Case Note & Summary
The Supreme Court considered an interlocutory application filed by Mohammad Salimullah and another, who identified as Rohingya refugees from Myanmar, pending disposal of their main writ petition seeking basic human amenities for Rohingya refugees in India. The applicants sought interim relief for the release of detained Rohingya refugees in Jammu and a direction to prevent their deportation, citing newspaper reports from March 2021 indicating imminent deportation of 150-170 refugees detained in a sub-jail. The petitioners, claiming to have fled Myanmar in December 2011 due to ethnic violence and registered with UNHCR, argued that the principle of non-refoulement is part of Article 21 rights, that Articles 14 and 21 apply to non-citizens, and that India's participation in various international human rights instruments creates binding obligations despite not being a signatory to the 1951 Refugee Convention. They relied on the International Court of Justice's judgment in The Gambia vs. Myanmar regarding genocide risks. The Union of India opposed the application, contending that similar relief had been denied in a 2018 case, that Rohingyas are foreigners under the Foreigners Act, 1946, giving the government absolute deportation authority, that India is not bound by the Refugee Convention, and that national security threats and porous borders justify deportation measures. The Court, after hearing arguments from multiple counsel including those seeking intervention, analyzed the rival contentions. It acknowledged that Articles 14 and 21 are available to non-citizens but emphasized that the right against deportation is ancillary to Article 19(1)(e)'s right to reside, which is exclusive to citizens. The Court noted India's non-signatory status to the Refugee Convention and that while national courts may draw inspiration from international conventions, they cannot override municipal law. It also considered the government's serious allegations regarding internal security threats and the precedent of the dismissed 2018 application. Consequently, the Court found it impossible to grant the interim relief sought. However, it directed that the Rohingyas in Jammu shall not be deported unless the prescribed procedure is followed, thereby disposing of the interlocutory application while leaving the main writ petition pending.
Headnote
A) Constitutional Law - Fundamental Rights - Articles 14 and 21 Available to Non-Citizens - Constitution of India, 1950, Articles 14, 21 - Petitioners contended that rights under Articles 14 and 21 are available even to non-citizens - Court acknowledged this principle but noted that right not to be deported is ancillary to right to reside under Article 19(1)(e) which is exclusive to citizens - Held that while Articles 14 and 21 apply to all persons, deportation rights differ (Paras 8, 13). B) Constitutional Law - Fundamental Rights - Article 19(1)(e) Exclusive to Citizens - Constitution of India, 1950, Article 19(1)(e) - Union of India argued that fundamental right to reside and settle in India under Article 19(1)(e) is available only to citizens - Court accepted this position, stating that right not to be deported is concomitant to right to reside - This formed basis for denying interim relief against deportation (Paras 10, 13). C) International Law - Refugee Convention - Non-Signatory Status - United Nations Convention on the Status of Refugees, 1951 - Petitioners argued India is party to various international human rights instruments making non-refoulement binding - Union of India countered that India is not signatory to Refugee Convention and principle applies only to contracting states - Court noted India's non-signatory status and that national courts can draw inspiration from international conventions only if not conflicting with municipal law (Paras 8, 10, 12). D) Immigration Law - Foreigners Act - Government's Deportation Authority - Foreigners Act, 1946, Section 3 - Union of India contended that Rohingyas are foreigners under Section 2(a) and government has unlimited, absolute right to expel foreigners under Section 3 - Court accepted this statutory authority, noting threat to internal security and porous borders as serious concerns raised by government - This supported denial of interim relief (Paras 10, 14). E) Civil Procedure - Interim Relief - Similar Application Previously Dismissed - Code of Civil Procedure, 1908 - Union of India pointed out that similar application (I.A. No.142725 of 2018) challenging deportation of Rohingyas from Assam was dismissed by Supreme Court on 4.10.2018 - Court considered this precedent and found it not possible to grant interim relief in current application - However, directed that deportation must follow prescribed procedure (Paras 10, 14, 15).
Issue of Consideration
Whether interim relief should be granted to prevent deportation of detained Rohingya refugees pending disposal of main writ petition seeking basic human amenities
Final Decision
Interlocutory application disposed of, interim relief not granted, but Rohingyas in Jammu shall not be deported unless prescribed procedure is followed
Law Points
- Non-refoulement not binding on non-signatory states
- Article 19(1)(e) right to reside exclusive to citizens
- Articles 14 and 21 available to non-citizens
- Foreigners Act
- 1946 grants absolute deportation power to government
- national courts may draw inspiration from international conventions if not conflicting with municipal law
