Day 10 Arguments: 26 March 2021
A petition had been filed before the Supreme Court, challenging the decision to deport Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar.
Rohingyas are a small ethnic minority from Myanmar’s Rakhine state, who have been facing violent persecution at the hands of the Myanmar government, military and Buddhist nationalists. Lakhs of Rohingyas have fled their home country in the recent past to seek shelter in neighbouring countries.
The petition had been filed by two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, residing in Delhi, who relied on a Reuters report which claimed that the Central Government has decided to deport 40,000 Rohingyas back to Myanmar, the country of their persecution.
India is not a party to the Refugee Convention, 1951 or its 1967 Protocol and does not have a national refugee protection framework. The petitioners have claimed that the proposed deportation violates the constitutional protection of the right to equality under Article 14, the right to life and personal liberty under Article 21 and fostering respect for international law and treaty obligations under Article 51(c).
The petitioners also claimed that the deportation would be in contradiction with the principle of 'Non-Refoulement', generally considered to be a part of customary international law. The principle of 'Non-Refoulement' forbids a country from sending back asylum seekers or refugees to a country where they face persecution and is seen as binding on all countries, irrespective of not being a signatory to the Refugee Convention, 1951. The Indian government maintains that a large number of Rohingya migrants represents a national security threat and hence, they should be deported.
On 7th March 2021, there were newspaper reports that 150-170 Rohingya refugees in Jammu had been detained and placed in holding centres. There are 6,523 Rohingyas in Jammu, who are concerned about the situation. They feared they would be deported to Myanmar. The petitioners thus filed an interim application to release the detainees. The Government of India has denied that they are detained. They have maintained their position on the principle of non-refoulement.
The application was heard by a bench of CJI Bobde, Justice Boppana and Justice Ramasubramaniam.
Senior Advocate Prashant Bhushan appeared for the main petitioner. Solicitor General Tushar Mehta represented the Union of India.
Various other petitioners had requested to be impleaded. Senior Advocate Harish Salve appeared on behalf of the State of Jammu and Kashmir. Senior Advocate Chander Uday Singh had also asked to be heard on behalf of the UN Special Rapporteur and assist the Court on international law.
Senior Advocate Colin Gonsalves appeared on behalf of a petitioner on a separate matter. Senior Advocate Vikas Singh appeared on behalf of a petitioner who had requested the deportation of the refugees. Senior Advocate Mahesh Jethmalani represented some members of the Jammu & Kashmir bar.
The hearing took place as listed on the board, with various interjections by the advocates in a limited time.
On the Plight of Rohingya Refugees
Bhushan relied on the ICJ order dated 23 January 2020 in Gambia v. Myanmar. In this case, Gambia had filed an application against Myanmar on the basis of the Genocide Convention. Bhushan relied on passages that found that Myanmar had engaged in various egregious human rights and humanitarian law violations against the Rohingya community, particularly by the military. They had undertaken what was effectively a genocide, especially in the Rakhine state. This had led to over 7 lakh refugees fleeing to Bangladesh, and various other countries. Those who remained were still extremely vulnerable. They had been disenfranchised. The ICJ had also noted that Myanmar’s assurance of ethnic reconciliation could not be trusted. Subsequent to this order, a military coup took place in Myanmar in February 2021. This made the situation worse, submitted Bhushan.
CJI Bobde asked whether he had any evidence that the Rohingyas were still being persecuted now. Bhushan submitted that the UN Special Rapporteur had produced a report on Myanmar after the coup.
Bhushan came to the facts of the particular case at hand. He said that Rohingya refugees from Myanmar were now being deported by India. The case dealt with 150-170 refugees currently in Jammu & Kashmir who had refugee cards from the UNHCR. They were now detained and going to be deported.
Can the Court Hear the Matter?
CJI Bobde asked whether they had a right to approach the Court under Article 32 since they were not citizens. Bhushan pointed out that Article 32 which grants the fundamental right to remedies was not limited to Indian citizens. Article 21, which guarantees the right to life, is also granted to everyone irrespective of citizenship. He requested that the Union of India be directed to release the refugees and not deport them.
SG Mehta raised a preliminary issue, which the Court heard. He informed the Court that a case with the same petitioner and same facts had been decided in the context of Assam. This was a second round of litigation and was not necessary. The Government of India had submitted that they would approach the government of Myanmar and consult them. Mehta submitted that this was the procedure required by law and must be followed, and the Court had accepted it in its interim order. CJI Bobde asked if this was on oath and Mehta said that it was.
Bhushan argued that the matter in Assam was different. There, he said, Mehta had argued that the refugees in Assam wanted to return. It was not the same in the case of the refugees in Jammu. Mehta denied this before the Court. Bhushan also pointed out that only an interim order was passed in that case.
What is the Law that Applies?
CJI Bobde suggested this was a dispute under the Foreigners Act, 1946. Bhushan argued that a different framework applied because the detainees in the matter were refugees. This was recognised as separate from migrants, he submitted.
He stated that there was recognition under international law that Myanmar’s actions were illegal. The Rohingyas were now rendered stateless. He then cited the Gujarat High Court’s judgment in Ktaer Abbas Habib Al Qutaifi and Anr. v Union of India. The Court had held that the principle of ‘non-refoulement’ was contained in the essence of Article 21 of the Constitution. This principle prevents the deportation of refugees.
He asked the Court to consider whether it was right for refugees to be sent back to the country that made them flee in the first place. He also rebutted Mehta’s proposition that the Government of Myanmar needs to be consulted as per international law. He submitted that the Government, after the coup, was deemed illegal by various international authorities and should not be consulted.
SG Mehta indicated that India was not a party to this convention. He was referring to the Refugee Convention of 1951, which contains the principle of non-refoulement. The Gujarat High Court judgment had taken notice of the fact that India was not a signatory to this. Bhushan agreed. However, he cited three other conventions which could be relied on. These were the Genocide Convention, the Convention against Torture and the Convention on the Rights of the Child.
Sr. Adv. Gonsalves submitted before the Court that former CJI Gogoi had heard arguments on the principle of non-refoulement and had supported its adoption. Mehta denied this argument. CJI Bobde said that if Mehta was contesting it, there was no time to argue on that matter. He also pointed out that Gonsalves’ matter was not listed and could not be heard. The Chief Justice also seemed reluctant to hear Bhushan’s arguments at this stage. He said they only had time to decide whether the present case was different from the one decided in the context of Assam. He also noted that while it may be true that Rohingyas might get ‘slaughtered’ when they return, the issue at hand was different.
Sr. Adv. Salve submitted that Bhushan had made grave errors on principles of public international law. He first argued that only the Government of India could recognise another foreign Government and no domestic Court could derecognise a government or call it illegal.
He then submitted that states had delegated powers under the Foreigners Act, 1946 and the Passports Act, 1967 to create ‘holding centres’. The order by the ICJ in Gambia v Myanmar, he pointed out, had only povided provisional measures. India was also not party to the ICJ’s compulsory jurisdiction. It had an ‘opt-out’. Further, the ICJ operated in matters of public international law. Municipal courts, like the Supreme Court of India, applied domestic law, Salve argued. India’s executive had refused to sign the convention ‘for good reason’, he said. The Court could not elbow the executive’s authority by applying the rule.
Mehta also briefly intervened to point out that there were ‘grave national security implications’ involved. He pointed out that Sr. Adv. Jethmalani’s petition would go into this. However, the Court did not hear Jethmalani or Sr. Adv. Vikas Singh, who had also appeared for a separate petitioner.
Sr. Adv. CU Singh asked if he could address the Court on what treaties would apply, on behalf of the UN Special Rapporteur. Bhushan urged the Court to hear him. However, Salve objected. He registered that the Indian executive had grave issues with hearing the Rapporteur. There are enough Indian lawyers who are trained in public international law, he added.
CJI Bobde closed the hearings and reserved orders on the matter.