Supreme Court: Right not to be deposited is a fundamental right only available to citizens of India

The petition was made by refugee registered by UNHCR seeking for release of detained rohingya refugees and a direction to the Union of India not to deport the the rohingya refugees who have been detained in the sub jail in Jammu.

The ministry of home affairs, Government of India on 08.08.2017 issued a letter to chief secretary of all the states and union territory government advising them to sensitize all law enforcement and intelligence agency for taking a prompt step for initiation and deportation process.

Petitioner contended that the principle of non refoulment is guaranteed under article 21 of constitution of India and that right guaranteed under article 14 and 21 are available to non citizens and even though India is not signatory to UN convention on status of refugee 1951 it is party to to UNHCR, 1948, ICCPR, 1966 and convention on child rights 1992 to and that the enforcement is non refoulment and is binding obligation.

The respondents stated that in the present case for the deputation the application has been filed are foreigners within the meaning of section 2 (a) of foreigners act 1946 and that India is not signatory either to United nation convention on status of refugee, 1951 or to protocol of 1967 and the principle of non refoulment is applicable to contracting states and since India has open porous land border, there is threat of influx of illegal migrant’s which can affect national security.

There is also a well organised started of illegal migrants through various agents and totes for money consideration and also section 3 of foreigner act empowers central government to issue any order for prohibition and regulation for restriction of entries of foreigners in India or their departure therefrom and also rights guaranteed under article 14 and 21 are available also to non- Citizens.

Article 19 (1) (e) is available to citizens of India only. The court has already dismissed I.A.No.142725 of 2018 filed for similar relief of Assam detainees. So it is not possible to grant an interim relief of prayerin this matter however it is made clear that rohingya in Jammu will not be deported unless the procedure for deportation is followed.

Mohammad Salimullah Vs. Union Of India [IA 38048 OF 2021 in WPC 793 OF 2017]

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