Sagarika Swapnil, Advocate at Patna High Court & Raj Krishna, (LL.M.) NLIU Bhopal.
On April 8, 2021, a three-judge bench of the Supreme Court passed an order on international law which will have a significant impact upon refugee rights in our country. A bench led by Chief Justice S.A. Bobde ruled that the Rohingyas detained in the Union Territory of Jammu and Kashmir should not be released. Furthermore, the Court directed that Rohingyas Muslims should be deported back to the state of Myanmar. However the same should be done by following the procedure established by law.
The Court observed that :
“the rights guaranteed under Articles 14 (equality) and 21 (due process of law) 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).”
BACKGROUND OF THE CASE
The persecution of the Rohingya Muslims in the state of Myanmar has been criticized worldwide. The UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar in its report has observed that the Myanmarese military is responsible for the ethnic cleansing of the Rohingyas. It is pertinent to note that thousands of Rohingyas have already lost their lives and another thousand Rohingya women and girls have been subject to rape, including mass gang rapes. Furthermore, the Rohingyas in Myanmar have also been denied of their basic amenities, thereby forcing more than 723,000 of them to flee their country and seek refuge in neighboring countries. It is pertinent to note that in January 2020, the International Court of Justice in a historic ruling directed the state of Myanmar to cease all atrocities and human rights violations against the Rohingya Muslims. But, still Myanmar is not safe for the Rohingya Muslims.
FALLIBILITY OF THE ORDER
Violates the Principle of International Law
The order of the Apex Court violates the principle of non-refoulement. According to the principle of non-refoulement, an individual can’t be deported back to his/her home state if there is a fear of persecution in that state.
The principle of non-refoulement is enshrined under the Universal Declaration of Human Rights [UDHR], International Covenant on Civil and Political Rights [ICCPR], as well as in the UN Convention against Torture (Article 3 deals with the Principle of Non- Refoulement). It is pertinent to note that India is a signatory to all of these covenants and has even ratified the ICCPR.
As a result, it is expected that India should fulfill the obligations arising out of ICCPR. Furthermore, the obligations arising out of ICCPR cannot be waived off in a state of emergency. As a result, the Union of India should follow the principle of non-refoulement. However, the order of the Apex Court is violative of the principle of non- refoulement.
Violates the Principle of Constitutional Law
The Apex Court in this case has interpreted Articles 14, 19, and 21 in different silos. However, post the Maneka Gandhi ruling, the Court is not supposed to interpret this in different silos. According to the Maneka Gandhi ruling Articles 14, 19, and 21 are a part of a golden triangle. As a result, the Rohingyas are guaranteed protection of Article 19 (1) (e) of the Constitution.
WAY AHEAD
On prior occasions, the Delhi High Court and the Gujarat High Court have observed that the principle of non-refoulement is a part of Article 21 of the Constitution of India. However, in the present case, the Supreme Court of India did not follow the principle of non-refoulement while pronouncing this order.
Even though the Court has directed that the Rohingyas should be deported only as per the procedure established by law, but this deportation of Rohingyas back to Myanmar poses a threat to their lives. It is also pertinent to note that presently it’s the army that is in control of the state of Myanmar. As a result, there is more danger to the lives than it was during the previous regime. It is expected that in the future course the Constitutional Courts of our country will consider the principles of International law while deciding such cases.
0 Comments