Context:

• At the annual session of the executive committee of the UNHCR held in Geneva, India stated, “We are a responsible state with a functional democracy and rule of law.”
• On the same day, October 3, seven Rohingya men were being taken to the Indo-Myanmar border for a scheduled deportation.
• Ironically, they had no access to legal counsel, courts or the UNHCR, which is mandated by the government to conduct refugee status determination of Myanmar nationals.

NHRC v. State of Arunachal:

1. In NHRC v. State of Arunachal, the Court extended protection under Article 14 and 21 to refugees
2. Further, various high courts have upheld the customary international law principle of non-refoulement in deportation cases and have referred the detainees to UNHCR
3. In view of these principles, the deportation of Rohingya refugees is in contravention of India’s obligations both under the Constitution and international law

illegal immigrants:

• With regard to the argument that the men were “illegal immigrants”, it should be noted that, given the circumstances that cause them to flee, refugees often cross borders without prior planning or valid documentation
• If anything, this should reinforce their status as “refugees”
• In the present case, given the overwhelming evidence to show that the Rohingya deported to Myanmar are at risk of being tortured, indefinitely detained and even killed, the deportation potentially violates Article 21, and India’s international obligations.

Plight of Rohingyas

• Refugees frequently, though not always, are citizens of the state they are fleeing from
• The root of the plight of the Rohingya is the denial of citizenship
• In Myanmar, they are being issued the controversial National Verification Card which does not recognise their religion or ethnicity — and definitely does not confer citizenship

Conclusion

• In the absence of a domestic law for refugee protection, it has been up to the judiciary to extend minimum constitutional protection to refugees
• By allowing this deportation, the SC has set a new precedent that is contrary to India’s core constitutional tenets
• By this verdict, the judiciary has stepped back from its own principles.

Source:IE