There cannot be a "blanket acceptance" of foreigners as refugees, especially when a vast majority of such people have entered the country illegally, the Centre has told the Supreme Court and claimed the continued illegal migration and stay of the Rohingya have serious ramifications for national security.
In an affidavit filed in the apex court, the Centre has said India is not a signatory to the 1951 Refugee Convention and to the protocol relating to the Status of Refugees, 1967, and as such, whether or not any class of persons are to be recognised as refugees is a "pure policy decision".
The affidavit was filed in a petition seeking a direction to the Centre to release the Rohingya who have been detained in jails or detention centres or juvenile homes, either without assigning a reason or for alleged violation of the provisions of 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 said there cannot be any recognition of refugee status outside the legislative framework and such declaration of refugee status cannot be made by a judicial order.
"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 said.
Referring to a 2005 verdict of the apex court, the affidavit said it had illustrated the dangers of unchecked 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 said.
The affidavit said national security considerations rank the highest on country's list of priorities given its geopolitical influence in the region and its vulnerability to cross-border infiltration due to the porous nature of the borders which India shares with many countries.
It said India has unfenced borders with Nepal, Bhutan, Bangladesh, Myanmar etc. and has an easily navigable sea route with Pakistan as well as Sri Lanka making it vulnerable to a continuous threat of an influx of illegal migration and resultant problems arising therefrom.
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 said.
It is not and cannot be the case of the petitioner that the Rohingya are Indian citizens, it said. "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 amount to putting the Foreigners Act itself in abeyance.
"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 said.
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