Sagarika Kaul, B.A.LLB, O.P. Jindal Global University
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Abstract
In Mohammad Salimullah And Anr. v. Union of India And Ors, the Supreme Court issued an interim order, allowing the deportation of Rohingyas from Indian territory. This case comment uses a three-pronged approach to assert its case in favor of refugee protection in India. To begin with, India is legally bound to protect Rohingyas through the sundry legal instruments that it has assented to abide by. In arguendo, this stringent onus has been thrust upon India by virtue of the widely accepted principle of non-refoulement. Given the non-derogable nature of this jus cogens norm, India is duty-bound under formally codified law as well as by customary law. Finally, alongside this twin layer of binding obligations, the Indian Constitution itself asserts the need for a holistic interpretation of international law and domestic law. This has been interpreted by domestic courts not only to create a negative duty of protection but a positive obligation of affirmative action. Taking this settled legal position into account, this comment seeks to argue that the ill-defined nature of our refugee laws has resulted in a complete disregard for basic human rights. This comment implores the court to apply a sound reading of international and Indian laws to ensure that such an untenable interim order is not implemented. Beyond legal argumentation, this comment rekindles the need to address a larger objective: the enactment of a comprehensive skeletal legal framework to govern the rights of refugees. Judicial review can be consistent only with proper legislative guidance in the form of a robust set of laws on the subject.
