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The Supreme Court on Thursday made it clear that Rohingyas, who have been detained in Jammu, shall not be deported to Myanmar unless the procedure prescribed for such deportation is followed by the authorities.
A bench headed by Chief Justice S A Bobde said it is true that rights guaranteed under Articles 14 and 21 of the Constitution are available to all the 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 India.
While Article 14 deals with equality before law, Article 21 deals with protection of life and personal liberty.
The bench, also comprising Justices A S Bopanna and V Ramasubramanian, passed the order on an application seeking release of detained Rohingya refugees and also a direction to the Centre not to deport those who have been detained in the sub-jail in Jammu.
The apex court noted that two serious allegations have been made in the Centre's reply in the matter which relates to threat to internal security and that agents and touts are providing a safe passage into India for illegal immigrants due to the porous nature of landed borders.
The bench also noted the Centre's contention that a similar application challenging the deportation of Rohingyas from Assam was dismissed by the top court in October 2018.
“Therefore, 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 present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed. Interlocutory application is disposed of accordingly,” the bench said in its order.
“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),” it said.
The bench also noted 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,” it said.
“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. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country,” the bench said.
Advocate Prashant Bhushan, representing the petitioners who are Rohingya refugees, had referred to a recent judgement of the International Court of Justice and said that it has taken note of the genocide of Rohingyas in Myanmar and lives of these refugees are in serious danger, if they are deported.
The petitioners had argued that Rohingyas were persecuted in Myanmar even when an elected government was in power and now the elected government has been over thrown by a military coup, so the danger is imminent.
The bench noted in its order that according to the petitioners, new circumstances have arisen as revealed by media reports to the effect that about 150-170 Rohingya refugees detained in a sub-jail in Jammu face deportation back to Myanmar.
It noted that reports that appeared in the media were relied upon to show that “there are more than about 6,500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub-jail now converted into a holding centre”.
The Centre had filed its reply in the apex court saying that persons, for whose protection against deportation the application was filed, are foreigners within the meaning of section 2(a) of the Foreigners Act 1946 and India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967.
It had said that since India has open or porous land borders with many countries, there is a continuous threat of influx of illegal immigrants and such influx has posed serious national security ramifications.
The Centre had also contended that decision of the International Court of Justice has no relevance to the application filed in matter.
It had said 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 it is confirmed by the government of the country of origin that the persons concerned are citizens/nationals of that country and they are entitled to come back.
The bench noted in its order that the petitioners are Rohingya refugees from Myanmar and they are housed in a refugee camp.
“It appears that persons similarly placed like the petitioners are housed in refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places in India,” it noted.
The Centre had earlier opposed the plea saying the country cannot be the “capital” for illegal immigrants.
Violent attacks allegedly by Myanmar army have led to an exodus of Rohingya tribals from the western Rakhine state in that country to India and Bangladesh.
Many of them, who had fled to India after the earlier spate of violence, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan.