The Centre informed the Supreme Court that it is not possible to universally accept foreigners as refugees, particularly when a large number of them have entered the country without legal permission. They argued that the ongoing illegal migration and presence of the Rohingya community pose significant threats to national security.
The Centre said in an affidavit filed in the SC that India is not a signatory to the 1951 Refugee Convention and to the protocol realting to the Status of Regfugees, 1967. This makes the recognition of any class of people as refugees a "pure policy decision".
The affidavit was submitted in a petition requesting the government to release the detained Rohingya individuals who are held in prisons, detention centers, or juvenile homes. These individuals have been detained either without any explanation or on the grounds of violating the Foreigners Act.
“Effectively, the prayers therein are seeking to provide illegal Rohingya migrants with the right to reside within the territory of India, which is expressly against Article 19 (freedom of speech and expression). It is submitted that Article 19 is limited in its application only to citizens and cannot be extended to apply to foreigners,” it said.
The affidavit stated that the recognition of refugee status cannot occur without following the legal framework, and a judicial order cannot be used to declare someone as a refugee.
“As a developing country with the largest population in the world and with limited resources, priority is required to be given to the country’s own citizens. Therefore, there cannot be any blanket acceptance of foreigners as refugees especially where the vast majority of such foreigners have entered the country illegally,” it added.
According to the affidavit, it mentioned a previous ruling by the apex court in 2005 that demonstrated the risks associated with unregulated immigration.
“It is submitted that continuance of Rohingyas’ illegal migration into India and their continued stay in India, apart from being absolutely illegal, is found to be having serious national security ramifications and has serious security threats,” it further mentioned.
National security concerns rank above everything on the country's priority list due to its geopolitical influence in the region and the challenges posed by cross-border infiltration as a result of the porous nature of the international borders India shares with its neighbours, the affidavit stated.
According to it, India shares open borders with Nepal, Bhutan, Bangladesh, Myanmar, and other countries, which makes it susceptible to the constant risk of illegal immigration and the associated issues. Additionally, India also has a sea route that is easily accessible to Pakistan and Sri Lanka, further increasing its vulnerability to illegal migration.
The affidavit said, “The grant of any status qua immigration to persons or a class of persons coming from a particular country is not just a national issue but essentially an outcome of political decisions of the State in respect of maintaining its foreign relations with the State in question or with any other foreign nations.”
“Such a decision is often a product of complex interplay of diverse factors such as social, economic, cultural and often extra-legal or extra judicial considerations. In light of the above, prayers in the nature of the present which seek to alter the existing regime are not maintainable,” it further said.
The petitioner cannot claim that the Rohingya are Indian citizens, the statement mentioned. “Once it is accepted that Rohingyas are illegal migrants, the provisions of the Foreigners Act, 1946 would apply to them in full force,” it said, adding the prayer in the petition would essentially mean suspending the Foreigners Act.
“The prayer of the petitioner amounts to re-writing of the statute or directing the Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review. It is trite law that the courts cannot direct Parliament to make a law or to legislate in a particular way,” the affidavit mentioned.
