Supreme Court Reserves Orders On Plea Against Deportation of Rohingya Refugees In Jammu

The Supreme Court on Friday reserved for orders a plea seeking directions for release of the Rohingya refugees who have been detained in Jammu and to restrain the government from deporting them to Myanmar.

A bench comprising CJI SA Bobde, Justices AS Bopanna and V Ramasubramaniam was hearing an interim application filed by a PIL petitioner Mohammad Salimullah seeking protection of Rohinya refugees who came to India following persecution in Myanmar.

In Court today, Advocate Prashant Bhushan vehemently sought to urge the Court that the Rohingyas in Jammu were in fact 'refugees' within the terms of the United Nations Convention on Refugees.

To highlight that the Rohingyas were facing genocidal threat in Myanmar, he referred to the the order passed by the International Court of Justice (ICJ) last year against Myanmar

"This is a unanimous order of 15 judges of ICJ. The Court expressed concerns about genocide of Rohingyas of Rakhine state in Myanmar leading to their efflux from the country", Advocate Bhushan submitted in Court.

To give context to the ICJ's ruling, Advocate Bhushan explained the events that led up to the military coup in Myanmar this year and its impact on the Rohingyas.

"The ICJ judgment came when there was a civilian government in Myanmar. Even when there was a civilian govt, the UN Fact finding mission and ICJ found grave human rights violations against the Rohingya," he explained.

Bhushan then referred to the findings in the ICJ order regarding presence of "genocidal intent" and "systematic oppression and violence" against the Rohingya in Myanmar, to emphasize the Rohingya were 'refugees'

To these Solicitor General had stated, "Mr Bhushan is reading this to show that there is some trouble in a country called Myanmar. I don't object to that. But the question is, what to do with the refugees in this country."

The Chief Justice then posed a question as to how the judgment was relevant to the present dispute.

To this, Advocate Bhushan replied that the Government has detained more than 150 Rohingya refugees in Jammu. "Most of them have identity cards issued by UN Commissioner for Refugees", he said.

The Chief Justice then asked if Article 32 can be invoked in the case : "You are invoking Article 32. Article 32 can be invoked only for citizens of India".

Advocate Bhushan responded that he was invoking the Court's jurisdiction under Article 21 which could be even of non-citizens.

As for the applicability of Article 32, Advocate Bhushan stated that it did not mention that it is only for citizens. It doesn't mention 'citizens', he said. He pointed that the Supreme Court has laid down in many precedents that Article 21 is available for non-citizens as well.

"I'm seeking writ of mandamus to Union and Jammu to release Rohingyas and not to deport them", he continued.

The Chief Justice then asked, "So we have to examine the legality of the detention under the Foreigners Act?"

Advocate Bhashan asserted that the Rohingyas formed a separate class called 'refugees.'

Solicitor General Mehta appearing for the Centre asserted that the Rohingyas were not refugees and informed that this was the second round of litigation in this respect.

"So earlier application was dismissed?", Chief Justice Bobde queried.

"Yes. Only difference is now it is Jammu and earlier it was Assam", Solicitor General Tushar Mehta replied, referring to the order passed by the top court in October 2018.

"Persons moving public interest petitions cannot suppress facts. I have preliminary objections…Similar application has been now filed by the same petitioner through the same lawyers", he continued.

Asserting that the issue was primarily diplomatic, outside the judicial domain, the Solicitor General proceeded to explain the 'procedure established by law' followed when deporting Rohingyas.

"They (Rohingyas) are illegal migrants. We confirm with Myanmar if they are its citizens. Then they are deported in accordance with law. This man(petitioner) is a resident of Delhi."

To this the Chief Justice said,

"Possibly that is the fear that if they go back to Myanmar they will be slaughtered. But we cannot control all that."

Solicitor General further informed the bench that the Union was in the process of getting confirmation from Myanmar regarding the nationality of the detainees.

"India cannot be a capital for all illegal migrants of the world", the SG added.

Principle of non-refoulement cited by petitioner

Bhushan also referred to the principle of "non-refoulement" which forbids the expulsion of refugee if there is a clear and certain danger of life in the origin country.

Senior Advocate Harish Salve, who was intervening on behalf of the Jammu and Kashmir Government, and the Solicitor General said that India is not a party to the international conventions on this principle.

Bhushan also said that the present government of Myanmar is "illegal" as it usurped power through a military coup.

"Will the word of an illegal government, will the word of army which was held to be genocidal by the ICJ, will that statement be accepted? Does this country has no humanitarian obligation?", Bhushan asked.

However, the CJI doubted if the Supreme Court has the powers to refuse to recognize another sovereign government.

Salve explained that as per principles of the international law, a municipal court cannot do that and can only go by what the executive says regarding the recognition of a foreign sovereign.

Salve further said that the ICJ order was provisional. As regard the applicability of conventions, Salve said, "Treaties which the Govt of India have not signed for good reasons, to get them enforced through court, will be elbowing the govt".

Though Senior Advocate CU Singh sought the audience of the court on behalf of the UN Special Rapporteur, the bench said that it was not inclined to hear him today.

What does the application say?

The Original Petitioner in the main Rohingya Case Mohammed Salimullah has approached the Supreme Court of India with the plea seeking directions for release of the Rohingya refugees who have been detained in Jammu and to refrain the government from implementing any orders on deporting them. The plea has also sought directions to UNHCR to intervene and assess the protection needs of the refugees and grant them refugee cards.

The application has sought release of the detained Rohingya refugees immediately and direction to the Union Territory government and the Ministry of Home Affairs to expeditiously grant Refugee identification cards through the FRRO for the Rohingyas in the informal camps. They have urged the Court to direct the Union Government to refrain from implementing any orders on deporting the Rohingya refugees who have been detained in the sub jail in Jammu.

The application has also sought directions to UNHCR to intervene and determine the protection needs of the Rohingya refugees not just in the Jammu but also in camps across the country and completion of the process of granting them Refugee cards

According to the applicants, the present application seeking directions has been filed in wake of the following new developments and new circumstances that have arisen:

• News reports that started coming in around the 7th of March 2021 regarding the nearly 150-170 Rohingya refugees in Jammu being detained.

• 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.

• Disturbing reports from the Rohingya families having come in that subsequent to a biometric verification of Rohingya refugees undertaken by the Jammu and Kashmir administration, some people never returned to the camps from the verification but were detained and jailed by the Police.

• A report from The Hindu detailing how panic has gripped this already marginalised refugee community in Jammu after the verification drive and disappearance of family members.

• The Indian Express' report on the anxiety of separated families after the sudden disappearance and detention of about 168 Rohingya refugees

The application has stated that in India, no legislation has been passed yet that specifically refers to refugees, and therefore , it has in practice often clubbed Rohingya refugees with the class of illegal immigrants who may be deported by the government under the Foreigners Act 1946 and the Foreigners Order 1948. This is coupled with discrimination against the Rohingya by the government, they being largely Muslim refugees. Legally, however, a refugee is a special category of immigrant and cannot be clubbed with an illegal immigrant.

According to the applicants , India is bound to adhere to the principle of non-refoulement through customary international law. The principle of non- refoulement – or not sending refugees to a place where they face danger – is a norm of customary international law and the content of the obligation has been explicitly expressed in Article 33(1) of the 1951 United Nations Convention on the Status of Refugees. Since India does not as of now have explicit legislation protecting refugees from refoulement practices, the Customary International law thus somewhat fills a gap.

The application has stated that the Supreme Court in context of refugees has also reaffirmed that Article 21 of our Constitution guarantees that right to life and liberty is granted to every citizen or non citizen, through its judgement in the case National Human Rights Commission v State of Arunachal Pradesh where it observed that:

"Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise".