The petitioners in the Rohingya matter pending before the Supreme Court have filed a rejoinder to the Centre’s stand on the issue..Mohammed Salimullah, the lead petitioner, who belongs to the Rohingya community, proceeded to counter the claims made by the central government in its affidavit filed earlier this week..Below are the primary issues raised by the petitioners in the rejoinder:.Not all Rohingyas.The petitioners have belied the Centre’s stand that the Rohingya refugees have links to ISIS and Pakistani terror outfits, and have perpetrated violence in Jammu & Kashmir. Reference is made to a statement made in the J&K legislative assembly that no Rohingyas have been involved in militant-related activities in the state..The rejoinder also takes exception to the Centre painting all Rohingyas under the same brush, without any substantial evidence of their being a threat to national security. It is also noted that not a single FIR has been lodged against a person from the Rohingya community in a way that would threaten national security..“The government cannot make a blanket claim that all Rohingya refugees have terror links and there being a fear of them being radicalised by terror recruits operating in India….…Government must conduct an individual refugee determination of all Rohingya in India with the assistance of the NHRC and the UNHRC….…Any individual cases of involvement in militancy may be dealt with by the government in accordance with the law of the land but by this there cannot be a general assumption that the entire Rohingya refugee community in India is involved in militancy related activities.”.It is suggested that the Indian government take a leaf out of its own book and afford the same treatment given to Sri Lankan refugees, to the Rohingyas..“Again, in the case of Sri Lankan refugees, the government had put in place a screening mechanism to identify those associated with LTTE (whom India had declared as a terrorist organisation) or having a criminal record and had put them in special camps.”.Islamophobia?.The petitioner also notes that Section 3 of the Foreigner’s Act, 1948 was amended in 2015 to provide for certain exemptions of certain class of foreigners. This amendment provides that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians in Bangladesh and Pakistan who face religious persecution could be granted entry into India. In this light, the document states,.“The government’s 2015 notification quoted above is conspicuous by the absence of Muslims in the list of those being granted exemption. To exclude Muslim refugees, from the Rohingya Community in Myanmar that fled persecution, from the class of foreigners who are granted exemption from the application of provisions of the Foreigners Act, 1946 and the Passport (Entry into India Rules), 1950, is clearly discriminatory.”.Whose Constitution is it anyway?.The primary stand of the petitioners is that Articles 14 and 21 of the Constitution are guaranteed to all persons, including the Rohingya refugees. Though is admitted that the right to reside and settle in India under Article 19 applies only to citizens, the petitioners claim that the deportation cannot be tested against this provision. Articles 14, and 21, India’s international law obligations, as well as previous Supreme Court judgments have to be taken into account..“…the scheme of the Constitution does not differentiate between citizens and non-citizens in conferring rights under Article 21. It cannot be claimed thus that these rights are first reserved for citizens and may be exercised to the deprivation of non-citizens. These rights are guaranteed under the Constitutional scheme to citizens and non-citizens alike, to all “persons”, without an order of preference in access to these rights.”.Out of Bounds.The petitioners have also assailed the Centre’s claim that immigration and deportation fall exclusively within the domain of the Executive. However, the petitioners claim,.“…it is settled law that the Apex Court is the guardian of fundamental rights of all persons, citizens and non-citizens alike and article 14 and 21 apply to all persons including non-citizens.”.Further,.“…unconstitutional/excessive exercise of powers by the Parliament and executive may be safeguarded by the Judiciary.”.No harm, no refoulement.It is reiterated that though India is not a signatory to the Refugee Convention of 1951, it is bound by the principle of non-refoulement, one of the tenets of customary International Law. Further, non-refoulement is a theme that runs across the International Convention on Protection of All Persons against enforced Disappearances and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which were both signed by India..“It is important to note that the general principle of right to asylum and right not to be deported is contained in the International Covenant on Civil and Political Rights (ICCPR), (Articles 6 and 7) and under the Universal Declaration of Human Rights (Article 14). These are binding since India has both signed and ratified these conventions and India is bound by its obligations under these two conventions….The General Comment to Art 7 of the ICCPR specially mentions that States must respect the principle of non-refoulement.”.Moreover, the Delhi High Court in Dongh Lian Kham v Union of India had upheld the principle of non-refoulement in a case involving Myanmarese refugees seeking asylum in India,.Refugees or Illegal Immigrants?.It is highlighted that though Indian statutory law does not recognize the term “refugee”, immigrants have been treated as a separate class and have been offered protection, as was the case for Tibetan and Sri Lankan refugees..“…under international law, they are “refugees” who are fleeing persecution and cannot return to their home country. In these circumstance it is submitted that the government cannot deal with them as illegal immigrants….… the executive policy with regard to refugees will be distinct from the policy of the government with regard to other illegal migrants or foreigners.”.It is further noted,.“In 2011 the government introduced a policy for issuing Long Term Visas (LTVs) to those who had been recognized as “refugees” by the government or the UNHCR. The MHA’s policy clearly incorporates the Refugee Convention’s definition of a “refugee” and differentiates them from economic migrants. Subsequently, Rohingyas were also covered under this policy as refugees and many were issued LTV…”.Read the rejoinder:
The petitioners in the Rohingya matter pending before the Supreme Court have filed a rejoinder to the Centre’s stand on the issue..Mohammed Salimullah, the lead petitioner, who belongs to the Rohingya community, proceeded to counter the claims made by the central government in its affidavit filed earlier this week..Below are the primary issues raised by the petitioners in the rejoinder:.Not all Rohingyas.The petitioners have belied the Centre’s stand that the Rohingya refugees have links to ISIS and Pakistani terror outfits, and have perpetrated violence in Jammu & Kashmir. Reference is made to a statement made in the J&K legislative assembly that no Rohingyas have been involved in militant-related activities in the state..The rejoinder also takes exception to the Centre painting all Rohingyas under the same brush, without any substantial evidence of their being a threat to national security. It is also noted that not a single FIR has been lodged against a person from the Rohingya community in a way that would threaten national security..“The government cannot make a blanket claim that all Rohingya refugees have terror links and there being a fear of them being radicalised by terror recruits operating in India….…Government must conduct an individual refugee determination of all Rohingya in India with the assistance of the NHRC and the UNHRC….…Any individual cases of involvement in militancy may be dealt with by the government in accordance with the law of the land but by this there cannot be a general assumption that the entire Rohingya refugee community in India is involved in militancy related activities.”.It is suggested that the Indian government take a leaf out of its own book and afford the same treatment given to Sri Lankan refugees, to the Rohingyas..“Again, in the case of Sri Lankan refugees, the government had put in place a screening mechanism to identify those associated with LTTE (whom India had declared as a terrorist organisation) or having a criminal record and had put them in special camps.”.Islamophobia?.The petitioner also notes that Section 3 of the Foreigner’s Act, 1948 was amended in 2015 to provide for certain exemptions of certain class of foreigners. This amendment provides that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians in Bangladesh and Pakistan who face religious persecution could be granted entry into India. In this light, the document states,.“The government’s 2015 notification quoted above is conspicuous by the absence of Muslims in the list of those being granted exemption. To exclude Muslim refugees, from the Rohingya Community in Myanmar that fled persecution, from the class of foreigners who are granted exemption from the application of provisions of the Foreigners Act, 1946 and the Passport (Entry into India Rules), 1950, is clearly discriminatory.”.Whose Constitution is it anyway?.The primary stand of the petitioners is that Articles 14 and 21 of the Constitution are guaranteed to all persons, including the Rohingya refugees. Though is admitted that the right to reside and settle in India under Article 19 applies only to citizens, the petitioners claim that the deportation cannot be tested against this provision. Articles 14, and 21, India’s international law obligations, as well as previous Supreme Court judgments have to be taken into account..“…the scheme of the Constitution does not differentiate between citizens and non-citizens in conferring rights under Article 21. It cannot be claimed thus that these rights are first reserved for citizens and may be exercised to the deprivation of non-citizens. These rights are guaranteed under the Constitutional scheme to citizens and non-citizens alike, to all “persons”, without an order of preference in access to these rights.”.Out of Bounds.The petitioners have also assailed the Centre’s claim that immigration and deportation fall exclusively within the domain of the Executive. However, the petitioners claim,.“…it is settled law that the Apex Court is the guardian of fundamental rights of all persons, citizens and non-citizens alike and article 14 and 21 apply to all persons including non-citizens.”.Further,.“…unconstitutional/excessive exercise of powers by the Parliament and executive may be safeguarded by the Judiciary.”.No harm, no refoulement.It is reiterated that though India is not a signatory to the Refugee Convention of 1951, it is bound by the principle of non-refoulement, one of the tenets of customary International Law. Further, non-refoulement is a theme that runs across the International Convention on Protection of All Persons against enforced Disappearances and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which were both signed by India..“It is important to note that the general principle of right to asylum and right not to be deported is contained in the International Covenant on Civil and Political Rights (ICCPR), (Articles 6 and 7) and under the Universal Declaration of Human Rights (Article 14). These are binding since India has both signed and ratified these conventions and India is bound by its obligations under these two conventions….The General Comment to Art 7 of the ICCPR specially mentions that States must respect the principle of non-refoulement.”.Moreover, the Delhi High Court in Dongh Lian Kham v Union of India had upheld the principle of non-refoulement in a case involving Myanmarese refugees seeking asylum in India,.Refugees or Illegal Immigrants?.It is highlighted that though Indian statutory law does not recognize the term “refugee”, immigrants have been treated as a separate class and have been offered protection, as was the case for Tibetan and Sri Lankan refugees..“…under international law, they are “refugees” who are fleeing persecution and cannot return to their home country. In these circumstance it is submitted that the government cannot deal with them as illegal immigrants….… the executive policy with regard to refugees will be distinct from the policy of the government with regard to other illegal migrants or foreigners.”.It is further noted,.“In 2011 the government introduced a policy for issuing Long Term Visas (LTVs) to those who had been recognized as “refugees” by the government or the UNHCR. The MHA’s policy clearly incorporates the Refugee Convention’s definition of a “refugee” and differentiates them from economic migrants. Subsequently, Rohingyas were also covered under this policy as refugees and many were issued LTV…”.Read the rejoinder:
