Facts:
The case involves Md Salimullah, a Rohingya refugee residing in India, who filed a petition challenging the Indian government’s decision to deport Rohingya refugees back to Myanmar. [1] In March 2021, numerous newspaper reports stated that about 150-170 Rohingya refugees detained in a jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which guide them to initiate deportation processes against refugees housed in several camps across the country. The petitioners, who were themselves Rohingya refugee, sought, through an interlocutory application, the release of the detained Rohingya refugees and a direction to the government to not deport them. The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. The Indian government contended that the Rohingya refugees were illegal immigrants and posed a security threat.
Issues Raised:
Four issues are raised before the Respected Judges of the honourable Supreme Court of India.
- Is India bound by the principle of ‘Refoulement ‘?
- Does the deportation of Rohingya Muslims violate their right granted under Indian constitution article 14?
- Is Article 21 the Right to life danger of these Rohingya refugees?
- Whether the fundamental Rights are limited to citizens or non-citizens as well [2]
Contention:
- Argument from the Petitioner side:
The Petitioner claimed that Article 21 of the Indian Constitution contains the concept of non – non-refoulement.
The Petitioner argued that non – non-refoulement is a legally binding obligation, even though India is not a party to the 1951 United Nations Convention on the Status of Refugees. But India is a party to the Universal Declaration of Human Rights 1948, the International Covenant on Political Rights, 1966, and the Convention on the Rights of the Child 1992, so the non-refoulement will be applicable. In addition, the Petitioner claimed that India is a signatory to the Protection of All Persons against Torture and Other Cruel and Inhuman Treatment.
The Petitioner further asserted that Articles 14 and 21 are also available to non-citizens.
The Petitioner further argued that the International Court of Justice’s recent ruling in The Gambia v. Myanmar is heavily relied upon to demonstrate that the International Court has taken notice of the violence of genocide against the Rohingya Muslims in Myanmar. The military coup removed the elected government, the danger is now real. The lives of these Rohingya Refugees are in danger if they are sent back to Myanmar. [3]
- Argument from the Respondent side:
The Respondent argued that on 4.10.2018, the Court had rejected a similar petition, I. A.No. 142725 of 2018, in which the deportation of Rohingya refugees from the State of Assam was ordered.The Respondent also noted that there was a constant fear of an influx of illegal immigrants because India has open and porous land borders with several nations.
The Respondent argued that the person who has filed a petition against deportation is a foreigner as defined in Section 2 (a) of the Foreigner Act, 1946. Section 3 of this act gives power to the Central Government to make orders for the deportation of any foreign person or class.The Respondent argued that the principle of non-refoulement is not legally binding on India as India is not a signatory to the United Nations Convention on the Status of Refugees.
The Respondent also noted that there is a constant fear of an influx of illegal immigrants because India has open borders with several nations. That imposes a serious threat to the security of a nation. Respondent argued that although non-citizens may be granted the rights outlined in Articles 14 & 21, Article 19 (1) (e) [4] includes the Right to live & reside is granted only to the citizens.
Rationale:
The three-judge bench headed by the Honourable Chief Justice of India decided to reject the plea to release the Rohingya immigrants currently detained in a Jammu jail but they also said that these immigrants should not be deported unless the due procedure for such task is followed.
Regarding the “non-refoulment” principle the Supreme Court said that since India is not a signatory to any such treaty in question, this principle cannot be pressed upon it under Article 51 (c) of the constitution.
The bench also denied commenting on the matter of another state when the petitioners’ side evoked the fact that these immigrants cannot be sent back to a country where a recent military coup has taken place and where they will probably be tortured or killed.
The bench stated that while these immigrants do have the protection of Article 14 (right to equality) and Article 21 (Due process of law) the right not to be deported provided under Article 19 (1)(e) is only provided for Indian citizens and as these immigrants are foreign citizens they are exempted from this particular right. [5]
Defects of Law:
In this case, the main flaw in the law was about how current rules were read and used for the rights and status of refugees. These were mainly from Bangladesh, fleeing to India due to reasons like persecution, war, or lack of work. A key flaw was the lack of a clear rule to deal with refugees’ rights in India. This gap made many refugees open to unfair treatment, jail, and being sent back.
Another flaw in the law was the failure to follow the rules of world law and human kindness in how refugees were treated. India, having agreed to many world pacts on refugees, was to meet certain standards in their care and safety. Yet, the court found that often, these standards were missing from India’s laws or not put into practice.
Inference:
Several inferences can be drawn from the decision. the observation of the SCI in the case under discussion is interesting as it categorically stated that “the national courts could draw inspiration from International Conventions, as long as it is not opposed to municipal laws.” Therefore, the interpretation of the SCI logically 57 underscores that non-refoulement violates the municipal law of India and, therefore, does not apply to the present case.
The refugee crisis is one of the oldest crises since independence time. These refugees mainly illegally enter neighbouring countries. Due to this, the security of the Country comes in danger. Also, economic impact is affected by the increase in population demand for resources increase. India is the second-largest populated country in the world so it can’t afford to take any more population without proper management. India is not a signatory to U.N. Refugees Convention 1951 that’s why India is not bound by the principle of non-refoulement.
Reference:
[1] INDIAN KANOON , https://indiankanoon.org/doc/10486034/ ( last visited May19, 2024).
[2] Law foyer, https://lawfoyer.in/mohammad-salimullah-v-union-of-india/ (last visited May 19, 2024)
[3] INDIAN KANOON , https://indiankanoon.org/doc/10486034/ ( last visited May19, 2024).
[4] INDIA CONST. art 19 cl. 1 (e)
[5] INDIAN KANOON , https://indiankanoon.org/doc/10486034/ ( last visited May19, 2024).
[6] Legall y flawless, https://legallyflawless.in/case-brief-mohammad-salimullah-vs-union-of-india/ (last visited May19, 2024).
Priyanshu Singh
Guru Ghasidas Vishwavidhyala