W.P. (C) 793/2017

Rohingya Deportation Case

Case Description

This case will decide if the Rohingya, a Muslim minority from Myanmar can be deported back to the country of their persecution.

Background

A petition has been filed before the Supreme Court, challenging the decision to deport Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar.

Rohingyas are a small ethnic minority from Myanmar’s Rakhine state, who have been facing violent persecution at the hands of the Myanmar government, military and Buddhist nationalists. Lakhs of Rohingyas have fled their home country in the past years to seek shelter in neighbouring countries. While the Rohingya claim that they are indigenous to the Rakhine region of Myanmar, the Myanmar government has, for more than a century, considered them to be refugees from the Bangladesh region. The Rohingyas’ situation has led human rights organisations to describe them as the ‘most persecuted community’ in the world.

According to Indian home ministry estimates, there are around 40,000 Rohingya Muslims living as undocumented refugees in various parts of India. The Government claims that about 10,000 live in Jammu and Kashmir, with rest spread out in Delhi, Harayana, Rajasthan etc. The petition has been filed by two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, who relied on a Reuters Report which claimed that the Central Government has decided to deport 40,000 Rohingyas back to Myanmar, the country of their persecution. The matter was mentioned by Advocate Prashant Bhushan before the bench comprising of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud.

India is not a party to 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework but India has generally followed an accomodative refugee policy as evidenced during – Tibet Crisis of 1959, the creation of Bangladesh in 1971, and civil wars in SriLanka and Afghanistan, where India gave shelter and protection to lakhs of refugees.

The petitioners have claimed that the proposed deportation violates the constitutional protection of Right to Equality under Art 14, Right to Life and Personal Liberty under Art 21, and fostering respect for international law and treaty obligations under Art 51(c). The petitioners also claimed that the deportation would be in contradiction with the principle of ‘non-refoulment’, generally considered a part of Customary International law. The principle of ‘non-refoulment’ forbids a country from sending back asylum seekers or refugees to a country where they face persecution and is seen as binding on all countries, irrespective of not being a signatory to the Refugee Convention. The Indian government maintains that the large number of Rohingya migrants represents a national security threat and hence, they should be deported. However, some commentators believe this deportation exercise depicts an underlying change in India’s refugee policy from ‘secular’ to ‘anti-Muslim’. The Indian government has proposed amending the Citizenship Act, 1955 to make the naturalisation process easier for all except Muslim immigrants. This new bill expedites naturalisation process of persecuted minorities – Hindus, Christians, Jains, Sikhs, and Zoroastrians belonging to neighbouring countries but not Muslims persecuted in these countries – like Ahmadiyas in Pakistan or Rohingyas in Myanmar. This petition, apart from deciding the fate of 40,000 Rohingyas in India will also clarify the extension of Fundamental Rights to the case of non-citizens like Rohingyas and the degree to which customary international norms can be made binding on municipal law.


Issues

1)Whether the deportation of Rohingya Muslims violates the right to equality, considering similarly placed immigrants are not being deported.

2)Whether the right to life of Rohingya Muslims is violated, as they face an existential threat, if deported.

3)Whether India is bound by the ‘Non-Refoulment’ principle which is considered a part of Customary International Law.


Resources

Latest Hearing


Judgment Pending

Mr Rajat Nair argues in stead of Mr Tushar Mehta (who is unavailable). Matter listed on 05.12.2017.



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