Right Not To Be Deported Is Ancillary To A Fundamental Right Available Only To Indian Citizens: SC In Rohingyas Case

by Apr 11, 2021Blogs0 comments

In a significant development with far reaching consequences, it has to be noted right at the outset that while rejecting a plea to stop the deportation of Rohingya refugees detained in Jammu, the Supreme Court in a latest, landmark, laudable and learned judgment titled Mohammad Salimullah Vs Union of India and Ors in Interlocutory Application No. 38048 of 2021 in Writ Petition (Civil) No. 793 of 2017 delivered as recently as on April 8, 2021 observed in no uncertain terms without mincing any words that the right not to be deported is ancillary to the fundamental right to reside or settle in any part of India guaranteed under Article 19(1)(e) of the Constitution. It was thus made clear that the fundamental right under Article 19(1)(e) is available only to Indian citizens. The Bench observed unanimously and unambiguously that, “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).”

To start with, a three Judge Bench of the Supreme Court comprising of CJI SA Bobde, Justice AS Bopanna and Justice V Ramasubramanian sets the ball rolling by first and foremost observing in para 1 that, “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.”

Needless to say, it is then observed in para 2 that, “We have heard Sh. Prashant Bhushan, learned counsel and Sh. Colin Gonsalves, learned senior counsel appearing for the applicants/writ petitioners, Sh. Tushar Mehta, learned Solicitor General appearing for the Union of India, Sh. Harish Salve, learned senior counsel appearing for the Union Territory of Jammu and Kashmir, Sh. Vikas Singh and Sh. Mahesh Jethmalani, learned senior counsel appearing for persons who seek to implead/intervene in the matter.”

As we see, it is then pointed out in para 3 that, “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.”

While narrating the petitioner’s version, the Bench then points out in para 4 that, “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 December 2011 when ethnic violence broke out.”

As it turned out, it is then acknowledged in para 5 that, “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.”

To put things in perspective, the Bench then brings out in para 6 that, “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 petitions.”

To be sure, the Bench then envisages in para 7 that, “According to the petitioners, new circumstances have now arisen, as revealed by newspaper reports appearing in the first/second week of March 2021, to the effect that about 150-170 Rohingya refuges 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 sub-jail now converted into a holding centre.”

While elaborating on the petitioners contention, the Bench then enunciates in para 8 that, “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 non-citizens; 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 non-refoulement 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.”

To buttress the petitioners contention, the Bench then also discloses in para 9 that, “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 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.”

Quite remarkably, the Bench in para 10 mentions about the reply of the Union of India wherein it is elegantly, eloquently and effectively pointed out that, “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 well-orchestrated 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 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.”

Furthermore, it is then also revealed in para 11 that, “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.”

Truth be told, after considering the version of both the sides, the Bench then observes in para 12 that, “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.”

Most remarkably and also most significantly, the Bench then minces no words to state what forms the cornerstone of this notable judgment in para 13 in simple, straight and suave language that, “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).”

No less significant is what is then also brought out in para 14 that, “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.”

As a corollary, the Bench then finally holds in para 15 that, “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.”

To conclude, it is a ruling which is par excellence as it leaves no room of doubt on Rohingyas on any score and the picture is pretty clear before us. It is high time and now UN too instead of always advocating for foreigners to be settled in India should change its goalposts and concentrate hard on convincing the “Five Permanent Members of the Security Council” which includes US, UK, China, Russia and France apart from Muslim countries to always show magnanimity and accommodate all unwanted citizens in their own country for which they should chalk out their course of action also well in advance. It was UN, US and UK which ensured most deliberately, derisively and dangerously that India was shamelessly partitioned into India, Pakistan and Bangladesh and also countries adjoining India which earlier formed part of India were made separate countries. Now India cannot be the sacrificial lamb always!

Also, why Muslim countries like Organisation of Islamic Countries (OIC) who keep criticizing India on Kashmir never are ready to accommodate displaced Muslims from other countries in their own soil if they really have genuine concern for them and why they feel satisfied by just indulging in tongue lashing against India and that’s all? How can India afford to compromise everywhere, everytime and every now and then with its security by always proudly accommodating illegal migrants from different countries in India? How can India afford to ignore that Pakistan has waged proxy war against India in which we have lost lakhs of soldiers and people and how can we still become sitting ducks by allowing illegal migrants from different countries to settle freely in any part of India not sparing even sensitive places like Jammu and other border areas?

No prizes for guessing that this alone explains why a three Judge Bench of the Apex Court which includes the CJI also have so decisively, deliberately and dispassionately delivered such a commendable, courageous and cogent judgment on such a key issue with all the three Judges which includes the CJI speaking in one voice that it will always be remembered in the years to come! There can certainly be just no denying or disputing it!

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