On Thursday, the Supreme Court refused to grant relief in a petition challenging Rohingya refugees' detention in Jammu and deporting them back to their parent country Myanmar. The Court stated that it is not possible to grant the interim relief prayed for. However, it is made clear that the Rohingyas in Jammu, on whose behalf the application has been moved, shall not be deported unless the procedure prescribed for such deportation is followed.
The Court has refused to order the release of nearly 150 Rohingyas detained in the holding centres in Jammu and allowed their deportation to their parent country as per the procedure of law. A bench comprising Chief Justice SA Bobde, Justices AS Bopanna and V Ramasubramanian passed the order in an application moved by Mohammad Salimullah in the Public Interest Litigation petition filed by him for the protection of Rohingyas.
Right not to be deported ancillary to Article 19(1)(e). In the short 6-page order, the SC observed that the right not to be deported is ancillary to the right to reside or settle in any part of the territory, which is guaranteed under Article 19(1)(e) of the Constitution(a right available only to citizens).
The Court also noted that India was not a party to the Refugee Convention. The Court further said that it could not comment upon the current happenings in Myanmar.
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 a genocidal threat there. He also pointed out that Myanmar is 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. He had also placed reliance on the principle of non-refoulment, which forbids a refugee's expulsion if there is a clear and certain danger of life in the origin country. Solicitor General Tushar Mehta had opposed the application on behalf of the Union Government. The SG said that a similar application concerning Rohingyas in Assam was dismissed in 2018 and that the petitioner had suppressed that fact in the present application. The top law officer of the Union also submitted that deportation is done following the procedure established by law, and hence it cannot be held to be violative of the right to life under Article 21 of the Constitution. The SG also disputed that Rohingya detainees were refugees and called them "illegal migrants". "India cannot be a capital for all illegal migrants of the world", the SG added. Senior Advocate Harish Salve, intervening on behalf of the J&K administration, argued that the principle of non-refoulment was not binding on the Indian Government as it has not signed the international treaties propounding the said principle. During the hearing, the CJI made oral observations acknowledging Rohingyas' threat in Myanmar but added that the Court could not do anything about it. The CJI said that possibly that is the fear that they will be slaughtered if they go back to Myanmar, but we cannot control all that. He further added that we are not called upon to condemn or condone genocide, and we are certain that there should be no genocide on earth.
Case Title: Mohammad Salimullah and Another versus Union of India and others
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