–Debarshi Chakraborty, B.A. LL.B. (Hons.) Candidate, National Law University Odisha, India
Despite efforts on the international front – the International Criminal Court had initiated an investigation into Myanmar’s forced deportation of Rohingya and the International Court of Justice imposed provisional measures for preventing genocide – the situation in Myanmar remains precarious for the Rohingya community. The Indian government, however, seems determined to deport Rohingya refugees in India. Mohd. Salimullah v. Union of India (“Mohd Salimullah”) seeks to challenge the government’s order to deport 40,000 Rohingya-Muslim-refugees but has been pending before the Supreme Court of India (“SCI”) since 2017. Meanwhile, the government has deported some Rohingyas, potentially imperilling their lives.
The Indian government defends the deportations based on ‘national security’. Critics, however, believe the deportations are coloured with political motives and are linked to ideological shifts in the federal government since 2014. India’s attitude towards refugees appears to have transitioned from accommodative to ‘anti-Muslim’. This is corroborated by the recent amendment to the Citizenship Act, which expedites naturalisation for persecuted minorities from selected countries but excludes Muslim minorities like the Ahmadiyas or Rohingyas. The case before the SCI is therefore ever more critical for the Rohingya refugees to remain. In this short piece, I explore the issues raised in the case and their prospects for success.
Article 21 and the principle of non-refoulment
Article 21 of the Indian Constitution is the starting point of constitutional analysis. Article 21 provides, ‘no person shall be deprived of their life or personal liberty except according to the procedure established by law’. While most fundamental rights in the Indian Constitution strictly protect ‘citizens’, Article 21 is clearly extended to ‘non-citizens’, as indicated by the use of the term ‘person’. A key part of the challenge is that the deportation violates the principle of ‘non-refoulment’, which can be rooted in Article 21.
The principle of non-refoulment mandates that States must not return refugees to the territories where their life would be threatened on account of their race, religion, social group etc. It is recognised to have crystallised into customary international law. Accordingly, while India is not a party to the 1951 Refugee Convention, it remains, arguably, bound by the principle under customary international law. Indeed, despite India’s dualist traditions, Indian courts have adopted customary international law by subsuming them under the constitution’s guarantee of fundamental rights. In Kataer Abbas Habib Al Qutaifi v. Union of India (“Habib Al Qutaifi”), while dealing with the question on the deportation of Iraqi refugees from India, the Gujarat High Court interpreted Article 21 in light of non-refoulment. It noted that Article 21, which included in its scope non-citizens, protected the refugees. The court held that the principle of non-refoulment is encompassed in Article 21. But it inserted a caveat: the protection will be available so long as the refugees’ presence is not prejudicial to national security. A similar position was taken by the Delhi High Court in 2015, in Dongh Lian Kham v. Union Of India, except no caveat was inserted therein.
Admittedly, the SCI has refused to recognise non-refoulment as custom in the past. It should, however, not dismiss this position so quickly, especially in light of these later decisions. Instead, the SCI should adopt the position in Habib Al Qutaifi and scrutinise the State’s claim of national security to examine if the deportation-order meets the exception of ‘procedure established by law’.
Deportation and ‘procedure established by law’
SCI’s case law states that a measure complying with the requirement of ‘procedure established by law’ should in itself, and/or in the way it is formulated, be fair, just and reasonable. In Mohd. Salimullah, the petitioners argue that the government’s order is unreasonable because deporting only Rohingya-refugees treats similarly-placed immigrants differently, thereby disproportionately impact Rohingyas’ lives. SCI from time to time has mooted various tests applicable for deciding such an issue. Lately, the ‘proportionality test’ has been predominant in SCI’s jurisprudence whenever it decides on measures, claimed to be in the public interest, but prima facie threaten to impair fundamental rights. The broad four-limbed proportionality standard of review, adopted universally, has distinct contours in different countries’ jurisprudence. In India, the test has evolved conceptually, but also at times inconsistently, through case law. Despite the differences, each limb, in the four-part analysis, should account as an independent veto-point.
The government’s measure to deport is said to protect national security, which by itself is a legitimate aim, thereby arguably fulfilling the first limb of the proportionality test. However, it would fail the second limb – whether there is a rational nexus between the means employed and the aim sought. The government merely asserts that ‘some’ Rohingyas are linked with extremist Islamic factions,‘who want to achieve their ulterior motives in India by flaring up communal and sectarian violence in sensitive areas’. Nothing has been placed on record supporting this assertion. Assuming that the government establishes a connection between extremist factions and ‘some’ Rohingyas and/or their participation in illegal activities, surely this in itself should not be imputed to all Rohingya refugees in India.
Furthermore, even supposing the case passes the rational nexus requirement in the second-limb, SCI will have to examine the necessity of deportation and consider if this is the least intrusive means of protecting national security. Historically, the SCI has not been consistent in their application of this limb, specifically on the question as to who has the burden to introduce the alternatives for analysing whether a measure is least intrusive, and through how much evidence should the burden be discharged. In Justice K.S. Puttaswamy v. Union of India (“Puttaswamy II”), the burden of proof was placed on the party claiming the infringement of rights, whereas, in Anuradha Bhasin v. Union Of India (“Bhasin”), the burden was placed on the State. The position in Bhasin could be preferred in this case because the facts are more analogous; Bhasin also concerned national security and was most recently applied by the SCI in Internet Mobile Association v. Reserve Bank Of India, indicating a normative shift in applying the ‘necessity’ limb.
Adopting Bhasin’s position, however, has its shortcoming. Unlike the petitioners in Bhasin, it is not in the interests of the State in Mohd. Salimullah to provide alternatives to State measures. Consequently, the State will try and avoid providing alternatives, much less a least intrusive alternative, citing one ground or the other. In Bhasin, the State provided no alternative to ‘total internet ban’ in Kashmir for curtailing terrorism in the region citing the unfeasibility of partial internet ban and the impossibility of distinguishing between the ordinary citizen and the troublemaker. SCI accepted this argument and decided in the State’s favour of continuing the ‘total internet ban’.
It should be noted that the petitioner in Bhasin had proposed an alternative to the ‘total internet ban’. However, SCI’s complete disregard for the alternative accentuates two crucial points: first, since the burden to provide alternatives is on the State, the SCI would not consider alternatives other than those provided by the State. Second, since the SCI is reluctant to consider other alternatives or critically engage with the State’s denial of alternatives, whatever degree of evidence is provided by the State is considered sufficient. For Rohingyas, the State may choose to not provide any alternative to deportation arguing the impossibility of distinguishing between the peaceful and provocateur, among Rohingya-refugees. In such an event, it would be unjustified for the SCI to allow deportation without satisfactorily inquiring into the State’s submission. Rather, the SCI should venture into a more nuanced stance by deferring to the alternatives, if any, proposed by the petitioners during the trial or call for such, and critically engage with the State’s claim on infeasibility/ineffectiveness of other alternatives.
Should the State’s measure pass the first three limbs, it is difficult to determine how the SCI could decide the fourth limb on balancing, which according to Professor David Bilchitz, often does all the work, rendering other limbs useless. The decision at this stage could weigh in either direction especially because of the ad hoc-ism involved. SCI may wax eloquence on the need for some ‘bright-line rules’ that must guide this limb’s analysis, but in truth, no real guidance has been provided on its application.
The issues discussed above make it an important case to follow. Apart from determining the fate of the Rohingya-refugees, it could be dispositive of the questions on the expanse of fundamental rights for non-citizens, the degree to which customary international law can influence municipal laws, and for clarifying SCI’s application of the proportionality doctrine.
Suggested citation: Debarshi Chakraborty, The Indian Supreme Court and the Deportation of Rohingya Refugees: Constitutional Review and the Prospect of Success, Int’l J. Const. L. Blog, Nov. 10, 2020, at: http://www.iconnectblog./com/2020/11/the-indian-supreme-court-and-the-deportation-of-rohingya-refugees-constitutional-review-and-the-prospect-of-success
 See Sur-Rejoinder by the Union of India, ❡❡ 7-8, available at https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/24/Sur-Rejoinder-1.pdf.
 See S.M. Khasru, The disaster next door: on Rohingya issue, The Hindu, available at https://www.thehindu.com/opinion/lead/the-disaster-next-door/article19656058.ece.
 See A.S. Kinseth, India’s Rohingya Shame, Al Jazeera, available at https://www.aljazeera.com/opinions/2019/1/29/indias-rohingya-shame/; See R. Dhawan, India Needs a Proper Refugee Law, Not a CAA Suffused With Discriminatory Intent, The Wire, available at https://thewire.in/law/india-needs-a-proper-refugee-law-not-a-caa-suffused-with-discriminatory-intent.
 UNHCR’s Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, p. 7 & 11, available at https://www.unhcr.org/4d9486929.pdf.
 See Jolly George Verghese & Anr v. The Bank of Cochin, 1980 AIR 470; Vishakha v. State of Rajasthan, (1997) 6 SCC 241; See L. Rajamani, International law and the Constitutional Schema, pp. 149-151, available at https://www.oxfordhandbooks.com/view/10.1093/law/9780198704898.001.0001/oxfordhb-9780198704898-e-9.
 State of Arunachal Pradesh v. Khudiram Chakma, 1994 AIR 1461; Dr Malavika Karlekar v. Union of India and Anr, WP (Cri) 583/1992; National Human Rights Commission v. State of Arunachal Pradesh & Anr, 1996 AIR 1234, 1996 SCC (1) 742.
 See Petition by Prashant Bhusan for the Petitioners, p. 25, available at https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/23/Rohnigya-Petition-Prashant-Bhushan-1.pdf.
 See A. Chandrachud, Due Process, available at https://www.oxfordhandbooks.com/view/10.1093/law/9780198704898.001.0001/oxfordhb-9780198704898-e-43#ref_oxfordhb-9780198704898-e-43-note-3795.
 See M. Kamil, The Aadhaar Judgment and the Constitution – II: On proportionality, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2018/09/30/the-aadhaar-judgment-and-the-constitution-ii-on-proportionality-guest-post/.
 See C.R. Kumar, Human Rights Implications of National Security Laws in India: Combating Terrorism While Perserving Civil Liberties, 33 Denv. J. Int’l L. & Pol’y 195 (2005), available at https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1430&context=djilp.
 See Sur-Rejoinder by the Union of India, ❡ 7, available at https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/24/Sur-Rejoinder-1.pdf.
 See A. Rai, Proportionality in Application – An Analysis of the “Least Restrictive Measure”, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2020/05/08/guest-post-proportionality-in-application-an-analysis-of-the-least-restrictive-measure/.
 See Puttaswamy II ❡124.