SC Reserves Order in Application Seeking to Restrain Centre From Deporting Rohingya Refugees

The Supreme Court Friday reserved its order an interim application seeking to restrain the Central Government from deporting Rohingya refugees detained in Jammu and Kashmir (J&K).

A bench of CJI SA Bobde, and Justices V. Ramasubramanian and AS Bopanna heard advocate Prashant Bhushan, for the petitioner and Solicitor General Tushar Mehta and senior advocate Harish Salve for Centre and J&K Government respectively.

Bhushan read out a decision of the International Court of Justice (ICJ) holding that the Rohingya community in Myanmar had suffered genocide and ordered the government of Myanmar to restrain their military forces from continuing with the oppression of the Rohingyas.

Bhushan, thus, argued that India had an obligation to prevent genocide and that the Rohingyas who face persecution in Myanmar could not be forcefully sent back as it would violate the principle of ‘Non-Refoulement’ of refugees, which had been widely recognised in several international conventions to which India is a signatory. It was also recognized as a jus cogens (fundamental and non-derogable) principle of Customary International Law.

CJI SA Bobde sought to know from Bhushan whether Article 32 (Right to move the Supreme Court) could be invoked by the non-citizens? Bhushan responded by saying any person could move the Supreme Court under Article 32; moreover Article 21 which pertained to life and personal liberty was not just confined to citizens but covered “persons” as well.

The CJI then said the court would have to examine the legality of the detention under the Foreigners Act. Bhushan, however, contended that Rohingyas were a special class of persons called refugees.

Solicitor General Mehta, for Centre, vehemently opposed the petition and said Rohingyas were not refugees but illegal migrants. He submitted the deportation was being done only after obtaining confirmation of their citizenship from the country from where they had sought to be deported.

In nutshell, Mehta argued the procedure established by law was followed in the deportation. He also pointed out a previous order of the court where it had dismissed an application seeking a stay on the deportation of a few people from Assam. He added “India is not the capital of illegal migrants”.

Senior Advocate Salve, for J&K, opposed the submissions of Bhushan and said ICJ judgments operated in the realm of public international law. Municipal courts followed domestic law. “This will be like elbowing the government of India. Please do not go into this,” he urged the court.

The court refused to hear senior advocate CU Singh, for the UN Special Rapporteur, following vehement objections from Salve. The court said it would decide to hear the special rapporteur later.

The applicant, through advocate Prashant Bhushan, submitted that even while the top court was seized of the matter, news reports had been doing rounds since 7 March 2021 of the nearly 150-170 Rohingya refugees in Jammu being detained.

“This follows the Union Minister Jitendra Singh’s statements two months ago that the Rohingya (identified as Muslim refugees by the government) wouldn’t be able to secure citizenship. These refugees have been illegally detained and jailed in the Jammu Sub Jail which has been converted into a holding centre with the IGP (Jammu) Mukesh Singh stating that they face deportation back to Myanmar following verification by their embassy,” the application stated.

The plea contended that the proposed deportation was contrary to the constitutional protections of Article 14, Article 21 and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every ‘person’.

It added any such deportation would violate the principle of ‘Non-Refoulement’ of refugees, which has been widely recognised in several international conventions to which India is a signatory, and is also recognized as a jus cogens (fundamental and non-derogable) principle of Customary International Law.

The plea alleged that despite these constitutional and international law requirements, the centre had failed to carry out their obligations to ensure the protection to the Rohingya community, by proposing to deport them to Myanmar where they face serious violence and persecution.

 The article was originally published in The Leaflet.