The petitioners, refugees registered under the United Nations High Commission of Refugees, (15) argue that the deportation of the Rohingya refugees by the Indian government violates the principle of non-refoulement, which they assert is a principle of customary international law. (16) The Indian government, petitioners assert, is bound by the principle of non-refoulement since the Equality Clause, the Life and Liberty Clause, and Article 51 (c) of the Indian Constitution "obligate[] India to respect international law." (17) As a matter of law, the petitioners categorically assert, "The principle of non-refoulement--or not sending back refugees to a place where they face danger--is considered [a] part of customary international law and binding on all states whether they have signed the [1951 United Nations Convention on Status of Refugees] (18) or not." (19) Article 33(1) of the 1951 United Nations Convention on Status of Refugees (the "1951 Refugee Convention"), its "central normative and operational core," (20) enacts the principle of non-refoulement as a part of international treaty law. (21) As a matter of fact, the petitioners assert that they are covered by the definition of a refugee as provided in Article 1A(2) of the 1951 Refugee Convention. (22) Even though the fact that India has not ratified the 1951 Refugee Convention is not contested by the petitioners, (23) their stand is that the principle of non-refoulement, being a principle of customary international law, binds India anyway. (24) They further argue that India's non-ratification of the 1951 Refugee Convention is not determinative of the issue since India has ratified the Universal Declaration of Human Rights ("UDHR"), (25) the International Covenant on Civil and Political Rights ("ICCPR"), and the International Convention on the Elimination of All Forms of Racial Discrimination ("ICEFRD"). (26) The reliance on ICCPR is however slightly surprising because the ICCPR does not provide "a right to seek and enjoy asylum... [it only provides] the right to leave any country and the right to enter one's own country." (27) In addition, they argue that India being a signatory to several other international conventions against use of torture, inhuman or degrading treatment, and prohibition of forced disappearances, for example, makes the fact of non-ratification of the 1951 Refugee Convention irrelevant as these international treaties and conventions that India has ratified or signed "explicitly or otherwise, lay down the Principle of Non-Refoulement." (28) The petition also relies on two High Court opinions where the principle of non-refoulement has been read into the Life and Liberty Clause of the Indian Constitution. (29) On these grounds, they argue that the right of non-refoulement must be read into the Equality Clause and the Life and Liberty Clause of the Indian Constitution.
India is not a signatory to the [1951 Refugee Convention] and the [1967 Protocol] issued thereunder. The [1951 Refugee Convention and the 1967 Protocol] are therefore not binding upon India and no other Declaration/Resolution/Convention/international treaty or instrument of any kind is in force which prohibits India, as a sovereign nation, to exercise its right of deporting illegal immigrants in accordance with laws of India and thereby protecting the fundamental rights of its own citizens more particularly in the interest of national security. (35) The government's broad stand before the Court (both in the main and the supplemental response brief) is that the entire gamut of international law relied upon by the petitioners does not bind the Indian government with the principle of non-refoulement. (36) The logical conclusion thereof is that key fundamental rights provisions of the Indian Constitution (such as the Equality Clause or the Life and Liberty Clause) cannot be interpreted so as to include within their scope the principle of non-refoulement. With respect to the 1951 Refugee Convention, the government's categorical claim is that it "does not confer any legally enforceable rights either upon the petitioners or anyone else which can justify prayers for issuance of a writ of this Hon'ble Court under Article 32 of the Constitution of India." (37) To the extent that the key question that this article engages with is currently pending judicial consideration before the Supreme Court of India, this article also, but only consequentially, attempts to examine the position of the Indian government before the Supreme Court of India by asking the broader theoretical question stated at the beginning of this article. However, this...