New Delhi: The Centre on Tuesday defended its policy decision to deport 40,000 Rohingya Muslims to Myanmar and asked the Supreme Court not to interfere with it. The Centre said deportation would be essentially a core executive function in the realm of policy with respect to dealing with illegal immigrants and is not justiciable.
Meanwhile, the Supreme Court on Tuesday decided to hear on October 13 the petition filed by Rohingya Muslims challenging the government's stand to deport them back to Myanmar. The apex court said it will hear the arguments only on the points of law and asked the parties to desist from advancing emotional arguments.
Additional Solicitor General Tushar Metha, submitted before a three-judge Bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chadnrachud that Centre was raising preliminary objections with regard to the maintainability of the petitions. He said the illegal immigrants would not get and cannot claim any of the fundamental rights which are otherwise available to non-citizens as the term “non-citizens” would necessarily mean persons, not citizens of India, is in India on a valid travel document.
He told the court that such decisions are taken on a case to case basis and are based upon several facts, situations and considerations, which would include diplomatic, internal security considerations, potential demographic changes, possibility of law and order, sharing of national resources, sustainability of an additional burden on the resources of the country etc. Asking the court not to interfere, he said the Court would not go into, re-evaluate and based upon such re-evaluation would substitute its satisfaction in place of the satisfaction reached by the executive as a part of administrative governance.
The CJI disagreed with the ASG and said the power and jurisdiction of the apex court would depend on facts. He said there are a catena of decisions on the expansive jurisdiction of the apex court and cannot be curtailed. He said it would be difficult to accept the lack of jurisdiction of the court in a matter concerning human rights.
The CJI directed the parties to the petition to compile a list of government notifications, treaties and conventions and cases relevant to the issue of refugee law in India.
Appearing for Rohingyas, senior advocate Fali Nariman in a lighter vein said “I am the original refugee from British Burma to British India.” He said it is not clear why NDA government changed its generally accommodative policy towards refugees.
Referring to the Centre’s stand that the issue is non justiciable, Mr Nariman pointed out that this position of the government is absurd in light of the fact that Article 14 and 21 rights under the Constitution are available to all “persons” as well as the Article 32 right to move the court.
Mr. Nariman also read out the notification declaring the government policy on refugees dated 29th December 2011, in which it was stated that refugees fleeing persecution are different from illegal immigrants and should be given long-term visas, employment opportunities and the right to study in educational institutions.
He further pointed out that the present government in July 2014 reiterated this 2011 standard operating procedure in a written reply to a question on rights of refugees in the Lok Sabha. He took exception to the government trying to paint all Rohingyas as terrorists and said this argument was absurd as there, are women, children, sick and infirm who are not terrorists. He said the apex court had jurisdiction to decide issues on humanitarian grounds. Agreeing with this submission, the CJI asked the government to examine the issue from humanitarian aspect.
Mr. Nariman said if the government had any specific information about any Rohingya persons being terrorists, those people could be excluded from the applicability of the Refugee convention and dealt with the government separately. Mr. Nariman also read out from the New York Declaration for Refugees and Migrants dated 3rd October 2016, which India is a signatory to, wherein rights of refugees to be given asylum had to be recognised and the principle of non refoulement reaffirmed.
He also pointed out that though India is not a signatory to the Refugee Convention, 1951, it is a signatory to several other International Conventions which accept the principle of non refoulement and prohibit involuntary deportation of refugees, such as the Universal Declaration of Human Rights, The International Convention on Civil and Political Rights, International Convention on Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on Rights of the Child, etc. The Bench posted the matter for further arguments on October 13.
