Day 2 Arguments

Rohingya Deportation

October 3rd 2017


In the Rohingya Deportation case the bench comprising of the Chief Justice Dipak Misra, Justices A.M. Khanwilkar and D.Y. Chandrachud, continued hearing the Writ Petition against the proposed deportation of Rohingya refugees. In the previous hearing, the basic issues regarding the applicability of fundamental rights to non-citizens and international law obligations were raised before the court.


The day commenced with Mr Tushar Mehta, Additional Solicitor General pointing out that the scope of judicial review and the justiciability of this Article 32 petition needed to be resolved first. He requested a day in order to persuade the Court not to entertain the matter.


Mr Fali Nariman, the petitioner’s counsel started by countering Mr Mehta’s claim that the questions in the writ petition were the subject of executive policy-making and thus not justiciable. Mr Nariman pointed out that the Constitution did not purport to exclude questions of fundamental and human rights from the scope of justiciability. The Indian Constitution, he said, unlike the French Constitution was based on individual rights, not group rights, and Articles 14 and Article 21 were specifically made applicable to any “person” and not only a “citizen”. Hence, to exclude the rights of an entire section of people as being non-justiciable on the sole basis that they were foreigners was an incorrect interpretation of the Constitution.


Mr Nariman then pointed to a direction dated 8 August 2017, sent by the Centre to all States to continuously monitor and report on some of the Rohingya who were suspected of engaging in terror activities and deport all (emphasis added) illegal entrants in the country. Mr Nariman highlighted the logical inconsistency in the direction which stated that only some Rohingya were engaged in such activities and yet sought to deport all of them, including the women and children. He observed that in addition to contradicting Article 14, the direction also contradicted the Foreigners Act, 1946 in which “fear of persecution” was an acceptable reason for entry into India.


He then moved on to the Government issued Standard Operating Procedure for dealing with foreign nationals who claim to be refugees. Although India was not a party to the 1951 UN Refugee Convention, this policy of December 2011 reaffirmed many aspects of the Convention and required the Foreigners Regional Registration Office (FRRO) to examine each claim individually. If a claim of persecution on any of the grounds mentioned in the Refugee Convention (race, religion, nationality, ethnicity, political belief, etc) was justified, the individual was to be given a long-term visa. At this point, Mr Nariman paused to note that the Rohingya Muslims would certainly meet these conditions and submitted that persons found to have a terror link could be excluded from protection under the 2011 policy, but there was no rationale for excluding all the immigrants.


He observed that India was also party to a 2016 UN Declaration on Refugee Crisis, the New York Convention, which reiterated many of the principles of the Refugee Convention, specifically the principles of asylum and non-refoulement. It even contained a provision where parties undertook to keep their domestic laws in line with international refugee law. Thus, he concluded, the direction regarding Rohingyas was not only contradictory to the Government’s own position on refugees but also to its obligations under international law.


The Chief Justice then briefly summarized Mr Nariman’s submissions into three points –  that all Rohingya including women and children should not be reduced to one category and treated alike; on issues of human rights, the question of justiciability does not arise; and India by becoming a signatory to the New York Convention, 2016 indicated that it did not intend to dilute the principles of international refugee law, specifically, non-refoulement. He noted that by logical extension Mr.Nariman had argued that India should cease to deport these refugees and take positive steps to aid them.


Mr Tushar Mehta then rose to stress that justiciability was to be decided on a case-by-case basis. When the Chief Justice rejected the notion that courts should abdicate this responsibility, Mr Mehta replied that he was not concerned with maintainability but justiciability of the claim and then assured the Court that he would deal with all of these issues in his rejoinder.

(This post relies on contributions from Ms Ashrutha Rai)