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

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ that it would accord final hearing in August on a batch of petitions challenging the Centre’s decision to deport illegal Rohingya Muslim immigrants to Myanmar.

The top court is also seized of petitions which support the government’s stand to deport over 40,000 Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar and are settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan.

The Court asked the counsel for parties to submit their written submissions in the meantime,

“Pleadings are complete. Parties are required file brief written submissions,”

Initially, two Rohingya immigrants — Mohammad Salimullah and Mohammad Shaqir, who are registered refugees under the United Nations High Commission of Refugees (UNHCR), had moved the Supreme Court in 2017 challenging the move to deport to Rohingyas on various grounds including that it violated international human right conventions.

“Proposed deportation is contrary to the constitutional protection of Article 14 (Right to Equality), Article 21 (Right to Life and Personal Liberty) and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every person. This act would also be in contradiction with the principle of ‘Non-Refoulement’, which has been widely recognised as a principle of Customary International Law,”

The plea had also sought a direction that Rohingyas be provided basic amenities to ensure that they can live in humane conditions as required by international law.

The Centre had questioned the bonafides and motives of the NGOs and individuals seeking facilities for the Rohingya refugees, and stated that there is no discrimination between Indians and outsiders in providing health and education facilities.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the Central government to file a comprehensive status report, giving details on the condition of Rohingya camps in Haryana, Jammu and Kashmir and Delhi-NCR after Senior advocate Colin Gonsalves submitted before the Court that the conditions at the Rohingya camps are “unhygienic and pathetic”.

Colin Gonsalves, appearing for one of the petitioners, told the Court that the refugees had no access to clean sanitation facilities such as toilets and clean drinking water, that was leading to their deaths and that  the Centre and the states, hosting these refugees, should be asked to provide better hygienic facilities at these camps.

The Rohingya immigrants, who fled to India after violence in the Rakhine state of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. More than 600,000 refugees are languishing in Bangladeshi refugee camps after fleeing a brutal Myanmar army campaign launched in August last year.

Source: ANI