Mohammad Salimullah & Anr v.Union of India

Supreme court of India  

By – Shivansh Chandra

 NAME OF THE CASEMohammad Salimullah & Anr v Union Of India
CITATIONCivil Appeal No 793 of 2017
DATE OF CASE8 April 2021
PETITIONERMohammad Salimullah & Anr
RESPONDENTUnion of India
JUDGES/BENCHJustice AS Bopanna & CJI SA Bobde, Justice Ramasubramaniam
STATUES AND CONSTITUTIONConstitution of India, The Foreigner’s act 1946
IMPORTANT SECTIONS/ ARTICLE CLESArticle 21, Article 51(c), Article 19(1) (e) Article 14, Foreigner’s act 1946  Section 3

Abstract

In the present case, a writ petition was filed challenging the deportation of Rohingya Muslims who had taken refuge in India to escape persecution in Myanmar. The Supreme Court held that no interim relief regarding deportation will be provided on whose behalf the present application was filed, shall not be deported unless the prescribed procedure for such deportation should be followed the court further stated that articles 14 and  21 are available to all persons who may be a citizen or none citizen. 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(e).

                                             Introduction

In this case, public interest litigation was filed by two Rohingya Muslims challenging the decision of deporting Rohingya Muslims who escaped their native country i.e Mayanmar due to the fear of persecution and they entered India to take refuge the petitioner’s petition relied on a report which reported that the government of India has decided to deport 40,000 Rohingya’s back to their native country which there is a fear prof section there.

“The Hon’ble Supreme court held that they cannot comment about something happening in other countries and further stated that the petitioner should be deported back to their native country with the following procedure prescribed for such deportation. Rohingya people are the most commonly Muslim ethnic minority group in Myanmar”.[1]

They represent about 1 million people among Myanmar’s total population of 52 million and live in the northern part of Rakhine State, which borders Bangladesh and India the Rohingya conflict is an ongoing conflict between the Rohingya Muslim and Rakhine Buddhist community a military crackdown on Rohingya civilians by Myanmar’s security forces.

                                                Facts of case[2]

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 has come up with the present an interlocutory application seeking the release of detained Rohingya refugees and a direction to the union of India not to deport Rohingya refugees who have been detained in sub-jail in Jammu.

                                 Issues raised before the court

  • Whether the notice issued by the Union of India for the deportation of Rohingya refugees was valid or does it infringe any rights of those persons?

                             Arguments from the petitioner side

  • The petitioner argued that the principle of none refoulment is a part of article 21 of the Indian Constitution.
  •  Petitioner also argued that Article 14 and 21 are also available even to non-citizens.
  •  Petitioner also argued 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  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.
  •  Petitioners argued heavy reliance is placed upon a recent Judgment of the 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 Rohingya’s in Myanmar and that lives of these refugees are in danger if they are deported. According to the petitioners, Rohingya’s were persecuted in Myanmar even when an elected government was in power and now the elected Government has been overthrown by a military coup that therefore the danger is imminent.

                   Arguments from the respondent’s side

  •  The respondents argued that a similar application in I.A. No.142725 of 2018 challenging the deportation of Rohingya from the State of Assam was dismissed by this Court on 4.10.2018.
  • They also argued 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.
  • The respondent also argued 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.
  • The respondents argued that the principle of non­ refoulment is applicable only to “contracting States”;
  •  The respondents also argued   that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants;
  • The respondents also argued  that such influx has posed serious national security ramifications;
  • The respondents also argued  that there is organized and well orchestrated influx of illegal immigrants through various agents and touts for monetary considerations;
  • The respondents also argued  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;
  • The respondents also argued 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;
  • The respondents also argued that the right of the Government to expel a foreigner is unlimited and absolute; and
  • The respondents also argued that intelligence agencies have raised serious concerns about the threat to the internal security of the country.

                                                Related provisions   

     Constitution of India

  • Article 21: According to article 21 of the Indian Constitution “No person shall be deprived of his life or personal liberty except according to procedure established by law”.[3]
  • Article 19 (1)(e): According to article 19(1) (e)  of the Indian constitution every citizen of India has the right “to reside and settle in any part of the territory of India.”[4]
  • Article 52(c): According to article 52(c) of the Indian Constitution to

foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration[5]

  • Article 14:According the article 14 of the Constitution Equality before law that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  • Foreigner’s act 1946:

Section 3: According to section 3 of the foreigners act 1946 “ The Central Government may by order1 make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any”[6] prescribed class or description of a foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom or their presence or continued presence therein.

                                        Judgment

The Hon’ble Supreme Court of India held that they have carefully considered the rival contentions and further stated that 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 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   petitioners about the present state ate of Myanmar, Court also stated that they cannot comment upon something happening in another country.”[7]

“It is also true that rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be the citizens.”[8] 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(e) and court further stated that Union of India in their reply made a serious allegation that Rohingya’s relate to threat to the country and the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders.

The court concluded its decision by ordering that it’s not possible to grant the interim relief to the petitioners and court further stated that Rohingya’s in Jammu shall not be deported unless the procedure for such deportation is followed.

                                                      CONCLUSION

The order passed by the Supreme court of India serves as a good precedent court to elucidate the objectives of Article 21 of the Indian Constitution. There has been violence and numerous killings in Myanmar and sending them back to their native country would have given chance to the country for more attacks but though Article 21 of the constitution can be guaranteed to non-citizens it separates the fundamental right to reside in any part of the country which are fundamentals of Article 19 not guaranteed to non-citizens.

In my opinion, illegal immigrants from other countries shall not be allowed in our country because India is the second-highest population in the world and we cannot afford people of other countries to live in our country due to various reasons such as poverty security issues and also it will lead to increase in population, so illegal immigrants can be harmful for the nation.

[1] Indian kanoon https://indiankanoon.org/doc/10486034/ (Last visited 31 January 2021)

[2] Indian kanoon https://indiankanoon.org/doc/10486034/ (Lasted visited 1 February)

[3] Article 21 in The constitution of India 1949

[4] Article 19 (1)(e) in The constitution of India 1949

[5] Article 14 in The constitution of India 1949

[6] Section 3 of Foreigners act 1946

[7] Indian kanoon https://indiankanoon.org/doc/10486034/ (Last visited 3 February)

[8] Indian kanoon https://indiankanoon.org/doc/10486034/  (Last visited 3 February)