner) and there is little evidence of the government’s claim. A few arguments have been made by the media, associating Rohingya refugees with the Bodh Gaya blasts, Khagragarh blast in Bardhaman in 2014, and Al-Qaeda’s Aqa Mujahideen, due to a solidarity expression given by terrorist organizations in favour of Rohingyas. To apply the reasonableness test, there is no proportional basis to deport more than 40,000 Rohingyas from India, who are bound to face inhuman torture in their own country. “There is a real and imminent risk of irreparable prejudice to the rights of Rohingyas’ in Myanmar”, held the International Court of Justice in a case filed by the Gambia against Myanmar. As regards the basis of the mass deportation being a solidarity statement made by terrorist groups, there has not been a single verifiable instance where Rohingyas have posed a threat to National Security. However, in 2019, a bench of the Indian Supreme Court of India (“SC”), headed by the Chief Justice, refused to stay their deportation, relying merely on the Union Government’s affidavit, which claimed that Myanmar had accepted the Rohingya refugees as citizens and that the refugees had orally agreed to be repatriated. This is just one of the breaches of the test of reasonableness shown by the state.
The principle of non-refoulment is an international principle that can be used against the argument of National security. It states that refugees who have a fear of persecution in their home country should not be deported to that country. This principle acquired the status of jus cogens which is a peremptory norm of international law and it does not permit any derogation and therefore, it binds all countries under this principle. The UN’s Special Rapporteur on Racism, Tendayi Achiume Suo moto took the matter to the SC in the case of Mohammad Salimullah v. Union of India. In this recent case, the SC disregarded the claims of non-refoulment and announced the deportation of 150 Rohingyas detained in holding centres of Jammu. This was again based on National Security. The hasty generalization of labelling the Rohingyas a national threat without substantiated evidence and analysis has been repeatedly rejected by International Human Rights Organizations. As per U.N. Security Council and General Assembly Resolutions, there is common vilification of asylum-seekers and refugees, but greater priority should be given to the core principles of the International refugee regime such as the right to seek asylum and the principle of non-refoulment. This principle has been concurred by the SC in the case of National Human Rights Commission v. State of Arunachal Pradesh where the principle of non-refoulment was established as a cardinal principle of Customary International law to ensure fundamental rights under Article 21 of the Indian Constitution. In several other cases, not only were the basic rights of Rohingya refugees upheld but their deportation was also stopped by courts due to persecutions in Myanmar and their non-voluntariness to move. The principle of Harmonious Construction allows the establishment of Customary International law in the country if it does not conflict with the established law and principles. As non-refoulment concurs with Article 21 of the Indian Constitution, this principle applies in Indian cases along with jus cogens.
INTERNATIONAL CONVENTIONS AND PRECEDENTS AGAINST NATIONAL SECURITY
India has not ratified the Refugee Convention, 1951 but numerous International Conventions and treaties have been signed or ratified by India, making it binding for India to follow their said articles for refugee protection. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which was ratified by India on 3 December 1968, established the duties of State parties to respect and guarantee racial equality and the right to freedom from racial discrimination. International Court of Justice added more weightage to these commitments by mentioning that the prohibition on refoulement to torture or other cruel, inhuman, for degrading treatment has attained peremptory norm status, as held in questions relating to the commitment to impeach or extradite. Article 6 and Article 7 of International Covenant on Civil and Political Rights (ICCPR), Article 3 of CAT, Article 16 of International Convention on Protection of All Persons against Enforced Disappearances, and Article 3 of ECHR promote non-refoulment by prohibiting deportation of individuals that would lead to cruel, inhumane and degrading treatment, as entailed in the the General Recommendation No. XXX, U.N. Doc. HRI/GEN1/Rev.9 (Vol. II). These International conventions can be incorporated under the Principle of Incorporation which establishes that rules of international law can be incorporated into national law unless they violate the Act of Parliament.
International conventions mentioned above hold no binding value on the countries, even the decision of the ICJ and ICC. The gravity of human rights abuse and the Government’s inclination to deport Rohingyas has risen to such an extent that the International Criminal Court (ICC) took cognizance of the situation in India by commencing a preliminary examination into the issue of arduous restrictions on access to food, freedom of movement, health, education, and livelihood. The ICJ ordered Myanmar to take necessary steps to protect Rohingya from genocide in the above-mentioned case of Gambia against Myanmar. However, the ICJ is more of a dispute resolution mechanism between UN member states rather than an enforcement mechanism on countries for criminal conduct. Due to this reason, Myanmar ignored ICJ’s decision and the military killed two Rohingyas and left seven injured. Similarly, India has not ratified the Refugee Convention, 1951, and the reasons for it have been given by B.S. Chimni relied on by R.K Nehru. He considered the act to be euro-centric, hampering the economy which is not in parlance with Global South. India should certainly focus on drafting a domestic law for asylum-seekers and refugees.
International courts have favoured the right to life against National Security in various cases such as the Republic of Ireland v. the United Kingdom, wherein Article 3 of the European Convention on Human Rights (ECHR) was referred, and the court held that it is absolute as the convention prohibits torture in any form, even a defence of public emergency threatening the life of the nation cannot be taken. The case of Soering extended this precedent further. Mass deportation of Rohingyas’ from India would infringe their absolute right to life and freedom from torture and inhumane treatment. The Indian Supreme Court’s lack of in-depth judicial reasoning, along with its flagrant failure to act in line with international commitments, puts doubt on the destiny of the world’s most persecuted religious minority. Deporting the Rohingyas is unwanted and unjustified. The “danger to national security” argument is illogical and unfair since it is used as a blanket rule to refuse refuge to the whole population rather than analysing individuals to see if they represent a security risk. Furthermore, Articles 14 and 21 apply equally to all people in India’s territory, whether citizens or not, emphasising India’s jus cogens obligation for non-refoulement of refugees. This is not only to keep them safe but it is also to uphold the ideals enshrined in our Constitution. Resultantly, this deportation is unjustified and in breach of both our international and constitutional commitments.
ABOUT THE AUTHOR
Chitransha has participated in Nelson Mandela World Human Rights Moot and written blogs on International Human Rights law. She has a keen interest in International Human Rights Law including International Refugee law.