Rohingyas do not have fundamental right to reside in India, Citizens are priority, Centre tells SC

In the ongoing hearings in the Supreme Court related to the refugee status of Rohingyas in India, the central government has made its position very clear and has said that the Rohingya migrants who entered India illegally do not have the fundamental right to reside and settle in India as India does not recognise UNHRC refugee cards. The central government also said that the SC should not interfere in legislative and policy domains which are controlled by the executive and the parliament.

The government during the hearings also said that while foreign nationals have the right to life and dignity, they do not have any right to reside in India, especially illegally. According to the government, this has also resulted in drastic religious and demographic changes in starts bordering Bangladesh and Myanmar which has the potential to affect the national security of India. The government has also claimed that it has come to their attention that a lot of illegal immigrants have obtained forged and fake Indian identity cards and Aadhar cards.

“It is submitted that continuance of Rohingyas’ illegal migration into India and their continued stay in India, apart from being absolutely illegal, is found to be having serious national security ramifications and has serious security threats,” the central government said.

“Whether or not any class of persons are to be recognised as refugees is a pure policy decision. There cannot be any recognition of refugee status outside the legislative framework and such a declaration of refugee status cannot be made by judicial order… right to equality is not available to foreigners and illegal migrants,” the government told the top court. The government also told the Supreme Court that India is not a signatory to the 1951 Refugee Convention and to the protocol relating to the Status of Refugees, 1967, therefore, whether or not any class of persons are recognised as refugees is a “pure policy decision”.

The affidavit filed by the government in the Supreme Court is in response to a petition seeking a direction to the Centre to release Rohingya refugees put in detention for alleged violation of the Foreigners Act.

“Effectively, the prayers therein are seeking to provide illegal Rohingya migrants with the right to reside within the territory of India, which is expressly against Article 19 (freedom of speech and expression). It is submitted that Article 19 is limited in its application only to citizens and cannot be extended to apply to foreigners,” the Union government said.

“As a developing country with the largest population in the world and with limited resources, priority is required to be given to the country’s own citizens. Therefore, there cannot be any blanket acceptance of foreigners as refugees especially where the vast majority of such foreigners have entered the country illegally,” it added.

“The grant of any status qua immigration to persons or a class of persons coming from a particular country is not just a national issue but essentially an outcome of political decisions of the State in respect of maintaining its foreign relations with the State in question or with any other foreign nations. Such a decision is often a product of complex interplay of diverse factors such as social, economic, cultural and often extra-legal or extra judicial considerations. In light of the above, prayers in the nature of the present which seek to alter the existing regime are not maintainable,” it said.

“Once it is accepted that Rohingyas are illegal migrants, the provisions of the Foreigners Act, 1946 would apply to them in full force,” it said, adding that the prayer in the petition would essentially amount to putting the Foreigners Act itself in abeyance.

“The prayer of the petitioner amounts to re-writing of the statute or directing the Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review. It is trite law that the courts cannot direct Parliament to make a law or to legislate in a particular way,” the affidavit said.

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