The Rohingya crisis is one of the biggest human tragedies in recent Asian history. Does that mean that every country should welcome them with open arms? Definitely not. The reason for this is that just because an ethnic group is persecuted does not imply that every member of the group is good. The Modi government is constantly failing to act on this basic truth. Unexpectedly, the Court has taken a contrarian view on the fate of Rohingyas.
Petition to protect Rohingyas
In 2021, an interlocutory petition in the main writ petition about Rohingya Muslims was filed. Petitioners, one of them named Mohammed Salimullah, claimed that they had acquired refugee status with the United Nations High Commission for Refugees. He wanted to secure the release of illegal Rohingyas from detention camps through judicial orders. In addition to that, Salimullah and his advocates, Prashant Bhushan and Colin Gonsalves, also wished that the Union government did not deport the Rohingya.
To substantiate their argument, they cited a plethora of constitutional articles and international covenants. India is a party to the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the Convention on the Rights of the Child (1992). According to them, it restricts India from deporting refugees to the country they came from in fear of persecution. This is called non-refoulement. Apart from the aforementioned international conventions, India being a signatory to the Protection of All Persons against Enforced Disappearances and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment was also used to remind the Indian state of its supposed duty to protect Rohingyas.
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They also contended that Equality of law under Article 14 and Right to Life under Article 21 of Indian Constitution. They called it “non-refoulement” as part of the rights guaranteed under Article 21. The rationale behind it is that Article 21 protects life, and sending Rohingya to Myanmar would be tantamount to putting their lives at risk. By virtue of Articles 14 and 21 being available to non-citizens, Rohingyas are supposed to be protected from deportation.
Government’s response and the Court’s observations
The Union government contended that non-refoulement is available to refugees of only those countries whom India has contracted with. The government agreed with the petitioners’ argument about Articles 14 and 21 but contended that the right to reside and settle under Article 19(1)(e) is a fundamental right and that it is available only to citizens, not illegal aliens.
Regarding Rohingyas, the government informed the Apex Court that these people come under the definition of “foreigners” within the meaning of Section 2(a) of the Foreigners Act, 1946. Section 3 of the same act enables the central government to prohibit, regulate, or restrict the entry of Rohingyas into India.
The government said that Section 3 enables departure as well. Additionally, the Union government informed the Court of Intelligence about threats to internal security. Allowing Rohingyas would set a bad precedent against national security.
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The Apex Court agreed with the government on the interpretation of the interplay of Articles 14, 21, and 19(1)(e). It held that the right not to be deported is totally dependent on the right to reside, which is not available to foreigners, like Rohingyas in this case.
Regarding international law, the Court also held that India would abide by the non-refoulement policy only when it would have signed the 1951 UN Convention on the Status of Refugees or its 1967 Protocol. If India had signed it, Article 51(c) of the Indian Constitution would have compelled the government to retain the Rohingyas.
Why is the government silent?
Observing the aforementioned legal principles, the Court effectively told the government to go ahead with the deportation of Rohingyas in Jammu, for whom the petition was filed. Despite that, news about the deportation of Rohingyas is rarely heard. Headlines are published regarding their deportation. Beneath them, you will find the alleged deportation number only in double digits.
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A large number of Rohingyas in Jammu have fled to other states, foiling the deportation plans of the government, if there were any. Meanwhile, international agencies like Reuters are continuously trying to put India in a bad light for the government’s alleged mistreatment of Rohingyas. On the domestic front, the government is criticised for not being vigilant on security threats and allowing 40,000 Rohingyas to live in India.
No one knows what the government is achieving with it. Media, anyway, is not going to support them for deporting or retaining Rohingyas. SC has already opened the gates for deportation. It’s puzzling what is stopping it.
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