New Delhi: The Supreme Court on Friday reserved its verdict on a plea seeking immediate release of 150 Rohingya refugees detained in Jammu and Kashmir, and to restrain the Indian government from deporting them to Myanmar. The apex court also refused permission to UN Special Rapporteur, E. Tendayi Achiume, to assist it in the matter.
While Prashant Bhushan, petitioner Mohammad Salimullah’s counsel, said that Rohingya in Jammu were in fact ‘refugees’ fleeing persecution in Myanmar, Solicitor General Tushar Mehta, appearing for Centre, maintained that Rohingya are not ‘refugees’, but ‘illegal migrants’.
The three-judge bench, comprising Chief Justice of India S. A. Bobde, A. S. Bopanna, and V. Ramasubramanian, was hearing an interim application filed by Salimullah on March 11 in a pending public interest litigation (PIL) that sought the treatment of the Rohingya in Kashmir as ‘refugees’ and to prevent the Centre from deporting them to Myanmar.
During the hearing, Bhushan pointed out a unanimous judgment of 15 judges at the International Court of Justice (ICJ) in January 2020, which recognised what was happening in Myanmar as a genocide, and those fleeing violence as ‘refugees’. He also pointed out that the Rohingya in Jammu were already carrying identity cards issued by the UN Commissioner of Refugees, to emphasise his claim.
To this, Mehta said, “Mr. Bhushan is reading this to show that there is some trouble in a country called Myanmar. I don’t object to that. But the question is, what to do with refugees in this country.”
The Supreme Court notably refused permission to UN Special Rapporteur, E. Tendayi Achiume, to assist the court in the matter. It pointedly told Achiume’s counsel, C.U. Singh, that it will not hear him, because the government has certain issues with the UN Special Rapporteur, according to Bar and Bench.
Harish Salve, representing the Union Territory of Jammu and Kashmir, urged the court not to hear the UN side. “Please don’t go into this. UN is not subject to your jurisdiction of the municipal court. Our government has issues with UN Special Rapporteur,” Salve said.
Asserting that the issue was primarily diplomatic, outside the judicial domain, the Solicitor General proceeded to explain the ‘procedure established law’ followed when deporting the Rohingya.
Achiume, in her plea, had stated that mass deportation of the Rohingya under international human rights’ law is not allowed, and India must carry out due process necessary for the protection of each individual’s human right and evaluate the likelihood of an individual facing persecution if deported.
When Bhushan informed that Rohingya refugees are in possession of cards issued by the UN Commissioner of Refugees, the court asked if he was invoking Article 32 (right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived), which the bench said can only be invoked if the individual in question is an Indian citizen.
To this Bhushan responded that Article 32 does not mention that it is applicable to ‘citizens’ only, and he invoked Article 21 (No person shall be deprived of his life or personal liberty except according to a procedure established by law) to buttress his argument, and to state that the Supreme Court has jurisdiction over the matter.
“I’m seeking writ of mandamus to Union and Jammu to release Rohingyas and not to deport them,” Bhushan was quoted as saying by LiveLaw. To this, the CJI asked if they have to examine the legality of their detention under the Foreigners Act, to which Bhushan responded that the Rohingya constitute a separate class called ‘refugees’.
Mehta, representing Centre, asserted that Rohingya are not refugees, but illegal migrants. He further said that this was already established in 2018 when the top court heard a similar matter in the case of Assam, and the only difference now is that it is Jammu and Kashmir.
He accused Bhushan of “suppressing facts” while filing PILs, and pointed out that it was the same case, same lawyers, and same petitioner in 2018, except for the fact the order was passed in the case of Assam.
Mehta informed the court that the Centre is in the process of authenticating the identity of detainees from Myanmar before other steps are taken. “India cannot be a capital for all illegal migrants of the world,” he asserted.
The court after hearing all parties reserved its order in the interim application.
The plea also sought direction to the Ministry of Home Affairs to expeditiously grant refugee identification cards through Foreigners Regional Registration Office (FRRO) for Rohingya in informal camps.
Meanwhile, a Jammu-based NGO, Forum for Human Rights and Social Justice has also filed an application before the Supreme Court stating that the plea to stop the Rohingya deportation must not be entertained since the settlement of the Rohingya in Jammu was “a part of a larger design” and an attempt to destabilise the country.
About 40,000 Rohingya, who face persecution in Buddhist-majority Myanmar, had crossed the borders into India after a military-led crackdown in 2017. Several million have been displaced and live in refugee camps in Bangladesh.
Many Rohingya refugees live in camps and slums in cities and regions across India including Jammu, Hyderabad, Nuh and the capital New Delhi. Only about 17,000 of them are registered with the UNHCR.
The controversial Citizenship Amendment Act (CAA), which was passed by parliament in 2019, provides a pathway to Indian citizenship for persecuted religious minorities from Afghanistan, Bangladesh and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians. However, Rohingya, who are Muslims, are not eligible to seek Indian citizenship under the CAA.20