OVERVIEW
A bench of the Supreme Court led by Chief Justice of India (CJI) SA Bobde, and also comprising Justice A.S. Bopanna and Justice V. Ramasubramanian, heard the case regarding the deportation of Rohingyas, Mohammad Salimullah v. Union of India on the 8th of April, 2021.
The Apex Court in its judgement noted that the fundamental right to settle in India is available only to the citizens of India according to the provisions of Article 19 of the Constitution of India, and thus the non-citizen Rohingyas do not have, at their disposal, the fundamental right to settle and reside in any part of the country. Based on that observation, the Court refused to direct for stopping the deportation of a minimum of 150 Rohingya refugees who have been detained in a prison in Jammu prison to Myanmar.
However, the Hon’ble Court issued directions so 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.”
BACKGROUND
A writ petition was filed by the petitioner Mohammad Salimullah with respect to a letter issued by the Ministry of Home Affairs, Government of India to all the Chief Secretaries of the State Government and Union Territory Administrations which urged them to sensitive appropriate authorities for taking prompt steps with respect to deportation process of refugees who have taken shelter in the various refugee camps.
The petitioners referred to the newspaper reports of reliable papers such as The Wire, The Hindu, The Indian Express and The Guardian reported in the initial weeks of March, 2021, according to which “about 150-170 Rohingya refugees detained in a sub-jail in Jammu face deportation back to Myanmar.” The reports of such newspapers bring to light the illegal detention of more than about 6500 Rohingyas in Jammu in a sub-jail which has now been converted into a holding centre.
The Jammu & Kashmir administration, on the directions issued by the Union Ministry of Home Affairs on the 6th of March, started a verification drive in lieu of sensitizing the intelligence agencies and law enforcements Union Territory about issues relating to deportation of the Rohingyas, and moved some of them to a holding centre, pending their potential deportation.
FURTHER DETAILS
The petitioner, who claimed to have registered themselves as refugees under the United Nations High Commission for refugees sought through their interlocutory application:
(a) The detained Rohingya refugees be released, and
(b) A direction be issued to the Union of India so as to not deport the Rohingya refugees detained in the sub-jail in Jammu.
The learned counsel representing the Union of India, Solicitor General Tushar Mehta contended that the porous land borders of India continuously pose threat to the influx of illegal immigrants, which subsequently endangers the national security of the country, as has also been of concern to the intelligence agencies of the country.
It was also pointed out that “right of the Government to expel a foreigner is unlimited and absolute.”
The counsel also contented the right to settle in India of “absolutely illegal immigrants” such as Rohingyas, could not be asserted within the ambit of Article 21 of the Constitution, which guarantees the right to life and liberty.
CONCLUSION
“It is true that the rights guaranteed under Articles 14 and 21 (right to equality and life) 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),” said the Court in its judgement.
The Court also pointed out that India is not a signatory to the Refugee Convention, and refused to comment on the circumstances of Myanmar, as had been raised as a concern in the petition, since it was another country.
The Court observed thus, “There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, 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. But there is 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. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.”
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