Are Rohingyas Refugees Or Illegal Immigrants? Can They Be Detained Indefinitely? Supreme Court To Consider

In cases relating to deportation and living conditions of Rohingya refugees, the Supreme Court today illustrated the broad issues that arise for consideration.

A bench of Justices Surya Kant, Dipankar Datta and N Kotiswar Singh recorded the issues in its order thus:

(i) whether Rohingyas are entitled to be declared as refugees; if so, what protection emanates from right they are entitled to?

(ii) if Rohingyas are illegal entrants, whether Govt of India and states are obligated to deport them in accordance with law?

(iii) even if Rohingyas have been held to be illegal entrants, can they be detained indefinitely or they are entitled to be released on bail subject to conditions? and

(iv) whether Rohingyas who are not detained but living in refugee camps have been provided basic amenities like sanitation, drinking water, education, etc. (in conformity with Article 21)?

A bunch of cases pertaining to foreigners/illegal immigrants/Rohingyas were listed today before the Court. For the sake of convenience, some of these were de-tagged. The cases were ultimately divided into 3 categories - Group 1 (pertaining to Rohingyas), Group 2 (pertaining to non-Rohingyas) and Group 3 (containing only one case where a wife sought reliefs qua her detained husband, but the scope of the proceedings was eventually broadened by a Justice Abhay Oka-led bench).

The Court indicated that it will take up the cases on three consecutive dates, starting with Group 1 cases. In the Group 1 cases, it will first consider whether Rohingyas are refugees or illegal immigrants. "Rest is consequential. The issues that arise in Group 2 cases will be determined separately", J Kant said.

It may be recalled that on May 8, the Court was informed that some refugees with United Nations High Commission for Refugees (UNHCR) cards, including women and children, were arrested by police authorities a day before and deported, despite the matter being listed. The petitioners' counsels made the allegation based on media reports, which seemed to suggest that some Rohingyas were taken from the place where they were being detained for "verification of papers", but perhaps deported to Myanmar.

However, the Court refused to order any stay, when the Union drew attention to an order dated April 8, 2021, saying it binds the government to take deportation action only in accordance with law.

Listing the matter on July 31, Justice Kant had said, "we will hear the matters finally...it would be better that instead of passing interlocutory orders of any nature, we take up these matters and decide either way that - if they have a right to stay here, that should be acknowledged, and if they don't have a right to stay here, then they will follow the procedure and deport as per law". Justice Datta, on his part, added, "they (Rohingyas) are all foreigners and if they are covered by the Foreigners' Act, they will have to be dealt with as per the Foreigners' Act".

Appearance: Senior Advocates Colin Gonsalves, Ashwini Kumar and MR Shamshad; Advocate Prashant Bhushan- for petitioners; ASG KM Nataraj with Advocate Kanu Agrawal - for Union

Case Title: JAFFAR ULLAH AND ANR. Versus U.O.I AND ORS., W.P.(C) No. 859/2013 (and connected cases); Rajubala Das v. Union of India and Anr., WP (Crl) No. 234/2020