Omkar Upadhyay, a fourth year student pursuing B.A.LL.B. (Hons.) from Maharashta National Law University, Nagpur.

DATE OF PUBLICATION- 04/06/2021

The principle of non-refoulement is probably one of the most vital pillars of the international regime on refugee protection and serves as its cornerstone. Having left the country of persecution, the principle of non-refoulement serves as a shield in the hands of the now state-less refugees in the country of asylum. The protection under the principle of non-refoulement is thus an indispensable right of the refugees. However, this right of the refugees, as experience has revealed, has been observed more in defiance than in compliance, with States negating the application of the fleeing refugees’ right against refoulement.

India’s confrontation with the refugee problem is not a new experience – independent India had its first encounter with the refugee conundrum right after the partition exodus. Not only did India have to tackle those coming from Pakistan, but also had to deal with those fleeing from Bangladesh in latter decades following independence and partition. In the recent past, the question of refugees has again been brought to fore by the Rohingya crisis as well as the Citizenship (Amendment) Act, 2019 conundrum. The persistent transboundary movement was and has been one of the prime motivators behind India’s citizenship regime. India’s position regarding refugees is problematic for particularly two reasons; firstly, India is not a party to the Convention Relating to the Status of Refugees, 1951 (hereinafter “CRSR”) and thus feels that it is not bound by the principles enshrined thereunder, and secondly, India’s own statutory regime is inefficacious in dealing with the refugee crisis owing to the non-existence of a dedicated legislation on refugees. Thus, the only viable recourse which remains with the refugees is to approach the higher courts and claim rights as are enumerated in the Constitution. Therefore, the interpretation by the courts, particularly by the Supreme Court (“SC”), of the Constitution would decide the fate of refugees and their right against refoulement.

This article would, therefore, make an attempt to trace the roots of the principle of non-refoulement from within the Constitution while analysing the view of the Indian Courts in this regard. The dispute, as it currently stands, with regard to the status of the principle against refoulement particularly owes its existence to different origins being ascribed to it by the Supreme Court on the one hand and certain High Courts on the other. The article tries to unravel this conundrum. Furthermore, the author also seeks to provide certain workable solutions in the form of certain alternatives to the present chasm.

Principle of Non-refoulement and its International Standing

The CRSR is the umbrella international instrument dealing with the rights of the refugees, who are defined as those who move from the country of their origin fearing persecution on the grounds of race, religion, nationality and such alike grounds. Amongst the various rights and protections which are accorded to the refugees under the CRSR, one such protection is available in the form of principle of non-refoulement codified in Article 33 of the CRSR. The principle of non-refoulement, as emanating from Article 33, imposes a negative obligation on the contracting parties to not to return or expel a refugee to such a territory where his life or freedom would be threatened on the grounds of his, race, religion, nationality and such other factors. However, this principle has not been made absolute. Article 33(2) carves out an exception to the general right against refoulement by stating that a refugee may be denuded of this right if his presence in the country of refuge is regarded as a danger to the security of that country or if such a refugee has been convicted of a serious offence.

The principle of non-refoulement is essentially based on humanitarian considerations forming an intrinsic component of the international refugee protection regime. An explicit codification of the ‘prohibition on return’ has further concretised the principle. Other international instruments have also included this principle within their ambit in one form or the other. For instance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,vide Article 3, affords a similar protection as that of Article 33 of the CRSR proscribing the parties to the Convention from expelling a person if there are substantial grounds to believe that such a person would be tortured if he is so returned. Similar position can be witnessed in Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance.

Furthermore, the United Nations High Commissioner for Refugees (“UNHCR”) has elevated the principle of non-refoulement to status of international customary law (“CIL”) owing to its normative character resulting from its wide spread affirmation in various binding and non-binding international instruments. The implication of this is that even non-parties to CRSR would be obligated to not return or refoule the refugees back to place from where they fled.

Whether Non-refoulement is part of Right to Life or Not: A Persisting Conundrum

This section analyses how courts, SC and the High Courts (“HCs”) have perceived the rights of refugees, particularly that of non-refoulement on the touchstone of the Constitution.

A. The High Courts and their ‘Liberal’ Approach: A Purposive Interpretation of the Constitution

Though it is the citizens of India who have been anointed with the fundamental rights, the protection of certain fundamental rights, such as right to equality under Article 14 and right to life and personal liberty under Article 21, have been extended even to non-citizens as evinced by the use of the phrase “any person” and “no person” respectively in those Articles. Thus essentially, these rights would be available even to the refugees at par with the citizens of India. This is the view which has been taken by the HCs.

The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India and Ors., where it was presented with the question of deciding the fate of two Iraqis kept in detention centres as to whether to deport them back to Iraq, from where they fled, or to hand them over to UNHCR, made important observations on the principle of non-refoulement and how India must perceive it. Observing that the ultimate goal of the principle of non-refoulement is aimed at preventing expulsion of a refugee to a place where his life or freedom would be threatened, the Court went on to note that the principle’s“application protects life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India.”(emphasis is mine). Thus, the HC was of the view that since the principle of non-refoulement seeks to preserve the life and freedom of the refugees, it is traceable to Article 21 of the Constitution which shares a similar objective of protecting life and liberty.

On similar lines of reasoning, the Manipur HC recently, in Nandita Haskar v. State of Manipur, in a similar situation made a very important observation, “The principle against refoulement, i.e., the forcible return of refugees to a country where they are liable to be subjected to persecution, can prima facie be read into Article 21 of the Indian Constitution” (emphasis is mine).

The common thread that runs through both these HC pronouncements is that though India is not a party to CRSR, from where principle of non-refoulement emanates, still the ambit of Article 21 of the Constitution is broad enough to include within itself the right of a refugee against refoulement. This is because the ultimate aim of both is to secure life and freedom of the individuals from being threatened. Such an interpretation is in consonance with the spirit of the Constitution as was elaborated upon in Maneka Gandhi v. Union of India,where the court noted that the expression “personal liberty” under Article 21 is of the widest amplitude and covers variety of rights which go on to constitute a person’s personal liberty.

B. The Supreme Court’s Parochial View: All Steps Backward

Having stated the views of the HC and their understanding on the traceability of non-refoulement, attention must now be brought to the stance taken by the SC. The Hon’ble SC in the case of Mohammad Salimullah and Anr. v. Union of India and Ors. was called to decide an ancillary petition to the main writ petition filed by the same petitioners challenging the decision of the Central Government to deport about 40,000 Rohingya Muslims living in India as illegal immigrants in Jammu and Kashmir in pursuance of which certain immigrants were detained by the authorities. The petitioners sought to resist the deportation claiming that such a move would be violative of rights available under Article 14 and 21 as well as a derogation of the principle of non-refoulement.

In the said petition, the petitioners primarily sought two reliefs; firstly, release of the detained Rohingya refugees and secondly, a direction to the Central Government to not deport them. While holding that the petitioners cannot be granted the interim relief they have sought and even acknowledging the decision of Gambia v. Myanmar, where ICJ has categorically held that life of Rohingyas would be in danger if they are deported, the Apex Court made a curious observation.

​Negating the petitioner’s contention that right against expulsion is intrinsic to Article 21, the court instead held, “right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” By holding this, the Court has essentially watered down the essence of principle of non-refoulement and has crippled it. Moreover, by linking the principle with Article 19, the court has limited its availability to only those who are ‘citizens’. Further, by equating the principle of non-refoulement as a concomitant to the right to reside and settle in any part of India, the Court has denuded the principle of its international character. The principle of non-refoulement was never meant for domestic application. Its purpose is, and has been, to aid those who tread international lines. Such a restrictive interpretation is erroneous in its reasoning and fallacious in its application. Such an interpretation would have the effect of opening the door for the government to deport the immigrants who fled their country seeking refuge in India back to the gates of hell they ran from.

Also, in arriving at such a conclusion, the court essentially broke the ‘golden triangle’ of Articles 14, 19 and 21 and went in derogation to dictum of Maneka Gandhi v. Union of India where it has been held that a legislative or executive act must meet tests of all the three Articles as they are intertwined.

The way ahead: Concluding remarks

Article 51 of the Constitution not only enjoins India to foster respect for treaty obligations, but also to honour international law as a whole. Thus, the principle of non-refoulement having acquired the status of CIL, the Indian courts, particularly the SC must endeavour to give a purposive and liberal interpretation to the Constitution to make way for the principle. Signing or not signing the CRSR is an executive and legislative decision and given the current times, it seems a far-fetched, though not an impossible option, therefore the judiciary must take the reign and lead the way ahead.The SC’s decision in cases like Nilabati Behra v. State of Orissaand Vishakha v. State of Rajasthan have essentially paved the way for filling the legislative void with principles of international law and treaties. Thus, the way forward is to adopt the liberal approach taken by the HCs, thereby enumerating the right against expulsion from within the contours of Article 21 as it has been noted in National Human Rights Commission v. State of Arunachal Pradesh that Article 21 covers not only citizens, but also non-citizens. It must be kept in mind, that the somnum bonum of principle of non-refoulement as well Article 21 is one and the same; giving primacy to life and liberty of an individual, irrespective of his background.