The article highlights the issues with the order passed by the Supreme Court allowing the deportation of Rohingya refugees.

Context

• Recently, in its order in Mohammad Salimullah v. Union of India, the Supreme Court rejected an application to stay the deportation of Rohingya refugees to Myanmar.

Principle of non-refoulement

• The Supreme Court noted the petitioners’ reliance on a judgment of the International Court of Justice (ICJ) dated January 23, 2020, which recorded the genocidal conditions that resulted in 7.75 lakh Rohingyas being forced to take refuge in Bangladesh and India.
• The Supreme Court relied on the word of the government that the principle of non-refoulement, or forcible repatriation to a place where the refugee’s life is in danger, applies only to signatories to the UN’s Refugee Convention of 1951 or its 1967 Protocol.
• It must be stated that a UN Special Rapporteur was not heard, as the Court felt that serious objections had been raised to her intervention.
• The Supreme Court accepted that the right not to be deported flows not from the right to life and liberty under Article 21, which applies to all human beings, but from the right to reside and settle in India under Article 19(1)(g), which applies to citizens alone.

Why the judgement needs reconsideration

1) India has recognised genocide as an international crime

• India is a signatory to the Convention for the Prevention and Punishment of the Crime of Genocide (the Genocide Convention, 1948),
• Acceding to the Convention in 1959, India has recognised genocide as an international crime, and that the principles of the Convention are “therefore already part of common law of India”.
•  India has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR) have a bearing on non-refoulement.
• Article 6(1) of the ICCPR, which mirrors Article 21 of our Constitution.
• A number of other UN conventions particularly those dealing with the rights of women (CEDAW) and children (CRC) also have a non-refoulment element in it and both of which have been declared by the Supreme Court to be part of our domestic legal framework.

2) Prevention of genocide

• The leitmotif of the Genocide Convention is prevention.
• Prevention is also central to Article I, under which the contracting parties confirm that genocide is a crime under international law, “which they undertake to prevent and to punish”.

3) Preemptory norm

• It is increasingly accepted in public international law, that non-refoulement and other protections emanating from the Genocide Convention, are peremptory norms that apply to state parties as well as non-parties.
• That non-refoulement is jus cogens, a norm from which there can be no derogation whatsoever. I
• At least three high courts (Gujarat in 1998, Delhi in 2015, and Calcutta in 2019) have held that non-refoulement is part of the right to life and liberty protected by Article 21 of our Constitution.

What should the Supreme Court do

• There are two possible solutions.
• The first is that in its interim order, the Court specifies that the Rohingya refugees may not be deported unless “the procedure prescribed for such deportation is followed”.
• It is a long-held principle of Indian jurisprudence that the word “procedure” means “due process”, or a procedure that is just, fair, and reasonable.
• The Supreme Court can, thus, suo motu clarify that due process requires that they not be deported as long as there exists a reasonable threat of persecution in Myanmar.
• Alternately, since the order in question is an interim order, the Supreme Court could swiftly hear the main petition on its merits, and clarify the law on non-refoulement and Article 21. 

Conclusion

The order on the deportation of Rohingya refugees needs reconsideration by the Supreme Court considering the India’s treaty obligations on the genocide.

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