Case Brief: Mohammad Salimullah and Ors. Vs. Union of India and Ors.

 Mohammad Salimullah and Ors. Vs. Union of India and Ors.

MANU/SC/0246/2021

Supreme Court of India

Facts of the Case

A petition had been filed in Supreme Court of India by two Rohingyas immigrants, Mohammad Salimullah and Mohammad Shaqir in 2017 standing against the decision by union of India to deport back the refugees to their parent country Myanmar where they faced decades of persecution.

The Rohingyas are an ethnic Muslim minority in Myanmar, predominantly living in the Rakhine state of Myanmar. They are not officially recognized by the government of Myanmar as citizens, and for decades Myanmar’s Buddhist majority has been accused of subjecting them to discrimination and violence.

In 2011, when ethnic violence broke out in Myanmar, clashes between the Rohingya and Buddhist nationalists led to scores of deaths, forcing tens of thousands Rohingya to flee to neighbour countries like Bangladesh, Malaysia, Thailand and Indonesia. In 2017, almost 1 million Rohingyas had fled Rakhine due to the violence. Even Humans rights groups, such as Human Rights Watch and Amnesty International, said operations by Myanmar army involved – arbitrary killings, systematic rapes, burning of houses, forced expulsions of locals etc.

At present, Myanmar is facing a military staged coup. The military has alleged that the general elections held in November 2020 were full of “irregularities” and that therefore the results are not valid. Military had then declared that they had taken control of the country and imposed a one-year state of emergency in Myanmar.

The petitioners claimed to have fled Myanmar in 2011 during ethnic violence and at present are Rohingyas refugees housed in refugee’s camp.

Issues Raised

1. Whether India is bound to the principle of non refoulment or not?
2. Whether the “Right not to be deported” is also available to non-citizens or not?

Arguments Advanced

Submissions by Petitioner

• The petitioner contended that “the principle of non-refoulment” will apply as it is guaranteed under article 21 and the state shall not deny any person equality before the law or the equal protection of the laws within the territory of India. As both the rights are guaranteed under article 14 and 21, and both of them are available to non-citizens.

• Under international human rights law, the principle of non-refoulement guarantees that:

” No one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.”

And article 51(c) can be pressed into contention here which states that India must respect International law and treaties in dealings of organised people with one another.

• Although India is not signatory to the United Nations Convention on the Status of Refugees 1951, it is party to the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights 1948 and 1966 and the Convention on the Rights of the Child 1992 and so principle of non-refoulement is binding on it.

• 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.

• They also cited the recent judgement of International Court of Justice in The Gambia vs Myanmar case, in which it was taken into consideration the genocide of Rohingyas in Myanmar and that their lives are in imminent danger in Myanmar at present.

Submissions by Respondent

They contended that:

• India is signatory neither to the Nations Convention on the Status of Refugees 1951 nor to the Protocol of the year 1967 and the non-refoulment principle only apply to the member states.
• The petitioners whose application has been filed are foreigners under the meaning of Section 2(a) of the Foreigners Act, 1946.
• Since India shares land borders with many neighboring country, therefore there is possible threat of influx of illegal migrants and such influx has caused serious concerns for national security
• Central government has power to regulate, prohibit or restrict the entry/departure of foreigners under Section 3 of the Foreigners Act.
• It is true that the rights guaranteed under article 14 and 21 is available to non-citizens also, but the right to reside and settle in India is only available to the citizens of India only under article 19(1)(e).

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.

Judgement

• The three judge bench headed by the Honorable Chief Justice of India decided to reject the plea to release the Rohingya immigrants currently detained in a Jammu jail but they also said that these immigrants should not be deported unless the due procedure for such task is followed.

• Regarding the “non-refoulment” principle the Supreme Court said that since India is not a signatory to any such treaty in question, this principle cannot be pressed upon it under Article 51 (c) of the constitution.

• The bench also refused to comment on the matters of another state when the petitioners’ side evoked the fact that these immigrants cannot be sent back to a country where a recent military coup has taken place and where they will probably be tortured or killed.

• The bench stated that while these immigrants do have protection of Article 14 (right to equality) and Article 21 (Due process of law) but the right not to be deported provided under the Article 19 (1)(e) is only provided for Indian citizens and as these immigrants are foreign citizens they are exempted from this particular right.

Analysis

Here there was a trade-off between considering the internal security of India and making sure that India does not become the “Refugee Capital of the World” or seeing that the particular immigrants should not be sent back to a place where they are in an imminent threat of persecution.

The Supreme Court insisted that India is not a ‘signatory’ country to the United Nations Convention on the Status of Refugees 1951 or the Protocol of the Year 1967 but India has previously recognised that these treaties have become customary in nature (these customary laws are rules or laws that are considered as customs due to the belief of the international community that these laws are indeed needed so these need to be followed even by a country which is not a ‘signatory ‘ to these) but the SC failed to uphold these very customary practices just by saying that India is not bound by them because it has not signed these treaties.

The UN Rapporteur who insisted on assisting the case could have easily shed light on this but the Court even declined their intervention in the case.