The Supreme Court on Thursday did not order the release of Rohingyas reportedly detained in Jammu. The court, however, said they should not be deported unless proper procedure is followed.
A Bench led by Chief Justice of India Sharad A. Bobde held that though rights to equality and due process of law enshrined in the Constitution are available to both citizens and foreigners, the right “not to be deported” is ancillary to citizenship.
“The rights guaranteed under Articles 14 (equality) and 21 (due process of law) are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e),” the court observed.
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Article 19 (1) (e) of the Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”.
A Bench led by Chief Justice Sharad A. Bobde said it was “not possible” to agree with the plea of Mohammad Salimullah, a member of the Rohingya community represented by advocates Prashant Bhushan and Cheryl d’Souza, to “release the detained Rohingya refugees immediately and direct 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”.
However, the CJI, who pronounced the order, made it clear to the authorities that the “Rohingyas in Jammu shall not be deported until the procedure is followed”.
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The direction is in response to a request by Mr. Salimullah to direct the Centre to refrain from implementing any orders on deporting the refugees detained in the sub-jail in Jammu.
In the previous hearing, before the court reserved the case for orders, the court had maintained a non-committal tone when its judicial conscience was tapped by Mr. Bhushan about the atrocities the Rohingyas may face on deportation back to Myanmar.
“We are not in any way called upon to condole or condemn genocide in Myanmar, though we believe genocide anywhere is condemnable,” Chief Justice Bobde had told the lawyer.
The Centre, represented by Solicitor General Tushar Mehta, had said the Rohingyas who had fled persecution in Myanmar to India were deported back only after the government of that country confirms their nationality.
“They are illegal immigrants. We are in touch with Myanmar. Once Myanmar confirms their nationality, they are deported,” Mr. Mehta had explained the deportation procedure.
Mr. Mehta had said “India is not the capital of the immigrants of the world”.
“But will the word of a military government that has seized power through a coup be enough for the Indian government? Is this country not obliged to maintain the guarantee of right to life,” Mr. Bhushan had asked.
Chief Justice Bobde had said the Supreme Court cannot refuse to recognise the sovereignty of another nation.
“The mere fact that another country wants them [Rohingyas] back and you [India] want to give them is not enough. You [India] cannot send anybody to a place where he can be killed or subject to torture,” Mr. Bhushan had argued the principle of refoulement.
The court had refused Mr. Bhushan’s plea to hear out the United Nations Special Rapporteur on the issue.
The application filed through Mr. Bhushan in the apex court had quoted a report in The Hindu detailing how “panic has gripped this already marginalised refugee community in Jammu after the verification drive and disappearance of family members”.
It had said official documents from the office of the Deputy Commissioner of Jammu show there were 6,523 Rohingyas in Jammu.
In India, no legislation has been passed that specifically refers to refugees. Hence, the Rohingya refugees are often clubbed with the class of illegal immigrants deported by the government under the Foreigners Act 1946 and the Foreigners Order 1948. This is coupled with discrimination against the Rohingyas 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.