SC asks Centre to strike a balance on Rohingya issue

Supreme Court orally indicates that the government should not deport Rohingya “now” as the Centre prevails over it to not record any such views in its formal order, citing “international ramifications”.

The Constitution is a protector of human rights, especially of children, women,” the Court said. A scene at the Rohingya Camp in Kalindi Kunj, in New Delhi.

The Supreme Court on Friday came close to ordering the government not to deport the Rohingya.

It finally settled on merely observing that a balance should be struck between humanitarian concern for the community and the country's national security and economic interests.

The court was hearing a bunch of petitions, one filed by persons within the Rohingya community , against a proposed move to deport over 40,000 Rohingya refugees. A three-judge Bench, led by Chief Justice of India Dipak Misra, began by orally indicating that the government should not deport Rohingya “now”, but the government prevailed on the court to not pass any formal order, citing “international ramifications”. With this, the status quo continues even though the court gave the community liberty to approach it in case of “any contingency”.

The court deferred the case to November 21 for detailed hearing. It will reopen after the Deepavali holidays on October 23. “Take action wherever you find wrong, but do not deport now,” Chief Justice of India Dipak Misra initially told Additional Solicitor-General Tushar Mehta, appearing for the Centre.

Senior advocate Fali Nariman, arguing for the Rohingya, said, “In case of any difficulty, we will come here.” But Mr. Mehta objected, asking the court why the question of deportation should come up for debate at this stage.

The government said “questions pertaining to deportation of illegal immigrants is essentially an executive function.”

It maintained that “questions regarding illegal migrants need to be examined keeping in mind diplomatic considerations, internal security situations, demographic changes in the country and such other administrative and diplomatic factors which are better left to policy making by the executives.”

“We know what to do... if Your Lordships say anything, it will have international ramifications. No such contingency has arrived so far,” Mr. Mehta submitted. “Make sure no such contingency arrives, in case of which petitioners [Rohingya] can come [to SC],” the Bench observed at one point.

Mr. Mehta continued to protest against the Bench mentioning anything in its order which may give the impression that a direction is being passed by the Supreme Court to the government regarding deportation.

He objected even when the court attempted to record in its order that the case is ‘sub judice’ or even tried to mention that the “government is sensitive to the problem.”

The Additional Solicitor General urged the court, at this point, to plainly record a line in its order that “Mr. Nariman says in case of contingency, he will approach the court.”

The Bench agreed even as the Chief Justice remarked that this was as an ‘extraordinary situation’ and an ‘issue of great magnitude’ in which the state has a pivotal role.

Chief Justice Misra pointed out that the Constitution is a protector of human rights, especially of children, women, the sick, the infirm and the innocent.

“By ‘innocent’ we mean the (Rohingya) children and women who know nothing about what is happening. As a constitutional court we cannot be oblivious of this fact, the state should also not be oblivious,” Chief Justice Misra observed.

The court said the approach of the government should be “multi-pronged.” It should consider both the humanitarian spectrum as well as concerns over national security and economic interests.

“National security and economic interests cannot be seconded. How to strike a balance,” Justice Misra asked both Mr. Nariman and the government to address it primarily on this aspect.

In his submissions, Mr. Nariman shortly argued that the right to life under Article 21 of the Constitution has been expanded to include any “persons” and not just citizens.

“There are different types of foreigners. There are those who need protection. A person should not be deprived of his personal liberty,” Mr. Nariman submitted.

Mr. Nariman said the concept of human rights is statutorily recognised and defined in the Protection of Human Rights of 1993. Human rights has thus become essentially justiciable with its inclusion under as a law as defined under Article 13 of the Constitution, Mr. Nariman submitted.

The court was hearing a bunch of petitions, one filed by persons within Rohingya community, against a proposed move to deport over 40,000 Rohingya refugees.