MEMORIAL ON BEHALF OF THE PETITIONER

BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA

--IN THE MATTER OF--

MOHAMMED SALIMULLAH AND OTHER PETITIONER

VERSUS

UNION OF INDIA AND OTHERS RESPONDENTS

MOST RESPECTFULLY SUBMITTED BEFORE THE HOUNARABLE

CHIEF JUSTICE AND OTHER JUDGES OF SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF PETITIONER DRAWN AND

FILED BY THE COUNSELS FOR THE PETIONER.

SUBMITTED TO SUBMITTED BY

PREETHA MISS MOHD. RIYAS

 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The petitioners had filed the writ petition under Article 32 of

the Constitution of India for issuing directions to respondent no. 1 to
prevent the deportation of the petitioners and other Rohingya
refugees in India and to take steps for the recognition of these
refugees in India in keeping with the constitutional guarantees under
Article 14 and Article 21, read with article 51(c) of the constitution
of India.

The petitioner maintains that the Writ petition is maintainable

as the subject matter of the petition is justiciable and the power of
judicial review can be extended to the petitioners who are
admittedly illegal immigrants and that the proposed deportation
order is not in accordance with the just and fair procedure
established by law. Hence this Honorable Court may quash the
executive order by the Home Ministry Government Of India
(Respondents) in order to promote justice the rohingya refugees.
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STATEMENT OF FACT

1. A Writ Petition has been filed before the Supreme Court under
Article 32 of the Indian Constitution, challenging the decision to
deport approximately 40,000 Rohingya Muslims who have taken
refuge in India to escape persecution in Myanmar.

2. The petition has been filed by two Rohingya immigrants,

Mohammad Salimullah and Mohammad Shaqir, 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. The order was initiated then and has
been attached with this petition.

3. The Rohingya are a majority Muslim ethnic group, described as

the world’s most persecuted minority who have lived in Myanmar
for centuries but have faced growing violence and persecution
forcing thousands to flee to neighbouring countries including
India.

4. The petition seeks to invoke the extraordinary jurisdiction of this

Hon’ble Court to secure and protect the fundamental human rights
of these refugees against deportation in view of the Constitutional
guarantees provided under Article 14 and Article 21, read with
Article 51(c) of the Constitution of India and India has always
been accommodative to refugees on humanitarian grounds as was
evident during the Tibet Crisis of 1959, the creation of
Bangladesh in 1971 and civil wars in Sri Lanka and Afghanistan,
where India gave shelter and protection to lakhs of refugees.

5. It is reported widely in newspapers that the Union Minister of

State for Home Affairs, has stated that the Indian Government had
directed State authorities to identify and deport illegal immigrants
including Rohingya. He has further stated that since India is not a
signatory to the Refugee Convention, India is not bound to offer
refuge to the Rohingya Muslims. This is contrary to international
customary law, India’s ratification of the Universal Declaration of
Human Rights (1948), International Covenant on Civil and
 MEMORIAL ON BEHALF OF THE PETITIONER

Political Rights, the obligations of due process and the universal

principle of ‘non-refoulement’.
6. In complete violation of the international customary law and the
law of the land, the respondent issued directions on 08.08.2017
granting powers to the State Governments/Union Territories to
identify and deport foreign nationals staying illegally in the
country. The order/direction issued by the Union of India dated
08.08.2017, pursuant to the government’s statement of not
accepting the Rohingya refugees, is violative of Articles 14 and
21 of the Constitution.

7. The UN High Commissioner for human rights has described the

situation of Myanmar’s Rohingya minority as a “textbook
example of ethnic cleansing” and criticized both Yangon and New
Delhi, the latter for seeking to deport Rohingyas who fled to India.
The Petitioner has further deplored New Delhi’s measures to
deport them, noting that 40,000 had settled in India and 16000 of
them had received refugee documentation.

8. If the Rohingya refugees are deported back to Myanmar there is

an immediate threat of them being persecuted and robbed of their
dignity by the incumbent government. Such an act of the
government is contrary to the spirit of the Indian Constitution
reflected in its Preamble; Directive Principles laid down in Part
III.
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STATEMENT OF ISSUES

ISSUE I :

a. Whether the writ petition is maintainable under

Article 32 of the Constitution of India?

b. Does the deportation of Rohingya Muslims violate

the right to equality under Article 14 of the
Constitution of India, considering that similarly
placed immigrants are not being deported?

ISSUE II :
Does the proposed deportation of Rohingya Muslims who
face an existential threat in Myanmar violate their right to
life under Article 21 of the Constitution of India?

ISSUE III :
a) Is India bound by the ‘Non-Refoulement’ principle,
which is considered a part of Customary International
Law, despite not signing the 1951 Refugee Convention?

b) Whether the proposed deportation is contrary to the

International Law Obligation of India read with Article
51(c) of the Constitution of India?
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SUMMARY OF ARGUMENTS

Issue 2 :

Does the proposed deportation of Rohingya Muslims who

face an existential threat in Myanmar violate their right to
life under Article 21 of the Constitution of India?
The proposed deportation of the Rohingya Muslims who face an
existential threat in Myanmar violate their right to life under
Article 21 of the Constitution of India. If the Rohingya refugees
are deported back to Myanmar there is an immediate threat of
them being persecuted and robbed of their dignity by the
incumbent government. Such an act of the government is
contrary to the spirit of the Indian Constitution reflected in its
Preamble, Directive Principles laid down in Part III. The
rohingyas belong to the rakhine state of Myanmar where they
have not been considered possible citizens of Myanmar. The
Myanmarese constitution has not even considered the rohingyas
as one of its 122 ethnic tribes. Since they aren’t considered as
citizens of the country they have been attacked by the military
junta and there have incidents of gross encounters, rape of
women, destruction of homes etc. They have been a persecuted
minority and stateless people. Most of them have taken refuge in
Bangladesh and around 40,000 of them have entered India over
the years. Now the Home ministry in its executive order has
decided to deport all of them on national security issues. This
alleged discrimination when compared to the other refugees in
india is against the customary inrernational law and the order of
refoulment fundamentally violates Article 21 of the constitution.
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ARGUMENTS ADVANCED

ISSUE-2

Does the proposed deportation of Rohingya Muslims who face an

existential threat in Myanmar violate their right to life under
Article 21 of the Constitution of India?
2.1) The proposed deportation of Rohingya Muslims who face an
existential threat in Myanmar definitely violate their their right
to life under Article 21 of the constitution. If the Rohingya
refugees are deported back to Myanmar there is an immediate
threat of them being persecuted and robbed of their dignity by the
incumbent government. Such an act of the government is
contrary to the spirit of the Indian Constitution reflected in its
Preamble, Directive Principles laid down in Part III.
2.2) It is submitted that the Rohingya Muslims, escaped their home
country of Myanmar as a result of the violent and widespread
discrimination against the Rohingya Community there, that
according to various news reports, still continues unabated. That
the UNHRC Report of 2016 on the Human Rights violations and
abuses against Rohingya Muslims and other minorities in
Myanmar has noted successive patterns of serious human rights
violations to the right to life, liberty and security of the
Rohingyas by State security forces and other officials in
Mynamar. Violations include summary executions, enforced
disappearance, arbitrary arrest and detention, torture and ill-
treatment, forced labour, arbitrary arrest and detention of
hundreds of Rohingya, including women and children, and
consistent allegations of torture and ill- treatment, including cases
of severe beating, burning by cigarettes, burning of beards, forced
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labour, sexual humiliation and abuse, the denial of medical

treatment, degrading conditions of detention and deaths in
custody. Many from the Rohingya community fled their home
country of Myanmar because of grave threat to their lives, and
sought refuge in India. Their return would expose them to a
serious threat of severe bodily harm. OHCHR received credible
reports of torture and death in custody of individuals arrested and
detained on charges related to arson or alleged links to terrorist
groups. That access to justice for victims of human rights
violations and abuses has been lacking. The military and other
security forces have generally enjoyed impunity. Endemic
corruption and limited capacity and will to conduct effective
investigations and prosecutions add to a general lack of public
trust in the administration of justice for this community.

2.3) Its submitted that the principle of non-refoulement – or not

sending back refugees to a place where they face danger – is
considered part of customary international law and binding on all
states whether they have signed the Refugee Convention or not &
that the prohibition of refoulement to a danger of persecution
under international refugee law is applicable to any form of
forcible removal, including deportation, expulsion, extradition,
and would apply to their deportation that is being proposed by the
Central government.

Right to Life and Personal Liberty etc.

2.4) The Indian Constitution guarantees the right to life and personal
liberty to all persons. The protection of Article 21 of the
constitution is available to citizens as well as noncitizen, and they
also have right to live, as long as they are here, with human
dignity. Article 21 provides "No person shall be deprived of his
life or personal liberty except according to procedure established
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by law". This right has been held to be the heart of the

constitution.
Article 21 secures two rights:
(i) Right to life; and
(ii) Right to personal liberty

Article 21 prohibits the deprivation of the above rights except

according to procedure established by law. Article 21 can be
claimed only when a person is deprived of his "life" or personal
liberty by the "states" as defined by Article 12. It not only refers
to the necessity to comply with procedural requirements, but also,
substantive rights of citizen. Violation of the right by a private
individual is not within the purview of Article 21.

Who can claim the Protection of Article 21

The right secured by Article 21 is available to every person, citizen or

non-citizens. Thus, even a foreigner" can claim this right. However,
Article 21 applies only to natural person. It has no application to
corporate bodies.
Its submitted that in the People's Union for Civil Liberties v. Union
of India (1997) 3 SCC 433, the Supreme Court states:
“provisions of covenant, which elucidate and go to effectuate the
fundamental rights guaranteed under our Constitution can be relied
upon by the Courts, as facets of those fundamental rights and hence,
enforceable as such.”

2.5) It is well settled that an alien can claim the protection of Article
21. In Cherchi Domenico Ferdinando V. Union of India, the
petitioner a foreigner who had come to India on tourist visa,
 MEMORIAL ON BEHALF OF THE PETITIONER

granted extension to stay in India on the ground of his purported

marriage with an Indian, which way, in fact, to facilitate and
carry out widespread trafficking in drugs by foreign tourists.
Holding that an alien had no right to reside or settle in India, the
Delhi High Court upheld his deportation from India by an order
of the Government. Just as the state is under an obligation to
protect the life of every citizen in this country, so also the state is
under an obligation to protect the life of the persons who are not
citizens. Thus, the refugees can avail of the benefit under Article
21 of the Constitution in the same way as the citizens of India.
They cannot be exposed to threat to life and personal liberty.
State being governed by the rule of law is bond to protect the life
and liberty of every human being, be he a citizen or otherwise.

Article 21 is of the widest amplitude after the judgment of Maneka

Gandhi case and it covers a variety of rights which are provided to
refugees' aliens and non-citizens in India:

(i) Right to live with human dignity

"It is the fundamental right of everyone in this country to

live with human dignity free from, exploitation." This right to
live with human dignity enshrined in Article 21.

(ii) Right to livelihoods

"The right to life includes the right to livelihood." If the right to

livelihood is not treated as a part of the Constitutional right to right to
life, the easiest way of
depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Deprive a person of his
right to livelihood means person is deprived from his life.
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(iii) Right to Shelter

The right to shelter has been held to be a fundamental right which

springs from the right to residence secured in Article 19 (1) (e) and
the right to life guaranteed by Article Right to shelter, includes
adequate living space, safe and decent structure, clean and decent
surroundings, sufficient light, pure air and water, electricity,
sanitation and other civic amenities like roads, etc. So as to have easy
access to his daily avocation. The right to shelter, does not
mean a mere right to a roof over one's head but "right to the entire
infrastructure necessary to enable him to live and develop as a human
being".

(iv) Right to Education''

Right to education is fundamental right under Article 21 and "it

directly flows from the right to life". The right is, however, not an
absolute right and that it's content and parameters have to determine
in the light of Article 41 and 45.
The Constitution (86Amendment) Act, 2002 inserting a new
Article 21-A declaring right to education an independent
fundamental right.

(v) Right to Social Security and Protection of the Family

Right to life guaranteed under Article 21 includes within its ambit

"the right to social security and protection of the family". Interpreting
Article 39 (e) of the Constitution of India vis-a-vis Article 25 (2) of
the Universal Declaration of the
Human Right and Article 7 of the International Convention on
Economic, Social and Cultural rights, 1965, J.K. Ramaswamy in
Calcutta Electricity Supply Corporation (India) Limited Vs. Subhas
Chandra Bose, held that the right to social and economic justice was
 MEMORIAL ON BEHALF OF THE PETITIONER

a fundamental right. It is explained that right to life and dignity of

person and status without means, were cosmetic rights. "Socio-
economic rights were, therefore, basic aspirations for meaningful
right to life and that the right to social security and protection of the
family were integral part of the right to life".

2.6) In NHRC V. State of Arunachal Pradesh the Supreme Court

said that the state was bound to protect the life and liberty of every
human being, be he a citizen or otherwise an that the state could not
tolerate or permit anybody or group of persons to threaten other
person or group of persons.

(vi) Right to Health and Medical Assistances

The right to life guaranteed under Article 21 includes within its ambit
the right to health and medical care. It includes the right to lead a
healthy life so as to enjoy all faculties of the human body. It is not
merely a right enshrined under Article 21 but an obligation cast on the
state to provide this both underArticle 21 and under Article 47.

(vii) Right to Privacy

The Right to personal liberty and the right to move freely and speech
could be described as contributing to the right to privacy. However,
the right was not absolute and would always be subjected to
reasonable restrictions. The right would necessarily have to go
through a process of case by case development.

(viii) Right to Free Legal Aid and Right to Speedy Trial

The "right to free legal aid" at the cost of the state to anaccused, who
could not afford legal services for reasons of poverty, indigence or
 MEMORIAL ON BEHALF OF THE PETITIONER

incommunicado situation, was part of fair, just and reasonable

procedure implicit in Article 21.

The "right to speedy trial", has been interpreted to be a part of the

fundamental right to life and personal liberty. Article 21 requires that
a person can be deprived of his liberty only in accordance with
procedure established by law which should be a just, fair and
reasonable procedure.

(ix) Right against Inhuman Treatment

The Supreme Court in several cases, has taken a serious note of the
inhuman treatment meted to the prisoners and has issued appropriate
directions to prison and police authorities for safe guarding the right
of the prisoners and person in police lock-up, particularly of women
and children. So the inhuman treatment by the police was violation of
Article 21. As human dignity is a clear value of our Constitution not
to be parted away for mere apprehension entertained by jail officials.

(c) Protection against Arrest and Detention

The Indian Constitution guaranteed protection against arrest and

detention in certain cases. It embodies procedural safeguards against
arrest or detention which are available in the following two cases:
A. Where the arrest a detention is made under the ordinary
law relating to commission of offences.
B. Where the detention is made under a law providing for
preventive detention.

Its submitted that in a number of cases, Indian courts have protected

the rights of refugees where there are substantial grounds to believe
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that their life would be in danger. There are cases where the courts
have ordered the life of refugees who are in danger to be safeguarded
and have allowed them to be granted refugees status by the United
Nations High Commissioner for Refugees (UNHCR).

2.7) Indian Courts have decided in a number of cases that the

constitutional protection of life and liberty must be provided to
refugees. In the cases of Luis de Readt {(1991) 3 sec 554} and
Khudiram (Nos. 1994) Supp. {1} SCC 615), The Supreme Court held
that Article 21 of the constitution of India, which protects the life and
liberty of India citizens, is extended to all, including aliens.

2.8) Its submitted that the Supreme Court of India in the case of
National Human Rights Commission Vs. State of Arunachal
Pradesh restrained the forcible expulsion of Chakma refugees from,
the state (Civil WP No. 720: 1996 {1} Supreme 295). The Supreme
Court in its interim order on Nov.2, 1995, directed the state
government to ensure that the Chakmas situated in its territory are not
ousted by any coercive action not in accordance with the law. The
court directed the state government to ensure that the life and personal
liberty of each and every Chakma residing within the state should be
protected.
2.9) It submitted that In Chairman, Railway Board Vs.
Chandrimadas & Other the Supreme Court held that where a
foreign national, a Bangladeshi Woman was gang raped compensation
can be granted under public law (Constitution) for violation of
fundamental right on the ground of domestic jurisdiction based on
constitutional provisions and Human Rights jurisprudence. The court
said that "where public functionaries are involved and that the matter
relates to the violation of fundamental rights or the enforcement of
public duties the
 MEMORIAL ON BEHALF OF THE PETITIONER

remedy would be available under the public law, not withstanding

that a suit could be filed for damages under private law". It was more
so when it was not a mere violation of an ordinary right of a person
but the violation of fundamental right was involved. As petitioner was
a victim of rape which is violation of the fundamental rights of a
person guaranteed under article 21 of the constitution.

2.10) Its submitted that as regards the question whether fundamental

rights are available to a foreign nationals, or not, the court held that
the relief can be granted to the victim for two reasons-firstly on
ground of human rights jurisprudence founded on the Universal
Declaration of Human Rights, provisions from convention on the
Elimination of All Forms of Discrimination Against Women
(CEDAW), and secondly our constitution guarantees all the basic and
fundamental human rights setout in the Universal Declaration of
Human Rights to itscitizens and other person.

2.11) Its submitted that in Digvijay Mote Vs. Governm.ent of India

(V/rit Appeal No.354 of 1994), The High Court of Karnataka in
Bangalore,
considering the rights of 150 Sri Lankan refugee children, ordered the
state to make the necessary arrangements to provide basic amenities
to the refugee children in the camp on humanitarian grounds.

2.12) In Majid Ahmed Abdul Majid Mohd. Jad Al-Hak Vs. Union
of India (Crl. WP No. 60 of 1997) The court held that basic
necessities, like food and medical care, must be provided
while in detention. In the matter Gurunathan and other Vs.
Government of India The High Court of Madras expressed its
unwillingness to allow any Sri Lankan refugees to be forced to return
to Sri Lanka against their will. The court stayed the repatriation
process as it was not voluntary. The court acknowledged the
'Competence and impartiality' of the UNHCR.
 MEMORIAL ON BEHALF OF THE PETITIONER

2.13) In P. Neduraman and Dr. S. Ramadoss Vs. Union of India

& State of Tamil Nadu (1992)229 The madras High Court
emphasized the need to guarantee the voluntary character of
repatriation. The NHRC has also come to rescue of refugees
"approaching it with their complaints of violations of Human
Rights".

2.14) In Seyed Mohammadi Vs Union of India WP (Criminal)

1450/1994. In this case where in, the petitioner granted refugee status
by the UNHCR and the court ruled that. "There
is no question of deporting the accused under the
circumstances".

2.15) The Supreme Court of India has in a number of cases

stayed deportation of refugees such as Maiwand's Trust of
Afghan Human Freedom. Vs. State of Punjab and N.D.
Pancholi Vs. State of Punjab & others.

2.16) The Supreme Court judgment in the Chakma refuge case

clearly declared that no one shall be deprived of his or her life or
liberty without the due process of law. Earlier judgments of the
Supreme Court in Luis De Readt Vs. Union of India and also state of
Arunachal Pradesh Vs. Khudiram. Chakma had also stressed
the same point.

2.17) In Zothansangpuri Vs. State of Manipur (Civil Rule No.

981 of 1989) The Gouhati-Imphal bench of the Gauhati High Court
ruled that refugees have the right not to be deported if
their-life was in danger.

2.18) In P Ulaganathan Vs State of Tamil Nadu (WP(MD)No.5253

of 2009), where the petitioners were refugees from Srilanka who
 MEMORIAL ON BEHALF OF THE PETITIONER

actually of India Origin and were actually to be treated as repatriates

in order to gain Indian citizenship. The State had decided to forcibly
deport them back to Srilanka without their consent. The High court
had qushed the administrative order of the state stating that there was
a clear violation of Article 14 and Article 21 read with 51(c) of the
Indian Constituion. The Supreme Court later granted them citizenship
in another case.

2.19) Its submitted that in case that the said forced deportation is
violation of article 21 of the constitution. The said order violates the
theory of natural justice. In the Hans Nuremberg case, the Calcutta
High court had said that art 21 is applicable to foreigners in India.
Non –refoulement is considered to be an integral part of the Indian
constitution and also the international customary law.
The Government of India in their affidavit have stated that the said
deportation is in consideration of National security of its citizens. It is
considered that these people are vulnerable to the international
terrorist outfits and their population increase in political sensitive
areas like Kashmir could be a serious problem to the security of the
country. It is submitted that the said rohingyas have been found in
many states in India in order to make a livelihood by doing labour and
menial jobs. It is submitted that most of the said rohingya population
in India have been women and children. Various reports of the
UNHCR claims that most of the women and girls were raped ,
tortured and killed on the way to the nearby country , most of them
have crossed the porous borders illegally and entered into India to
seek refuge and to protect their life from persecution. Many of them,
including the petitioners have come into India during the years of
2011 and 2012. Its a fact that in the present Citizenship Amendment
Act most of them are eligible to citizenship. In this order most of the
eligible refugees who have had refugee cards issued by the UNHCR
and the said petitioners have been registered under their office. So, the
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said order of the Home ministry is definitely against article 21 which

is technically seen together with the principle of non-refoulement are
directly proportional to each other.