LEGAL DIMENSIONS OF DEPORTATION

Recently, the Indian government announced its intention to expel all 40,000 Rohingya
refugees, including 16,500 registered there. 1 The Supreme Court, in Mohammad Salimullah
v. Union of India2, rejected a petition to stay Rohingya refugees' deportation to Myanmar.
India is not a party to the 1951 Refugee Convention 3nor the 1967 Protocol to the
Convention4. But the UNHCR  has recognized that this principle has achieved the status of
customary international law to the states who are not the parties to it. 5 Article 3 of the UN
Convention Against Torture6 expresses the principle of non-refoulment. Despite not ratifying
the Convention, India must still act in accordance with its objectives and purposes.
Additionally, India has ratified the International Covenant on Civil and Political Rights
(ICCPR) and must take active steps to fulfill its obligations under the ICCPR. Non-
refoulement is the main principle of ICCPR.

In addition to international law, Indian courts, including the Supreme Court, have established
numerous precedents on non-refoulement. In the case of Ktaer Abbas Habib Al Qutaifi and
Anr. v. Union of India and Ors 7., the Gujarat high court explicitly acknowledged the
principle in relation to the proposed deportation of two Iraqi refugees to their home country.
Surprisingly, the judgment asserts that the non-refoulment principle is covered by Article 21
of the Indian Constitution, which protects the right to life and meticulously cites sections of
international law that forbid nations from carrying out such deportations.

The Supreme Court ruled in National Human Rights Commission v. State of Arunachal
Pradesh & Anr8. that India must refrain from deporting vulnerable refugees and is subject to
specific international and domestic laws.

1
“India: Rohingya Deported to Myanmar Face Danger,” Human Rights Watch, March 31, 2022,
https://www.hrw.org/news/2022/03/31/india-rohingya-deported-myanmar-face-danger.
2
Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296.
3
Refugee Convention, 1951.
4
Refugee convention protocol, 1967.
5
Samtani, Sanya. n.d. “Deporting Rohingya Refugees: Indian Supreme Court Violates Principle of Non
Refoulement | OHRH.” Accessed February 18, 2023. https://ohrh.law.ox.ac.uk/deporting-rohingya-
refugees-indian-supreme-court-violates-principle-of-non-refoulement/#:~:text=The%20UNHCR
%20has%20recognised%20that%20this%20principle%20has.
6
UN Convention Against Torture, art 3.
7
Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India and Ors., 1998 SCC OnLine Guj 304.
8
National Human Rights Commission v. State of Arunachal Pradesh & Anr., (1996) 1 ACC 742.