Mohammad Salimullah v. Union of India, W.P. No. 793 of 2017

Read the judgment here

Date of decision: 08.04.2021

Court: Supreme Court of India

Judges: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian

Summary: The petitioners, Rohingya refugees, sought the release of detained Rohingya refugees in Jammu who were facing deportation. The Supreme Court allowed deportation of the refugees, holding that the right against deportation is concomitant to rights under Article 19(1)(e). 

Facts: In March 2021, several newspaper reports indicated that about 150­-170 Rohingya refugees detained in a sub jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which advised them to initiate deportation processes against refugees housed in various camps across the country. The petitioners, who were themselves Rohingya refugees, sought, through an interlocutory application, release of the detained Rohingya refugees and a direction to the government to not deport them. The present petition was therefore an interlocutory application in the main case. 

Holding: The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. 

The Supreme Court dismissed the plea and ordered that the detained refugees be deported, following proper procedure. The court stated that, “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).” (paragraph 13), implying that India is not bound by the principle of non-refoulement. It also acknowledged the government’s concerns that refugees posed threats to internal security and would lead to increase in illegal immigration. 

Significance: While the Supreme Court’s decision can be understood as implying that the principle of non-refoulement is not a part of Article 21, this was not explicitly stated in the court’s order. So, it would be incorrect to say that the present case lays down an authoritative position of law with respect to non-refoulement and Article 21. 

The court’s decision is only an interlocutory order, and therefore should not be considered as laying down a ratio, as was also correctly noted by the Manipur HC in Nandita Haksar v State of Manipur (our analysis here). The issue of non-refoulement is a substantial question of law, and should be decided by a proper Constitution Bench. The petitioners’ arguments of Article 21 and non-refoulement amounted to a substantial question of law, which should have been referred to a Constitution Bench in line with Article 145(3). Instead, it was determined by a division bench in a mere interlocutory order. 

The court locates the right to not be deported within Article 19(1)(e), a misinterpretation of the petitioners’ arguments. The petitioners did not argue for a total right against deportation, they argued that that the refugees had a right not to be deported to a country accused of genocide against them. Deporting them would violate their right to life under Article 21, which is guaranteed to all persons. 

Further, the court acknowledged that, “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” (paragraph 12), but in its order, it referred to no such sources of law. Nothing in Indian law contravenes the principle of non-refoulement, and therefore, by the court’s own reasoning, it had the leeway to read non-refoulement into Indian law which it did not do. The court disregarded the fact that other international treaties that India is a party to, such as the ICCPR, encapsulate the principle of non-refoulement and will stand breached if the refugees are deported. Such a breach would also violate Article 51 of the Constitution, which calls for honouring international treaty obligations. 

By disregarding international conventions, the Supreme Court also contradicted its own judgement in Vishakha v. State of Rajasthan, wherein it had held that international conventions that are consistent with fundamental rights must be read into the Constitution. 

The decision also represents a break from several High Court judgements that have read non-refoulement into Article 21. The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India, and the Delhi HC in Dongh Lian Kham v. Union of India, have both held non-refoulement to be a part of Article 21. Both cases involved refugees from different nations seeking protection against deportation. 

The court’s acceptance of the national security argument is also flawed and stands in contrast to the Manipur HC’s treatment of a similar argument advanced before it in Nandita Haksar v. State of Manipur. Unlike the present case, in Nandita Haksar, the Manipur HC concluded that the petitioners, Myanmarese refugees seeking safe passage to UNHCR, represented no threat to national security. In order to reach this conclusion, the court examined several documents of the petitioners, noting the circumstances under which they had sought refuge in India. However, in the present case, the Supreme Court undertook no such examination and seems to have relied on the government’s unsubstantiated arguments.


  1. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  2. Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 2021. 
  3. Malcolm Katrak and Shardool Kulkarni, Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law, Journal of Liberty and International Affairs, June 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

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