Can India live up to its international commitments and protect a large section of humanity comprising Rohingya women, children, the sick and the old who are “really suffering”?

The government, meanwhile, claimed that the crisis over its move to deport 40,000 Rohingya was not “justiciable”, that is, outside the domain of the judiciary.

• The government said its August 8, 2017 communication to all the States to identify Rohingya and aid in their deportation was based on certain “executive parameters” like diplomatic concerns, on whether the county can sustain such an influx of refugees and geographically whether there would be tensions and threat to national security.
• It denied saying all Rohingya were terrorists, but only “some of them”.
• Faced with stiff resistance from the Bench, the government climbed down and explained saying whether an issue was justiciable or not had to be decided on a case to case basis.

“Obligation to grant assylum is universal”:

Views of Senior advocate Fali Nariman, appearing for the Rohingya community

• The government “has gone out of sync” with its August 8 directive for deportation of Rohingya.
• The government’s affidavit claiming the question of deportation of Rohingya was exclusively “within its subjective domain and not justiciable” makes “big inroads into what we thought our Constitution was”.
• The government’s claims that the Rohingya refugees will eat into the resources meant for citizens. “Our Constitution is not made up of group rights but individual rights,” he said.
• Mr. Nariman, who introduced himself as a refugee from British Burma, submitted that the fundamental right to life enshrined in Article 21 of the Constitution protected all “persons”, including refugees who fled persecution in their native countries.
• The obligation to grant assylum was universal.
• “The Government of India has constantly made efforts to substantiate, enhance the rights of refugees. The August 8 communication is totally contradictory to Article 14.
• It sticks out like a sore thumb in our nation’s policy towards protecting refugees.
• India had been “supportive of burden-sharing, of providing humanitarian assistance”, citing the Nepal earthquake as an instance.

December 29, 2011 directive:

It laid out the standard operating procedure and internal guidelines for Foreigner Regional Registration Office (FRRO), and if necessary take steps to provide the foreign national with a long term visa. This had to be done irrespective of religion, gender, etc.

No blanket claims of terrorism

• The Rohingya had said anyone among them found to be a militant can be proceeded against in accordance with law and he or she can be stripped off the status of a refugee under the exclusion clause of the 1951 Refugee Convention.
• They were replying to the Centre’s claims that the Rohingya community was a threat to national security, easy prey for radicalisation.
• Their affidavit in the Supreme Court had referred to India’s strong track record of hosting refugees of different profiles from those from Tibet to ethnic Chakmas and Hajongs.
• The Rohingya community, represented by Mohammad Salimullah, the main petitioner who moved the Supreme Court, said the government cannot make a “blanket claim that all Rohingya refugees have terror links”.
• The Rohingya countered the government’s claims that India was not bound by the Convention Relating to Status of Refugees, 1951 and Protocol Relating to the Status of Refugees of 1967.
• India was not a signatory, it was a member of several international instruments/declarations which provide for right to asylum and against forcible repatriation.
• India had a legal obligation to protect the human rights of refugees under Article 51(c) of the Constitution, the Rohingya said.