DR. B. R.

AMBEDKAR NATIONAL LAW UNIVERSITY,

SONEPAT

(Academic year 2023-24)

Constitutional Law-I (503)

Assignment on: -

MOHAMMAD SALIMULLAH and Anr. Vs. UNION OF INDIA

SUBMITTED TO: - SUBMITTED BY: -

MS. MEENAKSHI RAO SHIVAM SINGH (2101128)
ASSISTANT PROFESSOR 5th SEMESTER, Section B
CONSTITUTIONAL LAW B.A.LL.B. (Hons.)

SUBMITTED ON: - 22-11-2023

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Ms. Meenakshi

Rao mam who gave me this golden opportunity to do this assignment, which also
helped me in doing a lot of research and it helped me in learning many new things.
I would also like to thank my friends, my batch mates and my parents who helped me
a lot in doing this project. Without their help I would not be able to complete this
project. I am really thankful to them.
Last but not least I would like to thank my family members and my parents who
motivated me to complete my assignment on the topic “MOHAMMAD
SALIMULLAH and Anr. Vs. UNION OF INDIA”.

Thank you again to all those who helped me directly or indirectly.

INDEX:

S.No. Topic Pg. No.

1 Facts of the Case 4
2 Issues Raised 5
3 Articles Involved 5
4 Arguments by Petitioner 6
5 Arguments by Respondent 7
6 Judgement 8
7 Ratio-Decidendi 9
8 Conclusion 10
NAME OF THE CASE MOHAMMAD SALIMULLAH & ANOTHER
V. UNION OF INDIA

CITATION AIR 2021 SC 1789

APPELLANT Mohammad Salimullah & Another

RESPONDENT Union of India & Others

BENCH Chief Justice S.A. Bobde, Justice A.S Bopanna,

and Justice V. Ramasubramanian.

DATE OF JUDGEMENT April 8, 2021

STATUTES INVOLVED 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 Court of
Justices.International Covenant on Civil &
Political Rights, 1996.Convention on the Rights
of the child 1992.
FACTS OF THE CASE:

A petition had been filed in Supreme Court of India by two Rohingyas immigrants,
Mohammad Salimullah and Mohammad Shaqir in 2017 standing against the decision by
union of India to deport back the refugees to their parent country Myanmar where they faced
decades of persecution.

The Rohingyas are an ethnic Muslim minority in Myanmar, predominantly living in the
Rakhine state of Myanmar. They are not officially recognized by the government of
Myanmar as citizens, and for decades Myanmar’s Buddhist majority has been accused of
subjecting them to discrimination and violence.

In 2011, when ethnic violence broke out in Myanmar, clashes between the Rohingya and
Buddhist nationalists led to scores of deaths, forcing tens of thousands Rohingya to flee to
neighbour countries like Bangladesh, Malaysia, Thailand and Indonesia. In 2017, almost 1
million Rohingyas had fled Rakhine due to the violence. Even Humans rights groups, such as
Human Rights Watch and Amnesty International, said operations by Myanmar army involved
– arbitrary killings, systematic rapes, burning of houses, forced expulsions of locals etc.

At present, Myanmar is facing a military staged coup. The military has alleged that the
general elections held in November 2020 were full of “irregularities” and that therefore the
results are not valid. Military had then declared that they had taken control of the country and
imposed a one-year state of emergency in Myanmar.

The petitioners claimed to have fled Myanmar in 2011 during ethnic violence and at present
are Rohingyas refugees housed in refugee’s camp.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. Therefore 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.
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. Whether the “Right not to be deported” is also available to non-citizens or not?

5. Is India bound by the ‘Non-Refoulement’ principle which is considered a part of

Customary International Law, despite not signing the 1951 Refugee Convention?

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.

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.

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.

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.

ARGUMENTS BY PETITIONER:
The petitioners aruged that :

● The petitioner contended that “the principle of non-refoulment” will apply as it is

guaranteed under article 21 and the state shall not deny any person equality before the
law or the equal protection of the laws within the territory of India. As both the rights
are guaranteed under article 14 and 21, and both of them are available to non-citizens.
● Under international human rights law, the principle of non-refoulement guarantees
that: ” No one should be returned to a country where they would face torture, cruel,
inhuman or degrading treatment or punishment and other irreparable harm. This
principle applies to all migrants at all times, irrespective of migration status.” And
article 51(c) can be pressed into contention here which states that India must respect
International law and treaties in dealings of organised people with one another.
● Although India is not signatory to the United Nations Convention on the Status of
Refugees 1951, it is party to the International Covenant on Civil and Political Rights,
the Universal Declaration of Human Rights 1948 and 1966 and the Convention on the
Rights of the Child 1992 and so principle of non-refoulement is binding on it.
● The Petitioners also contend that India is a signatory to the Protection of All Persons
against Enforced Disappearances, Convention against Torture and Other Cruel and
Inhuman or Degrading Treatment or Punishment.
● They also cited the recent judgement of International Court of Justice in The Gambia
vs Myanmar case, in which it was taken into consideration the genocide of
Rohingyas in Myanmar and that their lives are in imminent danger in Myanmar at
present.

ARGUMENTS BY RESPONDENT:

The respondents contended that :

 ● India is signatory neither to the Nations Convention on the Status of Refugees 1951
nor to the Protocol of the year 1967 and the non-refoulment principle only apply to
the member states.
● The petitioners whose application has been filed are foreigners under the meaning of
Section 2(a) of the Foreigners Act, 1946.
● Since India shares land borders with many neighboring country, therefore there is
possible threat of influx of illegal migrants and such influx has caused serious
concerns for national security
● Central government has power to regulate, prohibit or restrict the entry/departure of
foreigners under Section 3 of the Foreigners Act.
● It is true that the rights guaranteed under article 14 and 21 is available to non-citizens
also, but the right to reside and settle in India is only available to the citizens of India
only under article 19(1)(e).

It was also contended on behalf of the Union of India 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.

JUDGEMENT:

The three judge bench headed by the Honorable Chief Justice of India decided to reject the
plea to release the Rohingya immigrants currently detained in a Jammu jail but they also said
that these immigrants should not be deported unless the due procedure for such task is
followed.

Regarding the “non-refoulment” principle the Supreme Court said that since India is not a
signatory to any such treaty in question, this principle cannot be pressed upon it under Article
51 (c) of the constitution. The bench also refused to comment on the matters of another state
when the petitioners’ side evoked the fact that these immigrants cannot be sent back to a
country where a recent military coup has taken place and where they will probably be
tortured or killed. The bench stated that while these immigrants do have protection of Article
14 (right to equality) and Article 21 (Due process of law) but the right not to be deported
provided under the Article 19 (1)(e) is only provided for Indian citizens and as these
immigrants are foreign citizens they are exempted from this particular right.

The court determined that certain constitutional rights, such as Articles 14 and 21, apply to
both citizens and non-citizens. However, Article 19(1)(e), which grants the right to reside and
settle in any part of the country, is only available to Indian citizens, and refugees are excluded
from this right. The court noted that the government had raised concerns about national
security related to these refugees.

The Hon’ble Supreme Court held that on the issue of violation of Article 21, court was of the
opinion that the deportation of refugees according to procedure establish by law does not
violate Article 21. The Hon’ble court further held that though Article 14 and 21 are available
to non-citizen but in present context, 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. Thereafter on issue on violation of the principle of
non-refoulement, it was held that it won’t be applicable on the Indian Government as it has
not signed the international treaties propounding the said principle. At last Supreme Court
refused to make any comment on the internal matters of another country and left the matter of
public policy at the prerogative of the state.

The Supreme Court insisted that India is not a ‘signatory’ country to the United Nations
Convention on the Status of Refugees 1951 or the Protocol of the Year 1967 but India has
previously recognised that these treaties have become customary in nature (these customary
laws are rules or laws that are considered as customs due to the belief of the international
community that these laws are indeed needed so these need to be followed even by a country
which is not a ‘signatory ‘ to these) but the SC failed to uphold these very customary
practices just by saying that India is not bound by them because it has not signed these
treaties.

The court concluded that interim relief cannot be granted to the petitioners. The deportation
of Rohingya refugees in Jammu will only be carried out following the proper procedure.

RATIO-DECIDENDI:

The ratio behind the judgement of the bench is three-fold. The bench opined that though a
conflict can arise on the enforcement of Article 51(c)21 of the Constitution in case India is a
signatory or not a signatory to a convention, yet there is no doubt that in an instance of
conflict between municipal law and international law, the former prevails. The national courts
are restricted to drawing inspiration from international conventions or treaties and in the
present case, the fact that India is not a signatory to an international convention forms the
municipal law and the same prevails. It was also thought that the right not to be deported is
auxiliary or collaterally linked to the right to settle or reside in the Indian territory mentioned
under article 19(1) (e) of the Constitution, and the said article only guarantees the right to
citizens; ergo the Rohingya immigrants cannot be given the liberty to settle or reside in any
part of the Indian territory. Lastly, the bench opined that serious contentions regarding the
porous borders and internal security of India were made by the respondents. In any manner,
whatsoever, the security of the State cannot be compromised, thus becoming a ground for
non-allowance of Rohingya immigrants on Indian grounds.

CONCLUSION:

The judgement pronounced by the Hon'ble bench has been under scrutiny since the moment it
was delivered. The Court’s decision was labelled as a violation of human dignity and
exposure of the Human Rights rhetoric in India and was also criticised for overlooking the
International Customary Law and affirming only the International Statutory Law. It can be
fairly concluded that the principle of non-refoulement does not restrict itself to specific
statutes, in fact, its essence can be implicitly found in the very foundation of International
Law. Ignorance towards such basic tenets of International Law weakens the validity and
applicability of the same, which is a potential reason why instances of human rights violation
still exist around the world. Enough stress needs to be laid down on the duration of the
immigrant situation in India. It has been almost a decade since the Rohingya have taken
shelter in India and it’s no denying that some of them are penetrating into the territory
presently as one reads this analysis, but one cannot overlook the ultimate reasons or the
severe humanitarian grounds which led them to flee their nation and take refuge in ours.
Beyond ‘Statelessness’ accompanied with ‘Ethnic Cleansing’ and ‘Extreme Intolerance’, the
Army and other ethnic groups of Myanmar offered death to the Rohingya community and
once deportation is given the green signal, it becomes questionable as to where these
immigrants will be deported to. Borrowing from the present judgement itself, the due process
of deportation needs to be carried out effectively, which means that unless the tag of being
stateless is removed from the Rohingya and they are accepted back in their nation, i.e.
Myanmar, India will have to set up numerous detention camps for these immigrants, which
was, quite evidently, the position before this judgement was pronounced. Such perspectives
force one to think about the practicality of this judgement, which was primarily given on the
grounds of uncompromising nature of national security or rather feeling threatened by a
persecuted community of 40,000 plus, which was harmlessly settled on Indian soil for about a
decade will continue to do so post this judgement. When it comes to choosing between
municipal law and international customary law, the Hon'ble Court gave the ritualistic
direction of upholding the former and drawing inspiration from the latter, thus going against
its own judgement of the Dong Lian Kham case. Such situations where India keeps evading
the refugee crisis by taking the cover of it not being a signatory to a convention presents itself
in a bad light internationally and in the end, it can be inferred that the Refugee Policy of India
needs a contemporary makeover as it is the need of the hour.