Supreme Court's Stand on Rohingya Refugees Exposes Its Human Rights Rhetoric

These are the words of our own apex court in the recent interim order [DPA1] showing green signal to deportation of some Rohingyan refugees detained in Jammu. The sentinel on the qui vive preferred to swallow centre's version that these hapless people are illegal immigrants entering Indian territory with the help of touts, and not refugees running for their lives. Remember, what has been happening in Myanmar was described as 'a text book case of ethnic cleansing' by the United Nations. This view was legally endorsed by the International Court of Justice (ICJ) when it directed the Myanmar regime to take emergency corrective measures. Let us hope that the Supreme Court will not venture into analyzing minority persecution in the three neighboring countries while deciding challenges to the CAA[DPA2] . Coincidently, everything in Myanmar started with a military regime stripped Rohingyas of their voting rights and citizenship. Coming back to the issue, SC's rationale for the decision rests on the argument that India is not a Party to the Refugee Convention 1951 and hence article 51(c) cannot be pressed into service. The following part will show that India is bound by a treaty provision, customary rule of international law and even a jus cogens to not to forcibly deport Rohingyas. The whole argument centers on the principle of non-refoulement which means that 'individuals have the right not to be forcibly returned to countries where they face persecution'.

International Covenant on Civil and Political Rights,1966

India is a Party to this treaty which does not contain any direct provision on non-refoulement. But the Human Rights Committee under the Covenant interprets article 7 to include the principle of non-refoulement. Article 7 of ICCPR provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". In its General Comment 20 on Article 7 (1992) the Human Rights Committee stated, "In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement." Article 4(2) of the Covenant does not allow any derogation from Article 7 even in times of public emergencies.

India has resorted to some reservations and declarations under ICCPR. Notably, India has no objections regarding article 7. India has made a Declaration concerning article 13 which states that "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority". India says that it has its own law in place to deal with foreigners, the obvious reference being the Foreigners Act,1946. It is to be seen whether that piece of legislation is the proper one to apply in the context of obligation of non-refoulement. The SC in its interim order impliedly refers to the procedure under the Act as the 'procedure established by law' referred to in article 21 of the Constitution. The procedure must be 'just, fair and reasonable'. From Maneka Gandhi decision Indian SC has been forming a rich jurisprudence on substantive due process, though we can observe some aberrations which stick on to the mechanical reading of procedure established by law. Constitutionality of the Foreigners Act is not the point to be debated here. But whether it is the just and reasonable law to be applied in relation to refugees, who are sure to face persecution or torture or other degrading treatment if deported, assumes significance. A reading in the opposite sense would defeat the entire gamut of human rights jurisprudence built by the apex court. Further, the SC commits a huge error by bringing in the fundamental right to reside and settle in the territory of India in a discourse regarding the life and death of Rohingyas. Article 21 which is the soul of the Constitution and which applies to non-citizens must be the most important fundamental right while judging the involuntary repatriation of a host of people who have to be treated as stateless people given their condition in Myanmar. In this context we can imagine of a hierarchical standing of fundamental rights. What they are demanding is not the privilege to settle in Indian territory but a humanitarian approach upholding their right to survive even if that survival in effect is equivalent to animal existence. Once conditions become normal, they are ready for voluntary repatriation. They are not the ones to be languished in detention centres or deported to their habitual residence where their lives are at risk. Suhrit Parthasarathy in his recent article [DPA3] on the topic refers to two High Court decisions which deduce the right of non-refoulement from article 21 of the Constitution, which appears to be the correct understanding of both. The SC has to come up with a better reasoned decision to negate this reading of article 21. Summary disposal of non-refoulement petitions makes a mockery of human right principles which have to lead judicial process as a beacon light.

Can the SC miss a jus cogens or peremptory norm of international law?

Article 53 of the Vienna Convention on Law of Treaties, 1986 reads as follows; "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". India has not ratified the Vienna Convention but several principles in it are customary rules of international law. This was endorsed by the SC in Ram Jethmalani v Union of India (2011). Thus jus cogens is a customary norm standing on the highest pedestal with uniform practice from which no derogation is possible. Though as obiter dicta, the ICJ characterized prohibition of torture as a jus cogens in Questions Relating to the obligations to Prosecute or Extradite (2012). This jus cogens is found expression in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment,1984 (Convention against Torture). Article 3(1) of the Convention states that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture". Thus principle of non-refoulement as an integral component of jus cogens of prohibition of torture attains jus cogens status in that context.

'Return (refouler) means persons who have entered the territory of a state illegally and who cannot be returned to their countries where there are substantial grounds for believing that they would be in danger of being subjected to torture. Goodwin Gill expresses this kind of an opinion in the context of article 33(1) of the Refugee Convention which has similar kind of wording regarding obligations except the grounds for persecution in the country of return. India is signatory to the Convention and the Indian Law Commission had produced a report recommending India's ratification of the Convention. Non-refoulement obligation under the Convention has some importance for Rohingyas in India; they face military torture in Myanmar and the depiction of them as illegal immigrants cannot rescue India from disrespecting the non-refoulement obligation. Now the SC has to ask itself a question whether it can overlook a necessary component of a peremptory norm of international law while deciding disputes. It appears that courts will not have to look out for Parliamentary legislations in questions involving a jus cogens. This is a sweet moment when dualism gives way to monism.

Article 33(1) of Refugee Convention as a Customary Law

Article 33(1) of the Convention prohibits the expulsion or return of any person who is recognized as a 'refugee' (persons having well-founded fear of persecution on the basis of five grounds; race, religion, nationality, membership of a particular social group or political opinion) within the meaning of Article 1. Article 38(1) (b) of the Statute of International Court of Justice recognizes international custom, as evidence of a general practice accepted by law, as a source of international law. Thus for an international custom to be valid, two elements have to be there; state practice and opinion juris i.e' a general practice must be accepted as law. In Barcelona Traction case the ICJ held opined that certain violations of customary international law involving rights of human persons created an obligation erga omnes. In North Sea Continental Shelf case the ICJ held that while opinio juris would be required to transform a conventional norm into a customary one, this is not required of all the states in the international system, or even a majority. Only 'widespread and representative' participation would be required; and only the formation of a 'short period' of time would suffice to conclude the transformation. Erga omnes obligation entails any country to make a complaint against non-observance of a customary law. Widely accepted soft law instruments are also accepted as custom. But manufacturing of customary international law by international criminal tribunals are strongly opposed by scholars. The former qualifies to be a custom because of the democratic process involved. Several international and regional human rights treaties have incorporated the principle of non-refoulement. More than hundred countries are parties to the Refugee Convention which proves that there has been more than general practice following article 33(1) with opinion juris. The consistent acceptance of refuges all over the world and insistence on their voluntary repartriation endorse this. There is almost unanimity among international law scholars regarding the customary nature of principle of non-refoulement. United Nations High Commissioner for Refugees (UNHCR), the UN body entrusted with the implementation of the Refugee Convention reiterates in its advisory opinion that non-refoulement is a customary rule of international law.

According to article 38 of the VCLT customary international law is binding on state parties without their consent. So the Indian SC's insistence on India's ratification of the Refugee Convention is laughable considering the fact that they were deciding the involuntary deportation of Rohingya refugees recognized so by the UNHCR office operating in India.

Now there is only one legal safety valve left, i.e., to prove that India has been a persistent objector during the formation of this custom. Such a rebuttal was recognized by the ICJ in Asylum case and Anglo-Norwegian Fisheries case. Towards this end strong evidence is needed. India has ratified the ICCPR, signed the Convention against Torture and has been playing a generous host to refugees from Tibet, Sri Lanka and Bangladesh. The Memorandum of Understanding signed between Union of India and UNHCR speaks volume of India's commitment to principle of non-refoulement. These all prove that India has been an active participant in the formation of this custom. In short, customary international law rule of non-refoulement binds India.

Philosophy Determines Results

The SC has to discuss what is happening in a foreign country if the petitioners folding hands before them for their human rights have links with those happenings. In fact, our choice of philosophy determines the choice of law which in turn mould judgments. A human rights and humanitarian approach would decide that Rohingyas are refugees while a suspectful othering attitude would persuade us apply the Foreigners Act to view them as illegal immigrants. First approach is to interpret article 21 to deduce principle of non-refoulement while the second one would view fundamental right to reside and settle as more important in the context. A suspectful approach would paint them as a threat to national security while a human rights approach would demand strong evidence for the allegation to be proved. In the interim order the SC has accepted all of Union of India's allegations underlying Guatam Bhatia's comment[DPA4] that the SC has been time and again proving to be an executive court. The Union executive might be having diplomatic tactics to pursue, but diplomacy is the not the apex court's terrain. By refusing to treat non-refoulement as an international legal principle binding on India, the SC reveals its inadequate understanding of public international law.

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