Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case

When an order of the Supreme Court of India is likely to have the direct effect of sending a group of persecuted refugees back into the hands of a genocidal military State, quibbling over legalities is perhaps a fool’s errand. However, the six-page interim order of the Court allowing the deportation of Rohingya refugees back to Myanmar – authored by Chief Justice Bobde, and Justices Bopanna and Ramasubramanian – stands out not only for its inhumanity, but also for its failure to comply with the most basic principles of legal reasoning. It therefore becomes important to continue to hold the Supreme Court to account upon the touchstone of the rule of law, even when the Court itself has abandoned it: both to maintain a record, and in the (perhaps forlorn) hope that a day will come when orders such as these will be remembered in the same way as the turning away of the Jewish refugees on board the MS St. Louis, back into the Nazi death-camps.

The Issues

The legal and constitutional issues arising out of the Rohingya deportation case were set out by Suhrith in a guest post last week. In short, Suhrith pointed out that even if it was to be accepted that the international law principle of non refoulement (i.e., that refugees cannot be sent back to their home country if they face a well-founded fear of persecution) was not a principle of jus cogens – and therefore not directly binding upon India – there are other reasons under the Indian Constitution for why it is impermissible for the State to deport the Rohingya back into an ongoing genocide. These are:

  • At least two High Court judgments have held that the principle of non-refoulement is part of Article 21’s guarantee of the right to life and personal liberty, available to all persons.
  • Even though India has not ratified the Refugee Convention, it is signatory to a number of international treaties that incorporate the principle of non-refoulement (and other applicable principles, such as the prohibition against racial discrimination).
  • Even though India has not ratified the Refugee Convention, there is nothing in Indian domestic law that requires the Indian government to contravene the principle of non-refoulement. Consequently, following the principles outlined in the Vishaka judgment (among others), non-refoulement and other treaty principles are a part of the Indian legal landscape.

The Reasoning

Unsurprisingly, the six-page interim order of the Supreme Court fails to address a single one of these contentions. The reasoning of the Court – such as it is – is to be found in three paragraphs – paragraphs 12 – 14 – of the order, which I extract here:

We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.

It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).

Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam.

It would be hard to cram in more non-sequiturs, sleights of hand, and untenable legal propositions in the space of three short paragraphs. After noting that India has not ratified the Refugee Convention (which is correct), the Court observes that “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” Having observed this, the Court then goes on to say … nothing at all. Recall that the entire argument of the petitioners was that there do exist international treaties, which are not in conflict with municipal law, and compliance with which would require that the Rohingyas not be deported. However, the Court makes no mention of that argument, thus leaving the legal proposition simply hanging.

Instead, the Court makes an utterly senseless statement: “regarding … the present state of affairs in Myanmar, we … cannot comment upon something happening in another country.” This is senseless, because there exists a whole range of situations in which Courts have to comment on “something happening in another country” (think of extradition disputes, for example, or even common-or-garden conflict-of-laws cases). Indeed, in this case the situation in Myanmar is relevant to the adjudication precisely because the petitioners’ argument was centred around non refoulement, which in turn is premised upon the fact that in that “other country”, there is a genocide in progress. Thus, the Court’s glib “we … cannot comment upon something happening in another country” is not only senseless as a judicial statement in a judicial order, but amounts to active abdication of the Court’s role under the Constitution, and allows the Court to completely evade the core of the petitioners’ argument: the moment an argument of non refoulement is made, the Court cannot but comment on “what is happening in another country.”

So much for the first paragraph. In the second paragraph, the Court advances a regressive and disturbing legal proposition, based upon an unsubtle sleight of hand. After noting that the rights under Article 21 and 14 are available to non-citizens (a record of the hearings indicates that the Court was unaware of this during oral argument until it was specifically pointed out), the Court then holds that “the right not to be deported” does not fall within Articles 21 or 14, but 19(1)(e) (freedom to reside or settle in any part of India), which is available only to citizens. The sleight of hand, of course, lies in the fact that the petitioners were not claiming a free-standing right against deportation: they were claiming a right against deportation to a country where they were in active danger from an ongoing genocide. This is where the right to Article 21 comes in, which perhaps needs to be restated, as the Court appears to have forgotten it:

“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

It perhaps needs to be spelt out for the benefit of the Court that deporting people back into an ongoing genocide might violate an individual’s right to life and personal liberty. That said, the Court’s attempts to confine the issue to Article 19(1)(e) appears a lot like an approach to Part III of the Constitution that walls off individual fundamental rights into separate silos, with no overlap between Articles 14, 19, and 21. In popular imagination, there is a case that did that. It was called A.K. Gopalan vs State of Madras. It was, we are told, overruled by Maneka Gandhi vs Union India, and that Articles 14, 19, and 21 now formed a “golden triangle”, but perhaps that is also only in popular imagination. That apart, the Court’s order drives home yet again a tragic irony that this blog has frequently pointed out: in 2021, Article 21 and “the right to life” includes everything under the sun, but the one thing it does not include is an individual’s right to life.

We now come to the third paragraph, which is quite extraordinary. In courtroom lingo, there is a term counsel often use to describe their rival’s arguments: that he or she is “only creating prejudice.” A lawyer says this when their rival is not making a legal argument, but attempting to manipulate the emotions of the judge in order to influence the outcome of the case (for example, through character assassination of one of the parties in divorce case). In the past few months, we have regularly seen government counsel attempt to create prejudice by playing the national security card, especially in the litigation around the restriction of internet access in Kashmir. In this third paragraph, however, it is the Court that engages in creating prejudice. It does so by reiterating the “serious allegations” of the Union of India (which have already been set out in its summary of arguments of parties) – of a “threat to internal security” and the misuse of “porous borders by touts.” Notice that the Court makes zero effort to engage with either of these “serious allegations.” There is no question of evidence, of burden of proof, of sifting arguments, of legal standards – the things that you expect from a “Court of law” – there are only these “serious allegations”, simply hanging there, without anything more. What business the Court has inserting “serious allegations” into the operative part of its judgment if it has no intentions of engaging with them is left to the imagination of its readers.

We can therefore see that in what passes for “reasoning” in this judgment, not only does the Court fail to address any of the arguments of the petitioners, but the “arguments” it does provide come from judgments that it keeps telling us belong to the bad old Gopalan days, long consigned to infamy. Indeed, if there is one judgment that the final paragraph is eerily reminiscent of, it is (unsurprisingly) ADM Jabalpur (a frequent occurrence these days). The Court says that the Rohingyas “shall not be deported unless the procedure prescribed for such deportation is followed.” Just like in ADM Jabalpur, the Court said that a policeman could shoot someone on sight with impunity as long as the right official had signed the authorising order, here the Court is saying that the refugees can be deported back into an ongoing genocide as long as the right officials (presumably) have signed the deportation papers.

One final point: in paragraph 3 of the judgment, the Court says:

Sh. Chandra (sic!) Uday Singh, learned senior counsel representing the Special Rapporteur appointed by the United Nations Human Rights Council also attempted to make submissions, but serious objections were raised to his intervention.

Much like in the third paragraph discussed above, the Court simply says “serious objections were raised”, and leaves the rest to the imagination. What were these objections? What made them serious? How did Sh. Chander Uday Singh respond to them? On what basis did the Court refuse to allow him to place his submissions? None of this is explained; that apart, to anyone remotely familiar with the workings of the Supreme Court, the hypocrisy here is simply staggering. Recall that this is a Court that has built its entire reputation over the last four decades on loosening the rules of standing and easing access, in the “larger interests of justice.” There is little doubt that where the issue concerns the legal rights of refugees under international law, the UNHRC Special Rapporteur has excellent grounds for intervention – or, at the very least, far better grounds than the interventions the Supreme Court allows on a daily basis, from persons who have no connection to a case at hand.

Conclusion

By way of conclusion, there is one thing about the order – taken as a whole – that is perhaps most disturbing of all. Historically, when Courts pass morally unconscionable orders, they do so shamefacedly. Judges write about how if they had a choice, they would not pass such an order – but that they are bound by the law, which leaves them no choice. ADM Jabalpur is, of course, a famous example of this, where the judges repeatedly emphasised how their moral senses were outraged at the State’s arguments, but that the law compelled them to take a course they had no option to deviate from.

The Rohingya order reflects none of that. There is not even a smidgen of unease that the result of the order might be to deliver refugees into the hands of a genocidal military. In fact, the only thing the judges have to say on the issue is: “we cannot comment on another country.”

Perhaps what is most disturbing, then, is not the absence of legal sense in the Court’s order, but the death of its moral sense.

16 thoughts on “Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case

  1. The idea that the principle of non refoulement is in contravention of municipal law should ideally have demanded a further inquiry by the court, since in my opinion it is the central frame of this litigation.

    Vishakha and other judgements have repeatedly held that international laws may be applied to India if they are not in conflict to municipal law. Puttuswamy held that ‘Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime.’ There exists a large precedent on applicability of international laws.

    The sine qua non for disregarding the principle of non-refoulement is that if a municipal law is clearly in conflict with it. My argument is that the Foreigner’s Act, 1946 (municipal law) is not in conflict with the principle of non-refoulment. A plain reading of the foreigner’s act appears to give the state a carte blanche when it comes to deportations, but a closer look of both the legislative aim and the usage of the law will reveal that such deportations are only done in cases where such persons pose a legitimate threat to law and order or national security. What is important to observe is that both of these provisions can be argued to come under article 33(2) exception laid down in the UN convention and similarly observed in the customary international law. The ICJ in Nicaragua v. US stated that instances of inconsistency of the rule if justified on the basis of exception clauses do not render the international customary law nugatory and confirm the rule rather than weaken it. Thus a finding on how the application of foreigner’s act comes under the national security exception of the CIL can show how any such inconsistency (of not holding the rule of non-refoulement) comes within the exception clause and thus does not render the main rule (CIL) null. Ipso facto since the two laws can be argued to be in coherence – the CIL can be argued to be applicable to India as well. This in turn puts a higher burden on the state to legitimately prove its national security argument to qualify as exception under the principle of non-refoulement. Therefore a combined reading of the CIL and foreigner’s act would mean that as per policy India can deport any foreigner but when it comes to deporting a citizen to a place where there is a clear and present danger to his life or freedom it will have to qualify the exception clause by proving how such persons are a threat to national security. This is exactly where the state failed to prove how Rohingyas constitute a national security threat.

    • It may interest every one that not just some High Courts but even a Trial Court in Delhi has examined similar issues in the past and leaned towards an humanitarian approach. Legal luminaries were united in praise of that verdict. Can be viewed here in the link provided

      https://indiankanoon.org/doc/37056325/

  2. Gautam, Agree 100% with your conclusions. However, is it accurate to say that there is a genocide ongoing in Myanmar? I think even if there is not an ongoing genocide, it can be easily argued that Rohingyas’ lives would be in a country that is under the thumb of Tatmadaw, who we can all easily agree have been responsible for genocidal killings against Rohingyas in the past.

  3. Thanks Gautam for taking time out to write for us. There is deep anguish among early career lawyers like me about the increasingly disorienting realities of the Supreme Court. And this is the case when we understand things only at a surface level. I can’t possibly imagine the intensity of this anguish in people like you or CU Singh who understand what’s happening at a much more detailed level. I’m sure there are tons of things you know about the inner workings of the system but don’t say out loud to prevent the discourse from getting petty and juvenile.

    Please continue taking the right stand and being fearless for all times to come. We are right behind you even if with less intellectual force! 🙂

  4. There seems to be an urgent need to introspect so as to harmonize India’s national and geo-political interests with the type of constitutional interpretation its legal system, especially its courts, adopt. Of course India needs to carry a bright humanitarian face at the global scenario, but already burdened with its own unresolved population explosion problem and having already distinguished itself with a history of providing shelter to millions of refugees from Pakistan, Tibet, Bangladesh and Myanmar in the past, India’s decision to refrain from signing the UN refugee treaty is both understandable as well as justifiable. Thus there is need to understand the role of judiciary in Rohingya issue in this background. When any person intrudes into Indian territory illegally at the international boarder including LOC and LAC, does it automatically make him or her entitled to those “fundamental rights” guaranteed under Articles 14 and 21 that are available both to “citizens” as well as “non-citizens” under the Indian Constitution? But illegal intruders to countries’ boarders all across the world are treated in accordance with the State’s policy decisions since their mere incursion into a country cannot automatically entitle them for legal or constitutional “rights” available to non-citizens in that country. The State holds the prerogative to decide whether to apprehend and deport the illegal intruder of its boarders or in certain situations and circumstances even to shoot at intruders. The intruders cannot “claim” any right to intrude or to be treated like valid immigrants or to be granted status of citizens or to be treated equally or not to be subjected to discrimination on grounds only of religion, race, caste, sex, descent or residence. Illegal intruders can not “claim” right to life or personal liberty as well in their being “non-citizens”. They cannot be allowed to take the benefit of their own wrong of illegally entering into India defeating all our municipal laws. The Indian governments have deliberately and consciously refrained from being a signatory to UN Refugee treaty and therefore courts should refrain from any “activism” in the sensitive matter and let the government to take pragmatic policy decisions.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s