Rohingyas Can Be Deported Only After Following Prescribed Procedure: Supreme Court

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Author: Biyanka Bhattacharya (backdate to 11.01.2021)


The Supreme Court heard a PIL filed under Article 32 of the Constitution of India. The petitioners challenged the deportation of the Rohingya Muslims who are detained in Jammu as they took refuge in India. The petitioners challenged Articles 14 and Article 21 of the Indian Constitution and prayed for relief from deportation.

Petitioner’s Submission

Both the petitioners are Rohingya refugees claiming that they escaped persecution in Myanmar and fled to India in December 2011 during the ethnic violence breakout. There are several other similar persons like the petitioners housed as refugees in the refugee camps situated in various parts of India. On 8th August 2017 the Ministry of Home Affairs, Government of India issued a letter directing the Government Administrations regarding the deportation process. This circular involved direction to initiate steps for the deportation and that triggered the petitioners to file the writ petition in this Court. According to reports, 150-170 Rohingya refugees detained in the Jammu sub-jail are going to face deportation in Myanmar. The petition relied upon the reports of top news reporting agencies like The Wire, The Hindu, The Guardian, and The Indian Express and submitted that approximately 6500 Rohingya Muslims in Jammu are illegally detained.

Grounds of Challenge

The rights guaranteed under Article 21 of the Indian Constitution deals with the principle of non-refoulement. Rights provided under Articles 21 and 14 are available even to non-citizens. And since there was an existential threat of persecution for the Rohingya Muslims in the State of Myanmar, there was a violation of the right to life under Article 21 of the Indian Constitution. India being 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 is obligated to upkeep the non-refoulement principle. Moreover, 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. The petitioners relied upon the judgment on the case of The Gambia vs. Myanmar on 23 January 2020 in the International Court of Justice. In this case, the International Court had taken note of the genocide of Rohingya Muslims in Myanmar and considered that the lives of the Rohingyas are in danger if they are deported. 

Respondent’s Submissions

A similar application had been made challenging the deportation of the Rohingya community people from Assam and the appeal was dismissed by the same court on 4 October 2018. The persons who are challenging the deportation and praying for protection are, as a matter of fact, foreigners under the definition of Section 2 (a) of the Foreigners Act, 1946. India was not a signatory to the Refugee Convention and was also not bound by the Protocol of the Year 1967 and hence was not obligated to follow a national refugee protection framework. Therefore, the principle of non-refoulement applies to the countries that are party to such contracts. India is facing a continuous threat regarding the entrance of illegal immigrants as the country has an open land border with many Asian countries. The Central Government, under Section 3 of the Foreigners Act is empowered to issue orders related to prohibition, regulation, and restriction of foreigners’ entries into India and their departure.  However, the right to reside and settle in India is guaranteed to only the citizens of India under Article 19 (1) (e) of the Indian Constitution. The government acquires an unlimited and absolute right over expelling a foreigner. Moreover, the counsel of the respondent also contended that the International Court of Justice has no relevant performance to this petition as the respondent authority usually follows the procedure only notified by the Government of the country of origin of the foreigners and order the deportation only when it was confirmed by the government of the country of origin that the refugees concerned are citizens of the origin country and they are entitled to return. 

Petitioner’s Prayer

The petitioners prayed for basic amenities for the Rohingya community members who have taken refuge in India. Also, their major prayer was to release the Rohingya refugees who are detained in the Jammu sub-jail. The petitioners prayed for relief from the decision of deportation of Rohingya refugees and prayed for a direction to the respondent authority not to deport the detained Rohingya refugees. 

Court’s Observation

Although the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens of India, the right of deportation is strictly “ancillary or concomitant to the right to reside or settle” in any part of the country, is guaranteed under Article 19 (1) (e). However, National Courts can be inspired by International Conventions/ Treaties unless they are not in conflict with the municipal law. Also, it is not permissible to comment upon something happening in another country. The threat to the international security of the country exists and the agents and touts are providing a safe passage for the illegal migrants into Indian parts due to its porous nature of the landed borders. This court has already dismissed the similar relief for the detained Rohingyas in Assam.

Court’s Decision

The Court has ultimately decided not to grant any interim relief that has been prayed for. However, the Court made it clear that the Rohingyas in Jammu will be deported only following the prescribed procedure and not otherwise. Therefore, the interlocutory application was disposed of. 

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