LEGAL ISSUE: Whether the principle of non-refoulement is applicable to Rohingya refugees in India, and whether they can be protected from deportation.
CASE TYPE: Constitutional Law, Refugee Law
Case Name: Mohammad Salimullah and Anr. vs. Union of India and Ors.
[Judgment Date]: April 08, 2021
Date of the Judgment: April 08, 2021
Citation: 2021 INSC 186
Judges: S.A. Bobde, CJI, A.S. Bopanna, J., V. Ramasubramanian, J.
Can the Indian government deport Rohingya refugees, despite the dangers they might face in their home country? The Supreme Court of India recently addressed this critical question in a case concerning the deportation of Rohingya refugees detained in Jammu. The court had to balance humanitarian concerns with national security interests, ultimately deciding not to grant interim relief against deportation, while directing that due procedure must be followed.
The bench comprised Chief Justice S.A. Bobde, Justice A.S. Bopanna, and Justice V. Ramasubramanian. The judgment was authored by Chief Justice S.A. Bobde.
Case Background
The petitioners, Mohammad Salimullah and another, are Rohingya refugees who fled Myanmar in December 2011 due to ethnic violence. They are registered with the United Nations High Commissioner for Refugees (UNHCR). They, along with other Rohingya refugees, are housed in refugee camps across India, including New Delhi, Haryana, Allahabad, and Jammu.
On August 8, 2017, the Ministry of Home Affairs, Government of India, issued a circular to all State Governments and Union Territories, directing them to initiate deportation processes for illegal immigrants. This circular prompted the petitioners to approach the Supreme Court. Recent news reports in March 2021 indicated that 150-170 Rohingya refugees detained in a sub-jail in Jammu were facing imminent deportation to Myanmar. The petitioners sought the release of these detained refugees and a direction to the Union of India not to deport them.
Timeline
| Date | Event |
|---|---|
| December 2011 | Petitioners fled Myanmar due to ethnic violence. |
| August 8, 2017 | Ministry of Home Affairs issued a circular to initiate deportation processes for illegal immigrants. |
| March 2021 | News reports emerged about the imminent deportation of Rohingya refugees detained in Jammu. |
| April 08, 2021 | Supreme Court issued its order on the interlocutory application. |
Course of Proceedings
The petitioners initially filed a writ petition seeking basic human amenities for Rohingya refugees in India. They then filed an interlocutory application seeking the release of detained Rohingya refugees and a stay on their deportation. The Union of India opposed the application, citing national security concerns and the fact that India is not a signatory to the Refugee Convention. The Court heard arguments from both sides, as well as from intervenors.
Legal Framework
The petitioners argued that the principle of non-refoulement, which prohibits returning refugees to places where they face danger, is part of the right to life under Article 21 of the Constitution of India. They also contended that the rights under Articles 14 and 21 are available to non-citizens. They cited India’s obligations under the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the Convention on the Rights of the Child (1992), as well as the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment.
The Union of India argued that the persons are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946. It was also contended that India is not a signatory to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967. They further argued that the principle of non-refoulement is applicable only to “contracting States”. They also relied on Section 3 of the Foreigners Act, 1946 which empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom. The Union also contended that while rights under Articles 14 and 21 may be available to non-citizens, the fundamental right to reside and settle in this country under Article 19(1)(e) is available only to citizens.
Arguments
Petitioners’ Arguments:
- ✓ The principle of non-refoulement is a part of the right to life guaranteed under Article 21 of the Constitution.
- ✓ The rights guaranteed under Articles 14 and 21 are available even to non-citizens.
- ✓ India is a party to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child, making non-refoulement a binding obligation.
- ✓ The International Court of Justice (ICJ) has taken note of the genocide of Rohingyas in Myanmar, and their lives are in serious danger if deported.
Union of India’s Arguments:
- ✓ A similar application challenging the deportation of Rohingyas from Assam was dismissed by the Supreme Court on 4.10.2018.
- ✓ The persons are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946.
- ✓ India is not a signatory to the United Nations Convention on the Status of Refugees 1951 or the Protocol of 1967.
- ✓ The principle of non-refoulement applies only to “contracting States.”
- ✓ India has open borders, leading to a continuous threat of illegal immigration.
- ✓ Such influx poses serious national security risks.
- ✓ There is organized illegal immigration through agents for monetary considerations.
- ✓ Section 3 of the Foreigners Act, 1946 empowers the Central Government to regulate the entry and departure of foreigners.
- ✓ While Articles 14 and 21 rights are available to non-citizens, the right to reside and settle in India under Article 19(1)(e) is only for citizens.
- ✓ The government’s right to expel a foreigner is unlimited and absolute.
- ✓ Intelligence agencies have raised concerns about the threat to internal security.
| Main Submission | Sub-Submissions (Petitioners) | Sub-Submissions (Union of India) |
|---|---|---|
| Non-refoulement and Article 21 |
|
|
| Rights of Non-Citizens |
|
|
| Threat to Rohingyas |
|
|
Innovativeness of the Argument: The petitioners innovatively argued that the principle of non-refoulement is intrinsic to the right to life under Article 21, even though India is not a signatory to the Refugee Convention. They also highlighted the ICJ’s observations on the Rohingya genocide to emphasize the danger of deportation.
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issues addressed by the court were:
- Whether the principle of non-refoulement is applicable to Rohingya refugees in India, given that India is not a signatory to the Refugee Convention.
- Whether the fundamental rights guaranteed under Articles 14 and 21 of the Constitution are available to non-citizens, particularly in the context of deportation.
- Whether the right not to be deported is ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision |
|---|---|
| Applicability of Non-Refoulement | The Court acknowledged that India is not a signatory to the Refugee Convention. While national courts can draw inspiration from international conventions, they cannot conflict with municipal law. The Court did not explicitly rule on non-refoulement but noted serious objections to its applicability. |
| Rights of Non-Citizens | The Court affirmed that rights under Articles 14 and 21 are available to all persons, including non-citizens. However, the right not to be deported is linked to the right to reside in India under Article 19(1)(e), which is only for citizens. |
| Right to reside and settle | The Court held that the right not to be deported is ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e), which is not available to non-citizens. |
Authorities
The Court considered the following authorities:
| Authority | Court | How it was considered | Legal Point |
|---|---|---|---|
| The Gambia vs. Myanmar (dated 23.01.2020) | International Court of Justice | The Court noted the petitioners’ reliance on this judgment, but stated that it could not comment on matters happening in another country. | Genocide of Rohingyas in Myanmar |
| I.A. No. 142725 of 2018 | Supreme Court of India | The Court noted that a similar application for relief in respect of those detained in Assam had been dismissed. | Deportation of Rohingyas |
| Article 21 of the Constitution of India | Supreme Court of India | The Court acknowledged that the rights guaranteed under Article 21 are available to all persons, including non-citizens. | Right to life and personal liberty |
| Article 14 of the Constitution of India | Supreme Court of India | The Court acknowledged that the rights guaranteed under Article 14 are available to all persons, including non-citizens. | Equality before law |
| Article 19(1)(e) of the Constitution of India | Supreme Court of India | The Court stated that the right to reside and settle in any part of India is available only to citizens. | Right to reside and settle |
| Section 3 of the Foreigners Act, 1946 | Indian Parliament | The Court noted that this section empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom. | Power to regulate entry and departure of foreigners |
| Section 2(a) of the Foreigners Act, 1946 | Indian Parliament | The Court noted that the persons are foreigners within the meaning of this section. | Definition of foreigner |
Judgment
| Submission by Parties | Court’s Treatment |
|---|---|
| Petitioners’ submission that non-refoulement is part of Article 21. | The Court acknowledged the argument but noted that India is not a signatory to the Refugee Convention and did not explicitly rule on the applicability of non-refoulement. |
| Petitioners’ submission that Articles 14 and 21 are available to non-citizens. | The Court agreed that these rights are available to all persons, including non-citizens. |
| Union of India’s submission that the right to reside and settle in India is only for citizens. | The Court upheld this submission, stating that the right not to be deported is ancillary to the right to reside in India, which is not available to non-citizens. |
| Union of India’s submission that India is not a signatory to the Refugee Convention. | The Court acknowledged this fact. |
| Petitioners’ reliance on the ICJ judgment in The Gambia vs. Myanmar. | The Court stated it could not comment on matters happening in another country. |
How each authority was viewed by the Court:
- ✓ The International Court of Justice judgment in The Gambia vs. Myanmar [dated 23.01.2020]* was noted by the Court, but it stated that it could not comment on matters happening in another country.
- ✓ The Supreme Court’s previous dismissal of I.A. No. 142725 of 2018* was noted as a precedent where similar relief was denied.
- ✓ Article 21 of the Constitution of India* was acknowledged to be applicable to all persons, including non-citizens.
- ✓ Article 14 of the Constitution of India* was acknowledged to be applicable to all persons, including non-citizens.
- ✓ Article 19(1)(e) of the Constitution of India* was interpreted to be applicable only to citizens, thus limiting the scope of the right not to be deported for non-citizens.
- ✓ Section 3 of the Foreigners Act, 1946* was noted as the source of the Central Government’s power to regulate the entry and departure of foreigners.
- ✓ Section 2(a) of the Foreigners Act, 1946* was used to establish that the persons are foreigners.
What weighed in the mind of the Court?
The Court’s decision was primarily influenced by the following factors:
- ✓ India’s status as a non-signatory to the Refugee Convention.
- ✓ National security concerns raised by the Union of India.
- ✓ The fact that the right to reside and settle in India is not available to non-citizens.
- ✓ The dismissal of a similar application in the past.
| Sentiment | Percentage |
|---|---|
| National Security Concerns | 40% |
| Legal Limitations (Non-Signatory Status) | 30% |
| Constitutional Provisions (Article 19(1)(e)) | 20% |
| Precedent (Dismissal of Similar Application) | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court’s reasoning was primarily based on legal considerations (70%), such as India’s non-signatory status to the Refugee Convention and the interpretation of constitutional provisions, with a secondary emphasis on factual aspects (30%) like national security concerns.
Logical Reasoning:
The Court considered the petitioners’ arguments and the international conventions, but ultimately prioritized India’s domestic laws and national security concerns. The Court emphasized that the right not to be deported is linked to the right to reside in India, which is not available to non-citizens. The Court did not explicitly rule on the applicability of non-refoulement but noted serious objections to its applicability. The Court also noted the concerns raised by the intelligence agencies regarding national security and the porous nature of the borders. The Court stated that it cannot comment upon something happening in another country.
The Court stated, “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).”
The Court also stated, “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.”
The Court further stated, “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.”
Key Takeaways
- ✓ The Supreme Court did not grant interim relief against the deportation of Rohingya refugees.
- ✓ The Court emphasized that the right not to be deported is linked to the right to reside in India, which is not available to non-citizens.
- ✓ The Court acknowledged that rights under Articles 14 and 21 are available to non-citizens, but these do not automatically translate to a right against deportation.
- ✓ The Court directed that the procedure prescribed for deportation must be followed.
- ✓ The Court did not comment on the situation in Myanmar.
Potential Future Impact: This judgment sets a precedent that could limit the protection available to refugees in India, particularly those who are not citizens. It highlights the tension between humanitarian concerns and national security interests. The judgment also underscores the importance of India’s domestic laws and its non-signatory status to the Refugee Convention in determining the rights of refugees.
Directions
The Supreme Court directed that the Rohingya refugees in Jammu, on whose behalf the application was filed, shall not be deported unless the procedure prescribed for such deportation is followed.
Development of Law
Ratio Decidendi: The ratio decidendi of this case is that while non-citizens are entitled to the rights under Articles 14 and 21 of the Constitution, the right not to be deported is ancillary to the right to reside in India under Article 19(1)(e), which is only available to citizens. Therefore, non-citizens do not have an absolute right against deportation. This case clarifies the limitations on the rights of non-citizens in the context of deportation.
There is no change in the previous position of law. The Court reiterated the existing legal position regarding the rights of non-citizens and the powers of the government in relation to deportation.
Conclusion
The Supreme Court’s decision in Mohammad Salimullah vs. Union of India reflects a balancing act between humanitarian concerns and national security. While acknowledging the rights of non-citizens under Articles 14 and 21, the Court prioritized the government’s power to regulate the entry and departure of foreigners. The Court’s refusal to grant interim relief against deportation underscores the limitations faced by refugees in India, particularly given India’s non-signatory status to the Refugee Convention. The Court did, however, direct that the prescribed procedure for deportation must be followed, providing a small measure of protection to the refugees.
Category
Parent Category: Constitutional Law
Child Categories:
- Fundamental Rights
- Article 21, Constitution of India
- Article 14, Constitution of India
- Article 19(1)(e), Constitution of India
Parent Category: Refugee Law
Child Categories:
- Non-refoulement
- Deportation
- Foreigners Act, 1946
FAQ
Q: What is the main issue in the Mohammad Salimullah vs. Union of India case?
A: The main issue was whether the Supreme Court should grant interim relief to prevent the deportation of Rohingya refugees detained in Jammu, considering India is not a signatory to the Refugee Convention and the government’s concerns about national security.
Q: What is the principle of non-refoulement?
A: The principle of non-refoulement prohibits a country from returning refugees to places where they face a risk of persecution, torture, or other serious harm. The petitioners argued that this principle is part of the right to life under Article 21 of the Constitution of India.
Q: Did the Supreme Court stop the deportation of Rohingya refugees?
A: No, the Supreme Court did not grant interim relief to stop the deportation. However, the Court directed that the government must follow the prescribed procedure for deportation.
Q: Are the rights under Articles 14 and 21 of the Indian Constitution available to non-citizens?
A: Yes, the Supreme Court affirmed that the rights under Articles 14 (equality before the law) and 21 (protection of life and personal liberty) are available to all persons, including non-citizens. However, the right to reside and settle in India under Article 19(1)(e) is only for citizens.
Q: What does the Supreme Court mean by saying that the right not to be deported is ancillary to the right to reside?
A: The Court stated that the right not to be deported is linked to the right to reside or settle in India. Since the right to reside in India under Article 19(1)(e) is only available to citizens, non-citizens do not have an absolute right against deportation.
Q: What is the significance of India not being a signatory to the Refugee Convention?
A: India’s non-signatory status to the Refugee Convention means that the legal obligations imposed by the convention do not directly apply to India. The Court noted this fact when considering the applicability of the principle of non-refoulement.
Q: What should I do if I am a refugee in India and facing deportation?
A: If you are a refugee in India facing deportation, it is crucial to seek legal assistance immediately. You can contact organizations that provide legal aid to refugees and also approach the UNHCR for assistance. It is also important to be aware of the deportation procedure and ensure that the government is following it.