Citation: Writ Petition (Civil) No. 793 of 2017
Bench: Chief Justice S.A. Bobde, Justice A.S Bopanna, and Justice V. Ramasubramanian.
In the case of Mohammad Salimullah v Union Of India, a writ petition was filed before the
Honorable Supreme Court Of India to challenge the decision of deporting Rohingya Refugees who have taken refuge in several parts of India to escape from persecution and violence they faced in their home country, Myanmar. Rohingya refugees living in India, therefore filed a
petition seeking protection and recognition of their rights. The petitioner, Mohammad Salimullah claimed that they are the registered members of UNHCR ( United Nations High Commission for Refugees).
Rohingyas are a small ethnic minority from Myanmar’s Rakhine state who have faced violent persecution by their government, military, and Buddhist nationalists.
Many Rohingyas have left Myanmar and sought refuge in neighboring countries, including India. Rohingyas arrived in India with the hope of finding protection and being able to enjoy their basic human rights.
The Indian government considered them illegal immigrants due to concerns about international security and planned to send them back to Myanmar.
To prevent their deportation and protect their rights, the Rohingyas approached the Supreme Court of India.
The petitioner, Mohammad Salimullah also wanted the release of the Rohingya Refugees who were illegally detained in the sub-jail of the state of Jammu which was later converted into the holding center for these refugees.
Four Issues were raised before the Honourable Supreme Court Of India.
- Does the deportation of Rohingya Muslims violate the right to equality under Article 14, considering that similarly placed immigrants are not being deported?
- Does the proposed deportation of Rohingya Muslims – who face an existential threat in Myanmar – violate their right to life under Article 21?
- Do fundamental rights apply to non-citizens?
- Is India bound by the ‘Non-Refoulement’ principle which is considered a part of Customary International Law, despite not signing the 1951 Refugee Convention?1
From the Petitioner’s Side
- The Petitioner argued that Article 21 of the Indian Constitution includes the principle of non refoulement.
- They also claimed that non-refoulment is a legally binding obligation, even though India is not a party to the 1951 United Nations Convention on the Status of Refugees.
However, India agreed to the Universal Declaration of Human Rights in 1948, the International Covenant on Political Rights in 1966, and the Convention on the Rights of the Child in 1992. Therefore, non-refoulment should apply in this case. Additionally, the petitioner stated that India has signed the Protection of All Persons against Torture and other cruel and Inhuman Treatment.
- The petitioner further asserted that non-citizens can also rely on Articles 14 and 21 of the Indian Constitution.
- Furthermore, the petitioner argued that the recent ruling of the International Court of Justice in The Gambia v. Myanmar provides strong evidence that the court has
recognized the violence and genocide against the Rohingya Muslims in Myanmar. With the military coup and the removal of the elected government, the danger is now very real. Sending the Rohingya refugees back to Myanmar would put their lives in danger.2
1 Mohammad Salimullah v Union Of India; AIR 2021 SC 1789, Supreme Court Observer (SCO), available at, https://www.scobserver.in/cases/mohammad-salimullah-rohingya-deportation-case-background/
2 Mohammad Salimullah v Union Of India; AIR 2021 SC 1789, Indian Kanoon, available at, https://indiankanoon.org/doc/10486034/
From The Respondent’s Side
- The opposing party argued that a similar petition, I. A. No. 142725 of 2018, requesting the deportation of Rohingya refugees from the state of Assam, was rejected by the court on 4th October 2018.
- They also pointed out that India shares open and porous land borders with several nations, which creates a constant concern about the influx of illegal immigrants.
- The opposing party argued that the petitioner, who is challenging the deportation, is considered a foreigner under Section 2(a) of the Foreigner Act, 1946. According to
Section 3 of this act, the central government has the authority to issue deportation orders for any foreign individual or group.
- They stated that India is not legally bound by the principle of non-refoulment since it is not a signatory to the United Nations Convention on the Status of Refugees.
- Furthermore, the opposing party emphasized the ongoing concern about the potential influx of illegal immigrants due to India’s open borders with multiple countries, which poses a significant security threat to the nation.
- The opposing party argued that while non-citizens may be granted certain rights as outlined in Articles 14 and 21, the right to live and reside, specifically mentioned in Article 19(1)(e), is granted only to citizens.3
The Foreigners Act, 1946, The Principal of non-refoulment, United Nations High Commission for Refugees, Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966, The Convention on the Rights of the Child, 1992, Article 14, Article 19(1)(e), Article 21, Article 51(c)
Case Law: The Gambia vs Myanmar Dated- 23.01.2020
The Foreigners Act, 1946
3 Mohammad Salimullah v Union Of India; AIR 2021 SC 1789, Indian Kanoon, available at, https://indiankanoon.org/doc/10486034/
Section 3: The Central Government may by order make provision, either generally or concerning all foreigners or concerning any particular foreigner or any prescribed class or description of the foreigner, for prohibiting, regulating, or restricting the entry of foreigners into (India) or, their departure therefrom or their presence therein.4
The Principal Of Non-Refoulement
Under international human rights law, the principle of non-refoulment guarantees that noreturnedld be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment, and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.5
Article 14 of The Constitution Of India
“The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India”6
Article 19(1)(e) of The Constitution Of India
19. (1) “All citizens shall have the right—
(e) to reside and settle in any part of the territory of India”7
Article 21 of The Constitution Of India
Protection of life and personal liberty.
“No person shall be deprived of his life or personal liberty except according to procedure established by law”8
Article 51(c) of The Constitution Of India
Promotion of international peace and security.
4 Section 3 of the foreigners act, 1946, Indian Kanoon https://indiankanoon.org/doc/413354/
5 The Principle of Non Refoulement, United Nations Network on Migration, available at https://migrationnetwork.un.org/resources/principle-non-refoulement-under-international-human-rights-law 6 Constitution of India, Article 14
7 Constitution of India, Article 19(1)(e)
8 Constitution of India, Article 21
The State shall endeavor to—
(c) “foster respect for international law and treaty obligations in the dealings of organized peoples with one another” 9
In this case, the Chief Justice of India and a panel of three judges made a decision in favor of the respondent. They declared that the deportation of Rohingya refugees will continue according to the law. The court explained that India is not a party to the refugee convention protocol, so the principle of non-refoulement (not sending refugees back to a place where they may face harm) does not apply to India.
The court refused to comment on the issue of the military coup in Myanmar, stating that they cannot make judgments about things happening in another country. They mentioned that the
national court can take inspiration from the International Court as long as it doesn’t conflict with the laws of the country.
The court determined that certain constitutional rights, such as Articles 14 and 21, apply to both citizens and non-citizens. However, Article 19(1)(e), which grants the right to reside and settle in any part of the country, is only available to Indian citizens, and refugees are excluded from this right. The court noted that the government had raised concerns about national security related to these refugees.
The court concluded that interim relief cannot be granted to the petitioners. The deportation of Rohingya refugees in Jammu will only be carried out following the proper procedure.
My opinion in the case of Mohammad Salimullah v Union of India is following the judgment delivered by the Supreme Court of India since I’m well aware of the facts stated by both the parties concerned and the decision made by the Honourable Supreme Court is apt. The court pronounced the judgment in favor of the respondent allowing the deportation of Rohingya refugees after following the proper procedure of deportation.
9 Constitution of India, Article 51(c)
Because of the open/porous land borders of India with several nations, the intelligence agencies also raised serious concerns about the threat to the internal security of the country which could be affected by these refugees.
It was made clear by the court that the Rohingya Refugees shall not be deported unless the procedure prescribed for such deportation is followed. India is the fastest-growing populous country in the world and therefore it would become very difficult to manage the economic
condition of the country. If we look at this issue economically then we’ll understand that with an increase in the population, the demands of the people will rise but the resources to satisfy their wants will decrease. That is why India cannot afford more population without proper management.
In addition to this, India is also not a signatory to the United Nations Refugees Convention Protocol of 1951 which makes India free from the boundation of the principle of
Arsi Hasan Lucknow University