Centre strongly opposes plea in SC to allow Rohingya refugees to stay on in India

In an affidavit filed in the Supreme Court on March 20 in response to a PIL, the Centre made it clear that illegal migrants cannot be accepted as ‘refugees’ since India does not have that provision in the law. And tht Rohingyas come under the Foreigners Act.

The Rohingya refugees, most of them Muslims, have fled ethnic violence in Buddhist-majority Myanmar and entered India, Bangladesh and other countries illegally.

Continuing to flee persecution to escape the brutal counter-insurgency campaign by security forces in their homeland of Myanmar, they find themselves caught in the middle of a political row, after the Centre's implementation of the Citizenship Amendment Act (CAA) recently.

The CAA offers citizenship to non-Muslim migrants from Bangladesh, Pakistan and Afghanistan, who fled religious persecution in these countries and entered India before 2015.

The Opposition has raised the issue of nation's security regarding the CAA to which Union home minister Amit Shah has hit back asking why they are not opposing the entry of Rohingyas.

Here are some of the arguments made by the Centre in their affidavit against the petition filed by Priyali Sur, a multimedia independent journalist seeking a direction from the court to the Centre to release Rohingya refugees detained for alleged violation of the Foreigners Act.

Priority to one’s citizens

The Centre argued that India has a large population with limited resources and needs to give priority to its citizens. It has a constitutional obligation to its citizens not to change the demographic and social structure of the country. And not to divert important resources to the detriment of the citizens due to influx of illegal migrants.

Threat to national security

Citing a 2005 verdict of the Supreme Court to stress the dangers of unchecked immigration, the affidavit quoted the apex court’s judgement in the Sarbananda Sonowal vs Union of India case, saying that ‘Bangladeshi nationals living illegally crossed the border into Assam and living in other parts of the country have no legal rightsof any kind in India and are liable to be deported.’

“It is submitted that continuance of Rohingyas' illegal migration into India and their continued stay in India, apart from being absolutely illegal, is found to be having serious national security ramifications and has serious security threats," it said.

Not the court’s jurisdiction

Further, asserting that the Centre has “unfettered discretion” when it comes to the deportation of illegal immigrants, the Centre has said India is not a signatory to the 1951 Refugee Convention and to the protocol relating to the Status of Refugees, 1967. The government does not recognise UNHCR refugee cards for the grant of visas to refugees.

Therefore, whether or not any class of persons are to be recognised as refugees is a "pure policy decision", it has said.

Emphasising that this issue is beyond the ambit of the court, the Centre said the refugee status cannot be given by a judicial order. The term refugee is not even recognised under the Indian law and there are only legal and illegal migrants and they come under the Foreigners Act, pointed out the affidavit.

This petition is akin to asking to direct the Parliament to frame a law which is beyond the powers of the judicial review. “It is trite law that the courts cannot direct Parliament to make a law or legislate in a particular way,” the Centre asserted.

Further, "it is essentially an outcome of political decisions of the State in respect of maintaining its foreign relations with the State in question or with any other foreign nations. Such a decision is often a product of complex interplay of diverse factors such as social, economic, cultural and extra-legal or extra judicial considerations," pointed out the Centre.

Seeking equality for Rohingyas with Tibetans and Sri Lankans

That is constitutionally unsustainable, stated the Centre to a point raised in the plea seeking equality for Rohingyas with Tibetans and Sri Lankans.

It reasoned that rights guaranteed under Article 14 that is equality before law is limited in its application only to citizens and cannot be extended to apply to foreigners. The rights for long-term visas cannot be derived from article 14, said the Centre caling it “wholly erroneous”.

Petitioner's plea

According to the petitioner, Rohingyas who are termed as illegal immigrants face inhumane treatment and restrictions in India. Their situation is pathetic as they had to flee from their homes state because of genocidal attacks which even the International Court of justice has taken note of. They had to face arbitrary arrests, limited access to health, education, legal services and job opportunities.

Plight of Rohingya refugees

The plight of Rohingya refugees continue to dominate headlines, as on March 21, an Indonesian search and rescue ship rescued dozens of Rohingya Muslim refugees after the wooden boat they were travelling in, had capsized off the northernmost coast of Indonesia.

Men, women and children, weak and soaked from the night's rain, wept as the rescue operation got underway and people were taken aboard a rubber dinghy to the rescue boat.

It was unclear whether all managed to cling to the capsized craft overnight or whether some had drowned. Indonesia's search and rescue team only left Banda Aceh city in the evening Wednesday, many hours after the capsizing, and initially had difficulty locating the boat in the choppy waters off the coast.

It finally found the boat and the survivors about midday on Thursday.

Thousands have been trying to flee overcrowded camps in Bangladesh to neighbouring countries with Indonesia seeing a spike in refugee numbers since November which prompted it to call on the international community for help. Rohingya arriving in Aceh face some hostility from some fellow Muslims.

Indonesia, like Thailand and Malaysia, is not a signatory to the United Nations' 1951 Refugee Convention outlining their legal protections, and so is not obligated to accept them. However, they have so far provided temporary shelter to refugees in distress.

Last year, nearly 4,500 Rohingya — two-thirds of them women and children — fled their homeland of Myanmar and the refugee camps in neighbouring Bangladesh by boat, the United Nations refugee agency reported. Of those, 569 died or went missing while crossing the Bay of Bengal and Andaman Sea, the highest death toll since 2014.