Deporting Rohingyas and the impact of Supreme Court’s latest verdict

New Delhi, Oct 5: The Supreme Court on Thursday refused to interfere with the deportation of seven Rohingya Muslims to Myanmar. The court refused to intervene after the Centre informed it that the Myanmar government had agreed to take them back.

While this order is not general in nature, the question is what impact does it have in other cases relating to the Rohingya Muslims living illegally in India.

While the latest SC order would not have a direct impact on the rest of the Rohingya Muslims immediately, those declared illegal immigrants or foreigners can be sent back to their home country.

The SC is currently seized of a matter relating to an order of the Union Government. In August 2017, an order on the identification and deportation of illegal immigrants was passed. The order in question deals with India's obligations under the international human rights convention.

Legal experts say that those who are already declared as illegal immigrants or foreigners without valid documents can be acted upon under the provisions of the Foreigners Act of 1946. Experts also say that the latest SC order however gives a clear signal that future cases in which the procedures have been followed are likely not to stand the test of judicial scrutiny.

The Rohingya count India:

The Home Ministry says that there are over 14,000 UNHCR registered Rohingyas in India. The security agencies however say that the number is over 40,000. Majority of these people are found in Jammu, Hyderabad, Delhi, UP and Rajasthan.

India says that their movements are constantly being tracked through the Mission Mode Project on Immigration, Visa and Foreigners Registration and Tracking (IVFRT). This would facilitate improved tracking of foreigners by integrating and sharing information captured at Indian missions during the issuance of visas, during checks at Immigration Check Posts and the Foreigners' Regional Registration Office.

Government data says that in the past three years, 330 Pakistanis and 1,770 Bangladeshi national have been deported to their home country. In Parliament the government had said in 2016 that in the year 2014, the highest number of arrests of foreign nationals was reported from West Bengal, with the count at 3,724. The arrests were made under the Foreigners Act of 1946.

The next was Tripura, where the arrests were at 1,713, Tamil Nadu (639) and Maharashtra (228). The statistics until 2014 show that there were 28,000 foreign nationals staying illegally in India.

UN convention:

India is not a signatory to the 1951 United Nations Convention and 1967 Protocol Relating to the Status of Refugees. Moreover there is no national law on refugees either. It was only in the year 2011 that the Union Government told all states about a Standard Operating Procedure to be followed while dealing with foreign nationals and refugees.

It said that in cases of fears of persecution on account of race, religion, nationality, ethnic identity, the states of the Union Territories can recommend to the Union Home Ministry for a long term visa after due verification. Persons issued with this visa would be entitled to work in a private sector or enrol in an academic institution.

For this purpose one must also understand the difference between an illegal immigrant and a refugee.

An illegal immigrant can either be a foreign national who has entered into India on valid travel documents, but stays beyond the validity. An illegal immigrant can also be a foreign national who enters India without proper travel documents.

The refugee on the other hand has certain rights under the Indian Constitution. The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of a legislation. In the NHRC vs State of Arunachal Pradesh case, the Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life, health and well-being of Chakmas residing in the State and that their application for citizenship should be forwarded to the authorities concerned and not withheld.

In various other cases it was held that refugees should not be subjected to detention or deportation and that they are entitled to approach the U N High Commissioner for grant of refugee status.

In the P Nedumaran vs Union of India case the need for voluntary nature of repatriation was emphasised upon and the court held that the UNHCR, being a world agency, was to ascertain the voluntariness of the refugees and, hence, it was not upon the Court to consider whether consent was voluntary.