No abdication of jurisdiction when concerns are of safety of women, children: SC

The apex court should not abdicate its jurisdiction when concerns for protection and safety of women and children are raised with regard to Rohingya immigrants, the Supreme Court said on Tuesday.

“To say that the petition of this nature is not maintainable is not correct. I have believed for 40 years that the courts should be slow in abdicating its jurisdiction in such matters,” Chief Justices Dipak Misra said.

The court's observations came in view of strong resistance put by Additional Solicitor General Tushar Mehta on justiciability as well as maintainability of a writ petition filed by two Rohangiya Muslims – Mohammad Salimullah and Mohammad Shaqir-- who challenged the Union government's decision to deport about 40,000 of their fellow immigrants to Myanmar.

Appearing for the petitioners, senior advocate F S Nariman questioned the stand taken by the government that the issue fell under the executive's domain. He also said rights guaranteed under Article 14 and 21 of the Constitution were available to all “persons” and not confined to citizens alone. He said the right to seek asylum was a part of universal declaration and the question of justiciability will not arise in such issues as there is a humanitarian concern.

Though India is not a signatory to the Refugee Convention, 1951, it is a signatory to several other International Conventions which accepted the principle of non-refoulement and prohibited involuntary deportation of refugees, he said. Nariman also pointed out that he was to a refugee from Burma, erstwhile Myanmar.

“According to the petitioners, when there are issues with regard to human rights and safety of women and children, the question of justiciability will not arise. The question is if India should live up to an international commitment. Why not take steps so that there is protection for women and children,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.

The court said it would analyse all propositions on October 13. Mehta said the issue was also of constitutional law and if the country can allow an influx of such a large number of people in the country. Senior advocate Rajeev Dhawan appeared for the NHRC and senior advocate Kalyan Banerjee, represented for the West Bengal Commission for Protection of Child Rights to support the plea, among others.