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On 8 April, Thursday, the Supreme Court of India allowed the central government to deport the hundreds of Rohingya refugees currently detained in Jammu’s sub-jail, back to conflict-hit Myanmar.
In the order passed by a bench headed by the Chief Justice of India SA Bobde, which runs into six pages, not a single paragraph takes into account that allowing for such a mass deportation, will push hundreds of Rohingya refugees back to a land where they face imminent persecution and violence.
The principle of non-refoulement in international law states that a person seeking asylum cannot be sent back to a place where s/he faces risk of persecution. It is widely accepted, that the principle of non-refoulement has the status of ‘jus cogens’, which makes it binding on all states regardless of whether they are signatories to the Refugee Convention or not.
In the present order, the Supreme Court accepted the central government’s argument that the principle of non-refoulement is not binding on India as it is not a signatory to the Refugee Convention.
So it seems the Supreme Court completely overlooked existing jurisprudence which supports the claim that the principle of non-refoulement forms a part of Article 21 of the Constitution.
In the order, the court says that “national courts can draw upon international conventions/treaties, so long as they are not in conflict with municipal law." However, it stopped right there.
In India, there is no law that clearly prohibits the application of non-refoulment. Therefore, the court could’ve “drawn inspiration” from various international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights (UDHR), which espouse the principle of non-refoulement.
The Supreme Court’s refusal to comment on the situation in Myanmar underpins the injustice served in allowing deportation of Rohingya refugees. The petitioners were not against deportation, they just did not want to be sent back to a country where they face an imminent threat of persecution. Therefore, by refusing to comment on the situation in Myanmar the Supreme Court completely negated the petitioners' primary reason for approaching the court.
The Supreme Court has reasoned that the issue of deportation in the present case does not fall under Article 21 (right to life and liberty), but under Article 19(1)(e) (to reside and settle in any part of the territory of India). This reasoning is flawed for two reasons:
a. The case of the petitioners is not about seeking a complete prohibition on deportation to any state. They just did not want to be deported to Myanmar, where they face an imminent threat of persecution. Therefore, the petitioners did not claim a right to reside or settle in any part of India, but simply protection of their right to life.
b. In the landmark case of Maneka Gandhi v. Union of India, the Supreme Court had clearly observed that the fundamental rights enshrined under Articles 14, 19 and 21 of the Constitution form a “golden triangle” and cannot be interpreted disjunctively.
The 6-page long judgment of the Supreme Court in the present case seems to be based more on unfounded rhetoric peddled by the central government than on a reasoned assessment of human rights.
When a court of law relies on rhetorical claims instead of evidence on record for making a judgment, it amounts to a gross “miscarriage of justice”.
It is unbecoming of a constitutional court to shy away from adequately addressing the concerns of those seeking protection of their right to life. The least a court of such a stature should’ve done is to give reasoning that is not flawed, that is not contrary to its own jurisprudence, and which privileges due process over prejudicial rhetoric.
The Supreme Court’s decision to allow deportation of Rohingya refugees to a country where they face threat of persecution raises more serious questions than the answers it purports to provide.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
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