A foreigner who enters India without a valid passport or authority, or who after entering validly overstays the permitted period, is an illegal migrant under Section 2(b) of the Citizenship Act 1955 after its 2004 amendment. An illegal migrant can be dealt with under the Passport (Entry into India) Act 1920 or the Foreigners Act 1946. Under both these statutes the Central Government may exempt any illegal migrant or class of illegal migrants from the operation of their provisions. This creates a clear discretionary space. The Government may choose to show leniency by not arresting or removing an illegal migrant and may do so case by case.
The position of the Rohingyas must be viewed in this legal background. Since the Central Government has granted them no exemption, they possess no statutory shield from detention or deportation. They are however entitled to the right to life under Article 21 of the Constitution which protects every person within India, including illegal migrants.
Had the Central Government exercised its discretion and issued an exemption under the aforementioned statutes, Rohingyas would have enjoyed protection from detention and deportation also. In that event the principle of non-refoulement could possibly have been invoked. But in fact no such exemption exists. It is difficult therefore to see how the principle of non-refoulement can be relied upon in their favour, particularly when India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol.
The recent controversy over the Chief Justice of India’s remarks on 2nd December while hearing a habeas corpus petition filed by Dr. Rita Manchanda on the alleged custodial disappearance of some Rohingyas must be understood in this context. The CJI asked pointed questions about their presence in India.
The CJI observed, “If an intruder comes, do we give them a red carpet welcome, saying we would like to give you all facilities?” He added “First you enter, you cross the border illegally. You dig a tunnel or cross the fence and enter India illegally. Then you say, now that I have entered, your laws must apply to me and say, I am entitled to food, I am entitled to shelter, my children are entitled to education. Do we want to stretch the law like this?”. He further suggested that there was no problem in returning such illegal migrants to their country of origin. These remarks drew widespread criticism and led to an open letter on 5th December by a group of retired judges, advocates and activists.
A second open letter, issued on 9th December by another group of 44 retired judges, criticised the first letter and defended the CJI. It pointed out that the first letter ignored his explicit statement that no person on Indian soil can be subjected to torture, disappearance or inhuman treatment and that dignity must be respected at all times. The second letter described the omission as a distortion.
Whatever the contentions of either side may be, the legal position remains clear. Since the Central Government has not exempted the Rohingyas from the Passport (Entry into India) Act or the Foreigners Act, they have no protection from detention or deportation, though they enjoy the right to life under Article 21 like all persons in India. The principle of non-refoulement is not attracted in their case, particularly since India is not a signatory to the 1951 Convention or the 1967 Protocol. Within this framework, the CJI’s suggestion that there is no problem in returning Rohingyas to their country of origin, aligns with the current law of the land.
Sakal Bhushan is a Delhi-based Senior Advocate.