Authored By: Smita Goswami
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).
Court: Supreme Court of India
Date: 8th April 2021
Bench: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian
Citation: Interlocutory Application No.38048 of 2021 [Writ Petition(Civil) No.793 of 2017]
Introduction
It is a case of demanding basic amenities of life required for the survival of Rohingya Muslims who were refugees from Myanmar and took shelter in India due to fear of persecution.
Relevant legal provisions
The relevant legal provisions from the Constitution of India involved in the case are described here as follows:
Article 14 - It states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
Article 21 -It states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Article 19(1)(e) - It states that “Every citizen of India has the right "to reside and settle in any part of the territory of India."
Article 51(c) - It states that “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another; and encourage settlement of international disputes by arbitration”
Section 2(A) of the Foreigners Act of 1946- It states that “foreigner” means a person who is not a citizen of India.
Facts of the case
The original case was presented before the court in the form of a writ petition by the respondent praying for the issue of basic human rights for the members of the Rohingya community who were taking refuge in India and who had registered themselves as refugees with the United Nations high commission for refugees.
The application was presented seeking two main reasons - (a) For the release of detained refugees of the Rohingya community and (b) To direct the Union of India not to deport any Rohingya refugees that have been detained in the jails of Jammu.
· Chandra Uday Singh, the counsel representing the rapporteur appointed by United Nations Human Rights Council put forward his submissions and objections were raised towards intervention by him.
· The petitioners claim that both persons are Rohingya refugees who were originally based in Myanmar and they had to free their camp from Myanmar in December 2011 when brutal ethnic violence broke out in the country. Later, various persons were given shelter in different refugee camps all over the country, placed in New Delhi, Allahabad, Jammu, Haryana, and various other places.
· A notice was issued by the Government of India via the Ministry of Home Affairs on 8th August 2017 to address to chief secretaries of all the states and Union Territories, advising them to sensitize all the intelligence agencies and agencies of law enforcement for taking prompt steps and to initiate deputation processes in their states or UTs. This circular compelled the petitioners to file the writ petition.
Arguments
Arguments by the Petitioner
The petitioner claimed that more than 6500 Rohingyas are illegally detained and jailed in sub-jails which are also converted into holding centers for Rohingyas. These instances were reported in March 2021 in reputed news outlets like the Wire, the Indian Express, the Hindu and the Guardian. The petitioners in the main contention presented the following points :
(a) Under article 21 of the Indian Constitution the principle of non-refoulement is also incorporated.
(b) The fundamental rights guaranteed under Articles 14 and 21 of the Indian Constitution are even available to non-citizens also.
(c) It was also mentioned that even though India is not a signatory to the UN convention on the status of refugees of 1951 but on the other hand India is a party to the Universal Declaration of Human Rights of 1948, International Covenant on Civil and Political Rights 1966, and convention on child rights of 1992 and therefore non-refoulment is a binding obligation upon India. It was also stated by the petitioner that India is also a party to the Protection of All Persons Against Enforced Disappearances and Convention Against Torture and Other Cruel and Inhuman Treatment or Punishment.
According to the petitioners, Rohingyas were persecuted in Myanmar even when an elected government was in power and now the elected Government has been overthrown by a military coup and that therefore the danger is imminent. They strongly emphasize the judgment of the famous case of [1] where it was seen that the lives of the refugees are in danger if they are deported back due to mass killings of the Rohingyas in Myanmar.
Arguments by the Respondent
The Union of India put forward their arguments as discussed below: -
A similar application challenging the deportation of Rohingyas from the State of Assam was dismissed by this court. Also, the persons are considered to be Foreigners under the Foreigners Act, 1946. Though Articles 14 and 21 are available to foreigners as well, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens. They have also put forward the matter that since India has land borders with many countries, there is a continuous induction of illegal immigrants posing threat to the country. Moreover, 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 and the principle of non-refoulment is applicable only to “contracting States”.
Issue raised
Whether the notice issued by the Union of India for the deportation of Rohingya refugees valid or does it infringe any rights of those persons?
Judgment
The court stated that India is not a signatory to the refugee convention. But, National courts can take inspiration from the International conventions till they do not conflict with Municipal law. It was also observed by the court that the fundamental rights guaranteed under Article 21 and 14 of the Constitution are available to everyone even though they are not the citizens of the country but the right not to be deported accompany the right to reside or settle in any part of the country which is guaranteed under Article 19 (1)(e) of the constitution.
There were two serious allegations made by the respondents, the Union of India regarding the threat to the national security of the country and the migration of illegal immigrants due to open land borders. The court further states that it has already dismissed an application (I.A. No. 142725 of 2018) filed for a similar relief regarding Rohingyas' detail in the state of Assam.
The court finally concluded that it was not possible to grant the relief which was prayed for. However, the court further added and made it clear that Rohingya refugees present in Jammu on whose behalf this application was filed shall be refrained from getting deported unless the proper procedure prescribed for such deportation is religiously followed. Hence, the interlocutory application was disposed of.
Conclusion
This case is also known as Rohingya’s deportation case. Irrespective of a foreigner or a citizen of the country, everyone deserves the availability of basic amenities of life required for their survival, on the grounds of humanity and morality. But according to the verdict, it was not possible on legal grounds.
Precedent
1 The Gambia v Myanmar, ICJ GL No 178 (Official Case No) ICGJ 540 (ICJ 2020)
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