Mohammad Salimullah v. Union of India

The case of Mohammad Salimullah v. Union of India (Writ Petition (Civil) No. 793 of 2017) is an important decision of the Supreme Court of India dealing with the rights of refugees and the power of the State to deport foreigners. The matter arose in the context of Rohingya Muslims who had entered India after fleeing persecution and violence in Myanmar.

The case raises significant constitutional questions regarding the scope of fundamental rights available to non-citizens, the applicability of international refugee principles, and the balance between humanitarian concerns and national security. The Supreme Court, through an interim order dated 8 April 2021, refused to restrain deportation but emphasised that deportation must be carried out strictly in accordance with the procedure established by law.

Facts of Mohammad Salimullah v. Union of India Case

• The Rohingya community, originally from Myanmar, fled their country due to ethnic violence and persecution, particularly around December 2011.
• A large number of Rohingya individuals entered India without valid travel documents and settled in various parts of the country, including New Delhi, Haryana, Allahabad, and Jammu.
• Government estimates in 2017 suggested that approximately 40,000 Rohingya Muslims were residing in India, with around 10,000 located in Jammu and Kashmir.
• On 8 August 2017, the Ministry of Home Affairs issued a communication to all States and Union Territories. The authorities were advised to identify Rohingya migrants and initiate steps for their deportation.
• Following this, several Rohingya individuals were detained in Jammu. Reports indicated that around 150–170 Rohingya refugees were lodged in a sub-jail, which had been converted into a holding centre.
• The petitioners, Mohammad Salimullah and Mohammad Shaqir, filed a writ petition before the Supreme Court. The petition sought protection for Rohingya refugees residing in India and challenged their proposed deportation.
• An interim application was also filed seeking urgent relief. The petitioners requested:
  • Release of Rohingya refugees detained in Jammu; and
  • A direction to restrain the Union of India from deporting these refugees to Myanmar.

Issues Before the Court

• Whether the deportation of Rohingya refugees violates fundamental rights under Articles 14 and 21 of the Constitution of India.
• Whether the principle of non-refoulement forms part of Indian law and restricts deportation of refugees.
• Whether non-citizens can claim a right not to be deported under the Constitution.
• Whether the Union of India has unrestricted power to deport foreigners under existing law.

Arguments by the Petitioners

• The petitioners argued that deportation of Rohingya refugees would expose them to serious harm and persecution in Myanmar.
• It was contended that such deportation would violate Article 21, which guarantees the right to life and personal liberty to all persons, including non-citizens.
• The petitioners also relied on Article 14, which ensures equality before the law and equal protection of laws to all persons within India.
• A key argument was based on the principle of non-refoulement, which prohibits returning individuals to a country where they may face persecution or harm. It was submitted that this principle forms part of the right to life under Article 21.
• The petitioners further argued that India is bound by several international instruments, including:
  • Universal Declaration of Human Rights, 1948
  • International Covenant on Civil and Political Rights, 1966
  • Convention on the Rights of the Child
• It was contended that even though India is not a signatory to the Refugee Convention, these international obligations support the application of non-refoulement.

Arguments by the Union of India

• The Union of India opposed the petition and justified the proposed deportation on legal and security grounds.
• It was argued that the Rohingya individuals are foreigners under Section 2(a) of the Foreigners Act, 1946, and therefore subject to the laws governing entry and exit of foreigners.
• The Union submitted that India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, and hence the principle of non-refoulement is not legally binding.
• It was also contended that a similar petition seeking protection against deportation had already been dismissed by the Supreme Court in 2018 in relation to Rohingyas in Assam.
• The Union emphasised concerns relating to national security, stating that:
  • There is a continuous influx of illegal immigrants due to porous borders.
  • There are organised networks facilitating illegal entry into India.
  • Intelligence agencies have raised concerns regarding potential threats to internal security.
• The Union further argued that:
  • While Articles 14 and 21 apply to non-citizens, the right to reside and settle in India under Article 19(1)(e) is available only to citizens.
  • The power of the State to expel foreigners is broad and recognised under law.

Observations of the Supreme Court in Mohammad Salimullah v. Union of India

• The Court acknowledged that Articles 14 and 21 are available to all persons, including non-citizens. This means that foreigners are entitled to equality before law and protection of life and personal liberty.
• However, the Court made a crucial distinction. It observed that the right not to be deported is not an independent right. Instead, it is linked to the right to reside and settle in India under Article 19(1)(e).
• Since Article 19 rights are available only to citizens, the Court held that non-citizens cannot claim a fundamental right to remain in India or to avoid deportation.
• On the issue of international law, the Court noted that India is not a signatory to the Refugee Convention. While international conventions may guide interpretation, they cannot override domestic law unless incorporated into the legal framework.
• The Court also took note of the concerns raised by the Union of India regarding:
  • Threats to national security
  • Illegal immigration through organised channels
  • Earlier dismissal of similar petitions

Mohammad Salimullah v. Union of India Judgment and Final Order

• The Supreme Court in Mohammad Salimullah v. Union of India refused to grant interim relief sought by the petitioners.
• It did not stay the deportation of Rohingya refugees detained in Jammu.
• However, the Court issued an important safeguard. It directed that:
  • Rohingya refugees shall not be deported unless the procedure prescribed for such deportation is followed.
• This means that while deportation is legally permissible, it must be carried out in accordance with due process and applicable laws.

Conclusion

The case of Mohammad Salimullah v. Union of India is a significant ruling on the legal status of refugees and the scope of constitutional protections available to non-citizens. The Supreme Court upheld the power of the State to deport foreigners, while recognising that such action must follow due procedure.

The decision underscores the distinction between citizens and non-citizens in the context of fundamental rights and highlights the need for a structured legal framework governing refugees in India. It remains an important reference point in discussions on refugee protection, constitutional law, and the relationship between domestic and international legal principles.