The plight of approximately 40,000 Rohingya refugees came up for deliberations, once again before the Supreme Court today. There have been two hearings of the matter before when advocate Prashant Bhushan had petitioned the Supreme Court against the Modi government’s decision to deport the hapless refugees.
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Chief Justice of India Dipak Misra today heard preliminary arguments on the Rohingya Refugee case. Fali Nariman, senior counsel appearing for the petitioners pointed out that, the government of India in its counter affidavit clearly says that this issue is non justiciable and is a pure matter of government policy and that Article 32 rights to file a writ petition in the Supreme Court is not available to non citizens. Nariman pointed out to the absurdity of the government’s position in light of the fact that Article 14 and 21 rights are available to all “persons” as well as the Article 32 right to move the court.
Nariman also read out the notification declaring the government policy on refugees dated December 29, 2011, in which it was stated that refugees fleeing persecution are different from illegal immigrants and should be given long term visas, employment opportunities and the right to study in educational institutions. Mr. Nariman further pointed out that the present government in July 2014 reiterated this 2011 standard operating procedure in a written reply to a question on rights of refugees in the Lok Sabha.
Nariman also pointed out that the government tried to paint all Rohingya as terrorists which was absurd. If the government had any specific information about any Rohingya persons being terrorists, those person could be excluded from the applicability of the Refugee convention and dealt with the government separately.
Nariman also read out from the New York Declaration for Refugees and Migrants dated October 3, 2016, which India is a signatory to, wherein rights of refugees to be given asylum had to be recognised and the principle of non refoulement reaffirmed. He also pointed out that though India is not a signatory to the Refugee Convention, 1951, it is a signatory to several other International Conventions which accept the principle of non refoulement and prohibit involuntary deportation of refugees, such as the Universal Declaration of Human Rights, The International Convention on Civil and Political Rights, International Convention on Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on Rights of the Child, etc.
Tushar Mehta, Additional Solicitor General, appearing for the Government of India, said that he would like to argue on the question of maintainability and justiciability of this petition and said it should be left to the executive to decide. Mr. Mehta also sought permission of the court to file a sur rejoinder to the rejoinder affidavit filed by the petitioner, which was granted.
Chief Justice of India Dipak Misra, speaking for himself, said it would be difficult to accept the lack of jurisdiction of the court in a matter concerning human rights, particularly on the plight of women and children. The CJI directed the parties to the petition to compile a list of government notifications, treaties and conventions and cases relevant to the issue of refugee law in India.
The matter was adjourned for further hearing on the of October 13, 2017, 2 p.m.A copy of the Petitioners rejoinder affidavit may be read here.
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