'Right Not To Be Deported' Is Ancillary To A Fundamental Right Available Only To Indian Citizens : Supreme Court In Rohingyas Case

While rejecting a plea to stop the deportation of Rohingya refugees detained in Jammu, the Supreme Court observed that the right not to be deported is ancilliary to the fundamental right to reside or settle in any part of India guaranteed under Article 19(1)(e) of the Constitution.

The fundamental right under Article 19(1)(e) is available only to Indian citizens.

"It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)", the bench observed.

The bench comprising the Chief Justice of India SA Bobde , AS Bopanna and V. Ramasubramanian observed that the Rohingyas in Jammu shall not be deported unless the procedure prescribed for such deportation is followed.  

The court observed thus while dismissing interlocutory application filed seeking (i) the release of the detained Rohingya refugees; and (ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub­jail in Jammu. Opposing this application, the centre had contended that that though the rights guaranteed under Articles 14 and 21 may be available to non-­citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens. The Centre also alleged that (i) there is a threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. 

"It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).", the bench observed.

National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.

During the hearing held on March 23, Advocate Prashant Bhushan, appearing for the applicant, had referred to the order passed by the International Court of Justice last year to highlight that Rohingyas faced genocidal threat there. He had also pointed out that Myanmar is at present governed by a Military government, which came into power. Therefore, sending Rohingyas - who had faced atrocities from the army even during the civilian rule- back to Myanmar when it is under a Military junta will endanger them, Bhushan had submitted. On the other hand, the Centre stated that the decision of the International Court of Justice has no relevance to the present application and that the Union of India generally follows the procedure of notifying the Government of the country of origin of the foreigners and order their deportation only when confirmed by the Government of the country of origin that the persons concerned are citizens/nationals of that country and that they are entitled to come back.

"There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law," the court observed.

Cannot comment upon something happening in another country

Regarding the contention raised about the present state of affairs in Myanmar, the bench said that it cannot comment upon something happening in another country.

Case: Mohammad Salimullah Vs. Union Of India [IA 38048 OF 2021 in WPC 793 OF 2017]

Coram: CJI SA Bobde , AS Bopanna and V. Ramasubramanian

Citation: LL 2021 SC 202

Click here to Read/Download Order