Mohammad Salimullah v. Union Of India
MOHAMMAD SALIMULLAH AND ANR. v. UNION OF INDIA AND ORS.
Coram: S.A. Bobde, CJI, A.S. Bopanna and V. Ramasubramanian, JJ.
Facts: The petitioners who are members of the Rohingya community from Myanmar, claim to have fled Myanmar in December 2011 when ethnic violence broke out and have taken refuge in India. They claim to have registered themselves as refugees with the United Nations High Commission for refugees. They had come up with the instant interlocutory application seeking:
- the release of the detained Rohingya refugees; and
- a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub-jail in Jammu.
This application was filed pending disposal of their main writ petition praying for the issue of an appropriate writ directing the respondents (Union of India) to provide basic human amenities to the members of the Rohingya Community.
By the Petitioner:
- That the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution;
- that the rights guaranteed under Articles 14 and 21 are available even to noncitizens; and
- 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 nonrefoulement is a binding obligation.
Heavy reliance was placed upon a recent Judgment of International Court of Justice in The Gambia v. Myanmar dated 23.01.2020 to show that even the International Court has taken note of the genocide of Rohingyas in Myanmar and that the lives of these refugees are in serious danger if they are deported.
According to the petitioners, Rohingyas were persecuted in Myanmar even when an elected government was in power and now the elected Government has been overthrown by a military coup, the danger is even more imminent.
By the Respondent’s (Union of India):
- 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. Additionally, 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.
- 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.
- The principle of non-refoulement is applicable only to “contracting States”.
- Since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants which poses serious national security ramifications.
- There is organized and well-orchestrated influx of illegal immigrants through various agents and touts for monetary considerations.
- Though the rights guaranteed under Articles 14 and 21 may be available to noncitizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens.
- The right of the Government to expel a foreigner is unlimited and absolute.
- Intelligence agencies have raised serious concerns about the threat to the internal security of the country.
It was also contended on behalf of the Union of India that the decision of the International Court of Justice has no relevance to the present application and that the Union of India generally follows the procedure of notifying the Government of the country of origin of the foreigners and order their deportation only when confirmed by the Government of the country of origin that the persons concerned are citizens/nationals of that country and that they are entitled to come back.
Decision: The Hon’ble Supreme Court, rejecting the Petitioner’s application, held that it was not possible to grant the interim relief. It was held that this was due to two serious allegations which were made by the Union of India i.e., (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.
The Hon’ble Apex Court further observed that there is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections were raised, whether Article 51(c) of the Constitution can be pressed into service. However, the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. In Vishaka v. State of Rajasthan (1997), the Apex Court observed, “it is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law”.
Lastly and most importantly, it was declared that while the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens, 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) which is only available to the citizens.
Nevertheless, on a cautionary note, it was 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.