Article 21 in a Time of Genocide: The Rohingya Case before the Supreme Court [Guest Post]

[This is a guest post by Suhrith Parthasarathy.]


On Friday the Supreme Court reserved orders in a plea seeking interim directions to restrain the central government from deporting Rohingya refugees detained in Jammu and Kashmir. The application further urged the court to order the release of the detained refugees and to direct the government of J&K and the Union Home Ministry to grant these persons identification cards through the Foreigners Regional Registration Office. This petition for interim relief was filed on the back of a slew of news reports that showed that the J&K administration had set up a sub-jail in Kathua as a “holding centre” under the Foreigners Act, and had rounded up and placed in these cells more than 150 Rohingya refugees, including many women and children. The prayers for temporary respite are nestled within a larger challenge to the Union government’s direction to the states to identify Rohingya in India as “illegal immigrants” and to have them deported to Myanmar in a “continuous manner.”

By most accounts the Rohingya, who are a mostly Muslim ethnic group, constitute the world’s most persecuted minority. They represent the largest single group of “stateless” people and live without citizenship and access to basic legal rights. In August 2017, thousands of Rohingya fled Myanmar’s borders, either by foot or sea, after the launch of a lethal assault on them by the country’s army. The United Nations’ high commissioner for human rights described the attack as a “textbook example of ethnic cleansing.” (This report provides a timeline of the successive cycles of violence and persecution against the Rohingya in Myanmar).

The consequences of the violence that commenced in 2017 were felt across the globe. The Indian government’s immediate reaction to the arrival of Rohingya, who had fled persecution, was to direct the States to conduct surveys under the Foreigners Act and to arrange for the deportation of the immigrants. In response to queries pointing to the issuance of identity cards to Rohingya refugees by the United Nations High Commissioner for Refugees, the Union Minister of State for Home Affairs Kiren Rijiju said, “they are doing it, we can’t stop them from registering. But we are not signatory to the accord on refugees. As far as we are concerned, they are all illegal immigrants They have no basis to live here. Anybody who is illegal migrant will be deported.” It was this endeavour by the State that came under challenge in the original petition filed under Article 32 by a pair of refugees, in Mohammad Salimullah v. Union of India. The primary plea remains pending till date. In it, the petitioners claim that India’s commitments under international law, in particular the principle of non-refoulement, would stand breached should they and other refugees be deported to Myanmar. What is more, they also argue that their rights under the Constitution of India are under threat, specifically the right to equality guaranteed by Article 14 and the right to life and personal liberty promised under Article 21.

The principle of non-refoulement is enshrined in Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees. It stipulates that “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 his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) contains a limited exception. It states that “The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

In the present case, there can be little argument against the threat faced by the Rohingya in Myanmar. The International Court of Justice granted provisional measures in January 2020 in a case brought by Gambia, and recognised that there was prima facie evidence of breaches made by Myanmar of the 1948 Genocide Convention and that the remaining Rohingya population were “extremely vulnerable” to attacks by the military. The Court took note of the resolution passed in December 2019, by the United Nations General Assembly, which recorded “its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.”

It’s therefore clear that should the Rohingya refugees in India now be deported to Myanmar, the actions will doubtless be in breach of Article 33 of the Refugee Convention. But the government’s argument in the Supreme Court is that India is not a party to the convention and is therefore not bound by the requirements of Article 33. This argument is fine as far as it goes. But treaty law isn’t the only source of international law. Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as one of the sources of law which binds all nation-states. For a rule to amount to international custom, two factors need fulfilling: consistent state practice and opinio juris, that is a sense on behalf of a state that it is bound to the law in question. The principle of non-refoulement, as a 2007 advisory opinion by the UNHCR makes clear, is widely regarded as fulfilling both these factors and as therefore constituting a rule of international custom. Although contested, there is also a substantial body of opinion that points to the rule against refoulement constituting what is regarded in international law as a jus cogens norm, as a peremptory principle against which no derogation whatsoever is permissible. Even domestic laws inconsistent with such a norm would have no validity under international law. Therefore, the government’s argument that it is not bound by the principle of non-refoulement merely because India isn’t a party to the Refugee Convention ought to be rejected.

In any event, as an intervention application filed in the Supreme Court by the United Nations’ Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance demonstrates, there are other treaties to which India is a party that will stand breached should the Rohingya be deported to Myanmar. Specifically, the application points out that the following treaties, among others, will stand violated: (1) International Convention on the Elimination of All Forms of Racial Discrimination; (2) Articles 2(1), 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR); (3) Articles 2(2) & 3 of the International Covenant on Economic and Social Rights (ICESCR); (4) Article 2 of Convention on the Elimination of All Forms of Discrimination Against Women. The special rapporteur argues that barring a few exceptions, these treaties require states to guarantee non-nationals equal enjoyment of civil, political, social and economic rights and that the obligations under these treaties require India not to discriminate on the basis of national origin by satisfying principles of racial equality.

Regrettably, though, the Supreme Court has thus far refused to hear the counsel appearing on behalf of the special rapporteur. But still the question remains: to what extent can the court compel India to act in consonance with international law? Past judgments of the Supreme Court are divided on the question. Courts have been hesitant to apply international norms when domestic law is manifestly contradictory to those rules. But, in this case, a reading of the Foreigners Act, 1946, shows us that the powers vested under it on the government is discretionary. There is no domestic law that mandates the government to act contrary to the principle of non-refoulement. This being the case, the Supreme Court must accord the greatest respect possible to India’s obligations both under treaty and customary international law. If nothing else, these obligations ought to guide the court in providing a proper interpretation of the fundamental rights that serve as the basis of the petitioners’ challenge.

Indeed, two high courts have already read Article 21 as including within its ambit a right agasint refoulement. In their judgments in Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) and Dongh Lian Kham v. Union of India (2015) the Gujarat and Delhi High Courts have both held that the principle of non-refoulement is inherent in Article 21’s guarantee of the right to life and personal liberty. In the former case, the Gujarat High Court noted that “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the projection is available, so long as the presence of the refugee is not prejudicial to the national security,” and that “where no construction of the domestic law is possible, courts can give effect to international conventions and treaties by a harmonious construction.” As the high courts recognised, the right under Article 21 is available to both citizens and non-citizens alike.

Images coming out of Myanmar’s streets tell their own story. Already following the military coup of February 1, the country’s armed forces have killed hundreds of protestors, including those who have expressed sympathy with the Rohingya. On Saturday alone the army killed over 100 people, including a five-year-old child. The Rohingya have long faced similar assaults from the country’s junta. To deport them at a time like this is to condemn them to sure death. There is a reason why Article 21 of the Constitution is made applicable to all persons, irrespective of citizenship. And nowhere is that reason more evident than in the plight of the Rohingya refugees.

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