Arguments Summary Day 3: January 31, 2018.

Today, the 3 Judge bench of the Supreme Court comprising Chief Justice Dipak Misra, and Justices A.M. KhanwilkarD.Y. Chandrachud, continued hearing the Rohingya Deportation Case, which challenges the government’s policy to deport Rohingyas who have taken refuge in India due to a fear of persecution in Myanmar.

In the previous hearing in October, the Court had heard arguments on the Right to Life and India’s obligations under International Human Rights Instruments, against the government’s deportation policy. The government had also indicated that it would not pursue deportation until the next hearing. Today's hearings highlighted the pitiable conditions of the Rohingyas in Myanmar and how India's constitutional and international obligations demand a humanitarian response to this crisis.

Today, Mr Prashant Bhushan, representing one of the Petitioners, began by placing two issues before the court. The first concerns the new wave of deportation of Rohingya refugees. This has led to the inhuman living conditions of the Rohingya refugees where access to schools and medical facilities are being denied to them. He argued that the living conditions are so bad so that 80% have fled the country and those who are trying to enter India are being pushed back by the Border Security Forces (BSF) forces with the use of sten guns, chilli sprays, and grenades. Mr. Bhushan submitted that the ‘non-refoulement’ principle, which prohibits the State from returning refugees to the country of their persecution, should apply to Rohingyas currently residing in India as well as those wanting to come to India.

Mr Tushar Mehta, ASG appearing for the Union of India (UOI), responded that such an approach could make India the refugee capital of the world. He urged the court to defer any judicial action and leave it to the executive that has been empowered by the Constitution to take a diplomatic decision on this issue. He also pointed out that the claims of use of guns, grenades and chilli sprays are unfounded and based on media reports.

The National Commission for Human Rights (NHRC), an intervenor, submitted that the principle of ‘non-refoulment’ is part of Indian law. Even under the repatriation laws of India, the repatriation of refugees can be denied by India if there is a danger of persecution to the person in the country requesting repatriation. Chief Justice Dipak Misra asked the NHRC to clarify their stand on the issue of new Rohingya refugees, to which the NHRC responded that it does not have instructions regarding the entry of more Rohingya refugees, but reiterated its stance that the principle of non-refoulement applies to refugees already residing in India.

Mr Rajeev Dhavan, appearing for an intervenor, interjected to voice his arguments. He said that the principle of ‘non-refoulement’ is a part of the right to asylum, which has been upheld in several High Court decisions. He expressed regret that the government is suggesting that it has absolute power to refuse refuge to Rohingyas and turn them away at the border. He urged the court to establish the right to Refugee Determination on the same lines as was done for Chakmas and other refugees. He reiterated that if a Rohingya refugee, facing well-founded fears of persecution, is refused entry, then India would be in derogation of various International Conventions and High Court judgments as well as violating human rights.

Mr Ashwani Kumar, representing an intervenor, rose to argue that the decision to deport the Rohingya or refuse them entry into India goes against minimum humanitarian commitments under several International Conventions. He countered the argument of the UOI that the decision should be left to the Executive, by saying that the power of judicial review enables the Supreme Court, the ultimate protector of human rights, to take a decision on this issue. He submitted that the Right to Life under Article 21 cannot be different for those inside and outside the borders of India.

Mr Prashant Bhushan also pointed out that the Government has issued notifications which in effect ‘welcomes’ refugees. The ASG denied the use of the word ‘welcome’ in the notifications, asking Mr Bhushan to refrain from exaggeration. Justice D. Y. Chandrachud stepped in to agree that the word ‘welcome’ may not be in the notification but said that such a notification does exist.

The court has granted the Union of India 4 weeks time to respond to the averments made today, and the matter has been posted for 7th March 2018.

(In a separate but related matter, Mr Sajjan Poovayya, appearing for Mr. Ashwini Kumar Upadhyay, has requested the Court to decide on a method to identify illegal immigrants and ‘flush them out’. This matter has now been tagged with Mohammad Salimullah v UOI and will be heard along with it from 07.03.2018)