Supreme Court questions legal status of Rohingyas, asks can intruders be given red carpet welcome

New Delhi: The Supreme Court on Tuesday sharply questioned the legal status of Rohingyas living in India and asked whether "intruders" should be given a "red carpet welcome" while the country's own citizens grapple with poverty.

A bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi made sharp observations while hearing a habeas corpus (bring the person) petition filed by rights activist Rita Manchanda alleging disappearance of few Rohingyas from the custody of authorities here.

Now, the hearing in the case has been adjourned to December 16.

The counsel alleged certain Rohingyas were picked up by Delhi Police in May and there was no information about their whereabouts.

"If they do not have legal status to stay in India, and you are an intruder, we have a very sensitive border in the north India side. If an intruder comes, do we give them a red carpet welcome saying we would like to give you all facilities" the CJI asked, adding, "What is the problem in sending them back." He said India is a country with a lot of poor people, and we should rather focus on them.

"First you enter, you cross the border illegally. You dug a tunnel or crossed the fence and entered India illegally. Then you say, now that I have entered, your laws must apply to me and say, I am entitled to food, I am entitled to shelter, my children are entitled to education. Do we want to stretch the law like this," the CJI asked.

The petitioner referred to an apex court order of 2020 in which it was said that Rohingyas must be deported only according to procedure.

"We also have poor people in the country. They are citizens. Are they not entitled to certain benefits and amenities? Why not concentrate on them? It is true, even if somebody has entered illegally, we should not subject them to third-degree methods...You are asking writ of habeas to bring them back," CJI Kant asked.

The bench said if repatriation is sought then it may give rise to "logistical issues".

Solicitor General Tushar Mehta, appearing for the Centre, said the plea has not been filed by an affected person and the petitioner has no locus to file such a plea.

On July 31, the top court, while hearing a batch of pleas concerning Rohingyas in the country, had said the first major issue to be dealt with in cases concerning Rohingyas is whether they are refugees or illegal entrants.

It said once that is decided, the other issues might be consequential.

"The first major issue is simple, are they refugees or illegal entrants," Justice Kant observed.

The bench took note of the broad issues that arose for its consideration in the pleas relating to Rohingyas.

"Whether the Rohingyas are entitled to be declared as refugees? If so, what protections, privileges or rights are they entitled to," the bench asked.

It said the second issue is if the Rohingyas are not refugees and are illegal entrants, whether the action of the Centre and states in deporting them was justified.

"Even if the Rohingyas have been held to be illegal entrants, can they be detained indefinitely or they are entitled to be released on bail, subject to such conditions as the court may deem fit to be imposed," it asked.

The court said the other issue raised in the petitions is whether the Rohingyas, who have not been detained and are living in refugee camps, have been provided basic amenities like drinking water, sanitation and education.

"If the Rohingyas are illegal entrants, whether the government of India and the states are obligated to deport them in accordance with law," it noted.

The bench segregated the pleas in three groups -- one relating to Rohingyas, another not pertaining to the issue of Rohingyas and one plea that it said pertains to a different matter altogether.

It said the three groups of matters would be determined separately and it would fix those for hearing on consecutive Wednesdays.

The bench indicated that on the point of those who were found to be illegal entrants and on the question of the State's responsibility to deport them, it could only lay down the principles.

On May 16, the apex court had rapped some petitioners who had claimed that 43 Rohingya refugees, including women and children, were dropped in the Andaman sea for deportation to Myanmar and said "when the country is passing through a difficult time, you come out with fanciful ideas".

It had questioned the authenticity of the material placed before it by petitioner Mohammad Ismail and others and refused to stay any further deportation of Rohingyas, saying a similar relief was denied by the court earlier.

On May 8, the top court had said if the Rohingya refugees in the country were found to be foreigners under Indian laws, they would have to be deported.

The court had then referred to its earlier order and remarked that the identity cards issued by the United Nations High Commissioner for Refugees (UNHCR) may not be of any help to them under the laws.