Dr. Avinash Kumar* & Kaustubh Kumar**

Credit-South China Morning Post

This paper explores India’s stance on Rohingya refugees, specifically its reluctance to acknowledge the jus cogens norm of non-refoulement. Examining the pivotal case of Mohammad Salimullah v. Union of India & Ors., it highlights the Supreme Court’s dismissal of non-refoulement’s applicability due to India’s non-signatory status to the 1951 Convention. Evaluating international law doctrines through previous court rulings, it emphasizes the missed opportunity in arguing non-refoulement as a jus cogens norm. The paper contends that despite India’s non-signatory status, non-refoulement should be considered a pre-emptory norm, binding on all states. It criticizes the court’s failure to recognize this aspect, emphasizing the need for balancing internal security concerns with respecting this imperative norm. The paper advocates for measures ensuring refugees’ safe return without facing persecution, aligning with non-refoulement principles, despite India’s non-signatory status to specific conventions.

Introduction

One of the most prominent ethnic groups that once found its residing territory in Myanmar’s Rakhine State is homeless now and to safeguard themselves from the horrific persecution by their own State, they fled from Myanmar to Bangladesh, India, Bhutan, Nepal, China, and other neighbouring countries of Myanmar. However, in India, the Rohingyas became a political, economic, social, cultural, and legal issue masquerading all major issues existing in the country. Time and again arguments are raised in front of the Hon’ble Apex Court that nearly 50 million-odd Rohingyas are exhausting India’s resources and creating raucous all across the country.  The Government of India is eager to deport them to their countries while the question of non-refoulement is still in limbo at the Apex Court to decide.

The Rohingya issue is not a recent one rather the Supreme Court of India in the case of Mohammad Salimullah & Anr. v. Union of India & Ors., has already dealt with the question of deportation of Rohingya refugees. In the said case, the Court has stated that Rohingya refugees cannot claim Articles 14 and 21 under the Constitution of India as both these rights relate to Article 19(1)(e) of the Constitution. Article 19(1)(e) provides for the fundamental right to settle and reside in India to the citizens and Rohingyas, not being citizens of India, cannot claim Article 19(1)(e). Moreover, the Hon’ble Court also acknowledged that India is not a signatory to the United Nations Convention on the Status of Refugees 1951 (“1951 Convention”) and/or to the Protocol of the year 1967 (“1967 Protocol”), thereby the principle of ‘non-refoulement’ is not applicable on India as it is applicable only to the contracting states of the said Convention/Protocol. The said principle entails that the states shall not expel or return any refugee to the territories where his/her life or freedom is threatened.

This paper, firstly mentions the background of the Rohingya Issue and introduces the judgment of Mohammad Salimullah case. Secondly, the paper analyses the principle or right of non-refoulement and endeavours to answer whether the principle/right is binding on India considering the theories of international law and the aforesaid judgment. The paper will not delve into the contention with respect to the Golden Triangle that whether the petitioner had any remedy under Articles 14 and 21 irrespective of unavailability of Article 19 to them as there is already a plethora of literature present on the same subject. Concludingly, the paper establishes how the non-refoulement is a jus cogens norm that shall be taken into consideration by the Hon’ble Apex Court while adjudging the said dispute despite Petitioners failed to argue the same before the Court.

Background of the Issue

An Interlocutory Application was filed in the pending Writ Petition of 2017. Both the Writ Petition and Interlocutory Application prayed to the Hon’ble Apex Court that the detained Rohingya Refugees be released, and a direction should be passed to the Union of India to not deport the Rohingya refugees detained in the jails of Jammu and Kashmir. The petitioner in the present matter approached the Hon’ble Court challenging a letter issued by the Ministry of Home Affairs to Chief Secretaries of all the State Governments – “to sensitise all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes.”

As per the reports presented even before the Hon’ble Court, nearly 170 refugees were detained in Jammu in 2021 and send to a “holding centre” for verification process in 2022. However, whether they are deported by now or not is not known. The reports also mentioned nearly 6500 Rohingyas are detained in Jammu.

The petitioner argued that the principle of non-refoulement is a part of Article 21 of the Constitution of India, and the rights under Articles 14 and 21 are also available to the non-citizens based on the fact that the spectrum of both the said Articles is broad enough to include that the proposed deportation violates the constitutional protection of Right to Equality (Article 14), Right to Life and Personal Liberty (Article 21), and to enjoy one’s (refugee’s) life, non-refoulement is an imperative. Moreover, the petitioner put forth – though India is not a signatory to 1951 Convention and/or 1967 Protocol; the Universal Declaration of Human Rights 1948, Articles 6 and 7 of the Covenant on Civil and Political Rights 1966 and Article 22 of the Convention of the Rights of the Child 1992 provide for the same (i.e., non-refoulement) that have binding effect on India. Time and again the arguments are raised that Rohingyas will be in a danger if they are deported as the ‘genocide’ of Rohingya is still in existence, and International Court of Justice has also accepted to hear the allegations against Myanmar in the pending case of The Gambia v. Myanmar.

The Apex Court though considered their submissions but refused any relief considering the threat to internal security and an already established precedent in the Interlocutory Application of 2018, wherein the Court rejected the same relief prayed by the Rohingyas detained in Assam. Moreover, the Hon’ble Court noted that India is not a signatory to 1951 Convention and further said nothing with regards to the applicability/non-applicability of the principle of ‘non-refoulement’. It also stated that the rights guaranteed under Articles 14 and 21 are concomitant and ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19. Thereby the Hon’ble Court disposed of both the Writ Petition and Interlocutory Application without granting any interim relief/relief prayed for.

Interpreting International Law Doctrine from the Lens of the Supreme Court

The Hon’ble Apex Court has utilised the theory of Specific Adoption or Incorporation, though sparingly, for incorporating the international law in the body of municipal laws. This approach by the Apex Court provides scope for an analysis of principle of ‘non-refoulement’ to argue that it exists as a well-established ‘jus cogens’ norm. Surprisingly, the Petitioners have failed to argue in favour of establishing the principle of non-refoulement as jus cogens and the Hon’ble Apex Court also failed to give due consideration to this jus cogens norm. However, the subsequent sections demonstrate how the principle of non-refoulement is a jus cogens norm.

Specific Adoption or Transformation Theory and the Supreme Court of India

It has been very well said and can be greatly proved with the help of different cases that the Hon’ble Supreme Court of India has time and again placed reliance on the Transformation Theory to dispense justice while acting in consonance with the international conventions and norms. As per this theory, the international convention must be expressly and specifically ‘transformed’ into municipal law by employing appropriate constitutional machinery such as an Act of the Parliament.[i] Juvenile Justice Act, 2015 can be one of the apt examples enacted to force some of the requisites provided by the United Nation Convention on the Rights of the Child 1989. In the case of Jolly George Varghese v. Bank of Cochin, the Hon’ble Apex Court clearly stated – “the international law must go through the process of transformation to municipal law to become an internal law.”

Incorporation Theory and the Supreme Court of India

As per the incorporation theory, the international law becomes part of the municipal law automatically without any necessity to interpose the same through constitutional ratification. The same theory was adopted by the Hon’ble Apex Court in the case of Vishaka & Ors. v. State of Rajasthan, wherein the Hon’ble Court acknowledged that the international conventions provide for elimination of all forms of discrimination against women and there exist a void as the State has not enacted/transformed any municipal law in line of the ratified international conventions that prevent sexual harassment of women at workplaces. Thus, it passed norms and guidelines for the prevention of the sexual harassment of the women at workplaces incorporating the Articles of Convention on the Elimination of All Forms of Discrimination Against Women and Convention of Civil and Political Rights.

Principle of ‘non-refoulement’ and its presence as a ‘pre-emptory norm’

The principle of non-refoulement, as aforementioned, can be elucidated with the help of Article 33 of the 1951 Convention, which states that no refugee shall be expelled or returned by the ‘Contracting State’ to the territories in any manner where his/her life or freedom is threatened due to his/her race, religion, nationality, etc. However, India is not a signatory to 1951 Convention and the said Article itself states the word “Contracting State” as a result of which India keeps on arguing that the said Convention cannot be extended to its territories or invoked by any agency to safeguard Rohingyas. Moreover, Section 3(1) of the Foreigners Act states – “the Government can prohibit or regulate the entry or departure of foreigners in India.”

However, ‘non-refoulement’ very well find its presence in India even though India is neither a signatory to 1951 Convention nor its 1967 Protocol. This argument can be substantiated not only through the fact that India is a signatory to the Universal Declaration of Human Rights 1948, Covenant on Civil and Political Rights 1966 and Convention of the Rights of the Child 1992 that provide for ‘non-refoulement’ but with the more pressing fact that non-refoulement qualifies as a pre-emptory norm i.e., jus cogens norm that cannot be rebutted merely on the grounds of internal threat and security or India being a non-signatory to 1951 Convention.

Jus Cogens or pre-emptory norms are such principles of general international law that are binding on all the subject States irrespective of any category or characteristic of said law. The said norms/principles are non-derogable in nature and cannot be rebutted in any circumstance. In Michael Domingues v. United States, the Inter-American Commission on Human Rights quotes “[the jus cogens norms] bind the international community as a whole, irrespective of protest, recognition or acquiescence.” Moreover, in the case of US v. Matta-Ballesteros, it was noted by the ICJ – “Jus cogens norms that are accepted and recognised by the international community of states as a norm are non-derogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and cannot be pre-empted by a treaty”.

In the Advisory Opinion on Extraterritorial Application of Non-Refoulement Obligations under 1951 Convention and its 1967 Protocol, the United Nations High Commissioner for Refugees (UNHCR) stated that the prohibition of torture is a pre-emptory norm of international law (jus cogens) which prohibits refoulement. The said Advisory Opinion also creates no difference between individual refoulement and group refoulement rather it is different regional and international instruments who have classified the refoulement into the two or have started addressing it with a new term – “expulsion”. As of now, there exist no interpretation in any case or even by any eminent jurist classifying refoulement into two aforesaid categories.

Moreover, Lauterpacht and Bethlehem commenting on the interpretation of Article 33 state that slowly the principle of non-refoulement has become an absolute right, regardless of the conduct of individual, thereby foreshadowing the concerns of “internal security threats or national security.” However, in order to reconcile the security concerns with the need to protect the right of the people being refouled, the same eminent jurists and authorities have argued that the State is well within its powers to prosecute the individual acting in violation of the established law of that concerned nation. Therefore, the principle of non-refoulement is binding not only on the States party to 1951 Convention but on all the States who are members of the United Nations. It is the obligation of a State to first investigate whom he wants to remove from his territory shall receive equal or better treatment at receiving State and shall not be exposed to any kind of violence, threat, or force.

As per Article 41(2) of the ILC’s Articles on State Responsibility, 2001, “no State shall recognise a ‘serious breach’ of just cogens norms as lawful.” Any breach of pre-emptory norm is considered as a ‘serious breach’ under Chapter III of the said Articles on State Responsibility, and Article 41 spells out the legal consequences entailed by such breach. Moreover, reservations made by any State offending jus cogens are unlawful and the State acting in contravention to any jus cogens norms will not attract any claim of state immunity.[ii] Thus, jus cogens norm of non-refoulement is sacrosanct and cannot be contravened by any State.

Application of Judicial Restraint by the Hon’ble Supreme Court of India

As discussed above, Hon’ble Apex Court has utilised both ‘transformation’ as well as ‘incorporation’ theory to give effect to any international law as the municipal law. However, in the instant case, the Hon’ble Court erred in its judgment by stating that India is not a party to 1951 Convention and its 1967 Protocol, thereby non-refoulement principle cannot be claimed by the petitioners. Given the failure of the Petitioners failed to mention the argument that ‘non-refoulement’ is a jus cogens norm, the Hon’ble Court did not appreciate the jurisprudence behind ‘non-refoulement’ principle being regarded as jus cogens.

This might be an argument that the Supreme Court can only interpret the municipal laws and international laws has to be incorporated through transformation theory as opined in Jolly Varghese. However, the SC adopted incorporation theory in the Vishaka case in 1997. Considering the theory adopted in these cases, the Hon’ble Court should have given apt imperative to the contention of the petitioner that the Covenants that India has already signed and ratified – Universal Declaration of Human Rights 1948, Articles 6 and 7 of the Covenant on Civil and Political Rights 1966 and Article 22 of the Convention of the Rights of the Child 1992 – provide for the non-refoulement and the principle being a jus cogens norm shall have binding effect on India. The Hon’ble Apex Court has an immense duty towards the people residing within its jurisdiction; thus, though the argument that non-refoulement is a jus cogens norm, the Court shall consider the existing international jurisprudence regarding non-refoulement, should not have rejected the contentions of the petitioners by merely stating that Article 51(c) cannot be invoked.

Conclusion

In the instant matter, the Hon’ble Court must have given due consideration to the existing jurisprudence concerning the ‘non-refoulement’ as a pre-emptory norm and have given adequate protection and relief to the petitioners in light of international law. However, adequate protection and relief does not mean India should host refugees that can be a serious threat to the internal security of the country rather adequate measures shall be taken to return them to their origins by ensuring that they shall not face any persecution, threat, or violence, which the said pre-emptory norm also aim at.

[i] Malcom N. Shaw, International Law 105 (Cambridge University Press 2018).

[ii] Malcom N. Shaw, International Law 95 (Cambridge University Press 2018).

*Dr. Avinash Kumar is an Assistant Professor of Law at the National University of Study and Research in Law, Ranchi.

**Kaustubh Kumar is a fourth-year student at the National University of Study and Research in Law, Ranchi.