Cannot be capital of illegal immigrants: Centre on plea seeks to stall Rohingya deportation

New Delhi: India cannot become “the international capital of illegal immigrants”, the Union government on Friday said in the Supreme Court while opposing a plea the seeks the release of at least 150 Rohingya refugees detained in a Jammu sub-jail and the stalling of their deportation

New Delhi: India cannot become “the international capital of illegal immigrants”, the Union government on Friday said in the Supreme Court while opposing a plea the seeks the release of at least 150 Rohingya refugees detained in a Jammu sub-jail and the stalling of their deportation.

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The government termed the Rohingya “absolutely illegal immigrants” who posed “serious threats to the national security” before a bench headed by the Chief Justice of India (CJI) SA Bobde. The Centre also contended that the right to settle in India could not be asserted by illegal immigrants under the garb of the Constitution’s Article 21, which guarantees the right to life and liberty. The bench reserved its verdict.

On March 6, on the instructions of the ministry of home affairs, the J&K administration started a verification drive of the Rohingya, and moved some of them to a holding centre, pending their potential deportation.

There are close to 7,000 Rohingya refugees in J&K, numbers that have increased since the late 2000s when they first arrived in the region after escaping from Myanmar, where they were facing religious persecution. India has previously deported Rohingya refugees, and this has been a long-standing demand of the BJP in J&K.

Appearing for the Centre, Solicitor General (SG) Tushar Mehta submitted that a similar application to stop the deportation of Rohingya from Assam was dismissed by the top court in 2018, and that the present application must meet the same fate.

“They are illegal immigrants. The continuance of the illegal immigration of Rohingyas into India and their continued stay in India, apart from being absolutely illegal is also found to be having serious national security ramifications and poses serious security threats,” the SG submitted before the bench, which also included justices AS Bopanna and V Ramasubramanian.

He added that the Centre has begun the process of deporting Rohingya after receiving a confirmation from the Myanmar government regarding their nationality, and that the apex court should steer clear of the “diplomatic issue” since it fell within the exclusive domain of the Executive.

Representing the J&K administration, senior advocate Harish Salve cautioned the bench against “starting a dangerous trend” by interfering with a subject related to illegal immigrants and diplomatic relations with another country.

Arguing for the applicant, Mohammad Salimullah, advocate Prashant Bhushan alluded to a January 2020 judgment of the International Court of Justice (ICJ) that highlighted the persecution faced by the Rohingya in Myanmar. Bhushan said that an urgent intervention by the apex court was required since those “detained” in Jammu could at any time be deported back to Myanmar, from where they fled fearing oppression.

The bench told Bhushan that it doesn’t support a genocide “of any kind anywhere” but what “happens in a foreign country is beyond our control”.

“We are certain that there should be no genocide on this earth. We are not supporting genocide of any kind anywhere. But the question here is different. You did not tell us that a similar application by you had already been dismissed by this court,” the bench said.

The SG and Salve also objected to Bhushan referencing the ICJ judgment, arguing that the ruling operated in the realm of the public international law, and could not override the local laws of a country.

Salve added that India was not a party to the principle of non-refoulement, as mentioned in the Refugee Convention of 1951 treaties, and therefore judicial orders could not obligate the government to follow non-refoulement (which restrains it from expelling refugees fearing persecution in their home state).

The Centre’s affidavit in the SC, seen by HT, maintained that it has to first secure the interests of its own citizens before those of illegal immigrants who, it said, were casting a burden on the already depleting natural resources of the country in addition to posing a security threat.

“The Constitution makes it abundantly clear that India as a sovereign nation, has the first and foremost Constitutional obligation and duty towards its citizens and to ensure that the demographic and social structure of the country is not changed to its detriment, the resulting socio-economic problems do not occur to the prejudice of the citizens and the resources of the nation are utilised to fulfil the fundamental rights of its own citizens and are not diverted to the detriment of the citizens, due to influx of illegal migrants into the territory of India,” stated the affidavit.

It also cited a 1991 SC judgment to state that although Article 21 (right to life and liberty) extended to foreign nationals, the fundamental right to reside and settle in this country, as mentioned in Article 19(1)(e) of the Constitution, was applicable only to its citizens.

“Therefore, the foreign nationals concerned from Myanmar have been illegally residing within India and cannot plead for mercy under the garb of Article 21 as the vires of the same are not applicable to the individuals concerned from Myanmar,” the affidavit said.