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Need to balance national interest, human rights: Supreme Court on Rohingya refugees

At one stage, the CJI even suggested ordering the Centre not to deport the refugees till the next date of hearing, but stopped short following objection from Additional Solicitor General Tushar Mehta who said it will have international ramifications.

Written by Ananthakrishnan G | New Delhi | Updated: October 14, 2017 7:15 am
Rohingya, Rohingya refugee crisis, India Rohingya, SC on Rohingya, Myanmar unrest, Rohingya petitions in SC, India news, Indian Express Rohingya refugees wait at a Border Guard Bangladesh (BGB) post after crossing the Bangladesh-Myanmar border by boat. (Source: Reuters/File)

Underlining that both the executive and the judiciary “cannot be totally oblivious” to the condition of women and children among the Rohingya refugees, the Supreme Court Friday said the crisis has thrown up an “extraordinary” situation and there is need to strike “a balance” between national interests and human rights while dealing with it.

Hearing a petition filed by two Rohingya Muslim refugees challenging the Centre’s move to deport them from the country at a time when tens of thousands of Rohingya are fleeing Myanmar, a bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said: “There has to be a broader humanitarian spectrum. National interests cannot be secondary. How to strike a balance…”

CJI Misra said “the state has a big role. The role of the state in such a situation has to be multi-pronged” since there are security, economic and humanitarian issues involved. The bench said it cannot turn a blind eye to the condition of women and children among the refugees. “Children and women do not know anything about it. As a Constitutional court, we cannot be totally oblivious to this. Similarly, we do not expect the executive to be oblivious of it either.” SC hasn’t given any reprieve, Rohingya will be deported: MHA

At one stage, the CJI even suggested ordering the Centre not to deport the refugees till the next date of hearing, but stopped short following objection from Additional Solicitor General Tushar Mehta who said it will have international ramifications. “There are international ramifications. As an executive, we understand our role in this. If any contingency will arise, they (petitioners) can come,” Mehta said, adding “We are sensitive to it … we know our responsibility.”

The bench recorded in the order that senior advocate Fali S Nariman, who appeared for the petitioners, had said that in case of any contingency, he will approach the court. Nariman contended that all Rohingya, be they Muslim or Hindu, were not terrorists and the government cannot pass a “blanket order”.

The bench said it will give the matter a “holistic hearing” from November 21. “We will not permit any emotional arguments. We are not going to be swayed. We will go by the letter of the law… We know the problem of the nation. We also know the problem of the people. We are only striving how to strike a balance.”

CJI Misra also sought to emphasise that he is only trying to provoke a “debate” and “debate is not a judgment”.
Nariman said protection under Article 21 is available even to non-citizens and no person can be deprived of the liberty granted under the Constitution and other statutes.

Referring to the Union Home Ministry order, he said though it says that the Myanmar issue might aggravate the security challenge, it does not say that all Rohingya are terrorists. Observing that Minister of State for Home Kiren Rijiju has given a statement on the government’s decision to deport all Rohingya from India, Nariman said, “Such an order ought not have been passed. This is the essence of the whole case.” He alleged that the government has been “speaking in two voices” on the issue, saying something outside the country and something else within.

Nariman said he has no objection to government agencies going after individual terrorist elements among the Rohingya but there cannot be a blanket order. He pointed out that there are also groups of refugees who are already protected in India like the minorities from Pakistan, Bangladesh and Afghanistan. The bench said “Constitutional ethos makes us lean sympathetically towards humanitarian issues”.

Earlier, the Centre, describing the Rohingya as “illegal immigrants”, had told the Supreme Court that their influx into the country “using the porous border between India and Myanmar” and their continued stay here was “seriously harming the national security of the country”.

The government said it “has contemporaneous inputs from security agencies and other authentic material indicating linkages of some of the unauthorised Rohingya immigrants with Pakistan-based terror organisations and similar organisations in other countries”.

Their “illegal influx”, the Centre said, started from 2012-13 — the UPA II was in power at the Centre then — and requested the court to leave the issue to the decision of the executive.

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  1. Cybil Penning
    Oct 14, 2017 at 4:40 pm
    Point is, "How to filter terrorists from good Muslims"? Can SC give some guidelines on this issue? Perhaps not!!! Then there cannot be any reason to overcome the national security point.
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    1. Undeniable Reality
      Oct 14, 2017 at 3:11 pm
      WHAT IS SUFFERING, THE PERSON WHO IS SUFFERING CAN TELL, LIKEWISE THE WORDS AND WORLD SAYS MANY THINGS LIKE IGNORE THEM OR KILL THEM SEND THEM.. WALLAH .. STRUGGLE IS FOR WHO IS STRUGGLING. SO IF YOU CANNOT HELP PLEASE STOP SAYING BAD. AT LEAST FEEL GUILTY OR SAY SOME WORDS WITH WHICH THE HUMAN CAN START THINK LIKE SOMETHING IS GOING WRONG.
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      1. M
        Muralidhar K
        Oct 14, 2017 at 1:57 pm
        Rohinyas are really in a very miserable state today and our heart bleeds seeing their plight. They may be Muslims or Bhuddists and suffering is suffering. No matter what their religion is . BUT, but we Indians have to be cautious about our future and about our future generations. we cannot put our country into big security risk. The same Rohingyas, may become live bombs after hearing what crooks preach them. Each of them may become a terrorist and kill innocent people of India planting bombs in public places. IT IS LIKE BRINGING HOME A COBRA, FEED AND TAKE CARE OT IT AND PROVIDE EVERYTHING TO THE COBRA. BUT ONE FINE MORNING THIS COBRA MAY BITE THE OWNER OF THE HOUSE AND KILL HIM AND QUIETLY ESCAPE THROUGH A SMALL IN THE WALL. ROHINGYAS WILL ALSO BECOME LIKE THIS COBRA. FOR THEM ALLAH IS MOST IMPORTANT. IN THE NAME OF Allah, they start killing everyone - BECAUSE THEY HAVE NO BRAINS. If they are not muslims, we can take pity of them and take them in as refugees in India.
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        1. Mayasandra Varadarajan
          Oct 14, 2017 at 1:18 pm
          It is time Govt of INDIA tell Supreme Court they must never get in to the territory of Administration. It is time courts concentrate on reducing the pending "CIVIL CRIMINAL CASES". General public will respect courts only if the cases are cleared fast not be delivering anti-national judgements.
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          1. Mayasandra Varadarajan
            Oct 14, 2017 at 1:11 pm
            It is case of "Supreme Court" Infringing on the Govt. Supreme Court has with clear Knowledge and intention violated the Cons ution of India by getting in way of Govt of INDIA in discharging their duty of Protecting the Nation. Supreme court Judges must be warned by the President of INDIA.
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