Rohingya petition in SC: If somebody comes to your border and says, I am a refugee, he cannot be blindly pushed back, says Rajeev Dhawan

A Supreme Court bench comprising of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud on Wednesday (31st January)  petition filed on behalf of 2 Rohingya refugees in the country seeking to prevent their deportation, sought the Centre’s response to a plea which alleged that Rohingya refugees who wanted to enter India after fleeing persecution in Myanmar were being “pushed back” at the border by the BSF in violation of the UN principle of non-refoulement.

The Centre opposed the plea and said the matter was best left to the executive.

Petitioners in this matter are two Rohingya refugees who are in camps in India, being represented by Advocate Prashant Bhushan who said the BSF had adopted a policy called “non-engagement” to prevent the influx of more refugees from Myanmar.

It was contended on behalf of petitioners that this is illegal by way of being contrary to the international principle of non-refoulement which states that refugees or asylum seekers shall not be forced to return to a country in which they are liable to be persecuted.

The court wondered if the rule was applicable to those trying to get into the country and whether such issues were amenable to judicial review. “Applying to people already here is understandable. But can it be applied to people on the border too,” questioned Justice Chandrachud. To this there were two different responses from Advocate Bhushan and senior advocate Gopal Subramaniam, appearing on behalf of National Human Rights Commission. While Prashant Bhushan responded that it applied to both situations, Gopal Subramaniam said the principle would apply only to those already inside the country.

Senior advocate Rajeev Dhavan, who had intervened in this case, supported Mr Bhushan's contention that "if somebody comes to your border and says, I am a refugee, he cannot be blindly pushed back".

Additional Solicitor-General Tushar Mehta, appearing on behalf of the Centre, contested the plea saying that “India will be flooded” with refugees. “We don’t want India to become the refugee capital of the world,” he said, adding that efforts were on at the diplomatic level to resolve the crisis. He submitted that it was better if the matter was left to the executive to find a solution.

In October 2017, NGO Common Cause through Advocate Prashant Bhushan approached the Supreme Court seeking a stay on the imminent deportation of thousands of Rohingya refugees following statements made by MHA. In October Senior Advocate Fali Nariman had advanced arguments in front of the bench on behalf of petitioners. He referred to Section 2(d) of the Protection of Human Rights Act, 1993, where human rights have been statutorily recognised. He also referred to Section 3 of The Foreigners Act, 1946, which doesn’t distinguish between different classes of foreigners including asylum seekers.

The community of Rohingya Muslims have faced horrors and oppression by the Burmese military and non-State actors for a period stretching over 3 decades.

While this issue received widespread international condemnation against the Rohingya crisis and the role played by the Burmese military, the Indian government has appallingly supported the actions of the military as being justified.

Following an outbreak of violence in the Rakhine State as many as 125,000 Rohingya Muslims fled to Bangladesh through treacherous conditions and a significant amount of refugees poured into India. This prompted a series of statements in September 2017 by Mr. Kiren Rijiju (Minister of State of MHA) calling for deportation of all Rohingya refugees settled in India. Indian government rightly attracted widespread criticism after the recently concluded Bali Declaration when India did not endorse a joint statement on the situation of human rights in Myanmar supported by multiple countries including Nepal, Bhutan, Bangladesh and Pakistan.

India’s stand has been rather ambiguous when it comes to refugees. Historically the prerogative has always been with the Union Government to keep or expel refugees entering India. This has been evidenced by the open-door policy India has adopted through its history as a sovereign republic towards Tibetan refugees, Tamil refugees from Sri Lanka, Afghan refugees and so on.

It is noteworthy that the term “refugee” or “stateless persons” is not defined in any statute under the Indian Law; thereby leaving them to be governed by provisions under The Foreigners Act, 1946. The definition of “foreigner” under Section 2 (a) provides a very general definition as someone who is not a citizen of India. Under Section 3 of this Act, Central government is provided with absolute power to remove foreigners who have not fulfilled the conditions which are specified under the Act. Additionally, asylum seekers are vulnerable to deportation under Clause 14 of the Foreigners Order, 1948.

While some asylum seekers get their issues addressed by the government, others have to turn to the UNHCR to get a refugee identity card.

The Union Government has, at the outset, extinguished any applicability of the principles of non-refoulement. It is the submission of the Union Government that since India is not a signatory to either the 1951 Convention on the Status of Refugees and the 1967 Protocol on the Status of Refugees, therefore the principles of non-refoulement so codified do not apply in India.

However it is not only that the principle of non-refoulement is recognized under the Refugee Convention and Protocol but it is also recognized in customary international law.

The need of the hour for the government seems to be formulation of a refugee policy or statutory framework which conforms to these principles of human rights.

The court will take up the matter next on March 7.