By Siddharth Sunil*
Around the 9th of August 2017, news first broke that the Indian Central Government had passed detailed orders directing, inter alia, the deportation of Rohingya Muslims from the country. The order was passed under Section 3(2) (c) of the Foreigners Act 1946. It was met by widespread criticism and prompted numerous sharply worded news reports, op-eds, special television segments, et al. The Central Government responded to these criticisms (which soon found an outlet through a petition filed in the Supreme Court of India) by contending that the deportation of Rohingya Muslims was justified. In its preliminary affidavit, the Government referred to the Rohingya as “potential terrorists”, owing to their belonging to the Islamic faith.
Needless to say, the affidavit irked consciences of a great number of Indians, and also sparked scathing comments from across the globe. The Government’s allegations were declared to be unsubstantiated, bigoted, incorrect, and made in bad taste. The truth is that there have been absolutely no terrorism-based arrests of Rohingya Muslims, and, save some instances of thieving and other petty crimes (which have been few and far in between), the 40,000-strong Rohingya population residing in India has had a clean record. This begs one to scrutinize the Government’s order with a fine comb, and to read between the lines.
A superficial understanding of contemporary Indian polity would reveal that the impugned order to deport the Rohingya seems to trace its roots neither to the Constitution, nor to statutes (albeit it is backed by one), but to a political ideology. Many believe that a drastic decline in religious tolerance and an increase in attacks on Muslims have characterized the three years that the incumbent government has spent at the Government. However, it is worthwhile to steer clear of these allegations for now, given that they are sans concrete proof.
The Government, in its affidavit in the Supreme Court, has claimed that the deportation of Rohingya Muslims is imperative to protect national security. Further, it has said that Article 19 of the Constitution of India (which, inter alia, provides for a fundamental right of citizens to reside anywhere in India) cannot be extended to the Rohingya Muslims, as they are not citizens of India. Apart from failing to convincingly demonstrate the exact ways in which the protection of national security is to be achieved by deporting the Rohingya Muslims, the order is further surprising, since it is antithetical to the traditional position that India has taken in this regard. India has historically been an accommodative and hospitable nation, and operated its tourism industry for several years under a Sanskrit catchphrase that when translated means “a tourist is akin to God”. By way of example, emphasis and further operational guidelines may be placed on 1991, when a massive influx of Sri Lankan Tamils into India was witnessed. They were allowed entry and granted registration as refugees. There was an implicit acknowledgement of the fact that the Tamils were not all terrorists; it is pertinent to note that it was the Tamils who formed a large part of the terrorist outfit LTTE, which was responsible for the assassination of Rajiv Gandhi, then Prime Minister of India, and thus, tensions against the Sri Lankan Tamils were justifiably at a peak. Despite this fact, the Government (then) managed to take a pragmatic stand, and refrained from branding all Tamils as terrorists. It is, thus, an important observation that no Rohingya Muslim, currently residing in India has been suspected of or convicted for any terrorist act: which lends no credible rationale to the Government’s impugned order.
It may be noted that India is not a signatory to either the 1967 Protocol or the 1951 United Nations Convention on Refugees, but it is a signatory to numerous United Nations Conventions on Human Rights, refugee matters and related issues. Therefore, it may be easy to make a positivist argument against non-refoulement (a fundamental International Law principle that forbids countries from returning asylum-seekers to countries where they would be in likely danger of persecution based on race, religion and nationality, among others) binding India. However, India’s consistent State Practice in this regard and recent instances in which India has urged fellow nations to refrain from diluting the principle of non-refoulement ensures that, as a customary international law, non-refoulement is binding in India, regardless of whether or not India is a signatory to the relevant treaty.
Article 21 of the Constitution of India extends the right to life and personal liberty, unlike Article 19, to non-citizens. In a High Court judgment from an Indian state, it was observed: “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security”. This judgment is important in that it lays down ‘national security’ as a qualifier. This, the author submits, is a reasonable middle-ground, but there must be an efficient fact-finding mechanism to separate genuine cases affecting national security from false claims of threats to national security. The modalities of such a mechanism, however, would warrant careful consideration. The Supreme Court echoed the need of such a halfway-house (balancing of human rights with national interest) while hearing the petition filed by the Rohingya Muslims, by orally observing that a holistic hearing was in order and said that emotional arguments would not be permitted by the Court. The matter has been deferred to the 21st of November for further hearing.
It must be borne in mind that, thus far, there are no substantive Supreme Court precedents on this matter. Therefore, the onus is now on the Apex Court of India to be the conscience keeper of the Constitution of India and, above all, to demonstrate a willingness to go above and beyond for something that transcends nationalities, and to act as a guardian of human rights. The judgment will be eagerly awaited.
*Siddharth Sunil is a student of the (class of 2020) B.A., L.L.B. (Hons.) course at NALSAR University of Law, Hyderabad, India. He is avidly interested in Indian Constitutional Law, and plans to be a practicing litigator when out of law school.