By Prashant Tripathi & Riya Agarwal
The Rohingyas are a stateless Muslim minority in Myanmar, described as the world’s most persecuted minority who have lived in Myanmar for centuries but have faced growing violence and persecution that has forced thousands to flee to neighboring countries including India. The vast majority of Rohingya refugees reaching Bangladesh are women and children, including newborn babies.[i] The government of India is under an obligation to secure and protect the rights of these refugees against deportation as it has ratified to the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the UN Convention of the Rights of Child, 1989, and the International Convention on the Elimination of all Forms of Racial Discrimination. Further, the obligations of due process and the universal principle of non-refoulement restrict India from carrying out collective expulsions to a place where they risk torture or other gross violation of human rights and dignity. Moreover, the intention of the Indian government to deport Rohingyas fails to sustain in the light of Constitutional guarantees provided under Articles 14 and Article 21, read with Article 51(c) and 253 of the Constitution of India.
India’s obligation under International Law
India has a very bright record when it comes to helping populations fleeing from neighboring countries, including Sri Lanka, Afghanistan, and Tibet. India is not a party to the 1951 Convention or to the 1967 Protocol. However, it is pertinent to take into consideration that India has signed and ratified various international and regional treaties and conventions which seek to uphold universal human rights in respect to refugees.
A. Principle of Non- Refoulement as Customary International Law
According to Article 38(1)(b) of the Statute of the International Court of Justice, the Court while deciding disputes shall apply “international custom, as evidence of a general practice accepted as law”. For a rule to become part of customary international law, two elements must be present: consistent State practice and opinio juris, i.e., the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it. The principle of non-refoulement as contemplated under Article 33 of the 1951 Refugee Convention adheres to both the requirements and hence, it can be said that this principle has become a part of Customary International Law binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol.[ii]
It was held by the Delhi High Court in Dongh Lian Kham v. Union of India,[iii] that “The principle of non-refoulement, which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as non-refoulement protects the life and liberty of a human being, irrespective of his nationality.”
The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi and Anr v. Union of India and Ors,[iv] reflected intently upon international law principles of refugee protection and India’s obligations under various human rights instruments. Finally, on the basis of the principle of non-refoulement and humanity, the court ordered in favor of the petitioners that they shall not be deported from India until December 31, 1998 and ordered the respondents to consider the petition as per the law laid down in the judgment.
The Court, in Gurunathan and Others v. The Government of India and Ors,[v] held that Sri Lankan refugees would not be sent back to their native place against their will and that there would be no force used in the process.
In Dr. Malavika Karlekar v. Union of India and Anr,[vi] the Supreme Court ordered that nationals of Myanmar who have applied for refugee status cannot be deported to Myanmar while the decision is pending with UNHCR.
In Anthony Omandi Osino v FRRO,[vii] Court stayed the deportation of the petitioner and further directed the UNHCR to hear and dispose of the appeal filed by the petitioner within a period of one month from the date of receipt of the order. In the absence of a formal law, the court has upheld the principle of non-refoulement through these cases.
In the case of Zothansangpuri v State of Manipur,[viii] the Imphal Bench of Guwahati High Court ruled that refugees have the right not to be deported if such deportation would put their life in danger.
B. Universal Declaration of Human Rights, 1948
UDHR under Article 14 protects the Refugees by explicitly recognising the Principle of Non-Refoulement. According to this Article everyone has the right to seek and to enjoy in other countries asylum from persecution.
C. International Covenant on Civil and Political Rights, 1966
Articles 6 and 7 of the ICCPR while ensuring right to life and right to free from torture or other cruel, inhuman or degrading treatment or punishment also encompass the obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm.
D. Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
Article 3 of the Convention prohibits a State party from expelling, returning or extraditing a person to another state where there are substantial ground for believing that he would be in danger of being subjected to torture.
E. Convention on the Rights of Child, 1989
Deportation of Rohingyan children in the refugee camps to Myanmar will be a violation of Articles 2, 6, 7, 19, 20, 22, 31 and 37 of this Convention. Article 22 of the Convention explicitly provides for non-refoulement of children and casts an obligation on the States Parties to take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments.
India’s obligation under Constitution of India
The Constitution of India, according to Kelsen’s pure law theory, is the supreme law of the land and there is nothing beyond the Constitution. Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.[ix] Rohingyas have to be afforded protection not only because it is enshrined under the Constitution but also because they are human beings. The life of every human being is priceless and right to live with human dignity[x] is a natural and fundamental right of every person.
A. Article 14 casts an obligation on the State to secure to every person equality before the law and equal protection of laws within the territory of India. The very language of this Article makes this Article absolute. It is the view of researchers that the benefits of this Article cannot be denied to any person on any ground whatsoever it may be. The contention of the Government of India that the protection under Article 14 cannot be extended to Rohingyas on the ground of threat to national security fails to survive as there is no express mention of any restriction under Article 14 which can be imposed on any person. Had the makers of the Constitution wished not to make this Article an absolute they would have added some restrictions to it as they have done with other Articles such as Article 19 and Article 21.
B. Article 21 which guarantees right to life and personal liberty to every person irrespective of his/her nationality has been characterized as “the procedural magna carta” by J. Iyer.
The Apex Court in Paramanda Katara v. Union of India[xi] preservation of life is of most importance because if one’s life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man’.
In National Human Rights Commission v. State of Arunachal Pradesh,[xii] the Supreme Court held that foreigners would be entitled to the protection of Article 21 of the Constitution; and the state government would be required to act impartially and carry out its legal obligations to safeguard the life, health and well-being of foreigners. Since the constitutional rights under Article 14 and 21 are available even to non-citizens, the state is bound to protect the life and liberty of every human being be he a citizen or otherwise.
In Francis Coralie v. Union Territory of Delhi,[xiii] it was held that right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading and expressing oneself in diverse forms freely moving about and mixing and commingling with fellow human beings. It means that life of a person is beyond the animal existence.
India is bound by the principle of non-refoulement. It is the duty of Indian government to extend the protection of Article 14 and 21 to Rohingyas. It is vehemently asserted by the researchers that India should abide by its international obligations to protect the rights and interests of Rohingyas. The Constitution of India under Article 51(c) mandates that the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another. We must protect our family and maintain our belief and faith in Vasudhaiva Kutumbkam.
The Parliament, in exercise of power bestowed under Article 253 of the Constitution, shall enact a law so as to give effect to the international treaty and convention for the protection of rights and interests of refugees.
[i] Rohingya Emergency, UNHCR, The UN Refugee Agency; http://www.unhcr.org/rohingya-emergency.html.
[ii] Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR, Geneva, January 26, 2007.
[iii] 226 (2016) DLT 208.
[iv] 1999 Cri.L.J 919 (Guj.).
[v] W.P. Nos. 6708 and 7916 of 1992.
[vi] Cri. WP No. 243 of 1988.
[vii] Cr.W.P. 2033 of 2005.
[viii] Civil Rule No 981 of 1989.
[ix] Justice K.S. Puttaswamy (Retd) and Anr. v. UOI and Ors WP (C ) No. 494/2012.
[x] Oliga Tellis v. Bombay Muncipal Coroporation and Ors, AIR 1986 SC 180.
[xi] AIR 1989 SC 2039.
[xii] (1996 1 SCC 742.
[xiii] (1981) 1 SCC 608.