Rohingya row: Reports suggest illegal migration leads to decrease in GDP, increase in crime rates

The Supreme Court, by its own admission, has ventured into uncharted territory in the matter of the Rohingya. Interestingly, the petition has already witnessed reply, rejoinder, and now a sur-rejoinder, but as to the question of notice, The Chief Justice of India (CJI) has said that it is a mere technicality. Noted Jurist Fali S Nariman read out innumerable paragraphs of speeches and conventions, but did not address the core issue of how fundamental rights of Rohingya are violated in India. Nariman said that unlike the group-based French Constitution, India has an individual-based Constitution. However, he faces a huge legal question as to how two Rohingya can seek remedy on behalf of 40,000 others, without even having specific authorisation from them. On the other hand, the government was ready with one more affidavit, yet the Additional Solicitor General sought another date for a full-day hearing. The Chief Justice summarised Nariman’s arguments to which ASG had to seek clarification from the Bench that it may not be treated as the opinion of judges. It seems that the matter is being played out to the gallery rather than the text of the law. Oral observations by judges are neither ratio nor obiter, yet become news headlines. Such instances strengthen the case for live telecast of court proceedings or at least official transcription.

Nariman’s immigration from British Burma was as per the due process of law and his case differs from that of the Rohingya like apples from oranges. Migration of Rohingya to India has continued since 1982, whereas the recent turmoil started only on August 25, 2017. As per the Director General of BSF, only two hundred Rohingya have come to India in the past two years. The petition filed before the SC itself states that the petitioners came to India in 2012 due to discrimination in Myanmar, which is entirely different from persecution. Last week, three Indians were arrested in Tripura for illegally smuggling Rohingya into India. How can the Apex Court be approached with unclean hands for forty thousand Rohingya who are nothing but illegal migrants? The Rohingya claim to allow their stay in India as per Article 21 may open a Pandora’s Box wherein other rights of housing, food and education may be demanded in future. Can human rights of illegal migrants override the fundamental rights of Indian citizens? SC, by its order dated March 8, 2017, in the case of Assam Sanmilita Mahasangha specifically directed the Central Government to initiate the process of border fencing so as to check the cross-border influx of illegal Bangladeshi immigrants into Assam.

Can petitioners not be blamed for polarising the issue on religious grounds when a government circular calls for action against all illegal migrants? In the case of Sarbananda Sonowal vs UOI, the Apex court has clarified the scope of protection available to illegal immigrants under the Constitution. As per the SC, those “who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and they are liable to be deported.” A similar view has been reiterated by the Hon’ble High Court of Delhi in its judgement dated August 12, 2008, in the case of Razia Begum, wherein it held that “it is well-settled in international law that the persons who reside in the territories of countries of which they are not nationals possess a special status under international law. States have a right to expel them from their territory and refuse to grant them certain rights which are enjoyed by their own nationals”.

The recent practice by Australia, Israel, Italy, Austria, Poland, Hungary, Czech Republic, Slovakia, Bulgaria, Croatia, and Slovenia, of repulsing or deporting illegal migrants shows that the ‘non-refoulment’ principle has not gained the necessary threshold of state practice to qualify as a principle of customary international law. The Constitution Bench of the Supreme Court in the case of Kesoram Industries has observed that “a treaty entered into by India cannot become law of the land and it cannot be implemented unless parliament passes a law as required under Article 253.” Thus, in instances where India is not even a signatory to the convention, how can the same be enforced by Apex court under Article 32 of the Constitution. The Court is not God. It cannot make law. Both these propositions are settled by the Apex court itself, but experience shows that the exercise of the second one is surely choice-based.

As per reports, illegal migration has caused a decrease in GDP and increase in crime rates in many countries. The world has 6.5 crore migrants and around 2.5 crore refugees, out of the same only 1 per cent get resettlement in their native country. State Counsellor and Nobel Peace Prize winner Aung San Suu Kyi’s speech promising to take back Rohingya has received a positive response from Arakan Rohingya Salvation Army (ARSA). In such circumstances, instead of contesting before the Indian Supreme Court, is it not appropriate to fight the case before the UN and other forums to secure justice for Rohingya and all other migrants?

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal.