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.
