Will India's SC Stop Rohingyas from Being Deported?

Described as arguably the world’s most persecuted minority, even within states wedded Islam, Rohingyas today face targeted killings, reprisals and more. They are Muslim. India, in a complete turnaround from its 70 year old policy on refugees is being non-committal about their continued stay within the country, and protection. Confronted with a petition under Article 32, invoking the special jurisdiction of the court, the Supreme Court will now adjudicate on this deportation.

In this August 16, 2017 photo, a Rohingya refugee girl looks through a mesh window at a camp set up for the refugees on the outskirts of Jammu. | Photo Credit: AP

Yesterday, September 4, at the last hearing in the case, the Centre refuses to give undertaking in SC to stop deportation move against Rohingyas. “I am not making any such statements,” Additional Solicitor General Tushar Mehta says remaining non-committal to stop the deportation move The Centre on Monday refused in the Supreme Court to give 40,000 Rohingya Muslim immigrants an assurance that it will not move for their deportation back to Myanmar.

Additional Solicitor General Tushar Mehta, representing the Centre, remained non-committal on Monday when the two Rohingyas who moved the Supreme Court tried to draw an assurance that the government would not move against their community or take “coercive steps” as the apex court was now in the picture. The matter has now been listed on September 11.

Arguing his case, Prashant Bhushan said, “The 40,000 Rohingyas are the world’s most wretched people. They have been persecuted everywhere. Protect them,” Mr. Bhushan, assisted by advocate Pranav Sachdeva.As of now, the court refused to commit to anything. “Let’s see,” Chief Justice Misra said. The petition by the Rohingyas contended that any move to deport them would violate the constitutional guarantee of the Indian State to “protect the life and liberty of every human being, whether citizen or not.”

However, the Indian government plans to deport the people living here in various rehabilitation centres. Thankfully beyond all these moral, ethical arguments, lies the legal framework, on which Prashant Bhushan has filed a petition, which might be the only thing that will save the lives of the refugees.

The writ petition under Article 32 of the Constitution of India seeks to secure and protect, the right against deportation, of the petitioner refugees in India, in keeping with the Constitutional guarantees under Article 14 and Article 21, read with Article 51(c) of the Constitution of India against arbitrary deportation of Rohingya refugees who have taken refuge in India after escaping their home country Myanmar due to the widespread discrimination, violence and bloodshed against this community in their home country. The petitioners have been registered and recognised by the UNHCR in India in 2016 and have been granted refugee I-cards. The ‘Non Refoulement’ text, meaning we cannot deport people when they face imminent threat to their lives states:

“No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.” A copy of the Convention relation to the Status of Refugees, 1951

Though India is not a signatory of ‘UNHCR’ Refugee treaty, still it is applicable to India, as a part of customary international law, which is binding on India.

The Indian Constitution accords refugees some degree of constitutional protection while they are in India. The following constitutional provisions offer a framework for protecting the rights of refugees:

● Article 51 (c) of the Indian Constitution, a Directive Principle of State Policy, requires fostering of respect for international law and treaty obligations in the dealings of organised peoples with one another.

● Article 14, Right to equality states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This article guarantees to refugees in India, the right to equality before law and equal treatment under the law.

● Article 21, Right to life and liberty: “No person shall be deprived of his life of personal liberty except according to procedure established by law”. In according protection to refugees, the Hon’ble Supreme Court has interpreted these constitutional provisions to extend the protection of the right to equality and the right to life and personal liberty of refugees.

Cases cited in the plea before the Supreme Court are:

“That the Supreme Court in its landmark judgement on the right to privacy dated 24th August 2017, in, Justice K.S. Puttaswamy (Retd) and Anr. v. UOI and Ors WP (C ) No. 494/2012, has categorically stated, “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.”

Another excerpt from the petition:

“That In the National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742, the Supreme Court , states “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”

Though India is not a signatory of UNHCR, as Kiren Rijiju has repeatedly stressed, we have a judgement which says the opposite.

“The Delhi High Court in Dongh Lian Kham v. Union of India, 226(2016) DLT 208, states, “The principle of “non-refoulement”, which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as “non-refoulement” affects/protects the life and liberty of a human being, irrespective of his nationality.”

The petition prays for the following:

An Order directing a stay on Deportations of members of the Rohingya community who are presently in India.
Directions to the Govt to ensure that petitioners and other members of the Rohingya community in India, such basic amenities to ensure that they can live in human conditions as required by International law in treatment of refugees.

If India goes ahead with their plan to deport Rohingyas, this would violate India’s commitment to international conventions which recognise the “Principle of Non-Refoulement.” This principle of customary international law prohibits the deportation of refugees to a country where they face threat to their lives.

The UNHRC Report of 2016 on the Human Rights violations and abuses against Rohingya Muslims and other minorities in Myanmar has noted successive patterns of serious human rights violations to the right to life, liberty and security of the Rohingyas by state security forces and other officials in Mynamar.

Violations include summary executions, enforced disappearance, arbitrary arrest and detention, torture and ill-treatment, forced labour, arbitrary arrest and detention of hundreds of Rohingyas, including women and children.

Recently, the National Human Rights Commission had also issued notice to the government on the proposed deportment.Panic struck the refugee community following media reports of a statement by Union Minister of State for Home Affairs Kiren Rijiju in Parliament in early August that the Central government has directed States to identify and deport illegal immigrants, including Rohingyas.

At heart, is the communally motivated Ctizenship Amendment Bill, 2016 of the Modi Regime that is currently before a Joint Committee of Parliament. The Modi regime seeks to pass this before the general elections of 2019. This rather perverse amendment., in its current formulation, seeks to exclude undocumented immigrants belonging to certain minority communities from Afghanistan, Bangladesh and Pakistan (all majority-Muslim countries) — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians—from the category of illegal migrants making them eligible to apply for Indian citizenship. The list of religious minorities, inexplicably, excludes Muslim groups like the Ahmadis, who are also among the most persecuted religious minority in Pakistan. This essentially means that, while non-Muslim migrants become eligible for Indian citizenship, Muslims are denied this right.