Rohingyas Are Refugees, Not Militants Or Illegal Immigrants: Rohingyas Tell SC [Read Rejoinder Affidavit]

Rohingyas are not illegal immigrants but refugees and have no connection with any criminal activity, much less any terrorist activity or militancy, two petitioners from the community have said in a rejoinder affidavit filed before the Supreme Court.

Mohammad Salimullah and Shaqir, two Rohingya Muslim immigrants, have contested and denied the claims of the Centre that Rohingyas are illegal immigrants and a security threat.

In their rejoinder affidavit filed through advocate Prashant Bhushan, they said, “There are a number of Rohingya Muslims (as they have been called) – like the Petitioners – who are peace-loving, having no connection whatever with any criminal activity – much less “terrorist” activity – who only because of the Minister of State’s totally arbitrary and discriminatory circular dated 8th August, 2017, addressed to all States are in grave danger and in jeopardy of their life and liberty; “life” because if summarily deported to Myanmar they will be subjected to torture and even death.”

In an affidavit before the apex court on Monday, the Centre had said it has intelligence inputs that some Rohingya Muslim refugees have links with terror groups operating out of Pakistan.

No FIR Against Rohingyas

“Apart from the fact that there is no complaint against the Petitioners of any illegal activity, according to our information, there is not a single FIR registered against the members of the Rohingya community so for, in any matter that would jeopardise national security,” they said.

“If there is some credible evidence or information that any members of the Rohingya community/refugees are involved in any activity that would harm national security interests of India, those individuals may either be dealt with in accordance with Indian law or they can be refused refugee status under the exclusion clause of the 1951 Refugee Convention,” they added.

“The argument that the Rohingya pose a threat to national security is not substantiated with any evidence. To the contrary it may be noted that the Reply of the Minister in Charge (Home) in the Jammu and Kashmir legislative assembly budget session 2017, on whether Rohingya have been involved in militancy and other crimes, stated “No Rohingya (Burmese) has been found involved in militancy related incidents,” they said.

Can’t Be Clubbed With Illegal Immigrants

While the Centre termed Rohingya Muslims illegal immigrants, the petitioner said, “Rohingya are known as the world’s most persecuted ethnic minority. There has been a mass exodus of the Rohingyas from Rakhine province in Myanmar ever since the ethnic conflict escalated. Most of them have fled from what has been described as genocide, leaving behind burning homes and all their belongings. By nature, such a helpless community cannot be termed illegal immigrants but they would fall well within the definition of refugee under the 1951 Convention on the Status of refugees.”

While the Indian statutory law does not recogniSe the term “refugee”, they said the Indian government has through practice treated them as a separate class deserving of protection as in the case of Tibetan and SriLankan Tamil refugees who were granted peaceful asylum in India.

Status Needs To Be Determined

While reiterating their status as refugees, the petitioners said, “In order to determine the status of Rohingyas under law, the Court needs to give due consideration to the reason for their flight from Myanmar. There is an abundance of material making it clear that Rohingyas are being forced to flee Myanmar due to the atrocities systematically carried out against them on account of their religious and ethnic identity. Therefore, under international law, they are “refugees” who are fleeing persecution and cannot return to their home country. In these circumstances, it is submitted that the government cannot deal with them as illegal immigrants.”

They further said Rohingyas are within the UNHCR mandate and therefore, this is indicative of the government treating them as asylum-seekers and not as illegal immigrants.

The petitioners also relied on the Centre issuing Long Term Visas in year 2011 to those recognised as “refugees” by the government or the UNHCR subsequent to which Rohingyas were also covered under this policy as refugees and many were issued Long Term Visas.

India Bound By Principle Of Non-Refoulement

Contrary to the Centre’s claim that India is not bound by the principle of non-refoulement, the petitioners said India has demonstrated and reiterated its commitment to refugees/ asylum seekers and the principle of non- refoulement at various international fora.

“The principle of non-refoulement has been specifically recognised in the Declaration on Territorial Asylum, 1967. Since India is a party to this declaration, it points to a moral obligation on India that the state’s conduct must be in conformity with the established principle of non-refoulement.”

They said the circular for their deportation is violative of Articles 14 and 21 of the Indian Constitution, which are not restricted to its citizens.

The petitioners relied on judgment in Vishaka & Ors vs State Of Rajasthan, wherein the apex court held that international conventions and norms can be used for construing the fundamental rights expressly guaranteed in the Constitution of India.

They said though the Centre said in its affidavit that India is not bound by the Convention Relating To Status Of Refugees, 1951, and Protocol Relating to the Status of Refugees, 1967, it has been a member of several international instruments / declarations, which provide for right to asylum and against forcible repatriation and as a party to these treaties, India is under a legal obligation to protect the human rights of refugees.

“It is important to note that the general principle of right to asylum and right not to be deported is contained in the International Covenant on Civil and Political Rights (ICCPR) and under the Universal Declaration of Human Rights (Article 14). These are binding since India has both signed and ratified these conventions and India is bound by its obligations under these two conventions,” they said.

They relied on various precedents like Dongh Liam Kham vs Union of India, wherein the court stayed the deportation of Burmese refugees while upholding the principle of non-refoulement as part of Article 21.

Not Claiming Right To Reside In India

Countering the Centre’s poser whether a writ can be issued under Article 32 by the court having the effect of an illegal immigrant residing in India, they said, it is “a misconceived understanding of the rights under Articles 14 and 21 of the Constitution of India”.

“The petitioner are not claiming the rights of an illegal immigrant to reside in India but the Articles 14 and 21 rights guaranteed to all persons, including refugees such as the petitioners,” said the rejoinder.

India’s Strong Track Record Of Hosting Refugees

The petitioners also relied on precedents where India has hosted refugees without any specific law in place.

“Even in the absence of a specific law, India has addressed the needs of refugees who have fled from their home country into its territory. India has hosted refugees from Tibet, who fled since China's 1951 annexation, and Tamil Sri Lankans, who escaped fighting between the Liberation Tigers of Tamil Eelam and the Sri Lankan armed forces. Besides ethnic Chakmas and Hajongs from present-day Bangladesh, who fled to Arunachal Pradesh after the inundation of their land by the building of the Kaptai dam. India has a strong track record of hosting refugees of different profiles and has the experience in extending humanitarian protection while balancing national security interests and the concerns of its citizens,” they said.