An Anlaysis of SC Ruling on Rohingyas

Synopsis: Supreme court recently ruled against providing protection to Rohingya refugees. It signifies a flawed understanding of the international convention to protect Refugees.

Background
  • Recently an application was filed before the supreme court to release the Rohingya refugees. They were detained in a sub-jail in Jammu and were likely to be deported to Myanmar.
  • The Supreme court disposed of the application.
  • It signifies a lack of understanding of international law and constitutional protections for refugees.
About Rohingyas
  • The Rohingyas are termed as the world’s most persecuted ethnic minority by the U.N
  • In August 2017, the Myanmar military launched a clearance campaign in the Rakhine state (home to the ethnic Rohingya).
  • As many as 7,50,000 Rohingyas fled to the neighboring states to escape a military crackdown and brutality.
India and Rohingyas
  1. Nearly 40,000 Rohingyas who were feared of Genocide entered India and got settled in Refugee camps.
  2. Recently, the home ministry had issued circulars to states sharing borders with Myanmar to identify, detain and deport Rohingyas back to Myanmar.
  3. Following this, few states withdrew their support to provide food, shelter, or even essential medical care to the refugees.
  4. In Jammu and Kashmir after a biometric verification drive, over 170 Rohingya refugees were detained despite having UNHCR refugee cards.
  5. The Indian government labeled them as illegal economic migrants and perceived them as a national security threat. They are also excluded from the Citizenship Amendment Act.
  6. In the past, India has differentiated illegal migrants and Refugees in its treatment of Afghan, Sri Lankan, or Tibetan refugees.
  7. However, lack of consideration over Rohingyas as refugees is a disservice done to thousands of lives who are already affected by Ethnic cleansing.
What arguments are given by the supreme court?
  1. First, SC held that refugees cannot invoke Article 32 right. However, the constitutional safeguards of Articles 14 and 21 are equally available to every person, including refugees.
  2. Second, the distanced itself from commenting on the genocide happening in Myanmar. The court distanced itself despite the International Court of Justice (ICJ) observation that the Rohingya had suffered genocide.
  3. Third, the court ignored India’s binding commitment to non-refoulment and obligations in prohibiting genocide. India has ratified the Convention on Prevention and Punishment of the Crime of Genocide in 1959.
      • Principle of Non-Refoulement: It prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.
  4. Fourth, allowing Rohingyas to get deported is a breach of Article 21 and against the Gujarat High Court ruling In Ktaer Abbas Habib Al Qutaifi v Union of India. Even, Delhi High Court in Dongh Lian Kham v Union of India (2016) held the same view.
      • According to the Delhi and Gujarat High court, the Principle of Non-Refoulement protects the life and liberty of a human being irrespective of his nationality.
  5. Fifth, the court stated that petitioners’ claim to a right against deportation should be seen along with the right to reside. Under Article 19 right to reside is only available to citizens. But Rohingyas had never asked for the right to reside. Rather they have prayed for the right to life to reside in a camp and the right to liberty to protect them from arbitrary arrests, harassment, and intimidation.

Source: Indian Express

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