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MOHAMMAD SALIMULLAH AND ANR v. UNION OF INDIA AND ORS.

WRIT PETITION (CIVIL) NO.793 OF 2017

Date of Judgement: 08-04-2021

Petitioner: MOHAMMAD SALIMULLAH AND ANR.

Respondent: UNION OF INDIA AND ORS.

Bench: Chief Justice S.A. Bobde, Justice A.S Bopanna, and Justice V. Ramasubramanian.

INTRODUCTION

The rights of Rohingya refugees in India, as well as their imprisonment and probable deportation, are at the centre of the case Mohammad Salimullah and Others v. Union of India and Ors. The petitioners used the non-refoulement principle as their justification for recognising the fundamental rights that non-citizens are entitled to. The Union of India argued that because it had not ratified the pertinent international treaties, it was not subject to their non-refoulement clause and emphasised national security issues. The court determined that because India is not a signatory, the concept of non-refoulement does not apply and that only citizens are protected from deportation under the constitution. The decision has repercussions for the rights of non-citizens and how international responsibilities should be interpreted. It emphasises the precarious balance between safeguarding basic rights and resolving national security concerns.

FACTS

A Writ Petition was submitted in this instance to the Honourable Supreme Court. The petitioner in this case, Mohammad Salimullah, asserts that they are a registered member of the United Nations High Commission for Refugees. The petitioner demanded the release of the Rohingya Refugees who are being held without legal justification in Jammu Jail, not their deportation.According to many press reports from March 2021, 150 to 170 Rohingya refugees were being held in a Jammu sub-jail.

They said that around 6500 Rohingya are being held unlawfully in detention in Jammu. The State of Jammu’s Sub-Jail has been transformed into a detention facility for these Rohingya people.

One of these Rohingya refugees, Mohammad Salimullah, filed a Writ Petition to challenge the Indian government’s decision. He asked both the release of more than 150 Rohingya Muslims who were unjustly incarcerated in a Jammu sub-jail and temporary reprieve from the deportation of Rohingya Refugees.

ISSUES RAISED

1. Whether or whether non-citizens are also entitled to the fundamental rights?

2. Does the expulsion of Muslims from Rohingya violate their constitutional right under Article 14 of the Indian Constitution?

3. Do these Rohingya refugees face a threat to their Article 21 Right to Life?

ARGUMENTS OF PETITIONERS

The petitioners assert that they are registered as refugees with the UN High Commission for Refugees and contend that the right guaranteed by Article 21 of the Indian Constitution includes the principle of non-refoulement (not forcibly returning refugees to a country where they may face persecution).

They assert that non-citizens are also entitled to the rights protected by Articles 14 (equality before the law) and 21 (protection of life and personal liberty).

India is a party to other international human rights treaties, including the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the Convention on the Rights of the Child (1992), according to the petitioners, even though India has not ratified the 1951 United Nations Convention on the Status of Refugees. Based on these agreements, they assert that non-refoulement is a legally obligatory responsibility.

The petitioners in Mohammad Salimullah and Anr v. Union of India and Ors. mention the International Court of Justice (ICJ) decision in The Gambia v. Myanmar as a key reference. In that momentous ruling, the International Court of Justice recognised genocide against the Rohingya people in Myanmar. The petitioners say that, given Myanmar’s recent military instability, forcefully deporting Rohingya refugees seeking safety in India would expose them to serious and life-threatening hazards. Given the dire situation and well-documented persecution of the Rohingya minority in Myanmar, the petitioners argue that providing protection and ensuring the safety of these refugees is more important than exposing them to greater suffering through deportation.

ARGUMENTS OF RESPONDENTS

According to the Union of India, the court earlier rejected a similar suit contesting the expulsion of Rohingyas from the state of Assam. This might establish a precedent or a legal stance on the deportation of Rohingyas since it shows that the court has already rendered a decision in a case that is comparable to this one.

They contend that the Foreigners Act of 1946 considers the people for whom protection from deportation is requested to be foreigners. These people are subject to the rules stated in the Foreigners Act, in accordance with the Union of India’s interpretation, and do not have the legal status of Indian citizens.

India has not ratified either the 1967 Protocol to the 1951 Convention on the Status of Refugees or the 1951 Convention itself. The Union of India claims that only “contracting States” are subject to the principle of non-refoulement, which forbids the forcible repatriation of refugees to a nation where they risk persecution. By saying this, they argue that India is not legally required to uphold the principle of non-refoulement since it is a non-signatory.

Due to India’s free and porous land borders, the Union of India expresses worry over the ongoing threat of illegal immigration. They contend that this has implications for national security and that the unchecked flood of illegal immigrants may negatively affect internal security and stability.

They argue that the government has the authority to drive out foreign nationals. The Union of India claims that the government has the power to issue orders preventing, controlling, or restricting the admission or departure of foreigners from India under the terms of the Foreigners Act. This demonstrates their position, according to which the government has the legal authority to regulate the presence of foreign nationals in the nation.

The Union of India promotes the intelligence agencies’ observations while expressing serious worries about domestic security. The Union of India indicates that some people or groups, particularly Rohingya refugees, may represent a threat to India’s internal security by raising these concerns. The reference of intelligence agency reports implies that there is reliable evidence pointing to certain Rohingya refugees’ involvement in activities that pose a threat to the country’s security. These worries play a critical role in determining the Union of India’s position on the matter since they highlight the significance of taking precautions and defending the nation’s security interests. The argument put up by the Union of India suggests that these security worries may be used as justification for enacting policies that monitor or even expel those who are thought to be a threat to internal security.

RATIONALE

1. The court observed that neither the 1951 United Nations Convention on the Status of Refugees nor its 1967 Protocol have been signed by India. India is not legally bound by the terms of these international accords since it is not a signatory. The court emphasised the importance of the principle of non-refoulement, which forbids the forced repatriation of refugees to nations where they may risk persecution. The court determined that the non-refoulement principle cannot be used in this instance since India is not a signatory to these accords.

2. The court acknowledged that all people, including non-citizens, are entitled to the rights outlined in Articles 14 (right to equality) and 21 (right to life and personal liberty) of the Indian Constitution. However, the court made it clear that the right to remain or establish oneself in any area of Indian territory, which is guaranteed by Article 19(1)(e) of the Constitution, is related to or concurrent with the right not to be deported. The people in question lack the constitutional right to live or stay in India since they are classified as foreigners under the Foreigners Act. The court found that the petitioners’ request for an injunction against deportation was ineligible.

3. The court considered the Union of India’s concerns about the lingering threat of illegal immigration and its possible impact on national security. The court recognised that India has extensive and porous land borders with several nations, rendering it vulnerable to illegal invasion. It also highlighted the systematic flood of illegal immigrants made possible by agents and touts who benefit from open borders. In light of these concerns, the court recognised the government’s power to restrict foreigner admission and expulsion in order to protect national security and maintain peace and order.

The court came to the conclusion that it was not practicable to satisfy the petitioners’ requests for temporary relief, which included the release of jailed Rohingya refugees and a directive not to deport them. The court did, however, decide that the Rohingya refugees in Jammu not be deported until the required deportation procedure be followed, which did offer some protection. This order attempted to guarantee that any deportation would be carried out in line with recognised legal protections and processes.

DEFECTS OF LAW

1. It could be argued that the court’s reliance on India’s non-signatory status to the 1951 UN Convention on the Status of Refugees and its 1967 Protocol as justification for concluding that the principle of non-refoulement does not apply is a restriction on the court’s interpretation. Although it is true that India is not a signatory to these particular conventions, international human rights standards, such as the principle of non-refoulement, are regarded as customary international law and may be applicable in situations where treaty requirements are not present.

2. Although the court recognised that all people, including non-citizens, are entitled to the protections provided by Articles 14 and 21 of the Indian Constitution, it limited the protection from deportation by focusing on the right to reside or settle under Article 19(1)(e), which only applies to citizens. This limited reading can be considered as neglecting the greater values of equality and the preservation of life and personal freedom, as well as restricting the constitutional protections afforded to non-citizens.

3. While there is no doubt that national security issues are crucial, the court’s emphasis on these issues might be regarded as superseding the rights and safeguards of those seeking shelter. Without fully taking into account the unique circumstances and vulnerabilities of the Rohingya refugees, the court’s emphasis on the possible threat posed by illegal immigration may raise questions about the proportionality of the measures implemented and their impact on fundamental human rights.

INFERENCES

The case has far-reaching repercussions on several fronts. Because India is not a party to the United Nations Convention on the Status of Refugees, the concept of non-refoulement, which prevents the forcible repatriation of refugees to countries where they may suffer persecution, is not legally binding in the country. Nonetheless, the court maintained refugees’ and other non citizens’ fundamental rights, including their rights to equality, life, and personal freedom. However, it limited non-citizens’ protection from deportation by stating that the right to reside or establish in India is only provided to citizens. This restriction calls into question the amount of protection offered to non-citizens in terms of their ability to remain in the nation. The case also illuminates the impact of the Union of India’s worries about the influx of illegal immigrants through India’s permeable borders, which influenced the court’s viewpoint and helped balance the conflicting interests of national security and noncitizens’ rights.

REFERENCES

1. Indian Kanoon, Mohammad Salimullah v. Union of India, 2021 SC 793 –https://indiankanoon.org/doc/10486034/

Madhav Sood
1st year student at NMIMS – Kirit P. Mehta School of law

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