“To deny people their human rights is to challenge their very humanity.”
~Nelson Mandela
ABSTRACT:
The rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India are known to be as Human Rights. [1]
Human Rights are globally recognized as those rights of individuals which have been considered to be very basic for their full physical, mental and spiritual development. These rights are derived from the dignity and worth inherent in the human persons. The recognition of these rights has been a result of man’s long struggle for the realisation of his human values.[2]
INTRODUCTION:
In the Honble’ Supreme Court of India
Case Number: WP (C) 793/2017
Citation: AIR 2021 SC 1789
Bench: 3
SHARAD ARVIND BOBDE, A. S. BOPANNA, V. RAMASUBRAMANIAN, JJ.
Status: Pending
Petitioner(S): Mohammad Salimullah and Anr.
Lawyers: Dr. Rajeev Dhavan; Mr. Prashant Bhushan; Dr. Ashwini Kumar; Mr. Colin Gonsalves.
VERSUS
Respondent(S): Union Of India and Ors.
Lawyers: Mr. Tushar Mehta; Mr. Gopal Subramanium.
Right of not to be deported, is ancillary to right to reside or settle in any part of the territory, which is guaranteed under Article 19(1)(e) of the constitution only available to citizens
BACKGROUND:
- A petition was filed before the Supreme Court,in order to challenge the decision of deporting Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar.
- Rohingyas are a small ethnic minority from Myanmar’s Rakhine state, and have been facing violent persecution from the Myanmar government, military and Buddhist nationalists there.
- Lakhs of Rohingyas have fled their home country in the to seek shelter in neighbouring countries.
- Similarly they arrived in India too seeking their protection for the sake of availing their human rights.
- The Government of India after looking towards internation security matters prevented their further stay as illegal immigrants and planned for their deportation back to their original origin.
- In prevention to this they have approached the Supreme Court of India for safeguarding their interests.
ISSUES RAISED:
(1)Does the deportation of Rohingya Muslims violate the right to equality under Article 14, considering that similarly placed immigrants are not being deported?
(2)Does the proposed deportation of Rohingya Muslims who face an existential threat in Myanmar violate their right to life under Article 21?
(3)Do fundamental rights apply to non- citizens?
(4) Is India bound by the ‘Non-Refoulement’ principle which is considered a part of Customary International Law, despite not signing the 1951 Refugee Convention?[3]
STATUTES CONCERNED:
Constitution of India, Foreigner’s Act 1946, Universal Declaration of Human Rights 1948, United Nations Convention on the Status of Refugees 1951, United Nations High Commission for refugees, International Covenant on Civil & Political Rights 1996, Convention on the Rights of the child 1992.
ARTICLES CONCERNED:
Article 19 (1)(e), 21, 51(c) of The Constitution of India: S. 3, of Foreigner’s Act 1946.
These are read as follows:-
19. Protection of certain rights regarding freedom of speech, etc.—(1)(e) to reside and settle in any part of the territory of India.[4]
21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by
law.[5]
51. Promotion of international peace and security.-(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another.[6]
S. 3: The Central Government may by order make provision, either generally or concerning all foreigners or concerning any particular foreigner or any prescribed class or description of the foreigner, for prohibiting, regulating or restricting the entry of foreigner into (India) or, their departure therefrom or their presence therein.[7]
INVOLVEMENT IN THE PARTICULAR CASE:
India is not a party to the Refugee Convention, 1951 or its 1967 Protocol and does not have a national refugee protection framework. The petitioners have claimed that the proposed deportation violates the constitutional protection of the right to equality under Article 14, the right to life and personal liberty under Article 21 and fostering respect for international law and treaty obligations under Article 51(c).
THE JUDGEMENT:
The bench pronounced its order on the interim application on 7 March 2021.
About the arguments raised by the United Nations Committee for Protection of Human Rights:
The order acknowledges the arguments made by the petitioner, represented by Prashant Bhushan and the Union of India, represented by Solicitor General Tushar Mehta and Senior Advocate Harish Salve for the Union Territory of Jammu & Kashmir. However, the order notes that due to ‘serious allegations’, the UNHRC Special Rapporteur who applied as an intervenor was not heard.
Contending the right not to be deported under Art. 19 is ultra vires:
The bench also notes that while Articles 14 and 21 are guaranteed to all irrespective of citizenship, Article 19(1) (e) is not. According to the bench, the latter article is the one that contains the right not to be deported, since it provides for the right to reside or settle in any part of India. This is available only to citizens.
About the principle of ‘Non-Refoulement’:
The petitioners also claimed that the deportation would be in contradiction with the principle of ‘Non-Refoulement’, generally considered to be a part of Customary International law.
The principle of ‘Non-Refoulement’ forbids a country from sending back asylum seekers or refugees to a country where they face persecution and is seen as binding on all countries, irrespective of not being a signatory to the 1951 Refugee Convention.
The Indian government maintains that a large number of Rohingya migrants represents a national security threat and hence, they should be deported.
Also, its worth mentioning about the Citizenship Act of 1955 which provides easier citizenship laws for immigrants from neighbouring countries except for the Muslim immigrants; with the amendment bill of 2016 supplementing to greater difficulties for citizenship to them.
Position of Supreme Court:
Further, the order takes note of the Union’s national security concerns and their concern with ‘touts’ who provide safe passage to India for illegal immigrants. On this basis, the bench refused the application for interim relief.
Procedure for Deportation:
However, it stated that deportation cannot be done unless the ‘procedure prescribed’ is followed.
Notably, it recognises the submission that the Union only deports people after they have received confirmation from the country of origin that they would he welcomed back.[8]
CONCLUSION:
With the ever since increasing demands of Human rights all over the globe, national boundaries are facing the challenges of inculcations of them into their fundamental perspectives.
The question of protection of international boundaries stands in front of each nation and at the same time; at its opposite; the interrogation about the protection of Human Rights and providing them equally to all.
“The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent.”
~Dr. Dalveer Bhandari, J.[9]
[1] S. 2(d), of The Protection of Human Rights Act, 1993
[2] Valsamma Paul v. Cochin University, A.I.R. 1996 SC 1011
[3] Mohammad Salimullah V. Union Of India; AIR 2021 SC 1789, Supreme Court Observer(SCO), available at https://www.scobserver.in/cases/mohammad-salimullah-rohingya-deportation-case-background/ , last seen on 10/04/2023.
[4] Art. 19, of The Constitution of India
[5] Art. 21, of The Constitution of India
[6] Art. 51, of The Constitution of India
[7] S. 3, Foreigner’s Act of 1946
[8] Mohammad Salimullah V. Union Of India; AIR 2021 SC 1789, Supreme Court Observer(SCO), available at https://www.scobserver.in/cases/mohammad-salimullah-rohingya-deportation-case-background/ , last seen on 10/04/2023.
[9] Preeti Gupta vs. State of Jharkhand (2010) 7 SCC 667
Written by: Madhav Puri, Panjab University, Swami Sarvanand Giri, Hoshiarpur, an intern under Legal Vidhiya
