In a significant ruling on the January 23 in The Gambia v Myanmar, the International Court of Justice held that the authorities in Myanmar must take steps to protect its minority Rohingya population from genocide. Taking note of the UN fact finding mission on Myanmar and various General Assembly resolutions, the world court ruled that Myanmar shall take all measures to prevent the killing of members of the Rohingya population or causing any bodily or mental harm to them.
This world court order ought to have significant moral and legal implications for the pending case in the Indian Supreme Court (SC), which challenges the government’s proposed deportation of Rohingya refugees from India and seeks state amenities for their dignified existence. Not only is the principle of non-refoulement or not sending people back to a place where they are being persecuted — a Right to Life, Article 21, guarantee — available to all persons within India whether citizens or otherwise, this principle has been elevated to a jus cogens or non-derogable norm of international law.
Any national security exception to this principle must be rigorously and carefully proved. Infringements of Article 21 must satisfy the procedural and substantive due process test of being “fair, just and reasonable”. Refoulement does not. It is arbitrary, discriminatory, and abhorrent to constitutional morality. It is arbitrary because the policy has been decided capriciously, as a sudden volte-face to long-established policy. Discriminatory, because the only credible explanation for the volte-face is that the Rohingya are mostly Muslim. Such treatment of refugees is abhorrent to constitutional morality as it violates the absolute right to freedom from torture and non-refoulement.
Though India has not signed the Convention on the Status of Refugees, 1951, it has in place a Standard Operating Procedure of 2011, to deal with foreigners who call themselves refugees, who may be granted long term visas (LTV), if it is found that prima facie their claim is justified on account of persecution on the basis of race, religion, sex, nationality, ethnic identity, membership of particular social group or political opinion. Based on this, the MHA started issuing LTVs to persons recognised as “refugees” by the government or UNHCR. These included people from various countries, religions or ethnicities. However in 2015 and 2016, this government amended The Passport (Entry into India) Rules and the Foreigners Order, exempting Hindu, Sikh, Buddhist, Jain, Parsi and Christian illegal migrants from Afghanistan, Bangladesh and Pakistan, seeking shelter in India due to religious persecution, from the consequences of non-compliance with the provisions of the Passport Act, 1920 and the Foreigners Act, 1946. These discriminatory notifications conspicuously omit Muslim refugees and became the precursor for the Citizenship Amendment Act (CAA) passed in 2019. In the last significant hearing in the Rohingya case in October 2018, the SC refused to stay the deportation of seven Rohingya men detained in Assam since 2012, despite constitutional protections, humanitarian obligations and binding international law commitments. This resulted in the first return of refugees to Myanmar since the outbreak of the extreme violence. The government of India, in a brief affidavit claimed that Myanmar had accepted the refugees as “citizens” and the men had orally agreed to be repatriated. The SC sadly refused to interfere in the deportation despite these claims being grossly incorrect, since the men were denied access to legal counsel or to the UNHCR to determine whether their consent was freely expressed. Media reports from Myanmar later claimed that these men had not been given citizenship, as our government swore on affidavit, but the controversial National Verification Cards (that does not recognise their ethnicity).
The treatment of Rohingya refugees by this government, read along with the notifications amending the Passport Rules and Foreigners Order of 2015-2016, and the CAA, all display a discriminatory and hostile attitude towards Muslims. With the SC nearly abdicating its responsibility in protecting persecuted ethnic minorities fleeing genocide by allowing for their refoulment in October 2018, the consequences on the Rohingya population in India could be serious.
This article first appeared in the print edition on February 21, 2020, under the title ‘The Right To Not Return’. Bhushan and Dsouza are counsels for the Rohingya refugees in the Supreme Court of India.
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