Rohingya crisis: Centre's stand on refugees out of sync, Fali Nariman tells SC

The Supreme Court (SC) on Tuesday observed that the Centre should not act on its emotions; rather it should go by law and must be ruled by concern for human values and mutual respect. 

“I, for one, believe, from my past experience of 40 years, that when a petition like this comes to us under Article 32 of the Constitution, the court should be very slow in abdicating its jurisdiction,” Chief Justice of India Dipak Misra said leading a bench that also comprised Justices AM Khanwilkar and DY Chandrachud. 

The apex court’s observations were made during an appeal for a stay on the proposed deportation of the beleaguered Rohingya community in India. Several petitions seeking a stay, as well as a few seeking the expulsion of the refugee community are being heard in the top court. 

Replying to a batch of petitions that sought a stay on the proposed deportation of Rohingya community from India, the Centre had submitted that the refugees had no locus to approach Indian courts seeking rights. It further added that the decision to deport the 40,000 strong-community was the Executive’s decision and hence outside the purview of the judiciary. 

Earlier, the Centre had termed Rohingya refugees as “illegal immigrants” who were allegedly here as part of a “sinister” design created by Pakistan’s ISI and other terror groups such as the ISIS. 

In an August 8, 2017 communiqué to all the states, the Centre had advised all States to keep tabs on the influx of “illegal immigrants” and initiate the process for deportation immediately. The Centre said the states must aid in identifying the Rohingyas. 

It also said “some” Rohingyas were terrorists and that “illegal immigrants” were more liable to be lured by anti-national forces. The decision to deport the Rohingyas was made based on certain parameters like diplomatic concerns, geographical demographics of certain states and whether the county could sustain such an influx. 

When the arguments failed to impress the bench, the Centre backed down and said that it would try to convince the top court that refugees did not have locus to approach the judiciary and that why the issue was justiciable on October 13, when the matter will be heard next. 

Representing the refugees in India, eminent jurist Fali Nariman picked apart the Centre’s stand on this issue and revealed it’s dichotomy in handling refugees. The government’s stand on the issues of refugees has “gone out of sync,” Nariman said. 

While arguing for the cause, in a lighter vein, Nariman jested that he was the original refugee from British Burma, and not the Burma as we now know. 

 “Our Constitution is not based on Group Rights like the French Constitution, it is based on Individual Rights. Union of India has always tried to advance Refugee rights. It is making such an argument for the first time,” Nariman submitted countering the Centre’s stand. 

In the rejoinder, those who sought a stay on the expulsion submitted various stands taken by the Indian government on the issue of refugees on international platforms. 

“The Government of India has constantly made efforts to substantiate, enhance the rights of refugees. The August 8 communication is totally contradictory to Article 14. It sticks out like a sore thumb in our nation’s policy towards protecting refugees.”

Nariman then referred to a December 29, 2011 directive issued by the Centre which laid out the standard operating procedure (SOP) and internal guidelines for Foreigner Regional Registration Office (FRRO). In the December directive, the Centre said that if necessary steps must be taken to provide the foreign national with a long-term visa. This had to be done irrespective of religion, gender, etc. Nariman then objected to the blanket claim for expulsion of all Rohingyas on account of probably a few allegedly having “terror links.”

Responding to the rejoinder, the Centre today countered and said that though it was “fully conscious, aware and responsible about its obligations emanating from various international instruments”, but certain views expressed by Indian representatives and the contentions, based on “declarations/resolutions/international instruments” were devoid of merits.

“As a sovereign State, India will always honour such obligations which are binding obligations. Having said that,it is reiterated that India is not a signatory to United Nation Convention of 1951 and the Protocol of 1967 issued thereunder.

“The said Convention/Protocol is, therefore, not binding upon India and no other Declaration/Resolution/Convention/ international treaty or instrument of any kind is in force which prohibits India, as a sovereign nation, to exercise its right of deporting illegal immigrants in accordance with laws of India and thereby protecting the fundamental rights of its own citizens more particularly in the interest of national security,” the Centre said.