SC Expects Centre Not To Deport Rohingya Refugees, Asks Petitioners To Seek Relief If required

CJI Dipak Misra said the court and the government cannot be oblivious to the plight of women and children

The Chief Justice Dipak Misra-led bench of the Supreme Court today just stopped short of staying the deportation of Rohingya refugees till it decided the petitions challenging the action but asked the Centre to strike a balance between national security and human rights of the refugees.

“Our constitutional ethos makes us lean sympathetically towards humanitarian issues. It is also important not to ignore national and economic interests while dealing with humanitarian issues”, CJI Misra told ASG Tushar Mehta adding the court and also government cannot be oblivious of the plight of interest of children and women.

At one stage the bench observed that till the matter is being heard by the court, there should not be any deportation of the refugees.

However the Additional Solicitor General strenuously objected to any such order by the court, saying that it would embarrass the government in the international fora. The court therefore ultimately passed an order saying that in case there is any contingency, the petitioners would be at liberty to approach the court.

Meanwhile, senior lawyer, Fali S Nariman arguing for the Rohingya community pointed out that the Protection of Human Rights Act defines human rights to include not merely fundamental rights or rights under the Indian law but human rights arising out of international conventions to which India is a party.

He also pointed out that the fundamental right to life and liberty under article 21 applies not only to citizens but also to non-citizens.

Nariuman observed that the government can’t speak in two voices – one in the UN and international fora and another totally opposite in India and before this court.

India’s stated policy position in International fora and as mentioned throughout in policy statements and notifications, has been to recognise the distinction between refugees who are forced out for their countries due to persecution and illegal migrants who come in search of economic prospects, he said.

After hearing this court observed that, there are two important considerations in this case - the aspect of security of the country and the protection of human rights of refugees particularly women, children, old persons and innocent persons and that the court has to balance these interests.

The Court further observed that this is an important issue which needs to be heard at length and therefore fixed the matter for a detailed hearing on the 21^st of November.

NARIMAN’S EARLIER ARGUMENTS

 Nariman while commencing arguments on last date of hearing opposed  the move to deport Rohingya Muslims by opposing Centre’s argument that the decision was non-justiciable as it was a pure matter of government policy.

The  bench also prima-facie appeared to side with Nariman’s argument that when the issue pertains to human rights, there was no question of justiciability or jurisdiction of the court

The bench also comprising of justices D Y Chandrachud and A M Khanwilkar said it will hear the arguments only on the points of law and asked the parties to desist from advancing emotional arguments as the matter concerned humanitarian cause and humanity, which required to be heard with mutual respect.

It is to be noted that the Centre had urged the Supreme Court not to interfere with its plan to deport the Rohingyas,  saying it was an "essential executive function by way of a policy decision in larger interest of the country".

 Nariman, appearing for the main petitioner Mohammad Salimullah with Prashant Bhushan pointed out that, the Government of India in its counter affidavit clearly says that this issue is non-justiciable and is a pure matter of government policy and that Article 32 rights to file a writ petition in the Supreme Court is not available to non-citizens.

Nariman pointed out that this position of the government is absurd in light of the fact that Article 14 and 21 rights are available to all “persons” as well as the Article 32 right to move the court.

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.