SC Seeks Centre’s Response On Bhushan’s Plea Against Pushing Back Of Rohingyas Trying To Enter India [Read Application]

“BSF admitted large number of Rohingyas were still trying to cross in but were being pushed back using stun grenades and chilli spray. They should be allowed to come in as they are facing threats of persecution and genocide in their country. The prevention is a violation of principle of non-refoulment”, Prashant Bhushan told SC

The Supreme Court today sought the response of the Centre on a new application filed by noted lawyer Prashant Bhushan seeking a direction to the government not to prevent more Rohingya muslims from entering India by crossing the Myanmar border.

Bhushan also wanted better living conditions for Rohingyas present in India.

Bhushan told a bench headed by Chief Justice Dipak Misra that 20% Rohingyas were left in Myanmar and they faced grave threat to life including genocide and persecution. He said the BSF admitted large number of then were trying to cross in but were being pushed back using stun grenades and chilli spray

Bhushan appears for Mohammad Salimullah and Mohammad Shaqir, the main petitioners who have challenged the Centre’s move to deport the Rohingya muslims back to Myanmar.

Appearing for the Centre, Additional Solicitor General Tushar Mehta  challenged Bhushan’s new demand and asked him “Do you want India to become a refugee capital? If this argument is accepted, it would soon turn out to be”. But he sought time to file response to the application.

“Ideally the court should not interfere in these issues at all .These issues shall be decided diplomatically at an executive level. Because these are executive decisions and courts should not interfere”, Mehta argued.

Bhushan and senior advocate Rajeev Dhavan who represented another intervener said Principle of non-refoulment includes right to enter a country and seek asylum and pushing back refugees was not acceptable

Justice D Y Chandrachud intervened to say that Principle of ‘Non- Refoulment’ prohibits the deportation of refugees to a country where they face threat to their life or persecution and said “To my view it applies only to those who are already here and not who are willing to come in”.

Bhushan replied that “pushing back is also a violation of principle of non-refoulment..Somebody is being threatened with genocide”.

“MUSLIMS NOT WELCOME”

Bhushan pointed out that Centre has a policy to welcome Hindu, Sikh and others except Muslims from other countries to India. He said why Muslims from other countries are not given same welcome. Mehta protested that there was no “welcome” word in the notification”

Justice Chandrachud said ‘welcome’ word may be an exaggeration but there is an existing policy decision to the effect.

Bhushan also said the the rohingyas living in India were living in pitiable conditions and there was no option for education of their children nor medical facilities for the aged and sick amongst them

NHRC SUPPORTS NON-DEPORTATION

Bhushan’s plea against deportation of Rohingya refugees got a shot in the arm when the NHRC represented by senior advocate Gopal Subramanium supported protection of rights of Rohingya Refugees in India including access of their children to schools and other facilities  Subramanium said the refugees have a right to approach  Supreme Court for securing their basic rights like education and health care as well as security.

BACKGROUND

The bench had on October 13 just stopped short of staying the deportation of Rohigya refugees till it decided the petitions challenging the action but asked the Centre to strike a balance between national security and human rights of the refugees.

 “Our constitutional ethos makes us lean sympathetically towards humanitarian issues. It is also important not to ignore national and economic interests while dealing with humanitarian issues”, CJI Misra had told ASG Tushar Mehta adding the court and also government cannot be oblivious of the plight of interest of children and women.

At one stage the bench observed that till the matter is being heard by the court, there should not be any deportation of the refugees.

However the Additional Solicitor General strenuously objected to any such order by the court, saying that it would embarrass the government in the international fora. The court therefore ultimately passed an order saying that in case there is any contingency, the petitioners would be at liberty to approach the court.

Senior lawyer, the legendary Fali S Nariman arguing for the Rohingya community had pointed out the Protection of Human Rights Act defines human rights to include not merely fundamental rights or rights under the Indian law but human rights arising out of international conventions to which India is a party.

He also pointed out that the fundamental right to life and liberty under article 21 applies not only to citizens but also to non citizens.

Nariman had observed that the government can’t speak in two voices – one in the UN and international fora and another totally opposite in India and before this court.

India’s stated policy position in International fora and as mentioned throughout in policy statements and notifications, has been to recognise the distinction between refugees who are forced out for their countries due to persecution and illegal migrants who come in search of economic prospects, he said.

After hearing this the court observed that, there are two important considerations in this case - the aspect of security of the country and the protection of human rights of refugees particularly women, children, old persons and innocent persons and that the court has to balance these interests.