Supreme Court Of India And Non-Refoulement: A Tale Of Self-Imposed Limitations

Despite the lack of comprehensive legislation on refugees in India, traditionally, India has opened its borders for refugees flowing through the porous borders of Afghanistan, Burma, Tibet and Srilanka. However, concerning the Rohingya refugee, the Indian authorities citing security concerns, have restricted their entry. India is well within its sovereign right to block the Rohingya refugees inflow, but the principle of non-refoulement equally binds it. Moreso, because in the previously decided case of Gramophone Co of India Ltd v. Birendra Bhadur Pandey, it was pointed out by the SCI that customary international law forms part of India unless it is excluded forming part of Indian domestic law. Additionally, in the Chakma refugee's case and the case Of Nurenburg vs Superintendent Presidency, the Indian courts have affirmed the customary international law nature of non-refoulement and guaranteed protection to refugees with respect to life and liberty under Article 21 of the Constitution of India (COI).

Plight Of Rohingya Refugees

The Rohingya are ethnic Muslim minorities from Myanmar; the Rohingya minorities have been fleeing Myanmar since the 1970s because of the State-sponsored persecution in Myanmar's Rakhine State. The majority of these refugees are lodged in Bangladesh; the Government of Bangladesh, to mitigate the Rohingya crisis, struck a deal in 2017 with Myanmar to repatriate Rohingya. Also, a 30 member joint working group was formed for the safe return of forcibly displaced Rohingya. However, the deal did not yield any significant outcomes because of the refusal of Myanmar to grant citizenship to Rohingyas. Further, the harsh conditions in Bangladesh have pushed lakhs of Rohingya refugees from Bangladesh to India. Most of these refugees migrated to India through family and community members, and few with the assistance of the smugglers. After entering the Indian soil, the refugees settled largely in Hyderabad, Delhi, West Bengal etc. As these refugees do not possess any travel-related documents, they are deprived of the basic necessities and are often victimised. The abysmal plight of the Rohingya refugees can be attributed to the lack of any legal framework regulating refugees in India, as the refugees are protected through ad-hoc administrative measures, in short at the mercy of the Government. The UNHCR, to some degree, attempts to safeguard these refugees from the wrath of the State. The UNHCR refugee card or the under consideration certificate is granted after a three-stage interview process. However, Indian authorities seldom acknowledge the documents issued by the UNHCR as valid papers. Devoid of any valid documents, these refugees are turned back from government school and struggle to make ends meet. The COVID-19 has further aggravated the plight of the Rohingya refugees; the World Bank estimates that COVID-19 will push 71 million people into extreme poverty. The Covid-19 outbreak has forced the States to tighten their national borders and impose strict immigration measures to tackle illegal immigrants. Since 2018, India has deported 12 Rohingya refugees to Myanmar by stating that they left voluntarily.

Supreme Court's Self-Imposed Limitations On Non-Refoulement

In India, refugees and foreigners are treated on equal footing. The governing laws for both these groups are the Passport Act, 1967, Registration of Foreigners Act, 1946 and Foreigners Order, 1948. The Foreigners Act, 1946 confers powers upon the Government to arrest and detain any foreigners on mere suspicion and for the non-compliance of the act. Meanwhile, the Foreigners Order, 1948, authorises the Government to grant or refuse entry into the territory of India on several grounds. Despite the wide discretion conferred upon the Government to regulate the refugees in India, refugees are protected and treated compassionately from a humanitarian perspective.

Additionally, the UNHCR works in tandem with the Government to offer support to refugees. The UNHCR has provided documentation to the refugees, by which the refugees can obtain temporary residence permits. However, in the absence of robust legislation protecting the rights of the refugees, the court in India is vocal in protecting the plight of the refugees. The high courts in India on several occasions, clubbed the protection of refugees and the principle of non-refoulement under Article 21 of the COI. Albeit the SCI has not made any direct reference to non-refoulement in the context of Article 21 of COI, the SCI has observed in the landmark cases of In Louis De Raedt v. Union of India and Khudiram Chakma's case that "foreigners are entitled to the protection of Article 21 of the Constitution". Further the Manipur High Court in the recent case of Nadita Haksar v. State of Manipur and Ors read Article 21 of COI to encompass non-refoulement. Therefore, the SCI acknowledged that refugees are entitled to protection under Article 21 of COI, albeit it has not travelled an extra mile to clarify whether this entails non-refoulement.

Interestingly, the SCI in the Rohingya case instead of navigating the Article 21 route as it has done in previous instances, took the Article 19(1)(e) route, which guarantees the right to reside or settle. However, this right applies to citizens; refugees are precluded from the ambit of the provision. The debate on the application of Article 21 in the context of non-refoulement was avoided by the SCI, thereby ordered the deportation according to the procedure prescribed for such deportation. The pronouncement is perplexing considering that the SCI made the following observations 'national courts could draw inspiration from treaties or Convention unless it is not in contravention of the municipal law' in other words, international law applies to the extent that it does not conflict with municipal law. Additionally, Article 51(c) of the COI establishes the link between international and domestic law it reads as 'foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration'. Accordingly, the SCI could have interpreted the principle of non-refoulement by drawing inspiration from international law and thereby placing the refugees under Article 21 instead of taking the Article 19(1)(e) route.

However, the present decision, comes in the backdrop of the pending litigation in the International Court of Justice wherein Myanmar is accused of committing Genocide, sends an adverse message to the refugees residing in India.

The Author is an Assistant Professor (International Law), West Bengal National University of Juridical Sciences, Kolkata. Views are personal.