Interim Order 2021 in Plain English

Background

A petition had been filed before the Supreme Court, challenging the decision to deport Rohingya Muslims who have taken refuge in India to escape persecution in Myanmar.

Rohingyas are a small ethnic minority from Myanmar’s Rakhine state, who have been facing violent persecution at the hands of the Myanmar government, military and Buddhist nationalists. Lakhs of Rohingyas have fled their home country in the recent past to seek shelter in neighbouring countries.

The petition had been filed by two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, residing in Delhi, who relied on a Reuters report which claimed that the Central Government has decided to deport 40,000 Rohingyas back to Myanmar, the country of their persecution.

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 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 Refugee Convention, 1951. The Indian government maintains that a large number of Rohingya migrants represents a national security threat and hence, they should be deported.

On 7th March 2021, there were newspaper reports that 150-170 Rohingya refugees in Jammu had been detained and placed in holding centres. There are 6,523 Rohingyas in Jammu, who are concerned about the situation. They feared they would be deported to Myanmar. The petitioners thus filed an interim application to release the detainees. The Government of India has denied that they are detained. They have maintained their position on the principle of non-refoulment.

The application was heard on 26 March by a bench of CJI Bobde, Justice Boppana and Justice Ramasubramaniam.

Interim Order in Plain English

The bench pronounced its order on the interim application on 7 March 2021.

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.

Notably, it recognises the submission that the Union only deports people after they have received confirmation from the country of origin that they would be welcomed back.

The order states that they ‘cannot comment upon something happening in another country.’ It then recognises that ‘serious objections’ were raised as to whether Article 51(c) can be applied in this matter when India is not a signatory to the Refugee Convention. This article is a directive principle that requires the State to endeavour to ‘foster respect for international law’.

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.

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. However, it stated that deportation cannot be done unless the ‘procedure prescribed’ is followed.