CJI SA Bobde led bench to shortly hear an urgent plea by a member of the Rohingya community, Mohammad Salimullah, seeking directions to release and protect over 150 Rohingya refugees reportedly “detained” in Jammu and to grant them refugee card
A Jammu based NGO, Forum for Human Rights and Social Justice has also filed an application stating that an earlier plea filed to stop the Rohingya deportation must not be entertained since the settlement of the Rohingyas in Jammu was "a part of a larger design"
Advocate Prashant Bhushan: This is the Rohingya issue

CJI: Where is the ICJ judgment? We have not recieved it
Gambia va Myanmar being cited

Solicitor-General Tushar Mehta: This is a judgment which is in the international law

Bhushan: Let me speak please
Bhushan: The judgment was rendered in January 23, 2020 where Gambia had stated that genocide was happening in Myanmar after there were refugees traveling to all across the world. ICJ said:
Solicitor-General: He is showing the problem which persists in Myanmar

Bhushan: Children were subjected to killing, maiming and sexual exploitation. Military failed to respect International Humanitarian Law (reads judgment)
CJI: military of which country?

Bhushan: Myanmar. UN Facf finding committee found the military of Myanmar guilty of human rights violations in Myanmar
@pbhushan1 : General Assembly condemned “all violations and abuses of human rights in Myanmar, as set out in the report of the fact- finding mission, including the widespread, systematic and gross human rights violations and abuses committed in Rakhine State,
Bhushan: including the presence of elements of extermination and deportation and the systematic oppression and discrimination
that the fact- finding mission concluded may amount to persecution and to the crime of apartheid”.
Bhushan: The Fact-Finding Mission concluded that “on reasonable grounds . . . the factors allowing the inference of genocidal intent [were] present”
Senior Adv Harish Salve: I have to say something...

Bhushan: Please let me speak Mr Salve

CJI: he is not in this matter. He is speaking somewhere else and disturbing this Court. Please continue
Bhushan: ICJ said it is of the opinion that the Rohingya in Myanmar remain extremely vulnerable. @pbhushan1
Bhushan: ICJ said "that Myanmar has not presented to the Court
concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention."
Bhushan reads the final findings of the ICJ judgment
Bhushan: This was a unanimous judgment of 15 judges.

CJI: What is the relevance of this with present dispute?

Bhushan: Govt has detained these Rohingyas in Jammu who has refugee cards and they will be deported
CJI: Art 32 is available to citizens of India to safeguard their fundamental rights

Solicitor-General Tushar Mehta: Senior Adv Salve appears for Jammu and Kashmir. He has not joined as party. He has filed application for impleadment
Bhushan: Article 32 does not mention citizens

CJI: which writ are you seeking ?

Bhushan: I am seeking a writ of mandamus to not detain and deport them to Myanmar under Article 21
Bhushan: This Court has held that Article 21 is available to non citizens too

CJI: so we have to check the validity of the orders passed under foreigners Act?

Bhushan: This is a special class of people who are refugees
Solicitor-General: They are not refugees at all.

Senior Adv Vikas Singh: I too have a matter which is tagged

SG Mehta: this is the second round of litigation. This petitioner had filed an application and it was dismissed.

CJI: he was also a Rohingya?

SG: yes same
SG: earlier application was for Assam and now it's Jammu. The petitioner is also same.
Bhushan: Let me conclude my submissions

CJI: Mr Bhushan, we will not close this matter without hearing everybody. We are not in a hurry

SG: this petitioner is a Delhi based man.
SG: There was a similar application in Assam and it was the same matter. They wanted no Rohingya to be deported we said we will follow law. They are illegally immigrants. We are always in touch with Myanmar and if they confirm so then they can be deported.
CJI: do you have an order from Myanmar. Do we take it that you will deport only when Myanmar accepts
Have you said on oath. Real fear is when they go to Myanmar they may get slaughtered but that is not in our control
SG: Lot of illegal immigrants have entered and they are staying as Myanmar nationals

CJI: we are only on deportation and it seems you will not deport till you recieve orders from Myanmar

SG: yes we cannot send an Afghan national to Myanmar
SG: we had a talk among me and Salve. There is a serious apprehension flagged in one of the IAs. As the highest Court it needs consideration

CJI to @pbhushan1 : you should have told us that you argued the deportation point earlier too and it was rejected by this Court
Bhushan: ICJ pointed out that the entire #Rohingya community as stateless

CJI: we are not in any way called upon to condemn genocide and we are certain there should be no genocide on earth. You are saying they will be deported but SG says they will not be unless Myanmar accepts
CJI: can as a matter of international law can we overlook the sovereignty of the present Governemnt?

Bhushan: United Nations says its an illegal govt which came to power due to military coup

CJI: so you are saying we deny credibility to Myanmar because they are illegal?
Bhushan : yes that's what I am saying. These people had to run for their lives and it's not in dispute.
Bhushan: Mere fact that a country responsible for their fleeing wants wants back cannot be a ground to send them back when we know they will subjected to risk to health. This is the principle of refoulement

SG: this was argued earlier too
Bhushan: Article 21 is for this sole purpose. ICJ too noted that Myanmar's assurances are not enough

CJI: today have you given any evidence that Rohingyas are being killed in Myanmar? Human rights violations are there in every country, show us if they are being killed
Bhushan: we had filed a supplementary affidavit

Solicitor-General: We are not the capital of refugees all across the world!!

CJI: please make your submission. We have to rise in 20 minutes. We don't have your affidavit
Senior Adv Harish Salve: A proposition of international law had been made which is astounding. I need to make submissions on that
Senior Adv Colin Gonsalves: No coercive steps was denied earlier..

SG: what is thus man saying?

CJI: If there is confusion we cannot deal with the matter and we have to adjourn it. Hearing has to be orderly. You have to be in the order that Court sets
Senior Adv Harish Salve: please turn to the reply of the government.

Senior Adv CU Singh: I appear for UN Special Rapporteur
Senior Adv Salve: Please don't go into this. UN is not subject to your jurisdiction of the municipal Court. Our govt has issues with UN Special Rapporteur. This Court will never do anything which embarrasses this government..
Salve: Other states should have been impleaded like Jammu & Kashmir. ICJ judgment was a provisional measure. We have opted out of any Disputes with commonwealth will not go to the CJI. Even India Pakistan dispute cannot go like this to ICJ.
Salve: ICJ judgments opetate in realm of public international law. Municipal courts follow domestic law. This will be like elbowing government of India. Please do not go into this.
Senior Adv Vikas Singh: What I am saying is opposite of Mr Bhushan. In our IA, Jammu and Kashmir is also a party.

Solicitor-General: @HMOIndia
had said that continued stay of illegal immigrants in India will cause threat national security. This also leads them to fake documents
SG Mehta: Mahesh Jethmalani is appearing in an IA where it has been stated that these illegal immigrants enter from West Bengal and travel to Jammu.

Salve: Whether UN Special Rapporteur should be heard or not itself needs hearing.
CJI: We will not hear you. Govt has reservations. We will hear you later

Singh: Please give me a moment

CJI: your moment is over. There is serious objection. We will see when to hear you.

Case reserved for orders

Rohingya Deportation: Supreme Court refuses to hear United Nations Special Rapporteur after Union Territory of Jammu & Kashmir objects

#Rohingyas #SupremeCourt


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