By Mohd Sikandar
In a recent rather peculiar order in Mohammad Ismail v. Union of India (2025) , the Supreme Court of India refused to halt the future deportation of Rohingyas from India, labelled the petitioner’s allegations as fanciful stories and disputed the status of Rohingyas as refugees. This despite the fact that the Court has a long history of stopping unjustified deportations, that the petitioner had presented a tape recording of victims as proof, and that the United Nations High Commissioner for Refugees as well as the International Court of Justice, has recognised Rohingyas as refugees.
The present article critically analyses the position taken by the Court from multiple perspectives in order to reveal its dubious understanding with respect to domestic as well as international protection of refugees.
India has no refugee-specific provision in the Constitution and hence, refugees are treated as same and at par with aliens or foreigners. In this respect, all foreigners including refugees are entitled to the following fundamental rights: Article 14, and Articles 20-28. The Supreme Court, too, has on multiple occasions reiterated that foreigners are entitled to certain fundamental rights and in particular the right to equality and right to life and personal liberty enshrined in Articles 14 and 21, respectively.
In State of Arunachal Pradesh v. Khudiram Chakma (1993), the Supreme Court categorically laid down that the protection of Article 21 applied with equal force to both citizens and non-citizens. In Louis De Raedt v Union of India (1991), the Court held that the right to life and liberty of refugees is also likewise protected under Article 21. Again, in National Human Rights Commission v State of Arunachal Pradesh (1996), the Supreme Court observed that the State and its instrumentalities are bound to protect the life and liberty of every human being. The most notable case in this line, however, is K. A. Habib v Union of India (1998) wherein the Gujarat High Court held that refugees must be protected from persecution in their home country, as long as their presence in India is not prejudicial to national security. In other words, higher courts in India have been quite progressive in the protection of refugees through broad interpretation and expansion of the meaning of Article 21 of the Constitution.
These decisions indicate an inherent right to be treated with dignity, including a prohibition against unjust deportation or refoulement. As rightly highlighted by the court in the National Human Rights Commission (1996) case, our country is governed by the rule of law, which cannot be interpreted other than as a check against executive orders/decrees, including a review of Standard Operating Procedure (SOP) for the deportation of foreigners and refugees.
On the other hand, the Supreme Court has rightly limited the scope of constitutional rights to refugees through the same judgments. Thus, in Khudiram Chakma (1993), the top Court held that the right to life and liberty does not include the right to settle and reside in the country as enshrined in Article 19(1)(d), which is available to citizens only. The Andhra Pradesh High Court’s judgement in Vincent Ferrer v. District Revenue Officer, Ananthapur (1974) propounded that foreign nationals are eligible to enjoy protections enunciated under Article 14 regarding right to equality, but foreigners are not entitled to assert their claims under Article 19 (1) (d) and (e) of the Indian Constitution.
Thus, there is hardly any debate with respect to the protection of refugees in India under Articles 14 and 21. Debatable in this respect is whether Article 21 encompasses the international principle of non-refoulement. It is not difficult to imagine a situation where forcing refugees’ return to their home state, where they have faced or may face persecution, shall not be less than a death sentence.
It is interesting to note that in K.A. Habib’s case (1998), the Gujarat High Court had held that non-refoulement is “encompassed” in Article 21. Against such a background, the forceful transfer of refugees by the State cannot be interpreted other than as a violation of Article 21. The State cannot absolve itself from the responsibility to protect all on the grounds of internal threat or national security. It must provide a reasonable justification for a forceful transfer of refugees and, therefore, any mass transfers are a reflection of the state’s derogation from its duty and constitution’s violation.
Similar to its colonial predecessor, India follows a dualist approach when it comes to the implementation of international law in the domestic sphere. This implies that international treaties or customs do not automatically become part of domestic law unless specifically adopted by the legislature through the passage of national legislation.
In other words, the Indian State considers the implementation of international law only through national legislation. In the absence of the latter, citizens cannot invoke beneficial provisions of international law to espouse their claim. The same has been the Supreme Court’s understanding for long. For instance, in Jolly George Varghese v Bank of Cochin (1980), the top Court emphatically declared that international law would have to be incorporated into municipal law to create a binding effect. However, the judgment in Vishaka v. State of Rajasthan (1997), changed everything.
For the first time, an international agreement was enforced in India, in the absence of a national law. Further, in Vellore Citizens Welfare Forum v Union of India (1996), Customary International Law was held to be automatically incorporated in the domestic law in the absence of any contrary municipal law. In the landmark Kesavananda Bharati vs. State of Kerala (1973) ruling, the then Chief Justice S.M. Sikri held that in view of Article 51, “this Court must interpret the language of the Constitution… in the light of the United Nations Charter and the solemn declaration subscribed to by India”.
Therefore, it can be concluded that international law has always been a source of law for the Indian legal system. Courts in India, through a liberal interpretation of Article 51, have given adequate weightage to international law, signifying India’s commitment and respect for international treaties and customs. Indian jurisprudence has been held to be continuously evolving and not stagnant in time. In this process, it does not shy away from borrowing good principles and practices from different parts of the world.
Embodied in the 1951 Refugee Convention, the principle of non-refoulement has emerged as a significant source of power for providing protection to refugees. The principle simply means that refugees should not be outrightly expelled or returned without due process. India is neither a party to the 1951 Refugee Convention nor has it signed the 1967 protocol, therefore it is not bound by the principle under the treaty.
But does that imply that India is not bound by the principle at all?
At present, a vast majority of scholars hold the principle of non-refoulement a part of Customary International Law. Notable in this respect is the presence of the principle of non-refoulement in various landmark international treaties like the 1951 Refugee Convention, the Convention Against Torture, 1984 and the International Convention for the Protection of all Persons against Enforced Disappearance, 2006. True that India is not a party to any of these conventions, but their acceptance by the vast majority of states signifies its global acceptance.
Related to it is the passage of numerous resolutions by the United Nations General Assembly since 1977, in which it has consistently recognised and affirmed the principle of non-refoulement. Taken together, the principle of non-refoulement cannot be held to be non-binding on non-parties. In fact, its repeated usage, many times as a general stand-alone principle, confirms its nature as a rule of customary international law
Then there are other human rights treaties and agreements to which India is a party. Take the case of the Universal Declaration of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966. Both these instruments have been unanimously interpreted to provide for the principle of non-refoulement. Lastly, the office of the United Nations High Commissioner for Refugees (‘UNHCR’) has removed any doubt with respect to the customary nature of the principle.
One view is that the principles of customary international law can be enforced in India only to the extent they are not in conflict with domestic statutes, signifying that the doctrine of non-refoulement has no application in India, given that it stands in sharp contradistinction with the 1946 Foreigners Act. This understanding, however, fails to take into account numerous Supreme Court rulings where the Court has attempted to strike a balance between domestic law and international obligations, thereby creating a harmonious relationship between international law and domestic law.
The case in point is Justice KS Puttaswamy v Union of India (2018), wherein it was held that constitutional provisions have to be interpreted in conformity with an international mandate. In People’s Union for Civil Liberties v Union of India (1996), the Court held that the provisions of the International Covenant on Civil and Political Rights, which help in effectuating the provisions of the Constitution, are directly enforceable. It is therefore interesting to hold domestic legislations occupying a superior position when the basic law of the land itself has been held to be read in conjunction with globally accepted international principles.
The Foreigners Act, 1946 gives the Union government unfettered power to deport any foreigner who has entered India or continues to stay in India, illegally. The absolute nature of this power has also been recognised in Louis De Raedt (1991). The Court held that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.
However, this unfettered nature of power has to be read against constitutional guarantees of right to life and personal liberty, which have been highlighted earlier as available to everyone, including foreigners. Further, following the decision in Maneka Gandhi (1978), not only the procedural but also the substantive aspect of the law must be just, fair and reasonable. This implies checking the vires of the Foreigners Act itself and thereby putting a check on the Union’s unfettered power to deport foreigners.
Furthermore, there is the case of the imposition of limitations by international law on the absolute use of sovereign powers. Thus, numerous human rights, humanitarian law treaties and rules of customary international law act as a check against State’s arbitrary and illegal policies/actions. Suffice it to say that there is no such thing as absolute power to expel. States are entitled to certain rights and obligated to perform/omit certain actions by international law. By virtue of being a party to international treaties and a member of the international community, states are mandated to behave in a certain manner and to that extent, states forgo some aspects of their sovereignty.
To conclude, there are certain questions relating to the present order that only the Supreme Court can answer. The first is what could have stopped the Court from passing an interim order halting deportations, considering the charges were grave in nature and involving possible violation of Article 21?
There are a plethora of other cases (Maiwand’s Trust of Afghan Human Freedom v. State of Punjab (1986); Malvika Karlekar v. Union of India (1992); N.D. Pancholi v State of Punjab (1988); Bogyi v Union of India (1989) and Khy Htoon v State of Manipur (1990), where the Court had intervened and stopped the deportation of refugees. In all these cases, the Court has been quite receptive to claims of refugees and has passed orders in their favour. Second, why did the Court dispute that Rohingyas are refugees, as both the International Court of Justice and the UNHCR have recognised them as such?
In fact, in an earlier case, the Court relied on UNHCR’s decision for the determination of refugees. The case in point is Syed Ata Mohammadi v. Union of India (1994), wherein the Bombay High Court directed that there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR. Another notable problem is the classification of Chakma refugees as a separate group. Herein, considering the Chakma case as a completely different case from the present one bears questionable classification connotations. The Government of India was, at that time, considering giving citizenship to Chakmas and at the time of the Court’s order, the Chakmas were refugees for all practical purposes.
It appears that the Court has already made up its mind before hearing the parties. In a separate case, earlier, the Court had summarily remarked that if Rohingya refugees present in India are found to be foreigners under Indian law, they must be deported. It seems the Court is not in favour of providing protection to non-citizens, as observed by the Court itself – “When the country is passing through a difficult time, you come out with such fanciful ideas.”
However, the reality is that it is only during tough times that you get to know the real nature. And the nature of the present order is nothing but a fanciful understanding of protection for refugees. (IPA Service)
Courtesy: The Leaflet
