SC allows deportation of Rohingya: Prashant Bhushan's arguments flawed as international laws hold no water in Indian courts
On grounds of non-interference with the executive policy, the dualistic form of the State as well as the fact that India is non-signatory of the Refugee Convention, the Supreme Court is right in its judgment in allowing the deportation of the Rohingya refugees
The Supreme Court of India on Thursday rejected the plea to stop the deportation of seven Rohingya immigrants to Myanmar from Assam. This decision was given by a three-judge bench headed by the new Chief Justice of India, Justice Ranjan Gogoi. The court had earlier found them to be illegal immigrants and even Myanmar was ready to accept them as their own national citizens. Prashant Bhushan, who was the advocate of the Rohingyas had termed the decision as 'unfortunate'. He said that this decision goes against the demands put forth by various human rights organisations and the United Nations.
The plea was filed against the decision of the Centre, wherein it had ordered deportation of over 40,000 Rohingya immigrants. Constitutional law forms the basis of the argument put forth by Bhushan and the petitioners, which is where it goes entirely wrong. The case strictly pertains to the domain of public international law and its subsequent interaction with domestic laws.
The principle under consideration is an international law principle, called 'Principle of Non-Refoulement', which puts a restriction on countries from returning asylum seekers to the country in which they would be in a likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". This principle finds it place in the 1951 United Nations Refugee Convention. India has not signed the convention; therefore, it squarely remains inapplicable over it.
Now, as it is commonly understood that the call to deport the immigrants or not, lies within the sovereign function of the executive. The Supreme Court can only look at whether there is a justifiable reasoning that has been given and if the answer is in the affirmative, then the court has to approve of the action. It cannot certainly step into the shoes of the policy makers. In this case, the Centre stated that the refugees from Myanmar posed threats to national security. It also specifically emphasised on the argument that the decision on their deportation is best left to the executive. Therefore, being a sovereign nation, it is well within the powers of the State to deport the immigrants.
Moreover, there are arguments to recognise the 'Principle of Non-Refoulement' on the grounds of its applicability under customary international law and thus not deport the Rohingyas. This argument is also legally unsustainable.
Customary international law is defined under Article 38(1)(b) of the Statute of the International Court of Justice as "a general practice accepted as law.”
It is, therefore, applicable on nations, even when they haven’t signed any treaty to that effect. It is, however, usually determined through two factors: the general practice of states and what the states have accepted as law.
The policy standpoint of India, in matters of international law is very clear. India is a dualistic State, which means that international law and domestic law have distinct identities.
International law does not automatically forms the part of the legal system in India, unless incorporated by a legislation made by the Parliament. This is also true for customary international law, and therefore a claim arising out of a rule of customary international law does not legally hold any water before an Indian court, be it the Supreme Court or any other Indian court.
India is also not a monistic country like the UK, wherein customary international law is automatically considered to be the part of British Common Law and hence is amenable to be adjudicated upon by a national court of the UK.
India’s status as a dualist country has also been upheld by the Supreme Court of India. In the case of Jolly George Varghese versus The Bank of Cochin, wherein it held that the executive power of the Government of India to enter into international treaties does not mean that international law, by the virtue of this fact, is enforceable upon ratification. The Parliament of India needs to make a law, specifically incorporating a rule, before such a rule can be argued before an Indian court.
Therefore, on grounds of non-interference with the executive policy, and the dualistic form of the State besides and that India is non-signatory of the Refugee Convention, the Supreme Court is right in its judgment. The statement by Bhushan is more political than legal, his argument is ridden with legal fallacies on such points.
The author is an assistant professor of law at the Maharashtra National Law University, Mumbai
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