Case BriefsSupreme Court

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, 2021 SCC OnLine SC 296, 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

Hot Off The PressNews

In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre filed an affidavit with the Supreme Court stating that ‘Rohingyas are a threat to national security’.

Earlier,  advocate Prashant Bhushan, appearing for the petitioners, had asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

Hot Off The PressNews

Supreme Court: After 2 Rohingya Muslim refugees urged the Supreme Court to direct the Central government not to deport them to Myanmar, the Court has sought a detailed response from the Centre. The petitioners, Mohammad Sallimullah and Mohammad Shakir, told the Court that they would face certain death on being deported to Myanmar.

Earlier, their advocate Prashant Bhushan asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: The National Human Rights Commission has taken suo motu cognizance of media reports regarding the plans of the Government of India to deport about 40,000 illegal Rohingya immigrants from Myanmar, who are residing in various parts of India. It has issued a notice to the Union Home Ministry, through its Secretary, calling for a detailed report in the matter within four weeks.

The Commission has observed that refugees are no doubt foreign nationals but they are human beings and before taking a big step, the Government of India has to look into every aspect of the situation, keeping the fact into focus that the members of the Rohingya community, who have crossed into the Indian borders and are residing here for long, have a fear of persecution once they are pushed back to their native country. The Commission has held that from the human rights angle, its intervention is appropriate in the matter.

The Commission has also observed that the Supreme Court of India has consistently held that the Fundamental Right enshrined under Article 21 of the Indian Constitution regarding Right to Life and Personal Liberty, applies to all, irrespective of the fact whether they are citizens of India or not. It further noted that India has been home to refugees, for centuries. It has continued to receive a large number of refugees from different countries. India is not a signatory to the 1951 Convention on Refugees and also the 1967 Protocol. But India is a signatory to a number of United Nations and World Conventions on Human Rights. Till today, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other.

According to the media reports, the Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan states of the country. A Home Ministry official has, reportedly, said that India was going ahead with plans to deport Rohingyas and is in discussions with Myanmar and Bangladesh governments on the issue.

The Government is also, reportedly, planning to set up “detention centres” for the refugees and if required “push them back” over the India-Myanmar border, if Myanmar refuses to accept the refugees back. According to the reported ‘Advisory’ issued by the Union Home Ministry, the State Governments have been told that the powers to identify and deport the foreign nationals, staying illegally in the country, have been delegated to them and that they should sensitize all law enforcement and intelligence agencies about the risk from the Rohingyas.

National Human Rights Commission