The Rohingya Case Before SC: Calls For Article 21 In A Time Of Genocide

The Supreme Court of India on Friday has reserved order on a fresh plea seeking directions for release of detained Rohingya refugees and restrain the government from deporting them back to Myanmar.

WHO ARE ROHINGYAS AND WHAT IS ROHINGYA CRISIS?

• Rohingyas mainly are an ethnic group that majorly comprises of Muslims living in province of Rakhine, Myanmar. They have not been granted citizenship by Myanmar due to the fact that they have migrated to Myanmar during colonial period and are not its original citizen.
• During the seventies, Myanmar has deported thousands of Rohingyas from the country to Bangladesh which is referred to as ethnic cleansing done in Rakhine, ultimately rendering them stateless.
• It was in 2012, when a Buddhist woman in Rakhine which was a Rohingya dominated area, was raped and murdered, triggering riots against the community resulting in violence and deaths of both Buddhists and Rohingyas. Eventually, Rohingyas left their homes and sought shelter in Bangladesh.
• In 2017, ARSA attacked 30 police posts and one army base in Myanmar. This once again led the Rohingyas to troubles. ARSA is a group formed to fight for a democratic Muslim state for Rohingyas, and has been attacking the armed forces in Myanmar and has also caused nuisance in Bangladesh and India.

ROHINGYA ISSUE IN INDIA

• Rohingyas, have been declared to be illegal immigrants by the Ministry of Home Affairs, and that they will be deported. Against this decision, petition was filed before the Supreme Court seeking a stoppage on the deportation scheme.
• The bench comprising of CJI S.A Bobde, Justice A.S Bopanna and Justice V Ramasubramaniam on Friday was hearing an interim application filed by Mohammad Salimullah. Through the PIL, the petitioner sought protection of Rohingyas.

ORAL ARGUMENTS

• Advocate Prashsnt Bhushan referring to the order passed by the ICJ last year has argued that Rohingyas, as per the United Nations Convention on Refugees, are refugees and are facing genocide in Myanmar. ICJ was of the view that there is presence of genocidal intent, systematic oppression and violence, and grave human rights violations against Rohingyas.
• On the question of applicability of article 32 which is applicable only to citizens, Mr. Bhushan responded that he was invoking the Court’s Jurisdiction under article 21for which the curt has laid down many precedents that it is available to non-citizens also.
• Further, it was questioned whether the legality of detention is to be checked under Foreigners Act, Mr. Bhushan stated that Rohingyas are not foreigners but form a separate class of refugees.
• On the contrary, Solicitor General Mehta, on behalf of centre Rohingyas are not refugees. Further, he submitted that this is a second round of litigation on the matter, with the only difference that earlier it was Assam and now it is Jammu.
• SG Tushar Mehta asserted that Rohingyas are illegal migrants and that the Government is in process of getting a confirmation from Myanmar on whether the detainees are citizens or not. He stated "India cannot be a capital for all illegal migrants of the world".
• On this, Mr. Bhushan highlighted the fact that the Government of Myanmar is illegal and their word cannot be relied upon. He further made reliance on principle of non-refoulement according to which expulsion of refugee is forbidden when there is danger of life. To this question arose whether the court can refuse to recognize another sovereign government.
• Harish Salve explained that municipal courts do not have such powers. He further added "Treaties which the Govt of India has not signed for good reasons, to get them enforced through court, will be elbowing the govt".
• Advocte C.U Singh appeared on behalf of UN special rapporteur, the bench decided not to entertain their issue for the day on the ground of serious objections

COURT’S DECISION

• The Supreme Court has reserved its verdict on the issue of deportation and detention of Rohingyas.
• The application filed by UN Special Rapporteur has been refused to be heard at the present stage.
• The main PIL concerning the rights of Rohingyas is yet to heard and is pending before the court.

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