NEW DELHI: A national spokesperson of the Bharatiya Janata Party is often seen on television addressing those he disagrees with as “Mr/Miss Rohingya”. The ruling regime has reduced popular discourse on persecuted refugees to this form of name-calling.

In an affidavit to the Supreme Court the BJP Government has made it clear that the Rohingya refugees are a threat to national security, and all including women and children must be deported.

The BJP affidavit does not rest on any serious empirical or legal grounds, and reads more like a political tract. In the meanwhile, their own Governments Chief Minister in Jammu & Kashmir has gone on record to say that no terror threat has been detected from the Rohingya population (approx. 5,500) in the border state.

Several persons have petitioned the Supreme Court against the Union Government’s decision to deport the Rohingya people. The questions that arise are: “What does Indian statutory law contemplate on the question of persecuted migrants”? Does Indian law define “refugees “and if not, what procedure has the State to follow when deporting “refugees”.

Currently, refugees in India are governed by the law relating to foreigners. The Foreigners Act, 1946 defines a foreigner as “a person who is not a citizen of India”. Section 3 of the Statute provides the Indian Government power to issue an order deporting a foreigner from the territory of India.

On April 24,2014 the Ministry of Home Affairs, Government of India issued a circular on the subject titled “Consolidated instructions regarding procedure to be followed for deportation/repatriation of a foreign national”.

The Circular clarifies that the Powers of the Central Government under the Foreigners Act 1946 and the Foreign Orders 1948 to deport any foreigner are also available to State Governments and Union Territories Administrations as notified earlier in the Central Government notification dated 19th April 1958. It may be noted that the 2014 circular in para 3.1 records that “In all cases where the foreigner is arrested and action is taken under the relevant Acts, the foreigner can be deported only after completion of the sentence/court proceedings”

Based on the above statutory provisions and the circulars issued, the Government of India has submitted in court that the State has the unhindered right to issue an executive order deporting a foreigner. It is submitted that this argument might not be true if one is to go by some recent Court decisions.

The 2005 judgement of the Supreme Court in Sarbananda Sonowal vs Union of India and Another is the authoritative judgement on the issue of deportation of foreigners from India. And one on which the Union of India will rely.

‘The case came up when the current Chief Minister of Assam, Sarbananda Sonowal petitioned the Supreme Court to declare the Illegal Migrants (Determination by Tribunal) 1983 (IMDT) as ultra-vires the Constitution.

It was argued that the IMDT regime had made deportation tedious and difficult leading to an unprecedented increase in the number of illegal migrants in Assam. This it was claimed had affected adversely the security of the State. Further the Petitioner prayed that Assam like other states must shift to the regime contemplated under the Foreigners Act, 1946 and Foreigners Order, 1948.

The then Congress Government in Assam did not agree with the petitioner and submitted in Court that the IMDT Act’s essential purpose is to protect genuine Indian citizens and to deport after requirements of due process were met, as expected in a democracy.

The State Government also brought to the notice of the Court that until March 2004,4,01,598 complaints had been received under the IMDT, inquiries were completed in 3,97,835 cases, of which 3,76,341 were referred to the Screening Committee. 87,222 cases were eventually sent to the Tribunals for opinion, of which only 12,180 persons were found to be illegal migrants! This shows that if it wasn’t for judicial scrutiny several Indian citizens could have been deported.

The three-judge bench headed by Chief Justice R.C. Lahoti held in favour of the Petitioner and found that the IMDT Act did not fulfil the mandate of Article 355 of the Indian Constitution (that it is the duty of the Union of India to protect states against external aggression and internal disturbance.) The Bench also held that under the IMDT regime the burden on the State to prove citizenship of an accused person was excessive.

The Court was of the opinion that the responsibility of demonstrating citizenship must be on the alleged foreigner, as stipulated under Section 9 of the Foreigners Act, 1946.Therefore the Court found the IMDT Act ultra-vires of the Constitution and mandated that the cases under the IMDT Tribunal be shifted to the Foreigners (Tribunals)Orders, 1964 and be adjudicated as per the provisions of the Foreigners, Act 1946.

Two important points emerge from the judgement. First, that the Governments position on national security and the issue of deportation of foreigners does not restrict Judicial review. In fact, as seen in the Sonowal case the Court can not only exercise judicial review on an executive decision but can also review statutory provisions (i.e. IMDT Act)relating to issues of national security and rights of foreigners.

This would clearly suggest that in the Rohingya case the Government cannot claim immunity from judicial review on the premise that their opinion on national security and foreigners must remain outside the domain of legal adjudication.

Secondly, the Court in Sonowal does not recognize deportation through executive whim. The judgement only found the IMDT Act problematic because the burden of proof for proving a person a foreigner was heavily burdened on the State. Consequently, the Court transferred the cases from the tribunal contemplated under the IMDT to the one contemplated under the Foreigners (Tribunals) Orders 1964.

It is true that the judgement recognises the autonomous right of the executive to deport persons. However that does not imply that such state action is not liable to be reviewed on the ground of lack of due process or the violation of constitutionally protected liberties.

This point has been clarified by the 2012 Patna High Court judgement in Malik Astur Ali vs State of Bihar where the High Court held that power to deport under section 3 of the Foreigners Act, 1946 cannot be exercised in an arbitrary manner. Further, the Court recognised the importance of a Tribunal when taking a decision under the Foreigners Act, 1946. The Court while interpreting the Sonowal Judgement held: -

“.23…. The importance of shifting of burden of proof under the Foreigners Act and how and why it works to the advantage of a person charged has been explained by the Apex Court while hearing lengthy arguments in the case of Sarbananda Sonowal v. Union of India….I hasten to add that it is on the given presupposition that a Tribunal was constituted to determine the question of nationality as provided under Section 3 of the Foreigners Act...”

It is clear that a statutory shift in the burden of proof or the national interest argument would not be reason enough for due process being thrown to the wind. The tribunals serve as an important component of dealing with rights of foreigners. That is say that in the case of the Rohingyas refuges the State can not deport on grounds not defensible in facts and law.

It is also settled law that the right to life and equality as fundamental rights are available to persons who are not citizens of India. This has been laid down by the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh, Louis De Raedt v. Union of India and by the Bombay High Court in Satish Nambiar v. Union of India. In fact, in the 2002 Delhi High Court judgement of Anand Swaroop Verma vs Union of India, Justice Dalveer Bhandari who currently is serving as a Judge of the International Court of Justice, made it clear that Article 21 is available to foreigners.

The Government of the day cannot use national security as pretext to undermine civil liberties as attempted through their objection to recognise privacy as a fundamental right. The State also cannot disregard due process and institutional justice frameworks as was sought to be achieved in the case of Priya Pillai. Where an arbitrary executive order curtailed her passport rights and freedom to travel, the Court then had rightly nullified the State’s attempt to impede such a vital right.

Similarly, when dealing with the issue of deportation of the Rohingya refugees the Supreme Court must test the government’s executive order against rights and processes guaranteed under the Indian Constitution and set precedent that the State can not deport on grounds not supported in facts and law.

(Abhik Chimni is an advocate)