Rohingya crisis, as an issue, provokes outlining the fundamental principles of citizenship. Illegal immigrants cannot be entertained within the framework of the national Constitution
In September, 2017, a Public Interest Litigation (PIL) came to be filed under Article 32 of the Constitution of Bharat by Prashant Bhushan on behalf of two Myanmar nationals -Mohammad Salimullah and Mohammad Shaqir. They identified themselves to be Rohingya refugees, who claim to have come to Bharat through Kolkata in 2012, and prayed for a direction to the Central Government not to deport them and Rohingya community in general, who are presently in Bharat. The Petition also complained that State is not ensuring basic provisions for Rohingya community in Bharat, as required by the Constitution and International laws.
Very few seem to have noticed that the address of the Petitioners provided in the Petition was that of Madnapur Khadar, Delhi and there was no description on how the Petitioner could cross the international borders and how and why they have been residing in the national capital. It is indeed a mockery of the legal process that certain foreign nationals illegally cross our boundaries and dare to directly file a case in our Supreme Court alleging State’s violation of fundamental rights!
Differentiating Legal from Illegal
It is a trite law that fundamental rights of free movement and settling in any part of the nation are available only to the citizens and not to illegal immigrants.
In response to this Petition, Joint Secretary [Foreigners] in the Ministry of Home Affairs, Union of India, submitted a sealed cover containing certain confidential details including inputs from security agencies and other information concerning national security. Alongside, an affidavit, narrating the legal logic and factual imperatives, was also submitted.
Rohingya refugees at Hakim Para in Cox’s Bazar, Bangladesh. Myanmar is less than two miles away, visible in the distance
The stand of the Central Government in the Rohingya matter, as culled from this Affidavit, in gist, is that, “…it is desirable, expedient, constitutionally imperative and in the interest of the nation to leave such a decision to the executive decision making / policy making of the Central Government which would doubtlessly, in facts of each case of this nature, need several factors, facts, possibilities, parameters and potential outcome into consideration which exercise can be gone into only by the executive.”
A number of serious crimes, including the ones which may seriously imperil the national security, have been reported from Rohingya settlements in the past several years. In the past several years, dozens of Rohingyas have been held with fake Aadhar Cards and Voter IDs
When the Supreme Court was seized of a matter, in October, 2017, with a calculated ploy to influence legal proceedings, fifty-one ‘eminent’ personalities wrote an open letter to Prime Minister Narendra Modi. The signatories included P Chidambaram, Shashi Tharoor, Yogendra Yadav, Sagarika Ghose, Karan Thapar, Teesta Setalvad and Harsh Mander. The letter argued that, “India’s justification to deport the Rohingya is premised on the false assumption that all Rohingya people present a potential threat to the national security. It is not the case, and the evidence to support these assertions has not been held up.”
Before everything, the nation must first ask these great benefactors of humanity to tender individual Indemnity Bonds that they shall take personal responsibility of Rohingyas against any future jeopardy.
Criminals and Imposters
A number of serious crimes, including the ones which may seriously imperil the national security, have been reported from Rohingya settlements in the past several years. In the past several years, dozens of Rohingyas have been held with fake Aadhar Cards and Voter IDs. As recent as August 9, 2018, in a jhuggi in Channi Himmat area of Jammu city, Police recovered cash suspected to be terror money, nearly worth Rs 30 lakh in hard cash, from Rohingya Muslims - Ismayil and Noor Alam - both aged between 19 and 21 years, who had allegedly been to Bangladesh two-three days ago. Police are aghast as to how the accused could freely travel to Bangladesh without a valid passport. Do the accused hold Bangladeshi Passports along with Myanmar passport? All this is now being probed. We will be told by our media to forget this trivia - a routine law and order problem.
The core theme of the Petitions filed in the Supreme Court is that Bharat is under an international obligation and that apex court must compel implementation of it. The whole thing is ill-founded as Bharat has not enacted any legislation governing the status of refugees. We are not a signatory to Convention relating to the Status of Refugees, 1951 and Protocol relating to the Status of Refugees, 1967. The United National High Commission on Refugees (UNHCR) in Bharat has no state involvement, but it works with several NGOs: Bosco, the Socio-Legal Information Centre, the Gandhi National Memorial Society, the Confederation of Voluntary Agencies and Development and Justice Initiative (DAJI). Hence, Bharat is under no national or international legal obligation to honour the entry or residence of refugees within Bharat. Fundamental rights guaranteed under Article 19 of our Constitution, to reside and settle in any part of the territory of Bharat, are exclusively available to a Bharatiya citizen.
Given the wisdom of the architects of Constitution in limiting the application of fundamental rights to citizens and Given this conscious decision of the Bharat to be not bound by any national or international legal framework on refugees, the matter cannot be justiciable before the courts like a property dispute. Hence, all the matters relating to the refugees have to be within the executive governance framework. Executive and executive alone is to be vested with such issues because the Union, as a respondent before the Court in the matters relating to policy, particularly involving national security concerns, faces numerous handicaps.
(The writer is a Bengaluru based lawyer and Managing Partner of Navayana Law Offices)