'Rohingyas Are Foreigners, Must Be Dealt Under Foreigners Act' : Supreme Court Refuses To Interfere With Deportation, Posts Case In July

In cases relating to deportation and living conditions of Rohingya refugees, the Supreme Court was today informed that some refugees with United Nations High Commission for Refugees (UNHCR) cards, including women and children, were arrested by police authorities late last night and deported, despite the matter being listed today.

The petitioners' counsels made the allegation based on media reports, which seem to suggest that some Rohingyas were taken from the place where they were being detained for "verification of papers", but perhaps deported to Myanmar.

A bench of Justices Surya Kant, Dipankar Datta and N Kotiswar Singh heard the matter and listed it for hearing on 31 July without directing any stay, when Solicitor General Tushar Mehta drew attention to an order dated April 8, 2021 saying it binds the government to take deportation action only in accordance with law.

During the hearing, Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan (for petitioners) alleged that some of the Rohingya refugees, including women and children, were picked up late last night and subsequently deported. Expressing 'shock', Gonsalves submitted that what happened was 'alarming' and constituted a complete overreach of the Court. It was also contended that the Court protected the Rohingya refugees for 10 years and there was a protection in place until the matter was heard and decided.

"Manipur recently filed affidavit that Myanmar is not accepting these Rohingya refugees back because they are considered stateless citizens", urged Bhushan.

When Justices Kant and Datta asked what UNHCR is, Gonsalves and Bhushan informed that it is a United Nations agency which stands for United Nations High Commission for Refugees and has been operating in India since 2 decades. The SG, on the other hand, urged that India is not a party to the Refugee Convention and pointed to order dated April 8, 2021 passed by a three-judge bench of the Court refusing to grant relief in a plea challenging the detention of Rohingya refugees in Jammu and the move to deport them back to Myanmar.

This April 2021 order observed inter-alia: "the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)".

Based on the order, Justice Datta noted that there was no denial that the petitioners cannot claim reliefs based on the UNHCR cards. When petitioners' counsels contended that it was an interim order, the judge opined that an interim order operates as res judicata in the same proceedings at a later stage. Bhushan however said that the matter needs to be finally heard, as it is not only the Refugee Convention which needs to be seen, but also the Genocide Convention (which India has ratified).

At this point, Justice Kant 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 the other hand observed that a plea relating to the deportation of Rohingya refugees from Assam was dismissed by the top Court (in 2018). Though Gonsalves disagreed, saying it was a case of "migrants, not refugees", Justice Datta maintained that it was a case of refugees. The judge further remarked, "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".

With regard to Gonsalves' reliance on NHRC v. State of Arunachal Pradesh, Justice Datta further observed that the same was a Division Bench decision (hence not binding on the present 3-judge bench). "Right under Article 21 is there...but you don't have a right under Article 19(1) to settle!", the judge remarked.

Later, when Gonsalves expressed apprehension regarding further deportations, Justice Kant noted that the SG had assured deportations will take place only in accordance with law.

Another counsel raised the issue of deaths occurring in the detention centres, however ultimately, in view of the "self-speaking" order of April 8, 2021, the matter was listed for hearing on July 31.

Notably, the Supreme Court recently disposed of a petition seeking admission for Rohingya refugee children in Delhi schools, observing that the appropriate course of action would be for the children to first approach the concerned government schools (to which they claim eligibility). If they are then denied admission (despite being eligible), the children would be at liberty to approach the Delhi High Court, the Court said.

While dealing with another PIL seeking government benefits and school admissions for Rohingya refugees, the Court, in February, said that education shall be provided to all children without discrimination, but first the status of residence of the Rohingya families needed to be ascertained. Subsequently, this petition was however disposed of in view of an order in a similar petition, with the Court noting that it wants Rohingya children to approach schools for admission first.

Appearance: Senior Advocates Colin Gonsalves and MR Shamshad; SG Tushar Mehta; Advocate Prashant Bhushan

Case Title: JAFFAR ULLAH AND ANR. Versus U.O.I AND ORS., W.P.(C) No. 859/2013 (and connected cases)