BANGLADESH
The High Court Division’s 2017 judgment in RMMRU v. the Government of
Bangladesh explicitly recognized Bangladesh’s obligation under the norm of nonrefoulement, which was acknowledged as having become a part of customary international
law. The decision declared unconstitutional the arbitrary detention of Rohingya prisoners
after the completion of their prison terms and directed they be accommodated in the
refugee camps administered by the Ministry of Disaster Management and Relief in
collaboration with the UNHCR. By doing so, the court effectively read a prohibition on
refoulement into the government’s application of the Foreigners Act of 1946.73 This limitation
on the state’s ability to return foreign nationals applies not only to Rohingya refugees, but to
individuals of any nationality who would face torture or other inhumane treatment, or even
persecution of other kinds, if returned to their country of origin.
INDIA
Various judgments issued by India’s Supreme Court have affirmed the binding nature
of the norm of non-refoulement on the Indian government. This includes the landmark
case of Malavika Karlekar v. Union of India,74 in which the Supreme Court recognized
the principle of non-refoulement as customary international law. Additionally, other
cases including Bogyi vs. Union of India, Ktaer Abbas Habib al Qutaifi vs. Union of
India, and Dongh Lian Kham vs. Union of India,75 set out the right of asylum seekers of
any nationality to have their protection claims evaluated before a decision regarding their
deportation is finalized.
In India, positive caselaw precedent has recently been overturned by more recent rulings,
such as in Saimullah v. Union of India,76 pointing to the political frailty of judicial interpretation
of customary international law when compared to the more durable protections offered by
ratification of international treaties or even domestic legislative frameworks. Despite earlier,
clear guidance from the Supreme Court, Rohingya seeking asylum have been characterized by
the government as potentially dangerous Muslim extremists and, in a handful of cases, Rohingya
protection seekers were refouled to Myanmar.77 Such narratives risk engendering hate crimes and
violence, and underscore the importance of counternarrative campaigns to change public opinion
and ensure that Rohingya refugees and other victims of discrimination are protected from racism,
xenophobia, and refoulement.
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UND OING PRECARIT Y: ELE VATING P OSITIVE PR ACTICES FOR REFU GEE PROTECTION IN SO U TH AND SO U THE AST ASIA
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