Mohammad Salimullah vs Union Of India (2021)

• Case number

 WRIT PETITION (CIVIL) NO.793 OF 2017

• Equivalent citation

(2021) 19 SCC 191

• Bench

Chief Justice S.A. Bobde, Justice A.S. Bopanna, and Justice V. Ramasubramanian.

• Date of Judgement

8 April 2021.

• Relevant Provision(s)
• The Foreigners Act, 1946^[2]
• Article 14^[3]
• Article 21^[4]
• Article 19(1)(e)^[5]

FACTS

The case gained prominence amidst India’s debatable treatment of Rohingya muslims. They are a minority ethnic group who have been escaping from the state-sponsored persecution in Myanmar for several years. There were around 40,000 Rohingya muslims living in India. Out of these 40,000, 18,000 were registered with the United Nations High Commissioner for Refugees (UNHCR). Since there were no concrete laws with respect to refugees in India, their presence has always been ambiguous and vulnerable to governmental discretion.

In March 2021, the media agencies emphasized the confinement of over 150 Rohingya muslims in Jammu sub-jails. These people were detained under the Foreigners Act, 1946^[6], as they were alleged to be staying without any legitimate and valid documentation. A 2017 Ministry of Home Affairs circular was quoted by the Indian Government, intending to deport them back to Myanmar. In the course of all these developments, there was a military seizure in Myanmar that aroused concerns regarding more persecution of the minority Rohingya muslims. Mohammad Salimullah and other petitioners were both Rohingya refugees registered with the UNHCR. They replied by submitting an interlocutory application (IA No. 38048 of 2021) to the Supreme Court of India. They appealed for the release of detainees and a halt to their deportation, since they would be exposed to human rights violations if they were deported back to Myanmar.

Art. 14 ^[7]and Art. 21^[8] of the Constitution of India were invoked, mentioning that they were applicable to all persons, including non-citizens. Further, they contended that Article 21 should encompass the traditional international law principle of non-refoulement, which precludes sending refugees back to areas where their freedom or lives would be in danger. The petitioners even mentioned and emphasized India’s international commitments under the Universal Declaration of Human Rights (1948), ICCPR (1966), and CRC (1992), despite India not having ratified the 1951 Refugee Convention. However, the UOI was taking the same stance, putting forth that these refugees were illegal under the Foreigners Act, 1946. The government mentioned national security concerns, illegal border crossings, and the lack of any binding international obligation. It even referred to a similar petition in 2018 concerning Rohingyas in Assam, which was dismissed.

 The deportation could proceed under Section 3^[9] of the Foreigners Act, 1946, which authorises the Central Government to expel foreigners. The Court even highlighted that Art. 14^[10] and      Art. 21^[11] apply to citizens and non-citizens, though Article 19(1)(e)^[12]—the right to reside and settle—is only applicable to citizens. The Court did not recognise the principle of non-refoulement binding on itself since it did not ratify the 1951 Refugee Convention. The case demonstrated humanitarian and legal gaps in India’s refugee policy. It even highlighted the need for judicial consistency and legislative clarity.

ISSUES RAISED

Some issues raised in this case were:-

1. Is the principle of non-refoulement applicable to India even though it’s not a party to the 1951 Refugee Convention?
2. Does the Indian Constitution protect Rohingya Muslims under Art. 14 ^[13]and Art. 21^[14]?
3. Considering the possibility of persecution in Myanmar for the Rohingya Muslims- is their deportation from India violative of Art. 21^[15]?
4. Can global and international legislations be implemented without facilitating Indian laws from being applicable?

CONTENTIONS

Petitioner’s Arguments

• Validity and Applicability of Fundamental Rights to Non-citizens

It was contended by the petitioners that Art. 14 and Art. 21 are applicable to ‘all persons’, which includes non-citizens as well. Article 14^[16] guarantees the right to equality before the law and equal protection under the law. Article 21^[17]guarantees the right to life and personal liberty. The State was accused of violating these fundamental rights by detaining and expelling Rohingya refugees.

• Principle of Non-Refoulement within Article 21^[18]

The key component of the case was the principle of Non-Refoulement. This principle forbids the return of refugees to a country where they face serious threats to their life or freedom. Though India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, it was emphasized by the petitioners that this principle comes under traditional international laws and is binding even upon those who are non-signatories to these agreements. It was requested to read this principle with Art. 21 since deporting such individuals would be a breach of their personal rights and dignity.

• International responsibilities and obligations of India

Several human rights treaties were cited where India had a sense of duty and responsibility. A few of these include the Convention on the Rights of the Child (CRC, 1992), the International Covenant on Civil and Political Rights (ICCPR, 1966), and the Universal Declaration of Human Rights (UDHR, 1948). It was even argued that India had ratified ICCPR and CRC and was bound by them. Hence, it was India’s responsibility to protect the rights of those who were at risk and threatened in Myanmar.

• International Precedent and Risk of Genocide

The Gambia vs Myanmar case was referred to by the petitioners. In this the International Court of Justice (ICJ) recognized the potentiality of genocidal acts being committed against the Rohingya Muslims in Myanmar. It was ruled that deporting them back to Myanmar would expose them to great perils, dangers, and the risk of being killed.

• Accreditation by United Nations High Commissioner for Refugees (UNHCR)

The petitioners even highlighted that several Rohingya refugees registered with UNHCR were detained in sub-jails in Jammu. UNHCR-issued refugee cards should be recognized as proof of their protected status, the petitioners stressed. The petitioners contended that these records create at least a prima facie case for international protection, rendering expulsion capricious and cruel, even though the Indian government does not formally accept UNHCR’s registration.

• Humanitarian and Ethical Cultures of India

The petitioners pleaded that India had previously given asylum to Tibetan, Afghan, and Sri Lankan refugees, which was their best example of humanitarianism. They requested the Court to uphold these moral and constitutional principles, which form the foundation of India’s democratic and pluralistic ethos.

Respondent’s Arguments

• Categorized as Illegal immigrants

It was contended that the petitioners and detainees were Rohingya muslims being unlawful immigrants residing in India. According to Section 2(a)^[19] of the Foreigners Act, 1946, anyone who is not a citizen of India and who enters the country without valid documentation is classified as a “foreigner.” Hence, petitioners could not assert any legal right to reside in India. Therefore, their detention and deportation were proposed lawfully under Indian statutes.

• No presence of a lawfully binding international obligation

While considering the core international refugee legislations, India is not a signatory to the 1951 Refugee Convention or the 1967 Protocol. Hence, it was claimed by the government that they were not mandated to observe and adhere to the principle of non-refoulement.

• National Security and Sovereignty

The arguments put forth by respondents focused primarily on national security and sovereignty. The government contended that permitting illegal migrants to reside in India without scrutiny could pose serious threats, including the risk of terrorism, communal unrest, and demographic shifts.

• Legislative responsibilities under the Foreigners Act, 1946^[20]

The Central Government has extensive authority to issue directives pertaining to the arrival, presence, and departure of foreign nationals from Indian territory under Section 3 of the Foreigners Act, 1946. This includes the power to deport illegal foreign immigrants. It was asserted that there was no legal or constitutional violation and that the proposed deportation was being carried out in compliance with this legislative authority.

• Judgment of the previous Rohingya case

The court relied on a precedent with regard to this, where in 2018, Rohingya muslims residing in Assam had faced deportation. It was claimed that the precedent supported their current stand, and there was no violation of the constitution or fundamental rights.

• Non-Justiciability of Foreign Policy and Regulations

The respondent finally argued that the current issue involves aspects of foreign policy and national security, areas traditionally reserved for executive discretion. Hence, the respondent claimed that the Court should not indulge in these matters unless a clear constitutional violation is observed, which could not be established in this case.

• A few similar judgements held in previous cases are:-
• State of Arunachal Pradesh v. Khudiram Chakma (1994)^[21]: Advocated the rights of Chakma refugees.
• Louis De Raedt v. Union of India (1991)^[22]: The Supreme Court held that illegal immigrants do not have a fundamental right to reside in India unless and until the government permits it. However, deportation must follow due process under Article 21^[23].
• Gambia v. Myanmar (2020)^[24]: The International Court of Justice (ICJ) held that the treatment of the Rohingya Muslims in Myanmar constituted a prima facie case of genocide. Myanmar was ordered by the Court to stop more violent activities.

DEFECTS OF LAW

Certain defects of law in this case are as follows:-

1. No legislation with regard to refugees: India does not have any concrete legislation for overseeing refugees. It rather depends upon the current laws and other administrative provisions in the Constitution and elsewhere.
2. Inconsistencies while implementing international legislations: India maintains an ideological position which mentions that domestic laws are essential for international legislations to be implemented.
3. Dispute between National and International Legislations: Very often, there can be a dispute observed amongst these laws, which even contradict international law’s humanitarian duties.
4. Unreliable legislative interpretations: In some previous judgments principle of non-refoulement was recognized under Art 21^[25]. In this case, the court differed by citing Art. 19(1)(e)^[26], which is applicable only to citizens.
5. Dilution of Rights via Security Narrative: Humanitarian issues were disregarded and national security was focused upon. 

RATIO DECIDENDI

Ratio Decidendi is a Latin phrase that means the reason or the rule of law based on which the verdict and decision were made. In this case, the Supreme Court mentioned that:

• Non-citizens are entitled to Art. 14 ^[27]and Art. 21^[28]. Art. 19(1)(e)^[29] guarantees the right to reside and settle in any part of the territory of India which is available to Indian citizens.
• India is not under any commitments to observe the principle of non-refoulement, as under the Refugee Convention, it is not a party to it.
• According to the Foreigners Act, 1946^[30], the government has the right to deport the Rohingya muslims.
• International conventions and laws can only be applicable if they are not in conflict with national laws.
• The government’s activities are justified by administrative prerogatives, security considerations, and demographic issues

ORBITER DICTA

Obiter dicta is the plural of obiter dictum. It is a Latin phrase which means “something said in passing. Any suggestions, judicial opinions, or comments of the judge while giving the verdict of the case are said to be obiter dicta. The orbiter dicta of this case is:

• The Court pointed out that although Art. 51(c)^[31] can influence judicial reasoning owing to international treaties and conventions, they cannot override any domestic laws unless implemented by any legislation.
• The Court refrained from interpreting non-refoulement as part of jus cogens or binding customary international law in the Indian context.
• The Court emphasized that deportation adheres to the “procedure established by law.”

JUDGMENT

The judgment was delivered by a 3-judge bench. It dismissed the appeal that was filed by those 2 Rohingya Muslims. Those Rohingya muslims who were being detained in Jammu and feared deportation to Myanmar, this appeal requested a temporary relief by releasing them from custody. After assessing the facts, contentions, and applicable legal provisions, the Court denied any sort of temporary relief. Further, it directed the Indian Government to advance with the deportation of Rohingya muslims following the procedures established by law. It stressed that the legal rights of the petitioners must be construed in accordance with both constitutional principles and statutory authority under domestic law. There was a distinction made between the fundamental rights accessible to citizens and non-citizens. The Court emphasized that Article 19(1)(e)^[32] is a fundamental right that means the right to live and dwell anywhere in India. Article 19(1)(e) is only applicable to Indian citizens. Articles 14 ^[33](right to equality) and 21 (protection of life and personal liberty) are applicable to all “persons,” including foreigners. The petitioners had no constitutional right to live in India since they were foreign nationals who had entered the country unlawfully. Hence, they were unable to claim the benefit of Article 19(1)(e). Since the petitioners relied upon the principle of non-refoulement, the Court highlighted that India is not a party to the 1951 UN Refugee Conventionge^[34] or its 1967 Protocol. Further, it was noted by the court that under Article 51(c)^[35] of the Constitution, international pacts and agreements cannot supersede statutory and national laws until they are sanctioned by the Parliament. There could be no unlawful traces found. The Court further ruled that deportation may only be carried out in accordance with the “procedure established by law” as defined under Article 21. Since the petitioners and other immigrants were previously classified as unlawful immigrants under the Foreigners Act, 1946^[36], the deportation of these migrants to Myanmar was proposed. There was no constitutional infirmity found in this. The Court gave substantial importance to the Central government’s worries about national security, demographic pressures, and the authenticity of India’s borders. It even thought that permitting unlawful immigrants to stay without lawful authorization could have serious consequences for public order and national sovereignty.

While concluding, the Supreme Court reaffirmed the executive’s authority to deport illegal immigrants in accordance with the law. It even subtly indicated that though India takes into account humanitarian grounds and considerations, they must be abided by within India’s legislative and statutory framework.^[37]

CONCLUSION

The restrictions present in India’s refugee policy framework and judicial procedure are clearly evident. In the previous instance Supreme Court took international norms into Article 21^[38] to take a humanitarian perspective in refugee situations. In this present case, the Supreme Court adopted

a prudent, almost executive-aligned technique. The court’s decision has put a greater emphasis on national security and sovereignty than on changing international human rights standards like non-refoulement. It highlights the dispute between India’s constitutional framework and its moral or customary obligations and responsibilities under international law. The Court has restrictive rights for non-citizens by relying on Article 19(1)(e) ^[39]instead of the broader and inclusive Article 21^[40]. The judgment highlights the necessity to pass exhaustive and comprehensive refugee laws to ensure foreseeable and moral treatment of such humanitarian crises.

 

REFERENCES

[1] Mohd. Salimullah v. Union of India, (2021) 19 SCC 191

[2]  foreigners act, 1946, No. 31, Acts of Parliament, 1946 (India).

[3]  India Const. art. 14.

[4]  India Const. art. 21.

[5] India Const. art. 19, cl.1(e).

[6]  Supra note 2.

[7]  Supra note 3.

[8]  Supra note 4.

[9]  foreigners act, 1946, §. 3, No. 31, Acts of Parliament, 1946 (India).

[10]  Supra note 3.

[11] Supra note 4.

[12]  Supra note 5.

[13]  Supra note 3.

[14]  Supra note 4.

[15]  Id.

[16]  Supra note 3.

[17]  Supra note 4.

[18]  Id.

[19]  foreigners act, 1946, §. 2(a), No. 31, Acts of Parliament, 1946 (India).

[20] Supra note 2.

[21]  State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615.

[22]  Louis De Raedt v. Union of India, (1991) 3 SCC 554.

[23]  Supra note 4.

[24]  ICJ GL No 178, ICGJ 540 (ICJ 2020).

[25]  Supra note 4.

[26]  Supra note 5.

[27]  Supra note 3.

[28]  Supra note 4.

[29]  Supra note 5.

[30]  Supra note 2.

[31] India Const. art. 51, cl.(c).

[32]  Supra note 5.

[33]  Supra note 3.

[34]  United Nations Convention on the Status of Refugees 1951, 28 July 1951, U.N.T.S, 137.

[35]  Supra note 31.

[36]  Supra note 2.

[37] SANSKRUTI BRAHMA, MOHAMMAD SALIMULLAH & ANR V. UNION OF INDIA, Vol. 2, Issue 16, White Black Legal Law Journal, (2024).

[38]  Supra note 4.

[39]  Supra note 5.

[40]  Supra note 4.