Rijuju in Rohingya Blunderland: Domestic Law Is Against Forcible Deportation

NEW DELHI: The two state ministers in the Ministry of Home Affairs are nor known for their knowledge of Indian or international law. Their knowledge of South Asian politics, strategic affairs and diplomacy is rudimentary at best. Nothing brings out their elementary understanding than their grandstanding on their proposal to deport the handful of Rohingya refugees in India.

Kiran Rijju, has once again threatened the hapless refugees with deportation on August 28, 2017.

India does not have a national legal framework to deal with refugee issues. Mercifully, India’s courts have recognised the right to non-refoulement. However, this appears to apply solely to persons with or without refugee status, who have entered India.

In Kfaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat High Court held that the right to non-refoulement is protected by the right to life. However, its limited application ends wherein a refugee poses a threat to national security. The Court relied on Article 51(c) of the Constitution which states that “the State shall endeavor to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.” This includes non-refoulement obligations.

The Court held that “the evidence relating to the meaning and scope of non-refoulment in its treaty sense also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive, authority that the principle is binding on all States, independently of specific assent.”

The Court concluded that the asylum seeker petitioning for legal recognition could not be deported until status determination by the UNHCR has taken place. This case established that non-refoulement obligations do apply to the State of India, despite its failure to sign international agreements, most specifically the 1951 Refugee Convention.

The Supreme Court has held that the fundamental rights enshrined under Article 21 of the Indian Constitution regarding the right to life and personal liberty, applies to all irrespective of whether they are citizens of India or aliens within the country. In Malavika Karlekar v. Union of India &Anr., the Supreme Court accordingly prohibited the deportation of a group of asylum-seekers. The group had applied for refugee status and had a prima facie case for refugee status. They posed no national security threat. The protection was placed in force until their status was determined.

In MyatKyaw&Nayzin v.State of Manipur &Superintendent of Jail, the Guwahati High Court ordered the government to release a group of asylum-seekers from jail. They were arrested for illegal entry into India, under the provisions of the Foreigners Act. The protection was ordered for a period of two months as they were to apply to UNHCR for the determination of their refugee status during this period.

In this case, the Indian courts recognised the right to be free from refoulement. This prohibits sending refugees to their country of origin against their will where there is a significant risk that they may be harmed through threats to the right to life or be subjected to torture, cruel, inhuman or degrading treatment. Cases significantly suggest that before deportation of potential refugees, the UNHCR must determine their status and ensure that obligations of non-refoulement will not be breached.

In Khudiram Chakma v. State of Arunachal Pradesh, the Supreme Court approved of the commentary on the Universal Declaration of Human Rights (UDHR), examining Article 14’s prohibition on refoulement. It stated,

Article 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy asylum has to be interpreted in the light of the instrument as a whole; and must be taken to mean something. It implies that although an asylum seeker has no right to be granted admission to a foreign State, equally a State which has granted him asylum must not later return him to the country whence he came. Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments.

These cases lend emphatic support to the conclusion that the Indian judiciary largely recognises that the State is bound by international agreements on the right to non-refoulement of persons from Indian territory.

This is additionally recognised in the Constitution under the right to life and therefore provides a useful legal framework to claim and ensure the enforcement of refugee right to non-refoulement in India.

India’s Supreme Court applied Article 21’s right to life and Article 14’s right to equality in recognising that equal protection of the law should be awarded to aliens as well as citizens within its borders. In National Human Rights Commission v. State of Arunachal Pradesh &Anr., the court recognises the right to security of the person,

We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise.

In recognising these rights, the Supreme Court places a positive obligation on the Indian State and Central Government to protect the lives and personal security of all aliens, including refugees, from threats by private actors as well as the State or Central Government. Accordingly, the State and Central Governments “must act impartially and carry out...[their] legal obligations to safeguard the life, health and well-being of... [refugees] residing in the State[s] without being inhibited by local politics.” In meeting its duties, the government may use police, paramilitary, or any other necessary force.

The Supreme Court noted the responsibility of the government to deal with threats to refugees in accordance with the law. This includes a duty to apply the law where any party threatens the security of refugees.

Scaremongering by politicians and officials in New Delhi or non state actors as in Jammu does little credit to their understanding of the law as laid down by the superior courts in India. There is considerable case law in India to rubbish Rijuju's fulminations.

(Ravi Nair is is with the South Asia Human Rights Documentation Centre)