Once again questioning the move to deport Rohingya Muslims and also doing nothing to improve their living conditions, Advocate Prashant Bhushan who appears for the main petitioner today questioned before the Supreme Court 'why they cannot be given the same treatment enjoyed by Sri Lankan refugees'.
Bhushan said as per an understanding between Centre and Tamil Nadu government Sri Lankan refugees have access to at least education and health care which Rohingya refugees are being denied.
"Why this discrimination? The same rules made for Sri Lankan refugees should be available and applicable to the Rohingyas too", he submitted before a bench headed by Chief Justice Dipak Misra.
The bench meanwhile granted ten days time to Additional Solicitor General Tushar Mehta representing Centre to respond to all issues and fixed next date of hearing as March 19.
Centre also has to respond to Bhushan's plea seeking a direction to the government not to prevent more Rohingya muslims from entering India by crossing the Myanmar border.
Bhushan had said 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.
"I have to obtain instructions from the BSF on what their stand is", Mehta told the court.
The ASG on last date of hearing 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”.
“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 had argued.
Bhushan and senior advocate Rajeev Dhavan who represented another intervener had 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 then 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?"
It is to be noted that Bhushan in his application pointed out that Centre has a policy to welcome Hindu, Sikh and others except Muslims from other countries to India. He asked why Muslims from other countries are not given same welcome. Mehta had protested that there was no “welcome” word in the notification”
Justice Chandrachud then had said ‘welcome’ word may be an exaggeration but there is an existing policy decision to the effect.
Bhushan had 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
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 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.
Nariuman 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.