Mohammad Salimullah vs Union Of India on 8 April, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Mohammad Salimullah vs Union Of India on 8 April, 2021

Author: Hon’Ble The Justice

                                     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.                                                Petitioner(s)

                                                     VERSUS

     UNION OF INDIA AND ORS.                                                     Respondent(s)


                                                 ORDER

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
Signature Not Verified

Digitally signed by
ASHWANI KUMAR
Date: 2021.04.08
18:17:14 IST

petitioners, Sh. Tushar Mehta, learned Solicitor General appearing for the
Reason:

1
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,

2
2021, to the effect that about 150­170 Rohingya refugees detained in a sub­

jail 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 non­citizens; 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

3
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 non­ refoulement 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 well­orchestrated 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

4
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.

5

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

6



Source link