Delay in hearing of Rohingya petition in Supreme Court

Kiren Rijiju, Union Minister of State for Ministry of Home Affairs has made press statements in late August and early September declaring the Rohingya Muslim refugees to be illegal immigrants and has gone on record stating in unequivocal terms that they will have to be deported back to Myanmar. As a consequence, on 1st September 2017, a writ petition was filed by certain Rohingya refugees, settled in India, in the Supreme Court by Prashant Bhushan. The petition seeks a stay on the imminent deportation of the Rohingya refugees as proposed by the Union Government through the Ministry of Home Affairs.

The matter was mentioned in the Court of Hon’ble Chief Justice of India Dipak Misra, J., Hon’ble Justice Chandrachud, J. and Hon’ble Justice Khanwilkar, J. and the Bench was to list the matter on Monday 11.09.2017, however due to a Special Bench sitting down, the same was delayed. It is likely to come upnext Monday, i.e.18.09.2017. Senior Lawyers Fali Nariman will be representing the petitioners and Gopal Subramaniam will be representing the National Human Rights Commission. An intervention application has been filed by the Jamaat Ullema-e-Hind in the writ petition. 

The petition filed on behalf of the Rohingya refugees pleads an immediate stay on the deportation of the refugees as well as makes provisions of basic services in line with international standards on refugees. The writ petition under Article 32 of the Constitution involves the violation of the right to life and right to equality of the refugees under Article 21 and Article 14.

In addition to the relief of stay on the imminent deportation of the Rohingya Muslim community in India, the Jamaat Ullema-e-Hind also seeks a direction or order from the Apex Court directing the Government of India to provide basic amenities and services as required by refugees and finally the Jamaat seeks better security for the Rohingya refugee settlements so that they are not attacked by vigilantes.

India not being a signatory to any of the conventions regarding the status of refugees and stateless persons, and there being no concrete national law or policy framework for the protection of the rights of refugees, complicates the issue. Additionally, the vague definition of “foreigner” under the Foreigners Act, coupled with the unbridled discretion of the Government to remove such refugees on the basis of national security serves a significant problem. The basis for the Union Government to take such a stand is of a perceived threat of inevitable indoctrination and radicalization of the Rohingya Muslims by non-State actors which include terrorist organizations.

The announcement of the Union Government also assumes significance in the wake of Narendra Modi’s visit to Myanmar in the past week where he has gone ahead and offered support to the State of Myanmar in their stand on the Rohingya refugees. This problematic stance of the Myanmar State springs forth from a historical non-recognition as citizens and clampdown on the Rohingya Muslims for purported insurgents which have in the recent past attacked certain military and police posts. It is well known that the Rohingya Muslim community in the Rakhine State have faced shocking brutality and oppression at the hands of the Myanmar security agencies allegedly retaliating against extremist elements espousing the cause of the Rohingya Muslims as recently as August 2017.

However, as has been documented by various international agencies including the UN Human Rights Council through numerous reports of the Special Rapporteurs on the situation of human rights in Myanmar, the scale and extent of the persecution endured by the Rohingyas is founded on a violent and racist ideology of radical Buddhist groups coupled with a distorted nationalistic outlook of Myanmar providing no space for minority communities in the democratic space. The efforts made by the security agencies to deny even effective humanitarian aid is recognized on the international sphere as well, thereby perpetuating the persecution of the Rohingya Muslims for decades.

The decision of the Government of India to deport Rohingya refugees in India assumes even more significance in this light as whatever little security they had in this country will be snatched away from them and they will be placed in the crosshairs of the Myanmar security agencies and radical Buddhist groups baying for their blood. It is a violation of the principle of non-refoulement under international refugee law and international humanitarian law.