The Supreme Court will hear advocate Prashant Bhushan, appearing for two Rohingya immigrants, for the second time on 11 September. The hearing is with respect to a petition challenging the deportation of Rohingyas from India.
The challenge comes in the form of two primary legal arguments. First, on constitutional grounds and second, on the grounds of violation of non-refoulement, the customary international law principle.
Rohingyas fleeing Myanmar. ReutersRohingyas fleeing Myanmar.The petition alleges that deporting Rohingyas would amount to violation of their rights under Articles 14 and 21 of the Constitution of India. There are certain rights under the Constitution which are available to every person irrespective of whether the person is a citizen of India or not. Under Article 14, which provides 'Right to Equality', the apex court has held that any arbitrary action on part of the government will be liable to be struck down.
In the instant matter, the Rohingyas are illegal migrants in the country and the decision to deport them cannot be held as an arbitrary action. It is pertinent to note that Article 14 doesn't prohibit differentiation, it prohibits discrimination. The executive is well within its right to differentiate between citizens and illegal immigrants.
Secondly, Article 21 guarantees 'Right to Life and Personal Liberty'. The idea that their deportation will certainly lead to loss of life is very far-fetched. Therefore, applicability of Article 21 is also not directly relevant to the issue.
The argument relating to the violation of principle of non-refoulement deserves a detailed counter viewpoint. French word refouler, meaning to drive back the enemy, is the root word for the term non-refoulement. Hence, under customary international law, this principle means that countries are prohibited from returning asylum seekers even if there is no treaty obligation for the country to do so.
India is a non-signatory to the United Nations Refugee Convention (UNRC) of 1951. It naturally means that there is no treaty obligation for India to not return asylum seekers. The petition argues that the principle of non-refoulement will be applicable, even in the absence of a treaty obligation.
It is no doubt true that states are bound by certain principles of international law even though they haven't signed any legal instrument to give effect to the same. Such principles are the peremptory norms under international law, known as jus cogens. It is a Latin term, literally meaning 'compelling law'. It has been argued by several scholars that the principle of non-refoulement forms part of jus cogens and therefore, states are bound by it even if they haven't signed the UNRC.
This is a highly-misplaced argument. Ironically, there are instances where the United Nations High Commissioner for Refugees (UNHCR) has itself signed up refoulement agreements. For instance, Tanzania in 1995. Also, United Nations Security Council’s resolution number 688 expressed concern over Iraqi Kurds migrating to Turkey and Iran for safety. Turkey, thereby was encouraged to violate the principle of non-refoulement. In view of express violations by UN agencies themselves, the principle's status as jus cogens is disputed at best. Hence, the argument that India is bound by it in the absence of a treaty obligation doesn't hold water.
Further, like all rules, the principle of non-refoulement also has exceptions even if it were to apply in India's case. Herein, the most important exception is threat to national security. It has been widely reported that Rohingyas have been fighting alongside Pakistani terrorists in Kashmir
Rohingya terror group, Aqa Mul Mujahideen has maintained links with both JeM and Lashkar-e-Taiba. Hence, a large number of their population in India residing illegally poses a very high risk against the interests of Indian nation.
It is now relevant to the issue that we look into the history of the Rohingya people. It is very interesting to note that Rohingyas, for a long time, have harboured secessionist tendencies from Myanmar. They even wanted to join Pakistan at the time of independence from the British. They made an offer to Muhammad Ali Jinnah to the same effect but their wish did not get materialised because of reluctance on part of Jinnah and the British.
Prior to that, Rohingyas were armed by the British to fight the Japanese during World War II but, they massacred the Rakhine Buddhists instead. This initiated the present-day conflict in the Rakhine state of Myanmar between the two communities. Rohingya freedom movement is still active within the community. It started in the form of declaration of holy war against the new republic of Myanmar. The rebels called themselves 'Mujahids', and a guerrilla army was formed to overthrow the Myanmar state . This brings us to another exception to the principle of non-refoulement, where states that anyone who is engaged in activities aimed at overthrowing a government can be denied asylum.
It is also very important to highlight that Rohingya is a political construct. The term gained prominence only in the 1950s. In the opinion of several scholars they are just Bengali Muslims. Hence, the point that they have a unique history and culture since 15th century is also highly debatable.
Therefore, even if the principle of non-refoulement were to apply to India, the exceptions to the principle will come to the aid of the stand taken by the government. Thus, it can be concluded fairly well that India is under no legal obligation to extend asylum to Rohingyas.