REFOULING ROHINGYAS: THE SUPREME COURT OF INDIA'S UNEASY ENGAGEMENT WITH INTERNATIONAL LAW

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Malcolm Katrak
Shardool Kulkarni

Abstract

The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.  

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How to Cite
Katrak , M. ., & Kulkarni , S. . (2021). REFOULING ROHINGYAS: THE SUPREME COURT OF INDIA’S UNEASY ENGAGEMENT WITH INTERNATIONAL LAW. Journal of Liberty and International Affairs, 7(2), 116-127. https://doi.org/10.47305/JLIA21720116k
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Author Biographies

Malcolm Katrak , Jindal Global Law School, India

Malcolm Katrak is currently a Lecturer at the Jindal Global Law School. After graduating from the University of Mumbai, Malcolm worked as an arbitration clerk to Justice (Retd.) S.N.Variava, Former Judge, Supreme Court of India. After completing his clerkship, Malcolm pursued the European Master in Law and Economics (EMLE). He is a J.N.Tata Scholar and an Erasmus + Grant holder.

Shardool Kulkarni , The High Court of Bombay, India

Shardool Kulkarni is an advocate practicing at the Bombay High Court, India. Before he initiated his practice, he was invited to depose, on the basis of a submitted memorandum, before the Joint Committee of Parliament on the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement (Second Amendment) Bill, 2015. He was also cited as a Legal expert who submitted written views in the Eighty-Seventh Report of the Rajya Sabha (Upper-House of the Parliament of India), on ‘Inordinate Delay in Filing up the Vacancies in the Supreme Court and the High Courts’. His primary research interests lie at the intersection of public law and legal theory.

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