The Centre on Tuesday told the Supreme Court that decisions on immigrants were taken by the executive on a “case to case basis” keeping in mind a variety of factors and there cannot be any comparison between the move on Rohingyas vis-a-vis immigrants who had fled persecution in Bangladesh and Pakistan.
“Any administrative decision taken by the executive with respect to illegal immigrants…in each case depends upon a variety (of) reasons, empirical data, facts, potential danger to internal security, the number of illegal immigrants involved, disturbances in the social fabric of the country or any part thereof, possibility of law and order problem arising in the country or any part thereof, demographic changes and its extent, etc,” the Union Home Ministry said in a Sur-Rejoinder (reply to a rejoinder) filed in the Rohingya matter on Tuesday.
“Considering the very nature of such a decision, to be taken on a case to case basis, there cannot be any comparison outline of discrimination raised upon some earlier decision taken with respect to one set of illegal immigrants vis-a-vis another set of illegal immigrants.” There cannot, therefore, be any comparison between the factors which led to the decision on regularisation of the entry and stay of immigrants from Bangladesh and Pakistan with that of “the decision with respect to Rohingyas, who are about 40,000 approximately in number, having other options and most disturbingly the continuing of a systematic influx of illegal immigrants in an organised manner into India through agents and touts”.
The reply comes on a petition filed by two Rohingya refugees challenging the government’s move to deport them.
On their claim that they were entitled to fundamental rights, which were also available to “non-citizens”, the government said such rights would necessarily extend only to those who were in India on valid travel documents. “The framers of the Constitution of India would not have envisaged a situation where thousands and thousands of people would be flowing into this country, entering illegally without any valid travel documents, and start cleaning fundamental rights as non-citizens,” the document stated.
Arguing on behalf of the Rohingyas before a three-judge bench headed by Chief Justice of India Dipak Misra, senior counsel Fali S Nariman said the central notification of August 8, asking states to identify and deport illegal immigrants, was “arbitrary and (in) violation of Article 14”.
Nariman argued, “Our constitution is not based on group rights, unlike the French constitution, but on individual rights, and deals not only with citizens but non-citizens, referred to as persons.” He said there were several women, children refugees, and “they are certainly not terrorists”.
Nariman said that he applauded the government for giving refuge to immigrants from other countries such as Afghanistan but did not appreciate the stand in the instant case. He added that India was a party to the New York declaration for Refugees and Migrants, 2016, and that it obliged the country to take care if its immigrants.
On this, the sur-rejoinder said the same was not a legally binding instrument. The government, while justifying its decision to deport Rohingyas, had earlier told the apex court that they were a national security threat. The Sur-Rejoinder reiterated this stand.
The CJI advised the parties concerned to advance “points of law” and desist from “emotional arguments” while dealing with “humanitarian” matters. The next hearing is on October 13.