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Case Commentary on Muhammad Salimullah v UOI.docx

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Case Commentary on
Muhammad Salimullah v. Union of India
NAME- STUTI RAJ

FACTS

The Rohingya refugee issue and the legal difficulties experienced by refugees in India are the
subjects of the case of Muhammad Salimullah v. Union of India. Both Petitioner No. 1
(Mohammad Salimullah) and Petitioner No. 2 (Mohammad Shaqir) are listed with the
UNHCR, the UN body that oversees refugees. They left Myanmar because the Rohingya
population was the victim of extreme persecution and brutality. While Mr. Shaqir arrived in
India in 2011, Mr. Salimullah did so in 2012. The government of Myanmar has long persecuted,
discriminated against, and denied citizenship to the Rohingya, an ethnic minority from the
Rakhine State. 2012 saw a dramatic escalation of this crisis, leading to the mass relocation and
statelessness of over a million Rohingya.

There are almost 40,000 Rohingya refugees in India, but only 16,500 of them are officially
recognized by the UNHCR. Regardless of their UNHCR registration status, all illegal
immigrants, including Rohingya refugees, must be identified and deported, according to a
decision issued by the government in August 2017, according to a Union Minister of State.
Following this declaration, the petitioners filed a writ suit, claiming that the planned
deportation breaches both the customary international law norm of non-refoulement and
important provisions of the Indian Constitution.

The petitioners requested an injunction to prevent their deportation from a sub-jail in Jammu
and an interlocutory order for the release of incarcerated Rohingya refugees. With arguments
made by well-known legal counsel and interventions requested by a number of parties,
including the Special Rapporteur of the UN Human Rights Council, this case garnered a great
deal of legal attention.

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ISSUES RAISED

Rights Under the Constitution and Non-Citizenship:

The primary constitutional question in this case is whether non-citizens, in this case especially
Rohingya refugees, are entitled to the basic rights protected by Articles 14 (right to equality),
21 (right to life and personal liberty), and 19(1)(e) (right to remain and settle in any part of
India). The petitioners argued that regardless of citizenship status, these rights should be
applicable to all people.

National Sovereignty vs. International Obligations:

India is a party to many international human rights treaties that contain provisions pertinent to
refugees, while not being a signatory to the 1951 Refugee Convention or its 1967 Protocol. It
is disputed whether these accords, in spite of India's non-signatory status to certain refugee
agreements, entail legally obligatory responsibilities regarding non-refoulement.

Concerns about National Security:

The Rohingya refugee crisis, according to the Indian administration, poses serious threats to
national security. The government argued that it had the sovereign authority to control foreign
persons' admission and departure, especially in the interest of national security, citing porous
borders and well-organized networks of illegal immigration.

Legal Consistency and Judicial Precedents:

A precedent was formed when the Supreme Court turned down a similar plea involving
Assamese Rohingya refugees. This created concerns regarding the continuity of court decisions
and the relevance of earlier decisions in the present case, particularly in light of changing
circumstances and global events.

CONTENTIONS

Petitioners' Arguments:

Non-Refoulement concept:

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The petitioners contended that Article 21's protection of the right to life and personal liberty
incorporates the concept of non-refoulement, which forbids the forcible return of refugees to a
nation where they suffer persecution. They underlined that notwithstanding India's non-
signatory status to some refugee treaties, this principle should take precedence under customary
international law.

Universal Application of Fundamental Rights:

The petitioners argued that Articles 14 and 21 safeguard all people on Indian territory,
irrespective of their citizenship status, and that they thus apply worldwide. They said that it
would be against the equality and human dignity provisions of the constitution to deny these
safeguards to Rohingya refugees.

International Human Rights Treaties:

The petitioners emphasized India's adherence to these treaties and contended that, despite not
being a signatory to the Refugee Convention, India is nevertheless subject to broader
international norms that include safeguards against inhumane treatment and arbitrary
deportation.

Imminent Danger in Myanmar:

The petitioners contended that deporting Rohingya refugees would put them in grave danger
due to continued human rights violations and political unrest in Myanmar, especially in the
wake of the military takeover. They cited reports from throughout the world and the rulings of
the International Court of Justice, which acknowledged that the Rohingya Muslims in
Myanmar were victims of genocide.

Union of India's Disagreements:

Sovereign authority and National Security:

The government affirmed its authority to control the presence of foreign nationals in India,
especially when it comes to safeguarding national security. It made the case that tight
immigration controls are necessary due to the serious concerns posed by the surge of
undocumented immigrants, such as organized crime and terrorism.

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Non-Signatory Status:
India said that although it upholds the principles of international human rights, such as non-
refoulement, its responsibilities are restricted to the treaties that it has ratified. The government
argued that while India is not a party to the Refugee Convention and its Protocol, non-
refoulement only applies to such governments.

Previous Judicial Precedent:

The government argued for consistency in judicial decisions by citing the Supreme Court's
earlier verdict addressing Rohingya refugees in Assam. It stressed that the court's ruling in the
present instance need to be informed by the denial of petitions that were comparable in the
past.

Legal Authority and Due Process:

The government justified its actions involving the identification and expulsion of illegal
immigrants, including Rohingya refugees, by using the Foreigners Act, 1946 as its legal
authority. It underlined that in order to protect national security interests, a strong immigration
strategy is required.

RATIONALE

Constitutional Analysis:
The Supreme Court's ruling was based on a careful reading of both international law and
constitutional rights:

The court recognized that all people within Indian territory are protected by Articles 14 and 21,
but it also pointed out that the right to remain in India is secondary to the right to live and settle
that is provided by Article 19(1)(e), which only applies to citizens. Determining the scope of
constitutional rights afforded to Rohingya refugees hinged on this disparity.

International Law and Non-Signatory Status: The court acknowledged India's compliance with
global human rights standards, but it also underlined that governments who have signed
particular refugee treaties are the main parties obligated to uphold non-refoulement

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agreements. Due to India's non-signatory status to these treaties, non-refoulement principles

are not directly applicable under Indian domestic law.

National Security Considerations: The court recognized the government's legitimate interest
in controlling immigration to eliminate hazards presented by networks of illegal immigrants
and potential security problems, while also balancing humanitarian considerations with the
imperatives of national security.

Judicial Precedent and Consistency: The court emphasized the significance of upholding
judicial consistency while taking changing legal and factual settings into account, building on
its earlier decisions, which included the dismissal of similar petitions.

DEFECTS OF LAW

Absence of Refugee Legislation:

India does not have a comprehensive legal framework that addresses issues such as protections
against arbitrary deportation, status determination procedures, and refugee rights. In cases
involving refugees, the lack of such law increases confusion and ad hoc decision-making.

The case brought to light the uncertainty surrounding the applicability of non-refoulement as
customary international law in the absence of applicable treaty ratification or particular local
legislation.

Human Rights vs. National Security:

The conflict between humanitarian duties and the requirement for national security highlights
the necessity for precise rules and protections to successfully strike a balance between these
conflicting objectives.

Judicial Discretion and Precedent:

Although judicial precedent offers stability, there is a chance that earlier rulings won't
sufficiently address current human rights issues and global legal advancements, such as
judgments from foreign courts and organizations.

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INFERENCE

The ruling in Mohammad Salimullah v. Union of India by the Supreme Court has wider
ramifications for national sovereignty, refugee rights, and constitutional principles:

Legal Clarity and Legislative Action:

India must pass comprehensive refugee laws that comply with international human rights
norms immediately. The assessment of refugee status, rights, and protections—including the
non-refoulement principle—would be made clearer by such legislation.

Maintaining Fundamental Human Rights and Preserving National Security:

In the framework of refugee protection, policymakers and judicial authorities must strike a
careful balance between maintaining fundamental human rights and protecting national
security.

International Engagement:
In order to improve refugee safeguards and guarantee adherence to international norms, India
should reevaluate its participation in international human rights organizations and treaties.

The application of legal precedents to growing humanitarian situations and international legal
developments should be done with caution by the judiciary. Given the dynamic nature of the
legal and factual environments, constitutional rights interpretation must be flexible.

CONCLUSION

The Supreme Court's ruling in Muhammad Salimullah v. Union of India demonstrates the
complex interplay of constitutional rights, humanitarian considerations, and national security.
Due to worries about national security and India's position as a non-signatory to the 1951
Refugee Convention, the Court declined to offer interim relief to jailed Rohingya refugees,
even though it agreed that non-citizens had fundamental rights under Articles 14 and 21.

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This case highlights how urgently India has to create a strong legal framework for refugees that
strikes a balance between the demands of international human rights norms and national
security. A framework like this would guarantee refugees' right to due process and appropriate
protection, and it would also give government and legal authorities clear instructions for
managing instances similar to this in the future.

In conclusion, the case of Muhammad Salimullah serves as a sobering reminder of the risks
that refugees encounter and the pressing need for extensive legislative changes to protect their
rights in India's legal system.

The historic case of Muhammad Salimullah v. Union of India illustrates the complicated
interplay between national security considerations, international commitments, and
constitutional rights when it comes to refugee protection. In addition to upholding India's
sovereign power to control immigration, the Supreme Court stressed the need of safeguarding
refugee rights within national and international legal frameworks.

This case emphasizes the need for a comprehensive strategy for refugee protection that includes
judicial discretion, legislative changes, and international cooperation. In order to preserve the
rights and dignity of refugees in India as well as the country's commitment to human rights and
the rule of law, it is imperative that the legal and policy inadequacies shown by this case be
addressed.

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