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Synopsis

The Central government through the Ministry of Home Affairs has filed an affidavit before the Supreme Court of India in the plea seeking to release Rohingyas who have been illegally detained in jails and detention centers without assigning any reason or for violation of the Foreigners Act.

In response to the plea filed by Priyali Sur, the MHA has submitted that illegal Rohingya migrants have no right to reside within the territory of India, as it is expressly against Article 19.

Court has further been told the petition seeks to recognise a new legislative class of “refugees” which is not recognised under Indian law.

"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 adds.

Arguing that the petitioner is trying to circumvent the parliamentary procedure and to do indirectly what they cannot do directly, the Centre has said, "issues raised by the Petitioner have wide ranging ramifications and clearly fall within the legislative policy of the Parliament and the contours of judicial review would be suitably altered in such regard".

Reiterating that India is not a signatory to the 1951 Refugee Convention and to the Protocol relating to the Status of Refugees, 1967, the MHA submits that whether or not any class of persons are to be recognized as refugees is a pure policy decision.

"...there cannot be any recognition of refugee status outside the legislative framework and such declaration of refugee status cannot be made by 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...", the affidavit states.

Case Title: Priyali Sur vs. Union of India