SC Bench Hearing Rohingya Case Must Read Verdict Of 2005, When It Was All For Deporting Illegals

SC Bench Hearing Rohingya Case Must Read Verdict Of 2005, When It Was All For Deporting Illegals

by R Jagannathan - Sep 19, 2017 04:52 PM +05:30 IST
SC Bench Hearing Rohingya Case Must  Read  Verdict Of 2005, When It Was All For Deporting IllegalsA view of the Supreme Court in New Delhi (SAJJAD HUSSAIN/AFP/Getty Images)
  • If the Supreme Court is not convinced with the government’s arguments about deporting illegal Rohingya immigrants, it should read its strongly worded judgment of 2005 in the Illegal Migrants (Determination by Tribunals) Act, 1983 case.

The government did well to subtly tell the Supreme Court that any decision to keep or deport Rohingya refugees and other illegal immigrants now staying in India, is a policy matter where the courts should normally not intervene.

The court, which is hearing appeals by a heavyweight panel of pro-Rohingya lawyers, was told by the Home Ministry in an affidavit that these illegals posed a threat to India’s security, and “any indulgence shown by the highest court of the country would encourage the illegal influx of illegal migrants into our country and thereby deprive the citizens of India of their fundamental and basic human rights”. The affidavit points out that moving freely inside India was a citizen’s right, not that of illegal immigrants or “refugees”. (Read here)

From the kind of lawyers backing the Rohingya refugees, it is apparent that the Congress-left ecosystem is fully complicit in giving them a free pass to India, never mind the communal and demographic havoc it can cause. The battery of lawyers representing various Rohingya petitions includes Fali Nariman, Kapil Sibal, Ashwani Kumar, Colin Gonsalves and Prashant Bhushan, among others.

With the Rohingyas moving as far away as Jammu and Hyderabad, both tinderboxes of communal tension, one wonders what evidence the court needs to start believing that their presence is problematic. It is not as if the government will not offer any genuine refugee some degree of protection for some time. But staying on indefinitely cannot be an option.

While the bench headed by Chief Justice Dipak Misra said it would check whether it had jurisdiction in the matter, Nariman wanted the court to get an independent agency like the National Human Rights Commission to look into the rights of Rohingyas.

While the government has promised to give the court intelligence reports in a sealed envelope on the radicalisation of some Rohingyas, it also made solid points on the demographic havoc caused in the north-eastern states by unchecked illegal immigration from Bangladesh and now Myanmar.

In case the Supreme Court bench is not convinced with the government’s arguments about deporting illegal Rohingya immigrants or alleged refugees, it should read its strongly worded judgment of 2005 in the Illegal Migrants (Determination by Tribunals) Act, 1983 case. It ruled that the Act – meant to identify and deport illegal Bangladeshi migrants – had itself “created the biggest hurdle and is the main impediment or barrier in the identification and deportation of illegal migrants”.

Put simply, the Supreme Court at that time was more concerned about deporting millions of illegals from Bangladesh, and made no bones about the destabilisation these immigrants caused, which is what the government is now arguing about.

In its judgment of 2005, the Supreme Court bench headed by then chief justice R C Lahoti, made these observations (as quoted in The Hindu):

“The presence of such a large number of illegal migrants from Bangladesh, which runs into millions, is in fact an aggression on the state of Assam and has also contributed significantly in causing serious internal disturbances in the shape of insurgency of alarming proportions.”

This “aggression” through illegal influx had made the lives of the people of Assam “wholly insecure and the panic generated thereby had created (a) fear psychosis,” the 2005 verdict said.

Isn’t this what the government is now arguing in the case of the Rohingyas?

The IMDT Act was favoured by the Congress government in Assam as very few illegals could be deported, and was ineffective. This allowed it to cater to its traditional minority vote bank even while pretending that illegals were being deported. The petition against the IMDT was filed by the Chief Minister of Assam, Sarbananda Sonowal, when he was part of the Asom Gana Parishad.

The court struck down the IMDT Act not because it was trying to deport illegals but because it was hindering the process. The judgment said that the Act was “coming to the advantage of such illegal migrants, as any proceedings initiated against them almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants.”

It said: “The IMDT Act and the Rules clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every state against external aggression and internal disturbance. The IMDT Act, which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.”

If this logic applied to illegal Bangladeshi, one wonders why the Supreme Court bench should think that keeping illegal migrants back is some kind of a liberal thing to do?

In its 2005 judgment (read the whole judgment here), the Lahoti bench specifically said that illegal migrants did not have any legal rights beyond life and basic liberty. It quoted from an earlier judgment in “State of Arunachal Pradesh v. Khudi Ram Chakma 1994 (Supp, SCC 615), where it “was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on international law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under international law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals…Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life. Thus, the Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and they are liable to be deported” (emphasis mine).

This means that the Rohingyas, who have not been “lawfully admitted” into India and have just sneaked in, do not have any rights except those that India may choose to temporarily grant them. They have a right to life, but no inherent right to stay on indefinitely.

One hopes the government uses the old judgment to argue its case that there is no need for court intervention, as it is acting to protect Indian citizens as per the laws of the land. If it chooses to accept some refugees, it can do so after it has verified that they can’t do the country any harm.

It is the law enforcement agencies who need to decide who can be helped and who deported; the courts, if they give any blanket permission for keeping the refugees here, will not be serving the cause of keeping India safe.

Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi.
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