Illegal Migrants Can't Be Blanketly Accepted As 'Refugees' : Centre Opposes Plea In Supreme Court To Protect Rohingyas

Given that India is a developing country with a large population, it was also stated that the welfare of its citizens must be prioritized. Thus, blanket acceptance of foreigners as refugees, particularly when the majority have entered the country illegally, cannot be accepted.

“As a developing country with the largest population in the world and with limited resources, priority is required to be given to the country's own citizens. Therefore, there cannot be any blanket acceptance of foreigners as refugees especially where the vast majority of such foreigners have entered the country illegally.,” the affidavit stated

Apart from this, the affidavit, signed by the Under-Secretary to the Ministry of Home Affairs, emphasized the Government's stance against illegal migration as a matter of policy. To support this, it has also underscored its legal obligation under the Foreigners' Act to "deport a person who is an illegal migrant." In this regard, reliance was also placed on the decision in the Sonowal case (Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665), where the Court, among others, had also held:

“79. ... Bangladeshi nationals 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.”

The Union also mentioned that the Central Government has “unfettered discretion” in matters concerning the deportation of illegal migrants.

The petition was filed by Priyali Sur, an independent multimedia journalist. The petitioner pleaded that despite the background of persecution and the discrimination that Rohingyas have fled, in India, they are officially labelled as “illegal immigrants” and face inhumane treatment and restrictions. Petitioner stated that Rohingyas had to feel from their home state to escape the genocidal attacks against them, which even the International Court of Justice has taken note of. These include arbitrary arrests and unlawful detentions, limits on freedom of movement outside of camps, limited access to education, limited or no access to basic health care and legal services, or any formal employment opportunities.

As per the Union's stance, Rohingyas knowingly entered India illegally; thus, they are covered under the Foreigners Act.  "Refugees" are not recognized under Indian law, there are only legal and illegal migrants. Based on this, it was argued seeking exemption for refugees under this Act, would create a separate legal category in itself and the Court cannot direct the parliament to do so.

“The prayer of the Petitioner amounts to re-writing of the statute or directing the Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review. It is trite law that the Courts cannot direct Parliament to make a law or to legislate in a particular way.,” the affidavit said.

It may also be noted that throughout its affidavit, Union has strongly argued against the Supreme Court's interference in this matter because it is a policy decision and falls within the ambit of the executive. Further, it also asserted that the deportation is taking place as per the established procedure.

India Has A Constitutional Obligation To Ensure That The Demographic Structure Is Not Changed 

The affidavit also underscores the state's responsibility to prioritize its citizens' welfare, using the available resources, as outlined in the Directive Principles of the Constitution.

In addition, it was also submitted that India has a constitutional duty to its citizens, including ensuring that the country's demographic and social structure is not changed and that important resources are not diverted to the citizens' disadvantage.

“I respectfully submit that the scheme of the Constitution makes it very clear that India, as a sovereign nation, has the first and the foremost constitutional duty and obligation towards its citizens to ensure that demographic and social structure of the country is not changed to their detriment, the resulting socio-economic problems do not occur to the prejudice of its citizens and most importantly resources of the nation are utilized to fulfil the fundamental rights of its own citizens and are not diverted to the detriment of the citizens of India due to the influx of illegal migrants into the territory of India.”

Furthermore, the affidavit also argues that providing facilities to illegal immigrants would adversely impact Indian citizens by depriving them of their rightful share in various sectors such as employment, subsidized housing, medical care, and education. This, in turn, would also lead to the breach of fundamental rights of the citizens of India.

Claim For Equality Of Rohingyas With Tibetan & Sri Lankan Migrants Unsustainable

As the affidavit continued, the Union also dismissed petitioners' claim of seeking equality for Rohingyas with Tibetan and Sri Lankan individuals by terming the same as “constitutionally unsustainable.” It reasoned that rights granted under Article 14 (Equality before law) of the Indian Constitution cannot be invoked amongst foreigners.

“It is the inherent right of any sovereign nation to deal with “foreigners” and the policy of immigration in the manner that it deems appropriates as per its needs. It is submitted that if different sets of “foreigners” are allowed to claim non-arbitrariness rights against each other in terms of treatment, the entire machinery of immigration in any country would collapse.,” the affidavit added.

Similarly, it has also stated that the Rohingya's rights to long-term visas cannot be derived from Article 14, and claiming the same is "wholly erroneous." Elaborating, Union stated that If this were to be the case, then anyone claiming illegal persecution could seek long-term visas. 

"It is submitted that the same would be completely at odds with the Parliamentary and Executive policy of the country in this regard.," the affidavit added. 

International Obligations

Regarding international conventions, the Union made its position clear by stating that India is not a signatory to the 1951 Refugee Convention and to the Protocol relating to the Status of Refugees, 1967. Thus, it is not bound by their provisions. In that respect, it was also clarified that the government does not recognize UNHCR refugee cards for the grant of visas to refugees.

In this context, it may be noted that the petitioner had also stressed on several international agreements on human rights signed by India, thus highlighting the nation's obligation towards refugees.

Last year, in October, the Division Bench of Justices B.R. Gavai and Prashant Kumar Mishra issued notice to the Union government in this petition.

Following this, after a mention was made before the Court (on February 29), the Bench led by Justice Gavai said that it would hear the Writ Petition in March. Now, in the latest development, the Union has filed this above-mentioned affidavit.

In April 2021, the Supreme Court had allowed the Union to deport Rohingyas after following the due process of law.

Case Title: PRIYALI SUR v. UNION OF INDIA, W.P.(C) No. 1060/2023