Supreme Court order allowing deportation of Rohingyas shows that India hasn’t shed Partition baggage

On April 8, the Supreme Court of India issued an order, allowing the deportation of Rohingyas from Indian territory. While making its case before the court, the government of India had argued that the Rohingyas were illegal migrants who had crossed the border, and though they enjoyed equal protection of law and the right to life, their right to movement was essentially attached to their ability to demonstrate their link with the Indian territory.

The protection of an individual within the territory of any state is based on certain legal expectations: first, that the state shall establish relevant identification criteria to grant protection to the individual; second, that this identification shall allow movement of individual within the state and across its borders; and finally, that any harm to the individual shall be addressed by the state under its domestic legal system or else through its mutual engagement with the other state, as happened in the Italian marines case recently.

The Supreme Court’s ruling on the deportation of Rohingyas fails all the expectations. Though the court agreed that the Rohingyas face a threat to life in their home country, it nevertheless decided to deport them. The Rohingyas’ right not to be deported was necessarily linked to their ability to settle and reside in India. Since they did not possess this ability, they could not avoid deportation.

The court did not listen to the pleadings of the Office of the UN High Commissioner for Refugees, making the refugee question a purely domestic one, which it is not. The protection of refugees has always been an inter-state matter, though the implementation is grounded in domestic legal systems.

As problematic as the court’s ruling is its reasoning. It did not allow the implementation of the non-refoulement principle – which secures an individual’s security at the first instance – solely because India is not a party to the Refugee Convention, 1951. This interpretation of the court is fallacious. The non-refoulement principle does not merely apply through the route of treaty law, but also through international custom. Since India follows the Blackstone doctrine, much like the United Kingdom, the norms of customary international law become directly applicable within the domestic legal system. It is a different matter how the obligation is perceived by the state’s agencies. Besides, even in the absence of obligation flowing from the Refugee Convention, the court cannot ignore India’s obligation to prevent statelessness under various human rights instruments, such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Convention Against Torture and others.

Finally, it did not give importance to the International Court of Justice’s judgement in January 2020 in The Gambia vs Myanmar, which classified the Rohingyas as a threatened lot in their home country. Having identified the situation on the ground, how could the Supreme Court deport the individuals despite the risk to their lives?

Post-Partition Anxiety

The ruling of the Supreme Court is a reminder of the jurisprudential baggage that India has been carrying since the Partition. After the country’s division, the issue of migration into India from Pakistan (East and West) was seen from two prisms – the Hindus who migrated to India were categorised as refugees and were given protection under the law, whereas Muslims who had initially migrated to Pakistan and wanted to return to India were identified as illegal migrants, unless proven otherwise.

The apprehensions had even been part of the constitution-drafting process. Three major reasons were highlighted in the Constitutional Assembly debates: first, that the people coming from Pakistan might pose a security threat to India as their intention of coming back could not be ascertained; second, that giving them citizenship might devalue the status of Indian citizenship in post-Partition India; and finally, that providing citizenship to such immigrants might become a practical burden since, in many instances, the evacuee property they had left behind (and had been dispensed with) would be required to be returned back to them. Articles 6 and 7 of the Citizenship Act, 1955, were only the legal representation of such constitutional anxieties.

Refugees Vs Migrants

From its birth, nationhood has been a contested issue in India. With the British arguing that Indians could not constitute a nation, the problem of cultural, religious, ethnic and social diversity forced the constitution framers to de-link the issue of nationality from citizenship of the newly constituted state. The idea of membership that India adopted gave primacy to the British principle of territoriality (jus soli). However, there were traces of descent principle (jus sanguinis) in circumstances that demanded special treatment – for instance, the influx of Hindu migrants from Pakistan and granting of membership to oversees Indians who could not be assimilated into the membership of their host states.

The Citizenship (Amendment) Act, 2019 marks a further shift towards the descent principle, transferring post-Partition anxieties to present times. The amendment is a reminder of the differential classification of Hindu “refugees” and Muslim “migrants” once they entered India. In the latter category, intention becomes central to determining the membership of the state, while the former receive legal protection once they gain access to Indian territory. The assumption of a threat of persecution is attached to one but not the other.

The Rohingya problem is an associated one. Studies demonstrate that in most instances, the Rohingyas entered India out of fear of persecution and not to gain a foothold into Indian territory. It, however, seems that the psyche of the Partition, which required Muslim migrants to demonstrate intention, bears on the Rohingya case too. Additionally, the media portrayal of Rohingyas as a security threat, which has been challenged by many studies, has effaced their reality as a persecuted community.

Possible Solutions

The Indian Constitution does not provide right to identity as a fundamental right, even though all other rights under Part III are concomitant to its existence. Moreover, the Indian Constitution is one of the rare documents that creates a legal framework for granting citizenship. In contrast, around the world, the status of citizenship is assumed under the law, while statelessness is addressed through bureaucratic means.

The Rohingya problem is deeper than it appears. It is not an issue of whether they could belong to the Indian territory or not. The question rather is, where do they belong? Where could they be transferred? The Supreme Court’s conviction of following the “prescribed procedures”, therefore, is ill-decided. How can one follow the dictates of domestic law to deport people to a territory where they may not be accepted? The court has already made it clear that deportation is not an international law issue by observing that “we cannot comment upon something happening in another country”. How does the Indian government imagine the fate of these stateless people then?

The court could instead have allowed the United Nations High Commissioner for Refugees to make representation as an interlocutor. The representation by the UN Office could have allowed the court to look at the matter from the perspective of broader international law and resolve it in a convenient manner. It could also have explored the option to repatriate the refugees under a voluntary repatriation agreement, which is allowed under international law and signed between relevant parties.

Unfortunately, the growth of right-wing populism in India, coupled with religious majoritarianism, has only added complexity to the issue. The growing “otherisation” in society and increasing securitisation of the Indian territory makes many vulnerable people, including the Rohingyas, a security threat to the state. This categorisation does nothing but attack the very foundations of international refugee law and the doctrine of non-refoulement, which seeks to protect persecuted individuals from the actions of states and prevent them from becoming stateless.

The Supreme Court’s order on deportation of Rohingyas is, therefore, violative of the standards of human dignity upon which the life of an individual is based and which an individual looks up to.

Nizamuddin Ahmad Siddiqui is Senior Research Fellow at Jindal Global Law School and Abu Zar Ali is pursuing his undergraduate studies at National University of Juridical Sciences, Kolkata.