Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has directed that Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.
The issue at hand
On 8.08.2017, the Ministry of Home Affairs, Government of India issued a letter to the Chief Secretaries of all the State Governments/UT Administrations, advising them to sensitize all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes.
Petitioners are Rohingya Refugees who had fled Mayanmar in December 2011 when ethnic violence broke out. While their main writ petition seeks direction to the Central Government to provide basic human amenities to the members of the Rohingya Community, who have taken refuge in India in various refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places, they had sought interim relief of
(i) the release of the detained Rohingya refugees; and
(ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub¬jail in Jammu.
As per newspaper reports appearing in the first/second week of March, 2 2021, about 150-170 Rohingya refugees detained in a subjail in Jammu face deportation back to Myanmar. Various reports showed that there are more than about 6500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub¬jail now converted into a holding centre.
The impending deportation was challenged on the grounds
(i) that the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution;
(ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and
(iii) that though India is not a signatory to the United Nations Convention on the Status of Refugees 1951, it is a party to the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights, 1966 and the Convention on the Rights of the Child 1992 and that therefore non-refoulement is a binding obligation.
(iv) that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment.
The Union of India, however, refuted the claims and contentions on the following grounds:
(i) that a similar application challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018;
(ii) that persons for whose protection against deportation, the present application has been filed, are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946;
(iii) that India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967;
(iv) that the principle of non¬ refoulement is applicable only to “contracting States”;
(v) that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants;
(vi) that such influx has posed serious national security ramifications;
(vii) that there is organized and well¬orchestrated influx of illegal immigrants through various agents and touts for monetary considerations;
(viii) that Section 3 of the Foreigners Act empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom;
(ix) that though the rights guaranteed under Articles 14 and 21 may be available to 4 non-citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens;
(x) that the right of the Government to expel a foreigner is unlimited and absolute; and
(xi) that intelligence agencies have raised serious concerns about the threat to the internal security of the country.
Analysis by the Court
“It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”
While India is not a signatory to the Refugee Convention and hence, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention, there is, however, no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.
The Court took note of the serious allegations made by the Union of India relating to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. It also considered the fact that an application filed for similar relief, in respect of those detained in Assam has already been dismissed by the Court. Therefore, the interim relief prayed for was refused.
The Court, however, made clear that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.
[Mohammad Salimullah v. Union of India, INTERLOCUTORY APPLICATION NO.38048 OF 2021, order dated, 08.04.2021]
Appearances before the Court by:
For Petitioners: Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan
For Union of India: Solicitor General Tushar Mehta
For Jammu and Kashmir: Senior Advocate Harish Salve
For Intervenors: Senior Advocates Vikas Singh and Mahesh Jethmalani