MOHAMMAD SALIMULLAH V.UNION OF INDIA
  • Post author:
  • Post category:Case Analysis
  • Reading time:16 mins read

By:- Sneha Shukla[1]

In the Supreme Court of India

  NAME OF THE CASE:  MOHAMMAD SALIMULLAH & ANOTHER V. UNION OF INDIA, 2021.
  CITATION:  Writ Petition (Civil) No. 793 of 2017
  APPELLANT:  Mohammad Salimullah & Another
  RESPONDENT:  Union of India & Others
  BENCH / JUDGE:  Chief Justice S.A. Bobde, Justice A.S Bopanna, and Justice V. Ramasubramanian.
  DATE OF THE JUDGEMENT:  April 8, 2021
  STATUTES/ CONSTITUTION INVOLVED :  Constitution of India,Foreigner’s Act 1946.Universal Declaration of Human Rights 1948.United Nations Convention on the Status of Refugees 1951.United Nations High Commission for refugees.International Court of Justices.International Covenant on Civil & Political Rights, 1996.Convention on the Rights of the child 1992.
  IMPORTANT SECTIONS / ARTICLES  Constitution of India : Article 19 (1)(e) , 21 , 51(c)Foreigner’s Act 1946 : Section-3

ABSTRACT

In this case, Writ Petition was filed by Rohingya refugees before the Honorable Court to challenge the deportation of Rohingya Muslims, who had taken refugee in India from their country Myanmar. The Supreme Court held that the deportation of the refugees shall be allowed, with the proper procedure established by law for such deportation. Article 19(1) (e) is a fundamental Right that includes the Right against deportation, and it allows the right to reside in any part of the country, but this is a fundamental right that’s why it is available only to citizens of India and not to non-citizens. The court observed the right not to be deported is ancillary to the right to side or settle in any part of the country under Article 19 (e ) of the Constitution that is available only to citizens.

INTRODUCTION

The Rohingya are an ethnic group. The majority of them belong to the Muslim Religion. For centuries, they lived in Myanmar’s Western Coastal State of Rakhine. The Condition of this state is very poor, these people can’t even leave this place without government permission. Due to ongoing violence and persecution, thousands of Rohingya Muslims left their country and took refuge in a nearby country.[2]

In the year 2017 Government of India issued a letter to all the states of India to initiate the deportation of around 40,000 Rohingya Muslims who had taken refugees in various house camps in the country. The Rohingya refugees from Myanmar came to India in the year 2011 during the ethnic violence in Myanmar. These Rohingya refugees illegally enter India.[3]

In this case, Rohingya Refugees Mohammad Salimullah has filed a writ petition before the Supreme Court asking for the release of Rohingya Refugees who were Illegally detained in the sub-jail of Jammu and not to deport these refugees back to their parental country Myanmar. The Rohingya refugees feel if they were deported back, their lives will not be safe. They will have the imminent threat of fear.

WRIT PETITION: “Writ Petition is an order by a higher court to a lower Court or Courts, directing them to do something or stop them from doing something. a Writ is a form of written command in the name of the court”. Under Article 226 Writ Petition can be filed in High Court and Under Article 32 it can be filed in Supreme Court.[4]

NON – REFOULEMENT: Under Article 33 of the 1951 U.N. Convention for Refugees 1951 this principle is mentioned. “ The Principle of non – refoulement states that no refugees should be returned to any place where there are chances of their persecution.” This principle emerged during World War Second for the protection of Refugees.[5]

FACTS OF THE CASE

In this case, Writ Petition was filed before The Honorable Supreme Court. Mohammad Salimullah who is the petitioner, in this case, claims that they are registered as a member of the United Nations High Commission for refugees. The petitioner wanted the release of the Rohingya Refugees who are detained illegally in Jammu Jail and not to deport these Rohingya Refugees.[6]In March 2021, various newspaper reports stated that about 150 – 170 Rohingya refugees were detained in a sub-jail of Jammu.

They also stated that about 6500 Rohingya in Jammu are illegally detained. Sub – Jail of the State of Jammu is now converted into the holding center for these Rohingya people. Mohammad Salimullah, who is one of these Rohingya refugees filed a Writ Petition against the order of the government of India. He sought interim relief against the deportation of Rohingya Refugees, and he also requested to release more than 150 Rohingya Muslims who were illegally detained in a sub-jail of Jammu.

ISSUE RAISED BEFORE THE COURT

  1. Does India bound by the Principle of ‘Non – Refoulement ‘?
  • Does the deportation of Rohingya Muslims violate their right granted under Indian constitution article 14?
  • Does Article 21 Right to life danger of these Rohingya refugees?
  • Whether the fundamental Rights are limited to citizens or non-citizens as well 7]

RELATED PROVISIONS

CONSTITUTION OF INDIA

●       ARTICLE 19 (1)(e)

“Right to reside and settle in any part of the territory of India”.[8]

●       ARTICLE 21

“Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.[9]

●       ARTICLE 51 (1)

“Foster respect for international law and treaty obligations in the dealings of organized people’s with one another and encourage settlement of international disputes by arbitration Part 4 A Fundamental Duties”.[10]

FOREIGNER’S ACT 1946

●       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 foreigner into (India) or, their departure therefrom or their presence therein.[11]

ARGUMENT FROM THE PETITIONER SIDE

  • The Petitioner claimed that Article 21 of the Indian Constitution contains the concept of non – refoulement.
  • The Petitioner argued that 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, International Covenant on Political Rights, 1966, and 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 Person 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 in a 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 elected government was removed by the military coup, the danger is now real. The lives of these Rohingya Refugees are in danger if they are sent back to Myanmar.[12]

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. And 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 said 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) includes the Right to live & Reside is granted only to the citizens.[13]

JUDGEMENT

In this case, a three-judge bench headed by the Chief Justice of India pronounced the judgment in favor of the respondent. And declared that the deportation of Rohingya refugees would continue following the law. In the case of non refoulement principal Supreme Court held that India is not a party to the refugee convention so, the question of whether Article 51 ( c ) of the constitution can be used without India being a party, the court said the principle of non-refoulement would not be applied to India.

The Court refused to comment on the issue raised by the petition related to the military coup in Myanmar, Court clearly said that “ they cannot comment upon something happening in another country.” The Supreme Court said that the National Court can draw inspiration from the International Court only when it is not in conflict with the municipal laws.”[14]

The Court held that Articles 14 & 21 are available to citizens as well as non-citizens but Article 19 (1) ( e ) is available only to Indian citizens, refugees are excluded from this right. The court observed that the right not to be deported is ancillary to the right to side or settle in any part of the country under 19 (1) (e) of the Constitution, which is a right available only to citizens. The Court further stated that the Central Government had made serious concerns about the national security that could be affected by these refugees.

The Court concluded that it is not possible to grant interim relief to the petitioners. And the deportation of Rohingya Refugees in Jammu will be done only after proper procedure.

CONCLUSION

The order passed by the Honorable Court of India is correct in my opinion. The Court refused to grant interim relief to almost 150 Rohingya Muslims who were detent in Jammu and allowed the deportation of these refugees to their parental country, Myanmar. The Refugees crisis is one of the oldest crises since independence time. These refugees mainly illegally enter from neighboring countries. Due to this, the security of the Country comes in danger. And also economic impact gets 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 so it is not bound by the principle of non refoulement..

[1] Author is 3rd semester student of Amity Law School, Lucknow.

[2] Al Jazeera Staff, Who are the Rohingya ?, ALJAZEERA ( Jul 1, 2022 , 10:00 PM), https://www.aljazeera.com/features/2018/4/18/who-are-the-rohingya .

[3] INDIAN KANOON , https://indiankanoon.org/doc/10486034/ ( last visited Jul 1 , 2022).

[4] Prachi Darji , What is Writ Petition ? How do you file one in Court?, MYADVO ( Jul 1, 2022, 10: 50 PM ), https://www.myadvo.in/blog/how-to-file-writ-petition-in-court/ .

[5] Tanisha07 , The Principal of Non – Refoulement as Jus Cogens , LEGAL SERVICE INDIA ( Jul 1,2022 , 11:00 PM), https://www.legalserviceindia.com/legal/article-3630-the-principle-of-non-refoulement-as-jus-cogens.html .

[6] INDIAN KANOON, https://indiankanoon.org/doc/10486034/ ( last visited Jul 1 , 2022).

[7] Id.

[8] INDIA CONST. art 19 cl. 1 ( e ).

[9] INDIA CONST. art 19 cl. 1 ( e ).

[10] INDIA CONST. art 51 , cl. 1 .

[11] FOREIGNER ACT 1946 . Sec 3.

[12] INDIA KANOON, https://indiankanoon.org/doc/10486034/ ( last visited Jul 1,2022).

[13] INDIAN KANOON, https://indiankanoon.org/doc/10486034/ ( last visited Jul 1, 2022).

[14] INDIAN KANOON, https://indiankanoon.org/doc/10486034/ ( last visited Jul 1, 2022).

Tags: , , , , , , , , ,