Judicial Abdication And The Crisis Of Political Justice In Refugee Deportation Cases: A Doctrinal And Comparative Analysis Of Indian Constitutional Law
- IJLLR Journal
- Jan 31
- 3 min read
Sruthi S Nair, CHRIST (Deemed to be University)
ABSTRACT
A refugee is any person whose life is under constant threat or whose living conditions are not conducive to their healthy survival, and they seek shelter in another nation. He should be treated differently from a stateless person, as he still possesses a de jure national status. The definition of refugee according to the Refugee Convention,1951, is any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or unwilling to avail protection of that country”
India has continued to be, and will continue to be, the host country for a large number of refugees, not only from neighbouring countries but also from other parts of the world, due to its geographic location, democratic government, tolerant religious society, and goodwill.
In Mohammad Salimullah and anr v/s Union of India and ors, 2017, the honourable Supreme Court of India, dismissing an interlocutory application seeking the release of Rohingya refugees, who were detained, also seeking basic human amenities, stated that Article 51(c) of the Constitution is not applicable as India is not a signatory of the Refugee Convention 1951.
The court went on to state that “Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.” The court further stated that “the 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).
Mahatma Gandhi fought against the apartheid system, which was followed not in Indian but in South Africa. India fought for Bangladesh’s independence with selflessness. These events from the past are portrayals of India’s goodwill.
Indeed, India, even after sheltering thousands of refugees, is not a signatory to the Refugee Convention of 1951. Even in Vishaka v. Union of India (1997), the Supreme Court neither had domestic legislation nor a ratified international treaty or convention. Instead of stating that there is no law, the Supreme Court went on to rely on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to give the decision of which India was just a signatory to. This decision went on to inspire the legislature to enact statutes protecting women in work workplace.
From these examples, it can be concluded that the legal vacuum in refugee laws does not create a no-law situation, but if looked into, it leaves a space for executive and judicial discretion. When analysed from this standard, the decision given by the judiciary in Mohammad Salimullah and anr v/s Union of India and ors, 2017, is nothing but judicial abdication. Indeed, Article 51(c) of the Constitution was not applicable in this case, but since there was no municipal law contradicted and because India is a signatory to the Universal Declaration of Human Rights. The judiciary could have used its discretionary power to protect those refugees.
This paper interrogates the judiciary’s role in such deportation cases in the absence of a domestic law. Analysing the Indian constitutional jurisprudence and also a comparative constitutional experience, the paper argues that the judiciary has an obligation to protect refugees. The paper tries to balance between national security issues and humanitarian concerns. The paper also tries to understand the reason behind a legal vacuum in the field and argues for creating domestic law for the same. Ultimately, the paper aims to restore the concept that political justice must extend to all, not just citizens.
Keywords: Refugees, Judiciary, Executive Discretion, National Security, Human Rights.
