DATE OF ORDER: April 08, 2021
JUDGES: C.J.I. S.A. BOBDE, J. A.S. BOPANNA, and J. V. RAMASUBRAMANIAN
PARTIES
- Petitioner – MOHAMMAD SALIMULLAH AND ANR.
- Respondents – UNION OF INDIA AND ORS.
COUNSEL
- Prashant Bhushan and Colin Gonsalves (counsel for petitioners)
- Tushar Mehta (appearing for the Union of India),
- Harish Salve (appearing for the Union Territory of Jammu & Kashmir),
- Vikas Singh, Mahesh Jethmalani (appearing for persons who seek to implead in the matter).
ISSUE: Whether the notice issued by the Union of India for the deportation of Rohingya refugees was valid or does it infringe any rights of those persons.
SUMMARY: The court in its decision held that the right not to be detained is incorporated under article 19(1)(e) of the Indian constitution and unlike article 14 and 21 it is not available for the non-citizens and Rohingyas present in Jammu can be deported if prescribed procedure is followed
IMPORTANT PROVISIONS
Article 14, Article 21, Article 19(1)(e), and Article 51(c) of the Constitution of India
Section 2(A) and section 3 of Foreigners act of 1946
United Nations Convention on The Status of Refugees of 1951
The Protocol of The Year of 1967
Universal Declaration of Human Rights of 1948
International Covenant on Civil and Political Rights 1966
Convention on child rights of 1992
Protection of All Persons Against Enforced Disappearances
Convention Against Torture and Other Cruel and Inhuman Treatment or Punishment.
ANALYSIS OF JUDGEMENT
1. The original case was presented before the court in the form of writ petition by the respondent is praying for the issue of basic human rights for the members of Rohingya community. Who were taking refuge in India and who had registered themselves as refugees with the United Nations high commission for refugees. The application was presented seeking two main reasons - (a) For the release of detained refugees of Rohingya community and (b) To direct the Union of India not to deport any Rohingya refugees that have been detained in the jails of Jammu.
2. Chandra Uday Singh, the council representing the rapporteur appointed by United Nations Human Rights Council put forward his submissions and Sirius objections were raised towards intervention by him.
3. The petitioners claim that both persons are Rohingya refugees who originally based in Myanmar and they had to free their camp from Myanmar in December 2011 when brutal ethnic violence broke out in the country.
4. Later, various persons were given shelter in different refugee camp all over the country, placed in New Delhi, Allahabad, Jammu, Haryana, and various other places.
5. A notice was issued by the Government of India via the Ministry of Home Affairs on 8th August 2017 address to chief secretaries of all the states and Union Territories, advising them to sensitize all the intelligence agencies and agencies of law enforcement for taking prompt steps and to initiate deputation processes in their states or UTs. Because of this circular the petitioners approached the court.
6. The petitioner also claimed that more than 6000 Rohingyas are illegally detained and jailed in Jammu and subjects are also converted into holding centers for Rohingyas. These instances were reported in March 2021 in reputed news outlets like the wire, The Indian express, the Hindu, and The guardian.
7. The petitioners in the main contention presented the following points -
(a) that under article 21 of the Indian Constitution the principle of non-refoulement is also incorporated.
(b) that the fundamental rights guaranteed under Article 14 and 21 of the Indian Constitution are even available to non-citizens also.
(c) It was also mentioned that even though India is not a signatory to UN convention on the status of refugees of 1951 but on the other hand India is a party to Universal Declaration of Human Rights of 1948, International Covenant on Civil and Political Rights 1966, and convention on child rights of 1992 and therefore non-refoulement is a binding obligation upon India. It was also stated by the petitioner that India is also a party to Protection of All Persons Against Enforced Disappearances and Convention Against Torture and Other Cruel and Inhuman Treatment or Punishment.
8. The council also placed a very heavy Reliance upon recent judgement of ICJ in The Gambia vs Myanmar dated 23rd January 2020 this judgement was quoted to show that even the international Court of Justice has taken in consideration of the genocide of Rohingya as in Myanmar and that their lives are in serious danger if they are deported back.
9. The respondent's Union of India had filed a reply stating that -
(a) A similar application (I.A. No. 142725 of 2018) regarding the deportation of Rohingya refugees was rejected by this court in the matter of state of Assam.
(b) That the persons for whom protection is being demanded against deportation in the present application are foreigners and fall within the ambit of section 2(A) of foreigners act of 1946. And fundamental right which is guaranteed under article 19 1 (e) is available only to the citizens of the country.
(c) That the principle of non-refoulement is only applicable to countries which are contracting states and India is not a signatory in either United Nations Convention on The Status of Refugees of 1951 or The Protocol of The Year Of 1967.
(d) India is a continuous thread from illegal migrants as it has an open land border with various countries.
(e) That section 3 of Foreigners Act gives the power to the Government of India to issue such orders for prohibiting, restricting or for regulating the entries of foreign nationals into the country or to deport them therefrom.
(f) Even though the fundamental rights guaranteed under article 14 and 21 of the Constitution may be available to non-citizens also but the fundamental right guaranteed under Article 19(1)(e), which is to reside and settle in the country is only available to the citizens of the country.
(g) The intelligence agencies of the countries have alarmed the government about the concerns and the threats possessed to the security of this country message activities.
(h) The power to expel a foreigner from the country possessed by the government of India is absolute and unlimited.
10. It was further contended the decision of the ICJ has no significant relevance to the present case as the Union of India follows the process of notifying the government of the original country of the foreigners and we'll ordered their adaptation only when confirmed by such governments of a country of origin and that they are entitled to go back.
11. The court while delivering the judgement stated that while it is true you that India is not a signatory to the refugee convention. Hence serious doubts are raised whether article 51(C) of the Constitution can be brought into the question and the country is a signatory to ratified convention. The court further stated that there is no problem, and the national courts can draw inspiration from the international courts, international conventions, and treaties as long as they do not conflict with the municipal Law. The affairs currently in the state of Myanmar, the code cannot comment upon things happening in other countries.
12. It was also observed by the court that the fundamental rights guaranteed under article 21 and 14 of the Constitution are available to everyone even though they are not the citizens of the country but the right not to be deported accompany the right to reside or settle in any part of the country which is guaranteed under article 19 (1)(e) of the constitution.
13. There were two serious allegations made by the respondents, Union of India regarding the threat to national security of the country and the migration of illegal immigrants due to open land borders. The court further states that it has already dismissed an application (I.A. No. 142725 of 2018) filed for the similar relief regarding Rohingyas detail in the in the state of Assam.
14. The court finally concluded that it was not possible to grant the relief which was prayed for. However, the court further added and made it clear that Rohingya refugees present in Jammu on whose behalf this application was filed shall be refrained from getting deported unless the proper procedure prescribed for such a deportation is religiously followed.
The application is disposed accordingly.
CONCLUSION
The present case was brought before biscuit when an application was filed against the notice issued by the government of India which order the states and union territories to devote the Rohingya refugees living within the refugee camps. The petitioners argued that the right not to be deported is guaranteed under article 21 and 14 of the constitution and India is signatory to various UN conventions and treaties which made it obligatory for the country to incorporate Rohingya refugees.
The Union of India responded that India is not expressly a party to any UN convention or any international treaty that can made it obligatory for the country to support Rohingya refugees further on all this legal migration proposes a threat to national security and the deportation is taking place as per the procedure prescribed by the laws.
The court in its decision held at the Government of India is well within its right to order such deportation until it is done with the procedure prescribed by the law and right not to be deported is present within article 19 (1) (a) of the constitution which is available only to the citizens of the country and not to the non-citizens unlike Article 14 and 21 of the constitution.
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