The Supreme Court on Friday asked the Centre to strike a balance between national security, economic interests and humanitarian considerations with regard to the Rohingya women, children, old, sick and infirm.
“We have to strike a balance between national security and economic interests and humanitarian considerations” involving Rohingyas, said Chief Justice Dipak Misra heading the bench also including Justice A.M. Khanwilkar and Justice D.Y. Chandrachud.
Chief Justice Misra said: “(We should see) How we reconcile the national security and economic interests and protection of women, children, old, infirm, sick and innocent” Rohingyas and “how far this court can go”.
Having said this, Chief Justice Misra said: “As a constitutional court of this country, we can’t be oblivious of this and simultaneously the executive too can’t be oblivious of this.”
The top court said this as the Centre resisted its earlier observation that the government could take action involving Rohingyas where it was necessary but they should not be deported.
“You can take action where it is necessary, you will not deport them,” the bench had said.
Additional Solicitor General Tushar Mehta urged the court not to pass any such order as it would have international ramifications.
In an attempt to persuade the court not to pass such an order, Mehta said: “Where there are international obligations, we know our responsibility.”
The court on Friday also clarified that Article 21 guaranteeing right to life and liberty was not available to the citizens alone but all those living in India.
Article 21 lays down: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The court’s observation assumes significance as the Centre has questioned the maintainability of the petition by the two Rohingya refugees, contending that they could not invoke the jurisdiction of the top court under Article 32 seeking the protection of their right to life and liberty.
As the court fixed November 21 for the hearing of the matter for two days, the court permitted amicus curiae Fali S. Nariman to approach the court in case of any contingency.
Nariman, who said he was only concerned about the human rights, told the Centre: “My stand is human rights.”
In his submission Nariman said the Foreigners Act that provides for the identification and deportation of illegal foreign nationals, there are exceptions for cases of Hindus, Parsis, Buddhists and Sikhs.
Nariman said the exceptions under the Foreigners Act should be extended to Rohingya Muslims and Rohingya Hindus.
The court permitted liberty to Nariman to knock its door in a contingency as Assistant Solicitor General Tushar Mehta raised an objection, saying that the matter was sub-judice.
Mehta was discomfited when the court earlier, while directing the next hearing on November 21, had said: “Needless to say that the matter is sub-judice.”
He urged the court not to pass any such order as it would have international ramifications.
The top court was initially moved by one Mohammad Salimullah and another Rohingya refugee seeking the top court’s intervention to stop the Centre’s moves to deport them.
However, later the court was moved by others supporting the government’s stand on deporting them.
Mohammad Salimullah has told the court that they were not illegal immigrants but were refugees who fled Myanmar and came to India for shelter in the wake of their persecution on the grounds of their religion and community identity.
They have contended that they were entitled to all protection under the international conventions on refugees and treaties.
On the other hand, the Centre has asked not to interfere with its policy decision to deport Rohingyas as it alleged that some of them had links with Pakistan and Bangladesh-based terror outfits.
“The continued stay of Rohingyas in India, apart from being absolutely illegal, is found to be having national security ramification and has serious security threats,” the Centre had told the top court.