Background
India does not have any special municipal law governing refugee administration. This has been the source of much criticism due to the ad hoc nature of the state's mechanisms to deal with the issue of refugees. India does not differentiate between refugees and illegal immigrants as it is not a signatory to the 1951 refugee convention or the 1967 protocol. It considers all individuals that enter India illegally and without valid travel documents as foreigners under the Foreigners Act, 1946. Thus, granting refugee status is an administrative and political exercise that the government does on a case to case basis. It is often assisted by UNHRC in such assessment. The government derives its power to detain and deport any such persons to their country of origin (section 8) under section 3(2)(c) of the Foreigners Act 1946.The legal challenge to deportation of Rohingyas is not being mounted for the first time. In 2018 as well, the government deportation was challenged before the Supreme Court through a writ petition filed by the petitioners. The SC (through Dipak Misra, CJI) opined that the centre must look at the Rohingyan refugee crisis as a humanitarian issue, and called for striking a balance between human rights and national security. The court stopped short of staying the government's deportation orders and granted petitioners the right to approach the court if any 'contingency' arose thus leaving the door for future legal and constitutional challenges open.
The present petition arose in the wake of police authorities detaining Rohingyas living in Jammu in holding centres under the foreigners Act, 1946. The petitioners filed the writ petition under article 32 seeking a writ of mandamus to stop the deportation process.
International Law on Refugees and India's obligations
The international treaty governing refugees is the 1951 refugee convention and the 1967 protocol. Article 33 of the 1951convention states:
(1) No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.
(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country
India is not a signatory to the abovementioned treaty. The state's argument is that India is not a party to any international treaty that obliges it to follow the principle of non-refoulement. The petitioners argue that the principle of non-refoulement is applicable to India through two ways. Firstly, they argue that non-refoulement is now a rule of customary international law and therefore has to be observed by India irrespective of whether it is signatory to the convention or not. The petitioners cite article 38(1)(b) of the statute of International court of justice which states "international custom, as evidence of a general practice accepted as law' as one of the sources of international customary law. For any principle to be considered customary international law it has to fulfil two criteria - consistent state practice and opinio juris i.e. "the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it". The UNHCR has opined that the rule of non-refoulement satisfies both of these tests and thus irrespective of whether any state is party to the UN convention or not - they are bound under international customary law rule of non-refoulement. Secondly the petitioners cite the treaties that explicitly or otherwise bind India under the rule inter alia - Universal Decleration of Human Rights, International Covenant on Civil and Political Rights, International Convention on Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Thus it can be argued that India cannot deport Rohingyas to Myanmar where they face a clear and present danger to their lives and freedom under customary International Law.
Indian courts use principles of International law often, however it has been stated clearly that any such international law can only be applied when it is in coherence to municipal law, and in a case of dispute between the two - the latter will prevail. Therefore the focus should be on analyzing whether the foreigner's act and the rule of non-refoulment are contradictory or not – which in turn can answer the question of applicability of the international customary law on India.
The sine qua non for disregarding the principle of non-refoulement is that if a municipal law is clearly in conflict with it. I argue that the Foreigner's Act, 1946 (municipal law) is not in conflict with the principle of non-refoulment and thus the state cannot argue against the applicability of the rule. A plain reading of the foreigner's act appears to give the state a carte blanche when it comes to deportations, but a closer look of both the legislative aim and the usage of the law will reveal that such deportations are only done in cases where such persons pose a legitimate threat to law and order or national security. Both of these provisions come under article 33(2) exception laid down in the UN convention and similarly observed in the customary international law.
The ICJ in Nicaragua v. US stated that instances of inconsistency of the rule if justified on the basis of exception clauses do not render the international customary law nugatory and confirm the rule rather than weaken it. Thus the application of foreigner's act qua the national security exception shows how any such inconsistency (of not holding the rule of non-refoulement) comes within the exception clause and thus does not render the main rule null. Ipso facto since the two laws are in coherence - the international law can be applied to India as well. This in turn puts a higher burden on the state to legitimately prove its national security argument to qualify as exception under the principle of non -refoulement. Therefore India can deport any foreigner as per its policy but when it comes to deporting a citizen to a place where there is a clear and present danger to his life or freedom it will have to qualify the exception clause by proving how such persons are a threat to national security.
Another argument that can be made is that since the legitimate legislative goal of the state under Foreigner's act is to protect law & order and safeguard national security - without legitimately proving how such persons are a threat to the national security of the country, there does not appear to be a rational nexus between the reasonable classification and the state objective sought and thus the act of deportation could be voided as being in contravention to article 14 rights conferred by the constitution on such persons.
An analysis of the writ petition
The foremost ground of disagreement is whether any fundamental rights are available to illegal immigrants or not. The state had argued during the 2018 round of litigation, and still continues to - that fundamental rights are not available to illegal immigrants and that deportation strictly constitutes a policy matter. Various court decisions have previously held that Article 21 is available to all 'persons' including refugees and is not limited to citizens as opposed to some of the other fundamental rights such as articles 15, 16 & 19. In NHRC v. Arunachal Pradesh, the Supreme Court had held that every person whether citizen or otherwise is entitled to equality before the law and equal protection of laws. It also held that no such person can be deprived of his right to life and liberty except according to procedure established by law which qua Maneka Gandhi v. UOI has to be reasonable, fair and just. In DonghLian Khan v. UOI the Gujarat High court explicitly read principle of non-refoulement into article 21 and held that no such refugee can be expelled to a place where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The court did recognize that the principle was not absolute and was subject to national security exception. In Ktaer Abbas Habib Al Qutaifi v. UOI the Gujarat High court while affirming the principle of non refoulement to be read as a part of article 21 also observed that all members of international treaties including our nation must respect such conventions and laws. They also observed that article 51(c) of the constitution casts a duty on the state to foster respect for international law and treaty obligations in the dealing of organized people with one another. The Madras high Court in P. Ulaganathan v. Government of India also affirmed that article 21 applies to refugees.
Thus there is abundant precedent that articles 14 and 21 apply to refugees as well. The state choosing to call them 'illegal immigrants' and arguing that fundamental rights are not available to them is a misnomer because the Indian legal regimes does not recognize a distinction between illegal immigrants and refugees. The precedent stated above also applies to Rohingyas in the case in point irrespective of what name the state calls the Rohingyas by. The petitioners also made the argument that classification of refugees is declaratory in nature and since Rohingyas qualify the criteria laid down in the UN convention and that they should be considered separately from mere illegal immigrants.
The petitioners also cite the Supreme court judgement in Justice K.S.
Puttaswamy(Retd) and Anr. v. UOI and Ors which categorically stated that “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.”
Conclusion
The SC has reserved its order on the matter. With ample precedents available that confirm the applicability of article 21 and article 14 to refugees – the court has to decide if article 21 contains within itself the principle of non-refoulement or not. An answer in affirmative to the first question would mean that the state cannot deport such persons in abrogation to their fundamental rights to life and liberty guaranteed under the constitution and the foreigner’s act does not allow the state a carte blanche to deport any person anywhere irrespective of a threat to their lives and in contravention to their article 21 rights. An answer in negative will set a dangerous precedent of non-availability of fundamental rights to refugees under Indian constitution which as many have argued goes against the liberal ethos of the Indian constitution.
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