India’s ‘pushback’ policy violates domestic and international law – but won’t face global censure

India’s “pushback” policy of forcing across the border individuals claimed to be undocumented migrants violates both domestic and international law, experts say.

Since India launched Operation Sindoor against Pakistan on May 7, it has “pushed” more than 2,000 people into Bangladesh, The Indian Express reported. At least 40 members of the Rohingya community have been deported to Myanmar even though many of them had cards issued by the United Nations High Commissioner for Refugees.

The legality of the “pushback” policy has been debated both in India and internationally.

But at home, the Supreme Court has not stopped the deportation of Rohingya refugees despite challenges to such actions pending since 2017. Internationally, there is unlikely to be pressure on India from other nations to stop this strategy since many Western nations also employ similar practices, experts say.

“The problem is that most of Europe and the United States are engaged in this,” said Ravi Nair, executive director of the South Asia Human Rights Documentation Centre. “So, who is going to bell the cat and say this is wrong when everybody is doing it?”

Human rights lawyer and writer Nandita Haksar agreed. “The Western states that are so vociferous in taking up human rights” also push refugees back from their shores, she said. “Therefore, it would be difficult for the Western states to raise the issue of refugee rights with India.”

Assam’s claim

The most enthusiastic champion of this policy has been Assam Chief Minister Himanta Biswa Sarma, who said on Monday that his border state had been responsible for “pushing back” more than 303 people believed to be Bangladeshi. This has been done under the Immigrants (Expulsion from Assam) Act, 1950, he said. This was the first time Sarma cited a legal justification for “pushbacks” that the state government has been carrying out since May.

As Scroll has reported, at least three of the 14 who were allegedly “pushed out” of Assam on May 27 were later brought home. They had been deported on the basis of decisions by the state’s foreigners tribunals. But the Supreme Court had stayed the decisions of the tribunals in the case of at least two of these individuals as their appeals are pending. The pushback policy violates India’s own constitutional guarantees and established legal procedures for deportation, experts said.

Forcibly detaining individuals and physically throwing them out of the country violates Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, applies to all persons within India’s territory, regardless of their citizenship status, said Rita Manchanda, research director at the South Asia Forum for Human Rights.

This has been underlined by the Supreme Court in several judgements, she noted.

The same article was also violated when the Indian authorities deported Rohingya refugees, forcing them into a country that is gripped by civil war and where they face genocide, experts say.

“Pushing them into an active war zone poses a direct threat to their life,” said Anghuman Choudhury, a doctoral candidate in Comparative Asian Studies jointly at the National University of Singapore and King’s College London.

Choudhury emphasised that Sarma’s statement that deportations will be carried out “without legal process” violates of Article 14 of the Constitution. This article guarantees equality before the law and equal protection of the law to everyone within Indian territory.

“Everyone has a right to be heard as per law,” he said. “You cannot just pick up any suspected foreigner – even the suspected foreigner needs to go through the legal process.”

Besides, these processes have been instituted to ensure that no Indian citizens are expelled from their country, he added.

Is this a new policy?

Experts told Scroll that while India had engaged in “push backs” of foreigners before, it had never adopted this as a strategy for deportations.

Contrary to Sarma’s claim that “pushbacks” are a “new innovation”, this method has been used on the India-Bangladesh border since at leastt 1979, said Choudhury, the doctoral candidate – but the purpose has changed.

Until recently, “pushbacks” meant that the Assam border police or the Border Security Force would stop individuals they spotted trying to enter India from Bangladeshi territory and force them to return or would “push back” those who had managed to cross the border into India.

“But those were ad hoc cases,” Choudhury said. “What we are seeing today seems to be a more large-scale systematic policy.”

What is also unusual is India’s decision to “push back” refugees, said Nandita Haksar. “The rate and cruelty with which refugees, including those recognised by the [United Nations High Commission for Refugees] are being deported even at the risk of their lives is new and disturbing,” she said.

Ravi Nair agreed. “India had pushed back people before…,” he said. “But this kind of pure abduction and putting them into no man’s land is clearly crossing the Rubicon.”

Violation of domestic law and due process

The legal process for deportations in India is articulated in a Standard Operating Procedure issued by the Union Ministry of Home Affairs in 2011. All deportations must be initiated by the Ministry of External Affairs sending the identity details of the apprehended foreigner to their country’s embassy.

The person can be deported only after confirmation of the person’s nationality has been received through these diplomatic channels.

The current “pushback” policy bypasses these procedures, Nair said.

“We have to submit the names and the documents of alleged Bangladeshi nationals to the government of Bangladesh,” he said. “Once those are verified and Bangladesh is willing to take them, then they are sent back. That is clearly not being followed.”

Last month, Scroll reported that 40 Rohingya refugees who had been detained in Delhi alleged that they had been forced off a navy vessel in the Andaman Sea with life jackets on May 7 and told to swim towards Myanmar.

Choudhury pointed out that the deportations of Rohingya refugees in this manner violated a 2021 order of the Supreme Court. In a case requesting a halt to the expulsions of Rohingya refugees, the court had said that they could be deported. But it explicitly mandated that deportations must adhere to due process, a directive that appears to be “directly violated” by the current policy, Choudhury said.

Breach of international law

Experts told Scroll that “pushing back” refugees violated India’s obligations under international law and customary international law.

The principle of non-refoulement, which prohibits states from returning individuals to a country where they would face persecution, is considered jus cogens – a peremptory norm of international law binding on all states.

“The principle of non-refoulement is also seen as a customary international law,” making it binding even if a country has not ratified specific conventions, Choudhury said.

India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol.

“But as a member of the UN General Assembly, which is the parent body of the United Nations High Commissioner for Refugees, India is strongly expected to adhere by customary international law,” he said. “Customary law transcends treaty obligations.”

He pointed out that India is a signatory to the Bangkok Principles on Status and Treatment of Refugees, issued in 2001, and the United Nations Global Compact on Refugees, which India signed in 2018. Both mandate non-refoulement as a principle to be upheld by their signatories.

India is also a signatory to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. These treaties too contain provisions that implicitly or explicitly uphold the principle of non-refoulement, particularly concerning the right to family unity and protection from inhuman treatment, said Aman Kumar, a PhD candidate at the Australian National University who runs the Indian Blog of International Law.

“When you return female refugees back to Myanmar, or you separate children from their parents through deportations, you violate these treaties,” Kumar said.

He noted that India had an “extensive and wide record of accepting refugees as a state practice.” He pointed to asylum granted over the decades to tens of thousands of refugees from Sri Lanka, Pakistan, Afghanistan and Tibet, in stark contrast to the current Indian government’s hostility towards Rohingya refugees.

Scrutiny of policy unlikely

Internationally, India’s “pushback” policy is likely to attract scrutiny from United Nations agencies.

On May 15, the United Nations Special Rapporteur on the situation of Human Rights in Myanmar began an inquiry into alleged deportation of 40 Rohingya refugees from Delhi. The special rapporteur, Thomas Andrews, described these alleged acts as “unconscionable” and “unacceptable”.

Many experts told Scroll that India is already receiving bad press on the issue internationally. However, direct action against India would face significant hurdles.

If a country violates treaty obligations, action could be launched against it in the United Nations’ International Court of Justice. But geopolitical realities often deter international action, Kumar said.

“India is too strategically important as a huge market and a potential alternative to China in the global supply chain,” he said. As a consequence, he does not foresee another country taking India to the International Court of Justice.

In theory, Bangladesh – the country most affected by this policy – could start proceedings against India in the International Criminal Court, said Nair. “Even though India is not a party to the International Criminal Court, Bangladesh is,” he said. “A state party can bring a complaint against a non-state party before the court.”

However, he said, that possibility was remote because Bangladesh is unlikely to want to aggravate India at a time of fraught relations between the two.

Manchanda said that India may face some heat at the United Nations Human Rights Council’s upcoming session on June 16. “I expect that there will be statements made by civil society groups expressing outrage at what India is doing,” she said.

She pointed out that in June 2024, the United Nations Committee on the Elimination of Racial Discrimination had called for India to refrain from forcibly detaining and deporting Rohingya refugees to Myanmar.

But Manchanda said she was “unsure about how much traction this would get.”

Kumar did not believe the policy would be halted. “Legally there is essentially nothing stopping India from continuing to carry out such deportations,” he said.

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