Persecuting The Persecuted

Context: Supreme Court’s ruling on disposing of an application seeking the release of Rohingya refugees ignores India’s commitments to international law.

Background: Despite the detained refugees having United Nations High Commissioner for Refugees (UNHCR) refugee cards, over 170 Rohingya refugees were detained in Jammu after a biometric verification drive.

Concerns with India’s treatment of Rohingyas as refugees:

• Absence of domestic legislation: While the difference between illegal migrants and refugees is not clear due to the absence of legislation, despite that, India in the past has allowed for a differentiated
  • For e.g. Afghan, Sri Lankan, or Tibetan refugees have been granted the right to apply for long-term visas.
• Bias against: Rohingyas is even excluded from the purview of the Citizenship Amendment Act despite their fleeing described as a ‘textbook example of ethnic cleansing.
  • Earlier in 2020, the International Court of Justice (ICJ) gave a landmark judgment of grave significance in the context of the ethnic atrocities faced by the Rohingya in Myanmar.
  • The petition was brought by the state of the Gambia against the state of Myanmar, alleging that the crimes against the Rohingya violate the Convention on the Prevention and Punishment of the Crime of Genocide. India ratified the Convention in 1959.
• Lack of judicial consciousness:
  • The court ignored the matter, initially stating that it “cannot comment upon something happening in another country” (despite the ICJ acknowledgement).
  • It ignored India’s binding commitment to non-refoulment, leading to a breach of Article 21.
    • In Ktaer Abbas Habib Al Qutaifi v Union of India, the Gujarat High Court held, “This principle [of non-refoulement] prevents expulsion of a refugee where his life or freedom would be threatened…It is encompassed in Article 21 of the Constitution”.
  • Misconceived compartmentalisation: The court held that the right against deportation is concomitant with Article 19 (available only to citizens).
    • However, the guarantee of these rights flow from each other and form what is called the golden triangle of the Constitution.
    • While the Rohingya refugees have never claimed the right to reside or settle in any part of India but they have prayed for the right to life.