NEW DELHI: The Supreme Court on Thursday said it will examine whether Rohingyas staying in the country were refugees or illegal migrants before going ahead with hearing a batch of petitions filed on their behalf challenging their deportation and seeking basic amenities during their stay in refugee camps.
IA Rohingya woman holds her baby boy’s hand at a refugee camp in Bangladesh. (AP FILE/REPRESENTATIVE IMAGE)
“The first major issue is whether they are refugees or illegal migrants. Rest is consequential,” a bench of justices Surya Kant, Dipankar Datta and N Kotiswar Singh said.
“If they are refugees, they are entitled to certain protections under law. If not, they are illegal migrants and should be deported back to their country.”
The four questions framed by the court in the Rohingya batch of cases included, “whether Rohingya entrants are entitled to be declared as refugees and if so, what protection emanates from the rights they are entitled to; whether Rohingyas are illegal entrants and if government of India and states are obligated to deport them in accordance with law.”
There were two consequential issues also that were framed by the court. These were: “Even if Rohingya entrants are held to be illegal entrants, can they be detained indefinitely or they are entitled to be released on bail subject to conditions.” Lastly, it said, “Whether Rohingya entrants who are not detained but living in refugee camps have been provided with basic amenities like drinking water, sanitation, education, etc.”
The court had taken up 22 cases involving the deportation of Rohingya who were either in detention camps or claimed refugee status. Among these, the bench sought to segregate cases related to Rohingya migrants as a single batch. The other cases involving other foreigners were directed to be grouped into a separate batch to be handled separately.
As the batch of cases got listed together, the bench expressed a practical difficulty in proceeding with the hearing, as some petitions spoke about the deportation of foreigners in general, while others specifically related to the condition of foreigners in detention camps.
Advocate Kanu Agarwal, appearing for the central government, submitted a list of cases pertaining to Rohingya people and urged the court to decide this batch of cases first. The non-Rohingya matters, he added, seek interpretation of the Foreigners Act.
The bench agreed, saying, “The issues that arise in the other batch of cases will be determined separately on another date.”
Advocate Prashant Bhushan, who was appearing in multiple petitions, said that the genesis of these cases began with cases filed by Rohingya people in 2013. He said 15 out of the batch of 22 cases pertained to Rohingya refugees and the need to provide them facilities in their camps on par with refugees recognised under the UN Convention on Refugees. India is not a signatory to this convention and has not considered granting refugee status to them.
Senior advocates Ashwani Kumar and Colin Gonsalves, appearing in other matters, pointed out that the Rohingya people who hail from Myanmar have fled to India seeking asylum as they were being persecuted in their country. Gonsalves further referred to a case filed by the wife of a foreigner facing detention in Assam which concern Rohingya and non-Rohingya foreigners. In that case, Gonsalves showed orders passed by the court to expedite the deportation process despite the fact that Myanmar was unwilling to take these persons back.
In May this year, while hearing an application filed by Rohingya people in Delhi, the top court refused to adopt a piecemeal approach in deciding individual cases and called for all cases pending on the issue to be listed together.
The Centre has been opposing the maintainability of these petitions, citing the Supreme Court’s order passed in April 2021. This order permits the Centre to take deportation measures as required under law and held that while the right to life and liberty is available to even non-citizens, the right not to be deported is ancillary but concomitant to the right to reside or settle in any part of India, which is guaranteed under Article 19(1)(e) only to citizens.