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The Supreme Court on Friday said the Rohingya refugee problem was of a "great magnitude" and the state would have to play a "big role" in striking a balance between national interests and human rights while dealing with the contentious issue.
The apex court, which decided to give a detailed and "holistic hearing" from November 21 on the government's decision to deport Rohingya Muslims to Myanmar, observed that a balance has to be struck between national interest and human rights as the issue involved national security, economic interests and humanity.
A bench headed by Chief Justice Dipak Misra suggested to the Centre not to deport the Rohingya refugees, but Additional Solicitor General Tushar Mehta requested that it should not be written in the order as anything coming on record would have international ramifications.
The top court, however, made it clear that in case any contingency arose during the intervening period, the petitioners have the liberty to approach it for redressal.
"It is a large issue. A issue of great magnitude. Therefore, the state has a big role. The role of the state in such a situation has to be multipronged," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.
Senior advocate Fali S Nariman, representing the petitioner, said all Rohingyas, be they Muslims or Hindus, are not terrorists and the government cannot pass a "blanket order" like this.
The bench said there cannot be an "iota of doubt" that humanitarian issue is involved, but it also has to keep in mind the national interest.
"Children and women do not know anything about it. As a constitutional court, we cannot be oblivious to it. We expect that the executive will not be oblivious to it," the bench said and told the government: "Do not deport. You take action if something wrong is found".
However, ASG Mehta urged the bench that it should not be written in the court's order as it would have international ramifications.
"There are international ramifications. As an executive, we understand our role in this. If any contigency will arrise, they (petitioners) can come," Mehta said, adding "We are sensitive to it .... We know our responsibility."
"We also understand the problem. The question is how to strike a balance," the bench said and added that it was an "extraordinary case".
The bench also made it clear that there was a need for a holistic hearing and it would neither be swayed by the arguments of Nariman, nor by of any other senior counsel and the submissions would have to go by the letter of the law.
"We will not permit any emotional arguments," it said.
At the outset, Nariman argued about the rights of the Rohingyas and said no person can be deprived of the liberty granted under the Constitution and other statutes.
He referred to the Union home ministry's order and said though it says that the Myanmar issue might aggravate the security challenge, it does not say that all Rohingyas are terrorists.
Observing that Minister of State for Home Kiren Rijiju has given a statement about government's decision to deport all Rohingyas from India, Nariman said "such an order ought not have been passed. This is the essence of the whole case."
He also claimed the government said something abroad, but within the country, it changes its stance and has passed a "blanket order".
Nariman said he has no objection to government agencies going against terrorist elements among the Rohingyas but his client was not a terrorist and there was no such allegation.
Referring to the statutes, he said the point was not about the question of justiciability as when fundamental rights were envoked, one may be either right or wrong.
During the hearing, the bench observed that aspects of national security, economic interests, labour interests as also protection of children, women, sick and innocent persons would come up while dealing with the matter.
The top court also said that "constitutional ethos makes us lean sympathetically towards humanitarian issues."
The Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan.
In a communication to all states, the union home ministry had said the rise of terrorism in last few decades has become a serious concern for most nations as illegal migrants are prone to getting recruited by terrorist organisations.
It had directed the state governments to set up a task force at district level to identify and deport illegally-staying foreign nationals.
Only Centre should deal with deportation of Rohingyas: MHA
The deportation of illegal immigrants including Rohingyas has to be dealt with only by the Centre as it is essentially an executive function, a home ministry spokesperson said.
The assertion comes hours after the Supreme Court decided to give a detailed and "holistic hearing" from November 21 on the government's decision to deport Rohingya Muslims to Myanmar.
The ministry spokesperson said that questions regarding illegal immigrants need to be examined keeping in mind diplomatic consideration, internal security situation, demographic changes in the country and duties of the central government towards its own citizens.
"It was, therefore, desirable that these issues ought to be handled by policy-making function of the executive," he said.
The ministry spokesperson said, "The central government is of the opinion that deportation of illegal immigrants have to be dealt with only by the central government because it is essentially an executive function of the government."
The apex court has not stayed deportation of Rohingyas, he said.
"No interim order has been granted. The Supreme Court has merely recorded the statement of the learned counsel for the petitioner to the effect that in case of any contingency he can move the court for appropriate interim order," the spokesperson said.
A senior home ministry official said the central government is duty-bound to protect the fundamental rights of its citizens first.
"There was no decision by the Supreme Court for or against the government. Today's development is a vindication of the home ministry's (government) stand," he said.
In August, the home ministry had sent a communication to all states saying illegal immigrants like the Rohingyas pose grave security challenges as they may be recruited by terror groups, and asked to identify and deport them.
"The MHA circular to the states on deportation of Rohingyas stands," the official added.
The communication had also said that these "illegal immigrants not only infringe on the rights of Indian citizens but also pose grave security challenges."
Infiltration of (the Rohingyas) from Rakhine state of Myanmar into Indian territory, especially in recent years, besides being burden on the limited resources of the country also aggravates security challenges posed to India, the home ministry had said.
IMAGE: Rohingya refugee children are stopped by volunteers as they jostle to receive food distributed by local organisations in Kutupalong, Bangladesh. Photograph: Danish Siddiqui/Reuters