Supreme Court Issues Notice On Plea Against Alleged Illegal Detention Of Rohingya Refugees

The Supreme Court on Tuesday (October 10) issued notice in a Writ Petition filed under Article 32 of the Constitution of India seeking a direction to be issued to the Union of India for releasing Rohingya refugees who have allegedly been illegally and arbitrarily detained in jails and detention centres across the country.

In the present petition, it has been asserted that the continued detention of the Rohingya refugees is illegal and unconstitutional being violative of fundamental rights guaranteed under Article 21 and 14 of the Constitution of India, guaranteed to all persons residing in India, citizens or otherwise. The second prayer, sought in the petition, was to restrain the UOI from arbitrarily detaining any Rohingya for being accused of being an illegal immigrant or under the Foreigner’s Act, 1946.

The matter was placed before the Bench comprising Justices B.R. Gavai and PK Mishra and they have listed the matter after four weeks.

The petition was filed by Priyali Sur, an independent multimedia journalist, was represented by Advocate Prashant Bhushan and Advocate Cheryl Dsouza.

The petitioner stated that these refugees from Myanmar have fled their country because of a situation that has been recognised by the United Nations and the International Court of Justice as genocide and crimes against humanity. Facing genocide in Myanmar and being stateless people, the Rohingya refugees have fled in waves since the violence began, to neighbouring countries, including India.

Based on this, it has been 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. 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.

Further, the Rohingya in India face "growing anti-Muslim and anti-refugee xenophobia" and live in constant fear of detention and even deportation back to the genocidal regime from which they fled, the petition stated. The petition elaborated:

“Hundreds of Rohingya refugees including pregnant women and minors, have been detained unlawfully and indefinitely in jails and detention centres across India, despite the UNHCR recognising their status as refugees. They endure severe violations and dehumanising conditions within these detention facilities. They are detained without assigning any reason or often under the Foreigners Act and with no access to legal aid.”

The petition also called upon Court’s attention on the fact that Rohingyas who opt to resettle in other countries and are granted visas by the other countries like Canada and the United States, are being denied exit permissions by the government in India.

India’s Obligations Under International Conventions

The petitioner has also cited extensive set of precedents where the Apex Court and several High Courts have time and again interpreted India’s obligations under international law into the domestic law. Further, Article 51(c) of the Indian Constitution provides that the State shall endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.

It may also be recalled that back in January 2020, the International Court of Justice (ICJ) had found 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.

In this respect, the petitioner submitted that India has an obligation to prevent genocide. Further, it also took into consideration that in 1948 the United Nations approved the Convention on the Prevention and Punishment of the Crime of Genocide which established ‘genocide’ as an international crime, which signatory nations “undertake to prevent and punish”. India, along with Panama, and Canada was the force behind the adoption of the Genocide Convention on December 9, 1948, adopting of the Convention.

The plea also stated that India has signed international agreements on human rights (in 1948) and against torture (in 1997) and passed domestic laws on the right to life that apply to refugees. India has also served on UNHCR’s executive committee since 1995 and supported the 2018 Global Compact on Refugees, a non-binding framework described by the UN as “a unique opportunity to strengthen the international response to large movements of refugees and protracted refugee situations.” The Government of India allows UNHCR mandate refugees to apply for visas. Refugees and asylum seekers have also been provided access to basic government services such as health care and education as well as to law enforcement and justice systems.

In this backdrop, the petitioner argued that the discrimination faced by the Rohingya refugees, and their continued arbitrary and indefinite detention is not only illegal and unconstitutional but also is in violation of the government’s own standard operating procedure for the treatment of refugees in India as well as international human rights law.

It is also worth mentioning that the petitioner has further compiled several cases of Rohingya refugees, being detained, sentenced under the Foreigners Act and in indefinite detention across jails and detention centres in India despite serving out their sentence, in many cases for even over 5-8 years.

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