he Rohingya Case Before Supreme Court Of India

KEY TAKEAWAYS

• Supreme Court of India on Friday has reserved orders in a plea seeking interim directions in order to restrain the Government from deporting those detained in Jammu back to Myanmar.
• Deporting the Rohingyas will be a clear violation article 33(1) of United Nations Convention on Refugees, which lays down the principle of non-refoulement. However, India is not a party to the convention.
• An intervention application has been filed by UN special rapporteur, which the court has refused to hear presently.
• India does not yet have any legislation concerning refugees.

INTRODUCTION

Recently, the Supreme Court of India has been approached with an application seeking the release of Rohingyas detained in Jammu and to stop the government from deporting them. The original petition seeking to secure and protect the rights of Rohingyas was filed in 2017 by the same petitioner Mohammad Salimullah is still pending before the court.

Rohingyas, an ethnic group chiefly comprising of muslims who have migrated to Myanmar during the colonial era and after independence they were declared to be illegal migrants. Decades later, a new citizenship bill was passed in 1982 which also did not recognize them as citizens. Thus, Myanmar government has never recognized them citizens. In seventies, Myanmar has forced Rohingyas to flee from the country.

After an incident in 2012 when a Buddhist woman in Rakhine province of Myanmar, which was majorly populated by Rohingyas, was raped and brutally murdered, resulting into riots as retaliation for the same. This has rendered rohingyas “stateless” and now they are the largest group of people who do not have citizenship and are deprived of the rights that a country grants to its citizens.

In response to such violence, several rohingyas have formed militant organisation the Arakan Rohingya Salvation Army(ARSA) or the Harkat-al-yaqin and Rohingya Solidarity Army which has claimed to fight for a democratic Muslim state for Rohingyas. In 2017, 30 police posts and one army base in Myanmar were attacked of which the ARSA has expressly taken responsibility. This has added to the difficulties faced by the Rohingyas in Myanmar and they are facing continuous violent persecution at the hands of Myanmar

Government, military and Buddhist nationals of the country.

THE INDIAN SCENARIO- CASE AT HAND

In 2017, the Union Minister of State for Home Affairs Kiren Rijiju has referred to Rohingyas as “illegal immigrants” in the Parliament. He further added “anybody who is an illegal migrant will be deported”.

Against this attempt to deport rohingyas, a petition was filed before the court in Mohammad Salimullah v. Union of India which is yet to be heard. Apart from this, another application was filed before the Supreme Court seeking release of rohingyas detained in Jammu and to restrain the government from deporting them.

The petition was filed after a news report on 7th March 2021 stated that Jammu & Kashmir administration is setting up holding centres in Kathua and has placed 150 Rohingyas in it under Foreigners Act.

In the petition it has been submitted that deporting rohingyas back to Myanmar would be in violation of article 33(1) of UN Convention on Refugees which has laid down the principle of non-refoulement. As per this article "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

It has been argued that “The deportation would not only violate their Article 21 right and all international norms but would almost be like sending them back to torture or death”.

India however, is not a party to this convention. Apart from this article 33(2) of the convention states that "The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."

The government has previously on the matter explained that a large number of Rohingya migrants represent a threat on the national security.

Sr. Adv. Prashant Bhushan in response to the proposition that the government of Myanmar should be consulted on the citizenship issue, have argued that the government of Myanmar has been recognized to be illegal by various international authorities, and thus, it should not be trusted.

Solicitor General Harish Salve submitted that Municipal Courts does not have the power to recognize another sovereign state as illegal. He further submitted "treaties which the Govt of India has not signed for good reasons, to get them enforced through court, will be elbowing the govt".

The Supreme Court has reserved the orders on the concerned matter.

A LARGER PICTURE

It is indeed true that Rohingyas have been facing brutalities at the hands of their own government and military for ages. Hundreds of thousands of people have become stateless. No place to call their own. Children are being murdered for no reasons. The Rohingya people have been deprived of their dignity and human rights. The fight that initially for citizenship rights have now revealed its ugliest side and more than citizenship, it has taken a face of religious violence.

At present, around 11 lakh rohingyas have taken refuge in Bangladesh and hundreds of thousands of them have crossed borders and are living in India. Although, on humanitarian grounds, the neighbouring countries should help out these refugees, but on the other hand, it is also a fact that such huge amount of displaced people from Myanmar are creating a socio-economic burden on the countries. Bangladesh has already made it clear that it does not have enough resources to cater the needs of so many rohingya refugees.

On the other hand, India is already an overpopulated country. There is a limit to which it can accommodate people from other countries. India already has several hundred thousands of refugees from Tibet, Bangladesh, Sri Lanka, Afghanistan, Pakistan and 40,000 rohingyas. Keeping that in mind, India need not be lectured on humanitarian values that a state should showcase.

Many people are also of the view that this deportation is a stance of the Government not because of the possible security threats, but against the Muslim community as it has only targeted a particular religion in the Citizenship Amendment Bill.

Apart from it, the region of Jammu & Kashmir is very vulnerable and has been subjected to terrorist attacks and that the terrorist organisations has always attempted to astray the youth in the region. It has to be considered that since they are huge in number, radicalised Rohingya youth can be an easy prey for the terrorist organisations and use them against the country to cause violence and nuisance.

Already, many organisations that have been formed to provide a democratic Muslim state for Rohingyas which are receiving assistance from terrorist organisation. These circumstances in long are probably a serious threat in a country which is already facing many communal issues.

Apart from that, there are many Rohingyas who are by fraudulent means getting themselves issued identity cards such as aadhar which is meant only for citizens. If such activities are continued for a longer period of time it would lead to naturalisation. Also, since many organisations have been formed to provide for a separate Muslim state for rohingyas, it might lead to unfavourable circumstances for the country.

CONCLUSION

Despite the probable threats that India might face if Rohingyas are allowed to settle up in the country, it would indeed be inhuman to deport them to Myanmar when there are high chances that they are going to slaughtered. Since India does not yet have any legislation regarding refugees, the government should not take any step under the pressure of the International Organisations. Rather, a solution should be reached out that might in long term help control the situation.

The Supreme Courts say in the deportation matter is much awaited.

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