For hundreds of years, India has been a refugee haven. It has provided asylum to Jews who have been persecuted around the world, as well as to thousands of Sri Lankan-Tamils who have fled their homeland owing to the army-LTTE conflict. Apart from them, India has taken in Tibetans, Afghans, and migrants from various other nations. However, India has become deviant from its position to provide a safe place for asylum seekers in the case of Rohingya Muslims. The Rohingyas are one of the world’s most persecuted ethnic groups. This reality has been confirmed by UN Secretary-General Antonio Guterres on multiple occasions.

In 2017, the Burmese army led a brutal crackdown on the community. It led to the killing of thousands of Rohingyas. Furthermore, the Burmese army was also involved in a large number of gang rapes, tortures, and various other human rights violations. As a result, nearly 7,00,000 Rohingyas were forced to flee to neighboring countries. India has 40,000 Rohingya refugees at present, out of which only 16,500 are registered with the UNHCR.

The Salimullah Judgment

The government has recently decided to deport 150-160 Rohingyas detained in Jammu. This was challenged in the recent case of Mohammed Salimullah v. Union of India and Ors. The government’s reasoning for its actions against the Rohingyas was that they were foreigners who came from another country seeking asylum, and the Indian government was authorized to regulate their entry under Section 3 of the Foreigners Act for national security concerns and non-application of the principle of non-refoulement on India, due to it being a non-signatory to these refugee conventions. The Supreme Court ruled in favor of the government and allowed the deportation of the Rohingyas, with due procedures. However, the judgment was problematic on various grounds.

The Court accepted the government’s assertion of Rohingyas being a threat to national security. However, the allegation that was put forth by the government was not corroborated by any evidence. The government further argued that India is not a signatory to the Refugee Convention, 1951. Therefore, it is not bound to follow the principle of non-refoulement. Thus, Article 51(c) of the Indian Constitution which enshrines to honor international law and treaties would not hold any value and would be non-applicable in the present case. The court accepted this argument too; however, the court, while accepting this argument, completely overlooks the present status quo of the principle of non-refoulement as a part of international customary law or jus cogens. Even the UNHCR has recognized this as a part of customary international law on several occasions.

This ruling not only accepts the government’s baseless allegations but also fails to acknowledge international provisions and its own judicial precedents.

Non-refoulement as an International and Constitutional Obligation

Non-refoulement is mentioned in Article 31(1) of the 1951 Convention which states that:

“The asylum state shall not return any refugee to a territory where his life or freedom is endangered due to his race, religion, nationality, or political alignment or opinion.”

The recent ruling of the International Court of Justice in Gambia v. Myanmar has also acknowledged the ethnic cleansing of Rohingyas by the Burmese army and the threat to their lives in Myanmar. Therefore, the policy of non-refoulement becomes all the more important here, since it has been confirmed that they face a threat to their lives in their own homeland. Although India is a non-signatory to the 1951 Convention, it is a signatory to ICCPR and UDHR which encapsulate the principle of non-refoulement.

Furthermore, the policy of non-refoulement, in the present time, has acquired the status of customary international law as it has been used in many general treaties relating to the treatment of refugees. It has been suggested time and again that the obligation under non-refoulement be treated as a jus cogens obligation. This creates an obligation on all governments to adhere to the principle of non-refoulement, regardless of whether they have ratified the refugee treaties or not. The obligation to follow these laws in India comes not only from being a signatory of these treaties but also from its own Constitution and judicial precedents. In Vishakha v. State of Rajasthan, the court said that any international agreement that is in harmony with the ideas of the Constitution can be used to provide meaning to policies. Furthermore, Article 51 of the Constitution proposes to honor international law and treaties.

Apart from international obligations, various judicial precedents acknowledge the policy of non-refoulement as a part of the Indian Constitution. In State of Arunachal Pradesh v. Khudiram Chakma, the court halted the deportation of a Chakma family who arrived as refugees from East Pakistan in 1964. The judgment was based on the fact that a refugee who has relocated to another country to seek asylum and protection from persecution in their homeland, owing to a threat to their life or freedom, cannot be repatriated until the situation in their home country has stabilized. Furthermore, Article 21 guarantees the right to life and personal liberty to all people in India, regardless of whether they are foreigners or citizens. The state is obligated to safeguard their lives and liberties from any danger that could result in a breach of the aforementioned provisions.

In the cases of Dongh Lian Kham v. Union of India and Ktaer Abbas Habib Al Qutaifi v. Union of India & Ors., the policy of non-refoulement was recognized as a part of Article 21 of the Indian Constitution. In a recent judgment given by the Manipur HC, in the case of Nandita Haksar v. State of Manipur and Ors., the court has allowed the safe passage to seven refugees who came to India due to military crackdown in Myanmar. The court recognized the seven asylum seekers as refugees who face an imminent life threat. Thus, it has applied the principle of non-refoulement recognizing it to be a part of Article 21 of the Indian Constitution.

The Fallacious Argument of National Security

The Indian government took the same stance—of Rohingyas being a threat to national security—in the recent case of Mohammad Salimullah v. Union of India. However, this argument falls flat in spite of the fact that threat to national security is recognized as an exception to the principle of non-refoulement. Even though the government regarded Rohingyas as a potential threat to the security of India in the Samiullah case, it did not show any proof for the same. The exception claimed to this policy on grounds of national security can also be challenged. Instead of scrutinizing individuals to discover if they constitute a security risk, the exception is used as a blanket norm to deny asylum to the entire population. This blanket restriction is so rife that Indian officials were prepared to deport a 14-year-old Rohingya to a coup-hit Myanmar. The deportation failed when Myanmar authorities refused to allow the girl inside their borders. The minor’s life would have been in danger had the authorities given their approval. India’s action has been condemned by the United Nations as an attempt to endanger the girl. This demonstrates the folly in the “national security” argument, as what possible harm could a 14-year-old pose to national security for the government to place her in an unsafe environment? Furthermore, India’s obligation to comply with the principle of non-refoulement comes from the customary law or jus cogens. The customary law does not recognize any exceptions to the principle of non-refoulement.

It is safe to argue that deporting the Rohingyas is currently unwelcome and unjustified. The “threat to national security argument” is irrational and unjust since it is applied as a blanket rule to deny asylum to the entire population rather than examining individuals to see if they pose a security concern. Furthermore, Articles 14 and 21 apply alike to all persons in India’s territory, citizens or not, and India’s jus cogens responsibility of non-refoulement of refugees becomes much more important. This is not merely to ensure their safety, but also to maintain the principles established in our Constitution. As a result, deportation is currently unwarranted and in violation of not only international agreements but also our Constitution.

Shriansh Jaiswal and Ananya Kumar are third-year B.A., LL.B. (Hons.) students at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

Suggested citation: Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas: A Gross Misuse of Defence of National Security and Turning Away From Its International and Constitutional Obligations, JURIST – Student Commentary, July 2, 2021, https://www.jurist.org/commentary/2021/07/jaiswal-kumar-rohingya-muslims-national-security-india/.

This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org