‘We are not terrorists’: Rohingya petitioners tell SC in response to Centre
Hearing a petition challenging the Narendra Modi government’s decision to deport Rohingyas, the Supreme Court asked the parties to argue the matter on points of law instead of advancing emotional arguments.
The bench headed by Chief Justice Dipak Misra directed the parties—two Rohingya refugees challenging the decision, and the Centre—to compile relevant documents and international conventions in support of their assertions.
Centre’s claims of all Rohingyas to be terrorists absurd
Countering the Centre’s claims that Rohingyas are a threat to national security and many of them have links with Pakistan spy agency the ISI, and terror outfit ISIS, the petitioners asserted the Centre’s bid to paint all Rohingya as terrorists was “absurd”.
“If the government has any specific information about any Rohingya person(s) being terrorists, that person(s) could be excluded from the applicability of the refugee convention and dealt with separately,” argued Fali Nariman appearing for the petitioners.
In their rejoinder affidavit, the petitioners have given a point-by-point rebuttal to the Ministry of Home Affairs’ assertions before the court that the stay of the Rohingyas in India was not just “absolutely illegal” but also has serious ramifications on national security.
“The argument that the Rohingya pose a threat to national security is not substantiated with any evidence.
“There is not a single FIR registered against the members of the Rohingya community so far, in any matter that would jeopardise national security.
“The government cannot make a blanket claim that all Rohingya refugees have terror links and there are fears of them being radicalised by terror outfits operating in India. This ground is unsustainable against a whole class of largely destitute Rohingya who have fled their country over the last few years fearing for their lives as military operations,” the petitioners said in the affidavit.
In support of their claim, the petitioners cited Jammu and Kashmir Chief Minister’s (Mehbooba Mufti) reply in the state Assembly during the Budget Session this year
legislative Assembly Budget session 2017, on whether Rohingyas have been involved in militancy and other crimes.
“No Rohingya (Burmese) has been found involved in militancy related incidents. FIRs have been registered against 38 Rohingya for various offences relating to illegal border crossing”, the affidavit said quoting Mehbooba also the state minister in charge for home.
They also said the Centre’s claims of the Rohingyas being involved with ISI/ISIS was a “mere assumption”.
“It is pertinent to note in this context that UNHCR has expressed concern that States may be inclined to expel groups or individuals based on religious, ethnic or national origin or political affiliation, on the mere assumption that they may be involved in terrorism,” the petitioners argued.
“Expulsion decisions must be reached in accordance with due process of law which substantiates the security threat and allows the individual to provide any evidence which might counter the allegations,” they further stated, affirming that Rohingyas were not involved in any acts of militancy.
They argued that appropriate action under the law may be taken only against those Rohingya individuals who have been identified by the authorities to have links with terror outfits instead of blanket restriction or order of deportation of the over 40,000 Rohingya refugees residing in India.
Principle of non-refoulement applicable to India
Countering the Centre’s stand that India not bound by the principle of non-refoulement, the petitioners said: “India has demonstrated and reiterated its commitment to refugees/ asylum seekers and the principle of non-refoulement in various international fora.
The Centre has argued India not being a signatory to Convention relating to status of Refugees, 1951 and Protocol Relating to the Status of Refugees, 1967, it was not bound by the non-refoulement principle.
The Rohingyas said that India being a member of several international instruments/declarations which provide for right to asylum and against forcible repatriation, it has legal obligation to protect the human rights of refugees by taking appropriate measures under Article 51(c) which mandates India to foster respect for International treaties and obligations.
“India is a member of the Executive Committee of the office of United Nations High Commissioner for Refugees since 1995 which puts a moral, if not legal obligation, on it to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee Convention.
“The principle of non-refoulement has been specifically recognised in the Declaration on Territorial Asylum, 1967. Since India is a party to this Declaration, it points to a moral obligation on India that the States conduct must be in conformity with the established principle of non-refoulement.
Appearing for the Centre, Additional Solicitor General Tushar Mehta, argued on the question of maintainability and justiciability of the petition and said it should be left to the executive to decide.
The Bench subsequently directed the parties compile a list of government notifications, treaties and conventions and cases relevant to the issue of refugee law in India fixing 13 October as the next hearing.
CPI(M) youth wing approaches SC against Rohingya deportation
Meanwhile the Democratic Youth Federation of India (DYFI) moved the apex court challenging the deportation of Rohingya children and demanding basic amenities for them.
Citing the U.N. Convention on the Rights of the Child, 1989, and Articles 14 and21 of Constitution of India, the petition questioned the rationale in discriminating against Rohingya refugees when Tibetans, Chakmas from Bangladesh, Afghans and ethnic Tamil from Sri Lanka have been given refuge in India.
Contending that Rohingya children in India were being “subjected to various kinds of abuses, tortures, cruelties, diseases, violence, threats and anxieties” it demanded better facilities
“The children in the camps suffer from various kinds of diseases and are left without any proper medical aid. There are instances of Rohingya children dying with snake bites and innumerable kinds of diseases. The shelters are not weather proof.
“The Central Government has failed to protect the Rohingyan children in the camps as mandated by Article 2 of the Convention on the Rights of the Child, 1989.”
“If the Union of India decides to deport these innocent Rohingyas who are persecuted elsewhere, we will be ‘exporting’ death with an everlasting guilty consciousness in the ‘Balance of Payment of International good will,” the DYFI said in the petition.