Hearing the case of the proposed Rohingya deportation, the Supreme Court on Friday sought for the Centre to reply to the intervention by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
Assuming even more significance in the wake of the nation-wide turmoil regarding the CAA and the NRC, The Rapporteur, in her application, has called out the decision of the Home Ministry for mass deportation of the Rohingya as being "impermissible under international human rights law", insisting that India must ensure that the Rohingyas enjoy "equality before the law and equal access to judicial remedies and individualized forms of due process".
Advocate Prashant Bhushan, who appears on the petitioners' side in the deportation matter, even suggested that the bench headed by Chief Justice S. A. Bobde decide the issue of the Rohingyas expeditiously.
It may be noted that the Chief Justice has agreed to hear the challenges to the CAA on January 22.
Senior Advocate CU Singh who appeared for the intervenor submitted that intervention seeks to bring the attention of the Court to the findings of the United Nations on Myanmar's treatment of the Rohingya Muslims, including the UN's extensive evidence that the Myanmar government has perpetrated crimes against humanity.
"Myanmar's treatment of the Rohingya ethno-religious minority represents a racially discriminatory, systematic project carried out with clear evidence of genocidal intent and has been referred to by the UN as a textbook example of ethnic cleansing", it reads.
Continuing, she avers that vast numbers of Rohingyas have attempted to flee the certainty of death, rape, torture, cruel and inhuman treatment, and other forms of violence: "Best estimates indicate that more than 24,000 Rohingyas have been killed by the Myanmar State over the past two years. Although a case against Myanmar is set to proceed in the International Court of Justice, the United Nations has emphasized that impunity for these violations continues. UN reports have confirmed that until Myanmar ceases its violations of Rohingya rights and undertakes acts sufficient to guarantee the safety and racial equality of the Rohingya people, return of Rohingya to Myanmar will violate the principles of non-refoulement"
She points out that The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which India has ratified, obligates State parties to respect and ensure racial equality and the right to be free from racial discrimination.
This obligation not only arises from its commitment to ICERD, but also from Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR); Articles 2(2) & 3 of the International Covenant on Economic and Social Rights (ICESCR); Article 2 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 2(1) of the Convention on Rights of the Child (CRC).
It is submitted that with few exceptions, States must guarantee non-nationals equal enjoyment of civil, political, social, and economic rights. These obligations further require India not to discriminate on the basis of national origin in the context of residency, citizenship, asylum, refugee status, and deportation.
It is contended that Racial equality-based human rights obligations further require India to ensure that all non-nationals, regardless of national origin or "criminal entry," enjoy equal due process in residency, citizenship, asylum, and deportation decision-making.
Click here to download the Intervention Application