Opinion Is the Court turning its back on the Rohingya?
Although the CJI’s oral remarks are not legally binding, they risk shaping national public opinion in a harmful way and may further embolden the current regime to treat brutally those it categorises as “infiltrators/ghuspaithiya”
The regime’s treatment of the Rohingya is driven more by political narratives than by demonstrable security threats. In today’s India, there appears to be no place for Rohingya refugees, one of the most vulnerable, disenfranchised, and stateless groups in the world. Long derided as “illegal foreigners” by the BJP regime, they have now been branded “intruders” by the country’s highest court. On December 2, a two-judge Supreme Court Bench led by Chief Justice Surya Kant made a series of shocking oral remarks about the Rohingya. The case arose in a habeas corpus petition filed by renowned academic and activist Rita Manchanda regarding the unexplained “custodial disappearance” of five Rohingya last held by the Delhi Police. From reportedly calling them “illegal intruders” who allegedly entered by “digging a tunnel” and “cutting the fence” to asking “what is the problem in sending them back” if the Centre has not declared them “refugees”, the bench was unsparing in its comments. It wondered whether the Rohingya deserve “a red-carpet welcome” when Indian citizens grapple with poverty. Completely missing in these remarks is an awareness of the conditions under which they crossed international borders.
This was not an isolated instance of the SC adopting a harsh stand. On May 16, during a hearing on another petition that accused the Centre of forcibly deporting 43 Rohingya refugees by abandoning them in international waters, a two-judge bench of Justices Kant and N Kotiswar Singh declined to issue an interim order to halt further deportations. The bench described the allegations as “fanciful”. Such disappearances have actually been credibly documented by both Human Rights Watch and Amnesty International and have also been widely reported in Indian and international media.
The legal fraternity and civil society groups drew attention to the problematic nature of such remarks in an open letter to the CJI on December 5. They condemned the “unconscionable remarks”, which dehumanise Rohingya refugees and run contrary to core constitutional values. Given that both the SC and the Ministry of Home Affairs have refused to recognise the refugee status of the Rohingya, the letter reminds the CJI that “refugee status determination is declaratory in nature: A person does not become a refugee because of recognition, but is recognised because he or she is a refugee”. It further cautions that “invoking the plight of the poor in India to justify denying protections to refugees sets a dangerous precedent, being contrary to the principles of constitutional justice”. The signatories also emphasise that deportation or detention without individual assessment contravenes the principle of non-refoulement, which Indian courts have consistently interpreted as inherent in Article 21 of the Constitution.
Although the CJI’s oral remarks are not legally binding, they risk shaping national public opinion in a harmful way and may further embolden the current regime to treat brutally those it categorises as “infiltrators/ghuspaithiya”. The regime’s treatment of the Rohingya is driven more by political narratives than by demonstrable security threats. The Rohingya are clearly not “intruders” but asylum seekers fleeing genocidal violence in Myanmar. When such desperate people are forced to abandon their homes, the last thing they seek is “a red-carpet welcome.” What they look for is simply the hope of survival in a place of temporary refuge. Before the next scheduled hearing on January 13, it might be useful for Chief Justice Kant to recall the observations of the well-known refugee expert, Costas Douzinas: “The refugee is the representative of the non-representable; she has no state or law, no nation or party to put forward her claims.”
The writer teaches at the department of political science, Panjab University, Chandigarh
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