On 4 October 2018, a three judge bench of the Supreme Court of India refused to stay the deportation of seven Rohingya refugees from India to Myanmar. These men were arrested and incarcerated in 2012 for the offence of entering the country without valid documentation. After having served their three-month sentence, they were detained for an additional period of six years. This deportation is a flagrant violation of India’s international human rights obligations.

The persecution and gross human rights violations of the Rohingya by the state of Myanmar has been widely condemned. In particular, India’s decision to detain and subsequently deport has been described as a “flagrant denial of their [the Rohingya refugees’] right to protection” by the UN Special Rapporteur on racism. The Muslim minority community has been subject to a spate of majoritarian attacks, forcing more than 723,000 people to flee the country and seek refuge in Bangladesh. An independent fact-finding mission established by the UN Human Rights Council in March 2017 highlights the extent of the genocidal violence committed by the Myanmar military in its full report. The report places these developments in the context of a decades-long system of state-perpetrated discrimination and denial of basic human rights of the Rohingya, ranging from onerous restrictions on access to food, freedom of movement, health, education, and livelihood, to the active incitement of xenophobic violence through state-sponsored hate campaigns. The International Criminal Court has also taken cognisance of this situation by commencing a preliminary examination into the issue.

The application before the Indian Supreme Court was made within the stream of existing public interest litigation surrounding the state of Rohingya refugees in the country, and the lack of a comprehensive policy to guarantee them basic human rights. The initial case was filed in 2013, clubbed with another case filed in 2017 challenging the Indian Government’s proposed deportation of approximately 40,000 Rohingya refugees back to Myanmar.

The Government’s argument was based on consent – that the people in question voluntarily consented to being repatriated. This is questionable for two reasons: first, the consent was not evinced in any way before the Court. Second, considering the adverse conditions in Myanmar, it does not seem plausible that a member of the Rohingya would voluntarily consent to return. It is thus difficult to accept that there was consent to voluntary repatriation. As described by the UNHCR, India appears to have violated the international legal principle of non-refoulement, that a person cannot be compelled to return to their home state if they continue to have a “well-founded fear of persecution” in that state.

Despite the fact that upon independence and partition in 1947, India faced a refugee crisis with mass casualties, riots, and heavy death tolls on both sides of the border, the country does not have a comprehensive legislative framework for the protection of refugees. Although India is not a party to the 1951 Refugee Convention (which enshrines this principle in Article 33(1)), nor to the 1967 Protocol to the Convention (which enshrines this principle in Article I(1)), non-refoulement is a principle of customary international law and applies to all states. The UNHCR has recognised that this principle has achieved the status of customary international law when it has had to make representations to states who are similarly not party to either the Convention or the Protocol. Domestic and regional courts with developed human rights jurisprudence have recognised the general applicability of non-refoulement and its fundamental, non-derogable role in the protection of basic human rights.

India’s obligations to the international community also extend to the international human rights law treaties that it has signed and/or ratified. The principle of non-refoulement finds expression in the UN Convention Against Torture (Article 3). India has not ratified the convention – however it is still obliged to act in line with its object and purpose as it has signed it.

Moreover, India has ratified the International Covenant on Civil and Political Rights (ICCPR), and must therefore take active steps to fulfil its treaty obligations under the ICCPR. The ICCPR encapsulates the principle of non-refoulement. In particular, any form of removal of a person may not take place if there are substantial grounds to believe that there is a real risk of irreparable harm being caused to their right to life (Article 6) and their right against cruel, inhuman or degrading treatment (Article 7) to any country to which refoulement is to take place. These obligations cannot be derogated from, even in a state of emergency (Article 4).

In deporting the seven Rohingya refugees to Myanmar, India is in breach of several international human rights obligations, as well as its own decision to stay the deportation of all Rohingya refugees until all the hearings are complete. Amidst the rising tide of Hindu nationalism, this decision raises cause for concern.