What is the issue?
- Seven Rohingya men were recently deported to Myanmar for being "illegal immigrants".
- The Supreme Court dismissed an application to restrain the government from taking steps for deportation.
What is the deportation case?
- The men had entered Assam in 2012 without documentation and were prosecuted for illegal entry under the Foreigners Act.
- A case challenging the government’s move to carry out en masse deportation of Rohingya refugees is still pending before the Supreme Court.
- Given this, the deportation of seven Rohingya men was unexpected and contentious.
- The government says that the detainees had consented to return and the Myanmar Embassy had confirmed they were “citizens”.
- An intervention application was filed before the SC, seeking a stay order.
- The petition says the detainees were “refugees” as they were at the risk of persecution.
- But the matter was dismissed by the Bench noting that they were “illegal immigrants”.
Why is the court's decision disputable?
- Constitution - In NHRC v. State of Arunachal, the Court extended protection under Article 14 and 21 to refugees.
- Given the circumstances, refugees often cross borders without prior planning or valid documentation.
- If not for anything, this should reinforce their status as “refugees” and not "illegal immigrants".
- Here, evidently, the Rohingya deported to Myanmar are at the risk of being tortured, indefinitely detained and even killed.
- International law - Further, various high courts have upheld the customary international law principle of non-refoulement.
- It is the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.
- In view of these principles, the deportation potentially violates Article 21, and India’s international obligations.
- Citizens - The argument that the men are “citizens” and therefore not in need of protection is without legal basis.
- Refugees frequently, though not always, are citizens of the state they are fleeing from.
- Government's claim that the men have been accepted as “citizens” by Myanmar is disputable as the root of the plight of the Rohingya is the denial of citizenship.
- In Myanmar, they are being issued the controversial National Verification Card.
- This does not recognise their religion or ethnicity and definitely does not confer citizenship.
- Judiciary - In the absence of a domestic refugee protection law, it is for 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.
- However, it is important to not overstate the implications, as the order was based on the notion that the men had consented to return.
- So in cases where there is no consent, this cannot apply as a precedent.
Source: Indian Express
