It is also true that the rights guaranteed under Articles 14 and 21 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).
15. Therefore, it is not possible to grant the interim relief prayed for. However, it is 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. Interlocutory Application is disposed of accordingly.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
INTERLOCUTORY APPLICATION NO.38048 OF 2021
IN
WRIT PETITION (CIVIL) NO.793 OF 2017
MOHAMMAD SALIMULLAH AND ANR. Vs UNION OF INDIA AND ORS
Dated: April 08, 2021
O R D E R
1. Pending disposal of their main writ petition praying for the issue of an
appropriate writ directing the respondents to provide basic human
amenities to the members of the Rohingya Community, who have taken
refuge in India, the petitioners who claim to have registered themselves as
refugees with the United Nations High Commission for refugees, have come
up with the present interlocutory application seeking (i) the release of the
detained Rohingya refugees; and (ii) a direction to the Union of India not to
deport the Rohingya refugees who have been detained in the subjail
in
Jammu.
2. We have heard Sh. Prashant Bhushan, learned counsel and Sh. Colin
Gonsalves, learned senior counsel appearing for the applicants/writ
petitioners, Sh. Tushar Mehta, learned Solicitor General appearing for the
Union of India, Sh. Harish Salve, learned senior counsel appearing for the
Union Territory of Jammu & Kashmir, Sh. Vikas Singh and Sh. Mahesh
Jethmalani, learned senior counsel appearing for persons who seek to
implead/intervene in the matter.
3. Sh. Chandra Uday Singh, learned senior counsel representing the
Special Rapporteur appointed by the United Nations Human Rights Council
also attempted to make submissions, but serious objections were raised to
his intervention.
4. According to the petitioners, both of them are Rohingya refugees from
Myanmar and they are housed in a refugee’s camp. They claim to have fled
Myanmar in December2011
when ethnic violence broke out.
5. It appears that persons similarly placed like the petitioners are housed
in refugee camps in New Delhi, Haryana, Allahabad, Jammu and various
other places in India.
6. On 8.08.2017 the Ministry of Home Affairs, Government of India
issued a letter to the Chief Secretaries of all the State Governments/UT
Administrations, advising them to sensitize all the law enforcement and
intelligence agencies for taking prompt steps and initiating deportation
processes. It is this circular which prompted the petitioners to approach
this Court with the above writ petition.
7. According to the petitioners, new circumstances have now arisen, as
revealed by newspaper reports appearing in the first/second week of March,
2021, to the effect that about 150170
Rohingya refugees detained in a subjail
in Jammu face deportation back to Myanmar. The reports that appeared
in The Wire, The Hindu, The Indian Express and The Guardian are relied
upon to show that there are more than about 6500 Rohingyas in Jammu
and that they have been illegally detained and jailed in a subjail
now
converted into a holding centre.
8. The contention of the petitioners is (i) that the principle of non-refoulement is part of the right guaranteed under Article 21 of the
Constitution; (ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and (iii) 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. The petitioners also contend that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment.
9. Heavy reliance is placed upon a recent Judgment of International
Court of Justice in The Gambia vs. 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 that now the elected Government has been over thrown by a military
coup and that therefore the danger is imminent.
10. The Union of India has filed a reply contending inter alia (i) that a similar application in I.A. No.142725 of 2018 challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018; (ii) 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; (iii) that 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; (iv) that the principle of nonrefoulement
is
applicable only to “contracting States”; (v) that since India has open/porous
land borders with many countries, there is a continuous threat of influx of
illegal immigrants; (vi) that such influx has posed serious national security
ramifications; (vii) that there is organized and well orchestrated
influx of
illegal immigrants through various agents and touts for monetary
considerations; (viii) that 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; (ix) that
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; (x) that the
right of the Government to expel a foreigner is unlimited and absolute; and
(xi) that intelligence agencies have raised serious concerns about the threat
to the internal security of the country.
11. It is 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.
12. We have carefully considered the rival contentions. 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.
13. It is also true that the rights guaranteed under Articles 14 and 21 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).
14. Two serious allegations have been made in reply of the Union of India.
They relate to (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. Moreover, this court has
already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect
of those detained in Assam.
15. Therefore, it is not possible to grant the interim relief prayed for.
However, it is 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. Interlocutory Application is
disposed of accordingly.
……………………………..CJI
(S.A. BOBDE)
……………………………….J.
(A.S. BOPANNA)
………………………………..J.
(V. RAMASUBRAMANIAN)
New Delhi
April 08, 2021
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