SC allows deportation of Rohingyas detained in J&K subject to adherence to procedures prescribed for deportation

THE Supreme Court Thursday refused to pass an order releasing the detained Rohingyas in Jammu and Kashmir (J&K). It, however, said Rohingyas would not be deported without following the procedure prescribed for deportation. 

“It is not possible to grant the interim relief. 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 said.

A bench led by CJI SA Bobde passed the order on an interim plea seeking to restrain the Central Government from deporting Rohingya refugees detained in Jammu and Kashmir (J&K).

The bench held it was true that the rights guaranteed under Articles 14 (right to equality) and 21 (right to life and personal liberty) 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)”, the bench added.

It also noted that two serious allegations had been made by the Central Government i.e. Rohingyas being a threat to the internal security of the country and the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders.

The Court also relied upon its previous order where it had dismissed an application seeking a stay on the deportation of a few people from Assam.

It said India is not a signatory to the Refugee Convention and that the National Courts could draw inspiration from International Conventions/Treaties, so long as they were not in conflict with the municipal law.

Regarding the argument of prevailing violence in Myanmar, the court said it could not comment upon something happening in another country.

The applicant, through advocate Prashant Bhushan, submitted that even while the top court was seized of the matter, news reports had been doing rounds since 7 March 2021 of the nearly 150-170 Rohingya refugees in Jammu being detained.

“This follows the Union Minister Jitendra Singh’s statements two months ago that the Rohingya (identified as Muslim refugees by the government) wouldn’t be able to secure citizenship. These refugees have been illegally detained and jailed in the Jammu Sub Jail which has been converted into a holding centre with the IGP (Jammu) Mukesh Singh stating that they face deportation back to Myanmar following verification by their embassy,” the application stated.

The plea contended that the proposed deportation was contrary to the constitutional protections of Article 14, Article 21 and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every ‘person’.

It added any such deportation would violate the principle of ‘Non-Refoulement’ of refugees, which has been widely recognised in several international conventions to which India is a signatory, and is also recognized as a jus cogens (fundamental and non-derogable) principle of Customary International Law.

The plea alleged that despite these constitutional and international law requirements, the Centre had failed to carry out its obligations to ensure the protection of the Rohingya community, by proposing to deport them to Myanmar where they face serious violence and persecution.

Solicitor General Mehta, for Centre, vehemently opposed the petition and said Rohingyas were not refugees but illegal migrants. He submitted the deportation was being done only after obtaining confirmation of their citizenship from the country from where they had sought to be deported.

In nutshell, Mehta argued the procedure established by law was followed in the deportation. He also pointed out a previous order of the court where it had dismissed an application seeking a stay on the deportation of a few people from Assam. He added, “India is not the capital of illegal migrants”.

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