The present writ petition has been filed by Mohammad Salim Ullah under article 32 of the constitution of India, a is being filed to secure and protect the right against deportation of the petitioner refugees in India and the Constitutional guarantees under Article 14 and Article 21, read with Article 51(c) of the Constitution of India, against the deportation of Rohingya refugees who have taken refuge in India after escaping their home country Myanmar due to the widespread discrimination, violence, and bloodshed against this community in their home State.
However, according to the Reuters reports – the union minister of state home affairs had passed a statement in regard, at the beginning of august that even though about 16500 Rohingya’s are registered with UNHCR ( United nations high commissioner for refugees) – around 40,000 Rohingya Muslims should be deported back to their home country, despite they facing the abuse and violence.
This not only denies them basic rights constituted in UDHR, refugee conventions, or other ones but destroys humankind without having a legitimate reason to deport them, deny them their rights.
However, it is in breach of the constitutional safeguards provided for in Article 14, Article 21, and in Article 51(c) of the Indian Constitution that this deportation is proposed, which gives every ‘person’ equal rights and freedom. This act would also contradict the ‘Non-Refoulement’ principle, which is widely accepted in customary international law. India has ratified and is a signatory to several conventions which acknowledge the ‘Non-Refoulement’ Principle which prohibits the expulsion to a country in which refugees are menaced with lives.
If the petitioners are deported back to Myanmar they will face prosecution, bloodshed against them. They’re mostly stateless. In 1962, following the military seizure of power, ethnic minorities were increasingly excluded from authority, faced with restrictions on education, the use of minority languages, and freedom of religion.
Since the 1990s, however, extremist or ultra-nationalist Buddhist organizations in Myanmar have actively promoted messages of hatred and intolerance against Muslims and other religious minorities especially the Rohingyas. Such is the climate of fear which has led many Rohingyas to flee.
However, In February 2021, the High Court of Jammu and Kashmir asked the local government within one month to provide information about its measures to identify and deport illegal immigrants living in Jammu from Myanmar and Bangladesh.
As if to demonstrate immediate action in response, the Jammu and Kashmir police on 6 March 2021 detained 170 Rohingya to prepare their deportation to Myanmar.
The first fallacy that not only the Supreme Court, but all branches of the trias politica – the executive, legislature, and judiciary – commit is to assert that Rohingya are Myanmar citizens.
The Government of Myanmar has simply issued national verification cards to these individuals; however, Rohingya is not listed in the Myanmar Citizenship Act of 1982 and therefore is a stateless person for whom no country has committed itself.
Paragraph 3 of the order contains the second one. Senior Counsel C.U. Singh, the Special Rapporteur on behalf of the United Nations Human Rights Council (UNHRC), has “tried to present” his intervention by raising “serious objections” Who raised these objections and what those objections were and whether they were justifiable or not, is not discussed. This is from a country that seeks a permanent place in the Security Council of the United Nations!
The third deformity is the incorporation of the principle of non-refoulment by the Supreme Court – or non-incorporation. This principle has been the rule adopted by the Indian judiciary from the birth of independent India and refers to the following:
“The refugee shall not be expelled or returned (“refouler”) in any way to the borders of any territory in which his or her life or freedom would be threatened by race, religion, nationality, membership of a certain social group or by a particular political opinion.
In the case of Kater Abbas Habib Al Qutaifi v. Union Of India (1999 CriLJ 919), the Gujarat High Court held that- “This principle prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects the life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India.”
The present ruling is not the first to claim that Rohingya’s deportation is legal and to refuse meaningful implementation of the laws on which the ostensibly neutral decision rests. Rohingya refugees have already made petitions to the Supreme Court in 2013 and 2017 to challenge the State’s order to deport roughly 40,000 Rohingya fugitives to Myanmar then located in India. The first hearing was again and again postponed by the Supreme Court, despite the urgency and the requirement for interim protection, and the Supreme Court finally rejected on October 4, 2018 interference with the Union Government’s deportation order.
But India is not just claiming that it is neutral. Instead, the Burmese Military actively supported Rohingya’s genocide, rounding it up wherever it was and calling on Rohingya to complete intrusive ‘Staff Data Forms’ provided by the embassy in Myanmar.
By refusing to deal constructively with precedents and to incorporate key principles laid down in his case law, the Supreme Court is simply an ostensibly legal terminology, which is in the form of a legal document and a mere formality of the reference to due process.