THE PRINCIPLE OF ‘NON-REFOULEMENT’ IN INDIA: EXAMINING THE JUDICIAL APPROACH

Introduction

The recent humanitarian crisis in Myanmar has been an unprecedented one affecting the lives of thousands of citizens of the country. Many of them have fled the country and taken rescue in neighboring countries such as India and Thailand. Before the start of the civil uprising against military, the onslaught by Myanmar’s Military was limited to only Rohingyas, which are one of the largest ethnic groups in the country. However, in the wake of the military coup, the Army is targeting the rest of the citizens, which includes civil rights activists and political leaders. There are also reports emerging which indicate that the momentum of the protest is shifting from rural areas to urban areas. With the political crisis in Myanmar not looking to end soon, it becomes significant to examine the Principle of ‘Non-Refoulement’ and its applicability in India with the help of two recent judgements, one delivered by the Supreme Court and the other delivered by the Manipur High Court.

Understanding the principle of Non-Refoulement

The Principle of Non-Refoulement guarantees under International Customary Law that no one will be deported back to the country where he or she faces an existential threat to their lives. One can find the Principle of Non-Refoulement in Article 33(1) of the Convention Relating to the Status of Refugees which states “No contracting party shall expel or return (“refouler”) a refugee in any matter whatsoever to the frontiers of territories where his or (her life) or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.” Though India is not a party to Refugee Status Convention,1951, India is a signatory to the International Covenant on Political and Civil Rights, 1966, and Article 7 of the Convention talks about ‘torture’ and has a much broader interpretation as it includes ‘degrading treatment or punishment.’

India is also a founding member of the United Nations Declaration of Human Rights (UDHR). The relevant article closely related to the Principle of Non-Refoulement can be found in Article 14, which states “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” It is in this context that one needs to examine how the two courts in India i.e., the Supreme Court and the Manipur High Court have dealt with the question of ‘Non-Refoulement.’

Examining the Judicial take on non-refoulement in India

On 3rd May, the Manipur High Court passed a judgement concerning seven Myanmarese Nationals who fled to India fearing persecution by the State authorities. The judgment is a significant one as Manipur shares a border with Myanmar. In allowing citizens of Myanmar to approach the office of UNHCR in New Delhi, the court had interesting observations to make. The court noted, “Though India may not be a signatory to Refugee Convention of 1951, its obligations under international declarations/covenants, are with Article 21 of the Indian Constitution, enjoins it to respect the right of an asylum seeker to seek prosecution from persecution and life or liberty -threatening danger elsewhere.” The court also recognized the fact that these Myanmarese Citizens were not ‘migrants’ but were ‘asylum seekers.’[Paragraph 12, Page 8 of the Judgement] Interestingly, the court relied on a plethora of Supreme Court Judgements [like State of Arunachal Pradesh vs Khudiram Chakma] to conclude that these asylum seekers be guaranteed protection under Article 21 of the Indian Constitution. This distinction by the Manipur High Court must be lauded as it saves genuine citizens of foreign countries from being labelled as a ‘liability’ or ‘menace’ from the rest of the population.

However, this judgement comes at a time when in the previous month, the Supreme Court of India while deciding the case of Mohammad Salimullah vs UOI held that they will not be deported ‘unless the due procedure for such deportation is followed.’ In a short six-page judgement, the court refused to examine whether these Rohingyas’ should be classified as ‘migrants’ or ‘asylum seekers.’ To the disappointment of many like Chander Uday Singh, the court also relied on unsubstantiated allegations by the Government of India that there is a threat to internal security. In the Supreme Court’s judgement, one can find that there is no mention of any statistics/data to suggest that ‘Rohingyas’ as a community are a threat to a country's sovereignty and territorial integrity.

Another disappointing aspect of the judgement was that the court said: “it cannot comment on something happening in another country.” This is in sharp contrast to the position of Manipur High Court, where it examined the internal situation of Myanmar and categorized seven Myanmarese Nationals as ‘asylum seekers.’ It seemed from the judgment that the Supreme Court was eager to dismiss the International Conventions such as the Status of Refugees, 1951 simply because India was not a ‘party’ to the Convention. Manipur High Court was also conscious of the same fact that India is not a signatory to the Status of Refugees Act 1951, while dealing with the issue of Myanmarese Citizens. However, the court said “The Principle against Non-Refoulement, i.e. a forcible return of refugees to a country where they are liable to be subjected to persecution, can prima facie be read into Article 21 of the Constitution.”

The Supreme Court also said that “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with municipal law.” However, this position is quite problematic as the Courts rely a lot of time on International Conventions to broaden the scope of rights guaranteed to the citizens. It would have been better if the court attempted to clarify whether the Principle of ‘Non-Refoulement’ is inconsistent with municipal law. The broadening of Article 21 of the Constitution to cover non-citizens of the country is one of the examples where the Supreme Court in the past like in NHRC vs State of Arunachal Pradesh, has expanded the scope of available rights under Article 21 and recognized the Principle of Non-Refoulement. The Supreme Court of India stands at a crossroad as its own judgements in the past upheld the principle of Non-Refoulement in India. The abdication of responsibility at the highest level of the court reflects that the court may have become oblivious to the plight of Rohingyas, who are being systematically targeted by various Buddhist fundamentalist groups as well as the military.

Conclusion

The order of the Supreme Court about the deportation of Rohingyas and the recent order of Manipur High Court concerning Myanmarese Citizens has shown that different perceptions exist about the principle of ‘Non-Refoulement’ in India. At a time when the citizens of Myanmar irrespective of their ethnicity are facing the brunt of military leadership, it is expected that the courts in India will at least ensure that those seeking refuge in the country get minimum dignity and respect. In the past, India had earned immense goodwill for allowing refugees of Tamil ethnicity residing in Sri Lanka to come and settle in the country, though it was largely restricted to the state of Tamil Nadu and the other Southern States. There are multiple other instances that demonstrate India’s commitment to the protection of refugees in the past. Therefore, it must not abdicate its responsibility and take lead in solving the current humanitarian crisis in Myanmar.


Image Source: The Wire


The article is authored by Siddharth Chaturvedi who is a student at Dharmashastra National Law University. His areas of interest include Constitutional Law, Human Rights Law and Data Privacy.