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Mohammad Salimullah and Anr. v. Union of India and Ors.

Interlocutory Application · 2021 INSC 239Decided 8 Apr 2021
Interlocutory Application No. 38048 of 2021 in Writ Petition (Civil) No. 793 of 2017
Chief Justice S.A. Bobde · Justice A.S. Bopanna · Justice V. Ramasubramanian

Background

Two Rohingya refugees from Myanmar, registered with the UNHCR and living in Indian refugee camps, had filed a writ petition in 2017 seeking basic human amenities for the Rohingya community in India after the government directed states to initiate deportation processes. In 2021 they filed this interlocutory application after news reports indicated that about 150-170 Rohingyas detained in a Jammu sub-jail faced imminent deportation to Myanmar, seeking their release and a direction restraining the Union of India from deporting them, relying on the international law principle of non-refoulement (not returning refugees to a country where they face danger) and reports of genocide findings against Myanmar by the International Court of Justice.

Decision Breakdown

The Supreme Court held that India is not a signatory to the Refugee Convention, so reliance on international conventions could only be persuasive, not binding, and that it could not comment on the situation in another country (Myanmar). It accepted that fundamental rights under Articles 14 and 21 extend to non-citizens, but held that the right not to be deported flows from Article 19(1)(e) (the right to reside and settle in India), which is available only to citizens, so refugees could not claim an absolute right against deportation. Given the Union's stated concerns about national security and illegal immigration, and because the Court had already rejected a similar plea for Assam detainees in 2018, it declined to grant the interim relief of preventing deportation altogether. However, it made clear that the detained Rohingyas in Jammu could not be deported unless the prescribed legal procedure for deportation was followed, and disposed of the application on those terms.

Lesson Learnt

Constitutional protections of life and personal liberty (Article 21) extend to foreigners in India, but not every right available to citizens (such as the right to reside and settle) extends equally to non-citizens; even so, the state must still follow due legal procedure before deporting anyone, rather than acting arbitrarily.

Official source (sci.gov.in)View Judgment (PDF)

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