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HRLN, Kolkata, succeeds in obtaining order permitting Rohingya asylum seekers to stay in India

(A Rohingya refugee camp in India; image for representation)
Date : 02/05/2017

State v. Md. Shahajahan & Ors., Rly. G.R. 26/2015, Chief Judicial Magistrate, Paschim Medinipur

The four petitioners, Md. Hussain, Noor Begum, Md. Shahajahan, and Sahara Khatoon belong to the Rohingya community of Myanmar.

This particular community, being a Muslim minority in Myanmar, has never been given a formal statehood in the country and has been systematically and officially robbed of its basic civil, political, social, and cultural rights. There are  several reports by Amnesty International regarding the plight of the Rohingya and the various forms of torture meted out on members of the community, including extortion and arbitrary taxation, land confiscation, forced eviction and house destruction, and financial restrictions on marriage. The Genocide Prevention Advisory Network (an international network of experts on the causes, consequences, and prevention, of genocide and other mass atrocities) has also issued an alert regarding the Rohingya Muslims in Myanmar.

In view of the prevailing circumstances in Myanmar, the petitioners were forced to flee the country owing to a fear of persecution, and entered India through Bangladesh. They were arrested at Kharagpur Railway station under Section 14A (B) of the Foreigners Act and were awarded a sentence of two years rigorous imprisonment, which they completed in Midnapore Central Correctional Home, and then Dum Dum Central Correctional Home.

The petitioners had applied for refugee status to the United Nations High Commissioner for Refugees (UNHCR) India, and at the time of their conviction by the Court on 05 December 2015, they were registered as asylum seekers. However, this was not brought to the notice of the court.

The Court, without knowing that the Petitioners were valid refugees in India, had passed an order directing the superintendent of the concerned correctional home to take action to deport the Petitioners to their native country on the completion of their sentence.

In view of the circumstances, HRLN Kolkata filed a petition on behalf of the refugees, for recall of the order of the Court, before the concerned Chief Judicial Magistrate at Medinipur. The petition prayed for the release of the refugees, and for the deletion of the words ‘push back/deportation of/ to their native country from  the previous order of the Court. Pursuant to the same, the petitioners were released vide an order dated May 2, 2017.

The following are the key points from the judgment:

  • The Court has stated that as per Section 3 of the Foreigners Act, 1946, the Central Government has the power to pass orders/make provisions for the presence of foreigners in India (continued or otherwise), and the Act does not grant the same power to the court.
  • However, in the order dated May 5, 2015, the court had given a specific direction to the superintendent of the concerned correctional home to take steps for deportation of the petitioners. The stated  direction required authority under Section 3 of the Act, which the court does not have under the statute.
  • The Court held that the words ‘push back/deportation of, to their native country’ are not operative in the eyes of law. The Court granted liberty to the superintendent to give effect to the order of the court dated 5.12.2015 (which prescribed 2 years rigorous imprisonment, which was already completed), except giving effect to the words push back/deportation.
Read the full order here.

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