SYNOPSIS

That the present Writ Petition under Article 32 of the Constitution

of India is being filed, to secure and protect, the right against
deportation, of the petitioner refugees in India, in keeping with the
Constitutional guarantees under Article 14 and Article 21, read
with Article 51(c) of the Constitution of India, which protects
against arbitrary 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. The petitioners have been
registered and recognised by the UNHCR in India in 2016 and have
been granted refugee I-cards.
That according to the Reuters report dated 14th August 2017,
Union Minister of State for Home Affairs, Kiren Rijiju, told
parliament in early August that the central government had
directed State authorities to identify and deport illegal
immigrants including Rohingya, who face persecution in
Buddhist-majority Myanmar. An estimated 40,000 Rohingya
are living in India and like the Petitioners many others, are even
registered with the UN refugee agency in India.
The petitioners submit that this proposed deportation is 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’. This act would also be in contradiction
with the principle of ‘Non-Refoulement’, which has been widely
recognised as a principle of Customary International Law.

In the case of NHRC v. Arunachal Pradesh (AIR 1996 SC 1234), the

Court held that-
“Our Constitution confers certain rights on every human being and
certain other rights on citizens. Every person is entitled to equality
before the law and equal protection of the laws. So also, no person
can be deprived of his life or personal liberty except according to
procedure established by law. Thus, the State is bound to protect the
life and liberty of every human being, be he a citizen or otherwise”
The petitioners claim that India has ratified and is a signatory to,
various Conventions that recognise the Principle of ‘Non-
Refoulement’, that prohibits the deportation of refugees to a
country where they face threat to their life. Further, the
Constitution of India under Article 51(c), a Directive Principle of
State Policy, also requires fostering respect for International Law
and Treaty Obligations. That the petitioners claim that despite
these Constitutional and Statutory requirements, the Respondent
No. 1 has failed to carry out their obligations to ensure protection
to the Rohingya Community by proposing to deport the Community
to their home country of Myanmar, where they face serious
persecution.
That the Petitioners, Rohingya Muslims, escaped their home
country of Myanmar as a result of the violent and widespread
discrimination against the Rohingya Community there, that
according to various news reports, still continues unabated. That
the UNHRC Report of 2016 on the Human Rights violations and
abuses against Rohingya Muslims and other minorities in
Myanmar has noted successive patterns of serious human rights
violations to the right to life, liberty and security of the Rohingyas
by State security forces and other officials in Mynamar. Violations
include summary executions, enforced disappearance, arbitrary
arrest and detention, torture and ill-treatment, forced labour,
arbitrary arrest and detention of hundreds of Rohingya, including
women and children, and consistent allegations of torture and ill-
treatment, including cases of severe beating, burning by cigarettes,
burning of beards, forced labour, sexual humiliation and abuse,
the denial of medical treatment, degrading conditions of detention
and deaths in custody. Many from the Rohingya community fled
their home country of Myanmar because of grave threat to their
lives, and sought refuge in India. Their return would expose them
to a serious threat of severe bodily harm.
The Convention Relating to the Status of Refugees, 1951 lays down
guidelines and rules regarding the treatment of refugees. It put
forward the ‘Principle of Non-Refoulement’ as the right of refugees to
be protected from the violence in their own country. It states that
refugees should not be returned to a country where they face
serious threats to their life or freedom. India has not ratified the
Refugee Convention. But this is now considered a rule of
Customary International Law. Further India has also ratified, or is
signatory to, various Conventions and Treaties that advocate the
‘Principle of Non-Refoulement’. These include important Treaties
and Conventions like the Universal Declaration of Human Rights,
International Convention on the Elimination of all Forms of Racial
Discrimination, International Covenant on Civil and Political
Rights, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and International Convention
on Protection of all Persons Against Enforced Disappearances.
Article 51(c) of the Indian Constitution, a Directive Principle of
State Policy, casts a duty on the State to endeavour to foster
respect for international law.
The Indian Judiciary has also recognised this principle as right that
is to be provided to the Refugees under various rights enumerated
under Article 21 in the case of Dongh Lian Kham v. Union of India,
(226(2016) DLT 208).
In the case of Ktaer 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 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.”
In these above stated circumstances, the Petitioner is approaching
this Hon’ble Court seeking appropriate directions to the
Respondents to protect and safeguard the rights of refugees in
India under Article 14 and Article 21, along with Article 51(c) of the
Constitution of India and in keeping with the principle of non
refoulment as well as appropriate directions to the respondent
Government not to deport the Petitioners and other refugees of the
Rohingya community back to Myanmar.

LIST OF DATES
1948 India ratified the Universal Declaration of
Human Rights
1951 International Convention on Status of
Refugees adopted by the United Nations
1968 India ratified the International Convention on
the Elimination of all Forms of Racial
Discrimination
1979 India ratified the International Covenant on
Civil and Political Rights
1997 India became signatory to the Convention
against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
2007 India became signatory to the International
Convention on Protection of all Persons
Against Enforced Disappearances

2016 Petitioner no. 2 registered with the United

Nations High Commission for Refugees on 18 th
December 2016. Petitioner No. 1 registered
with the United Nations High Commission of
Refugees (UNHCR) on 28th December 2016.
Reuters publishes report stating that the
Union Minister of State for Home Affairs, Kiren
11.08.2017
Rijiju, told the Parliament that the central
Government had directed the State
Governments to “constitute task forces at
district levels to identify and deport the
illegally staying foreign nationals”
NHRC Press release regarding the notice to the
14.08.2017
Union Home Ministry, regarding the media
reports about the government’s decision to
deport Rohingya refugees.
 IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION (CIVIL) NO. OF 2017

IN THE MATTER OF:

1. MOHAMMAD SALIMULLAH
R/o, ANAGAUNG, BUTHIDAUG
RAKHINE, MYANMAR
(Presently residing at)
PLOT NO. G-15, GALI NO. 2,
KANCHAN KUNJ, NEAR
KALANDIKUNJ, MADNAPUR KHADAR
DELHI - 110025 ….PETITIONER NO. 1

2. MOHAMMAD SHAQIR
R/o, TEMUNHALI, BUTHIDAUNG
(Presently residing at)
PLOT NO. G-15, GALI NO. 2,
KANCHAN KUNJ, NEAR
KALANDIKUNJ, MADNAPUR KHADAR
DELHI - 110025 ….PETITIONER NO. 2
VERSUS
1. UNION OF INDIA,
THROUGH ITS SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK, CENTRAL SECRETARIAT
NEW DELHI-110001 ….RESPONDENT NO.1

2. NATIONAL HUMAN RIGHTS COMMISSION

THROUGH ITS CHAIRMAN
MANAV ADHIKAR BHAWAN
BLOCK C, GPO COMPLEX
INA, NEW DELHI – 110023 .....RESPONDENT NO.2

3 UNITED NATIONS HIGH COMMISSION FOR REFUGEES

THROUGH ITS CHIEF OF MISSION
B-2/16, VASANT VIHAR
NEW DELHI – 110057 .....RESPONDENT NO. 3
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA FOR ISSUING DIRECTIONS TO RESPONDENT NO. 1
TO PREVENT THE DEPORTATION OF THE PETITIONERS AND
OTHER ROHINGYA REFUGEES IN INDIA AND TO TAKE STEPS
FOR THE RECOGNITION OF THESE REFUGEES IN INDIA IN
KEEPING WITH THE CONSTITUTIONAL GUARANTEES UNDER
ARTICLE 14 AND ARTICLE 21, READ WITH ARTICLE 51(C) OF
THE CONSTITUTION OF INDIA.
To
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THE SUPREME COURT OF
INDIA
The humble Petition of the Petitioners above named
MOST RESPECTFULLY SHOWETH:

1. That the present Writ Petition under Article 32 of the

Constitution of India is being filed to secure and protect 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. That according to a
Reuters Report, the Union Minister of State for Home Affairs,
Kiren Rijiju, told parliament in early August that the Central
Government had directed State authorities to identify and
deport estimated 40,000 Rohingya Muslims living in India,
despite the threat they face in their home country, even
though about 16,500 Rohingyas have registered with the
United National High Commissioner for Refugees (UNHCR) in
India. The petitioners submit that this proposed deportation
is 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’. This act
would also be in contradiction with the principle of ‘Non-
Refoulement’, which has been widely recognised as a principle
 of Customary International Law. The petitioners claim that
India has ratified and is a signatory to, various Conventions
that recognise the Principle of ‘Non-Refoulement’ that
prohibits the deportation of refugees to a country where they
face threat to their life. Further, the Constitution of India
under Article 51(c), a Directive Principle of State Policy, also
requires fostering respect for International Law and Treaty
Obligations. That the petitioners claim that despite these
Constitutional guarantees, the Respondent No. 1 has failed to
carry out their obligations to ensure protection to the
Rohingya Community by proposing to deport the Community
to their home country of Myanmar, where they face serious
persecution.

2. That the Petitioner No. 1 is Mr. Mohammad Salimullah, a

Registered refugee under United Nations High Commission of
Refugees (UNHCR). His Individual Number is 305-
00086070. The Petitioner came to India in 2012 through
Calcutta, mainly by foot, due to the discrimination faced in
Myanmar. The Petitioner fears for his life if he is deported,
and fears he would be exposed to the atrocities faced by
the Rohingya Community in Myanmar, if he is to
be sent back to Myanmar. A copy of the UNHCR identity card
of petitioner no. 1 is annexed as Annexure P 1 (Page
)

3. Petitioner No. 2 is Mr. Mohammad Shaqir, a Registered

refugee with UNHCR. His Individual Number is 305-
00083965. The Petitioner came to India on 1st October
2011, due to the discrimination faced in Myanmar. The
Petitioner fears for his life if he is deported, and fears he
would be exposed to the atrocities faced by the Rohingya
Community in Myanmar, if he is to be sent back to Myanmar.
A copy of the UNHCR identity card of petitioner no. 2 is
annexed as Annexure P2 (Page )
Facts of the case

India’s statement on the proposed deportation of Rohingyas from

India and India’s obligations to protect the Rohingya community
under International Treaty obligations and Constitutional
guarantees

4. That according to the Reuters report dated 14th August 2017,

Union Minister of State for Home Affairs, Kiren Rijiju, told
parliament in early August that the central government had
directed State authorities to identify and deport illegal
immigrants including Rohingya, who face persecution in
Buddhist-majority Myanmar. An estimated 40,000 Rohingya
are living in India and like the Petitioners many others, are
even registered with the UN refugee agency in India. UNHCR
has issued identity cards to the petitioners and about 16,500
Rohingyas in India are registered with UNHCR. Mr. Rijiju is
reported to have said in an interview in early August that
UNHCR registration was irrelevant because India was not a
signatory to the refugee convention. “As far as we are
concerned they are all illegal immigrants. They have no basis
to live here. Anybody who is illegal migrant will be deported”,
the Minister is reported to have said. A copy of the Reuteurs
news report carrying the ministers statement is annexed as
Annexure P 3 (Page _ to )

5. That the petitioners are aggrieved by the Hon’ble ministers

statements and proposed orders of deportation, that goes
against the Constitutional guarantees to refugees in India,
under Article 14 and Article 21 as well as Article 51 (c) of the
Constitution that obligates India to respect international law,
as well as the international principle of non refoulement or
not sending back refugees to a place where they face
danger, which has been considered a part of customary
international law.

6. That the petitioners face the danger of persecution, violence

and bloodshed, if they are deported back to Myanmar and
 must be accorded protection of the Indian State in keeping
with customary international law principle of non refloument
and Constitutional provisions under Articles 14 and 21 that
offer a framework for the protection of refugees in India.

National Human Rights Commission notice to the Ministry

of Home Affairs on proposed deportation of Rohingyas

7. That the National Human Rights Commission (NHRC) has

issued notice to the Ministry of Home Affairs, taking suo
motu cognizance of media reports regarding the plans of the
government of India to deport about 40,000 illegal Rohingya
immigrants from Myanmar, who are residing invarious part of
India. The NHRC press release dated 18th August, 2017,
states:
“The Commission has observed that refugees are no doubt
foreign nationals but they are human beings and before
taking a big step the Government of India has to look into every
aspect of the situation, keeping the fact into focus that the
members of the Rohingya community have crossed into India
borders are residing here for long, have a fear of persecution
once they are pushed back to their native country...The
Commission has also observed that the Supreme Court
of India has consistently held that the Fundamental Right
enshrined under Article 21 of the Constitution regarding Right
to Life and Personal Liberty, applies to all, irrespective of the
fact whether they are citizens of India or not”. A copy of the
NHRC press release dated 18th August 2017 is annexed as
Annexure P 4 (Page )

That NHRC has asked the Ministry of Home Affairs to submit

their response within 4 weeks. The NHRC notice further
strengthens the case of the petitioners against arbitrary
deportation to their home country where they face a serious
the threat to their life.
On the Status and persecution of Rohingya community in
Myanmar

8. That in the Annual Report of the United Nations High

Commissioner for Human Rights dated, 28th June 2016, on
the ‘Situation of Human Rights of Rohingya Muslims and other
Minorities in Myanmar’, the United National High
Commissioner for Human Rights examines the patterns of
human rights violations and abuses against the Rohingyas,
particularly widespread discrimination against this
community in their home country of Myanmar. A copy of the
Annual Report of the United Nations High Commissioner for
Human Rights on ‘‘Situation of Human Rights of Rohingya
Muslims and other Minorities in Myanmar’, is annexed as
Annexure P 5 (Page _ to )

9. That the Rohingya community are largely living in Rakhine

State, Myanmar. They self-identify as a distinct ethnic group,
with their own language and culture, and claim a long-
standing connection to Rakhine State. Successive
Governments in Myanmar have rejected these claims, and the
Rohingya were not included in the list of recognised ethnic
groups. Most Rohingya are stateless. After the military seized
power in 1962, ethnic minorities were increasingly excluded
from positions of authority, facing restrictions in, education,
the use of minority languages and religious freedom.

10. That the outbreak of violence against this community,

especially in June-October 2012, led to hundreds of cases of
injury, death, destruction of property and displacement
of 1,40,000 people and around 1,20,000 individuals remain
in internally displaced camps in central Rakhine State. Since
the 1990s, however, extremist or ultra-nationalist Buddhist
organizations in Mynmar 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.
11. That Myanmar has one of the largest stateless populations
in the world: some 10,90,000 stateless persons,
predominately Rohingya in Rakhine State. The lack of
citizenship of the Rohingya community heightens their
vulnerability to a range of human rights violations.

12. That successive Special Rapporteurs have reported patterns

of serious human rights violations of the rights to life,
liberty and security of the Rohingya by State security forces
and other officials. Violations include summary executions
, enforced disappearance, arbitrary arrest and detention,
torture and ill-treatment, and forced labour, in violation of
Universal Declaration of Human Rights Articles 3, 4, 5 and 9.
Following the outbreak of violence in 2012, Office of the High
Commissioner (OHCHR) received credible reports of the
arbitrary arrest and detention of hundreds of Rohingya,
including women and children, and consistent allegations of
torture and ill-treatment, including cases of severe
beating, burning by cigarettes, burning of beards, forced
labour, sexual humiliation and abuse, the denial of medical
treatment, degrading conditions of detention and deaths in
custody. The Rohingya community has faced other
restrictions based on local orders that are arbitarily weighted
against them such a restrictions on marriage and permits for
marriages, restrictions on the number of children and a
requirement to use contraception. Non compliance is a
criminal offence, punishable by up to 10 years of
imprisonment.
That protracted displacement in deteriorating shelters, limited
access to basic services and the inability to move freely make
for particularly oppressive living conditions for those in the
camps. Besides violating the right to freedom of
movement, the conditions also affect the enjoyment of several
economic and social rights, including the rights to education,
to the highest attainable standard of health and to an
adequate standard of living.
 That in northern Rakhine State, the arbitrary arrest and
detention of Rohingya remains widespread. Their
statelessness leaves them particularly vulnerable and a target
for extortion. Arbitrary arrest and detention often lay the
ground for other violations, such as torture and extrajudicial
killings. OHCHR received credible reports of torture and death
in custody of individuals arrested and detained on charges
related to arson or alleged links to terrorist groups. That
access to justice for victims of human rights violations and
abuses has been lacking. The military and other security
forces have generally enjoyed impunity. Endemic
corruption and limited capacity and will to conduct effective
investigations and prosecutions add to a general lack of
public trust in the administration of justice for this
community.

New Reports on the recent crackdown on Rohingya in

Myanmar

13. That various recent news reports further highlight that the
current conditions of the Rohingya community in Myanmar is
precarious, as thousands escape from the persecution and
bloodshed and flee to the neighbouring countries.
The 28th August, 2017, BBC report, Myanmar Rakhine:
Thousands flee to Bangladesh border, states, that thousands
of Rohingya people have fled their homes following two days
of violence in a deepening crisis in the state of Rakhine
Myanmar. More than 100 people, are reported to be killed in
this recent violence. A copy of the BBC news report is
annexed as Annexure P 6 (Page _ to )
The New York Times report, dated 3rd Febuary 2017,
“Rohingya Face Campaign of Terror in Myanmar’, based on
the UNHCR report, states that members of the Myanmar
Army and police have slaughtered hundreds of men, women
and children, gang-raped women and girls and forced as
many as 90,000 Rohingya Muslims from their homes,
 according to the UN report. A copy of the New York Times
report is annexed as Annexure P 7 (Page _to ).
Another New York Times story dated 10th January,
2017, ‘There are no Homes Left: Rohingya tell of Rape, Fire
and Death in Myanmar’ reports stories of how the Myanmar
military has entered Rohingya villages and shot people at ran-
dom, razed houses and systematically raped girls and women.
The report further states that hundreds of Rohingya live in
squalid refugee camps in Bangladesh. A copy of the New York
Times report is annexed as Annexure P 8 (Page _to ).

The Guardian reports on 9th February 2017, that more than

1000 Rohingya feared killed in Myanmar army crackdown,
say UN officials. The report also states that about 1.1million
Rohingya Muslims live in apartheid like conditions in
north-western Mynamar where they are denied citizenship.
A copy of The Guardian report is annexed as Annexure P 9
(Page to )

That systematic human rights violations and lack of

opportunities have triggered irregular migration flows of
Rohingya from Rakhine State to neighbouring countries,
including India.

Application of Customary International Law and the Principle

of non refoulement

14. That the principle of non-refoulement – or not sending back

refugees to a place where they face danger – is considered
part of customary international law and binding on all
states whether they have signed the Refugee Convention or
not.

That the principle of Non Refoulement has been enunciated

explicitly under Article 33(1) of the 1951 United Nations
Convention on the Status of Refugees -
“No contracting State shall expel or return (“refouler”) a
refugee in any manner whatsoever to the frontiers of
 territories where his life or freedom would be threatened
on account of race, religion, nationality, membership of a
particular social group or political opinion.” A copy of
the Convention relation to the Status of Refugees, 1951,
is annexed as Annexure P 10 (Page_ to )

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 life and
liberty of a human being irrespective of his nationality. That
this principle in International law would extend protection to
the lives of the petitioners and other members from the
Rohingya community who have fled the bloodshed,
persecution and violence they have faced in Myanmar and
would prevent India from deporting them.

15. That the UNHCR Advisory Opinion on the Extraterritorial

Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967
Protocol states, the protection against refoulement under
Article 33(1) applies to any person who is a refugee under
the terms of the 1951 Convention, that is, anyone who meets
the requirements of the refugee definition contained in Article
1A(2) of the 1951 Convention (the “inclusion” criteria) and
does not come within the scope of one of its exclusion
provisions. Under this provision which is also incorporated
into Article 1 of the 1967 Protocol, the term “refugee”, shall
apply to any person who “owing to a well-founded fear of
being persecuted, for reasons of race, religions, nationality,
membership of a particular social group or political opinion, is
outside the country of his (or her) habitual residence is unable
or, owing to such fear, unwilling to return to it”. A copy of the
UNHCR “Advisory Opinion on the Extraterritorial Application
of non-refoulement Obligations under the 1951 Convention
relation to the Status of Refugees and its 1961 Protocol” is
annexed as Annexure P 11 (Page _to )
 That it is submitted that the petitioners who belong to the
Rohingya community and have sought refuge in India, fit this
definition of Refugee as contained in Article 1A (2) of the 1951
Convention, as produced above.

16. That, given a person is a refugee within the meaning of the

1951 Convention as soon as he or she fulfils the criteria
contained in the refugee definition, refugee status
determination is declaratory in nature: a person does not
become a refugee because of recognition, but is recognized
because he or she is a refugee. It follows that the principle of
non- refoulement applies not only to recognized refugees,
but also to those who have not had their status formally
declared. As such petitioners are recognised as refugees and
it is an established principle of international refugee law that
they should not be returned or expelled to a State where they
fear for their life and safety.

17. That it is submitted by the petitioners that the prohibition of

refoulement to a danger of persecution under international
refugee law is applicable to any form of forcible removal,
including deportation, expulsion, extradition, and would
apply to their deportation that is being proposed by the
Central government.

18. That the Advisory opinion of the UNHCR further obligates

as under:
“The principle of non-refoulement as provided for in Article
33(1) of the 1951 Convention does not, as such, entail a right of
the individual to be granted asylum in a particular State. It
does mean, however, that where States are not prepared to
grant asylum to persons who are seeking international
protection on their territory, they must adopt a course that
does not result in their removal, directly or indirectly, to a
place where their lives or freedom would be in danger on
account of their race, religion, nationality, membership of a
particular social group or political opinion. As a general rule, in
 order to give effect to their obligations under the 1951
Convention and/or 1967 Protocol, States will be required to
grant individuals seeking international protection access to the
territory and to fair and efficient asylum procedures….
The fundamental and non-derogable character of the
principle of non-refoulement has also been reaffirmed by
the Executive Committee of UNHCR in numerous Conclusions
since 1977. Similarly, the General Assembly has called upon
States “to respect the fundamental principle of
nonrefoulement, which is not subject to derogation.”
Annexure P 11

Application of International Customary law of non re

foulment to the case of the petitioners

19. Article 38(1)(b) of the Statute of the International Court of

Justice lists “international custom, as evidence of a general
practice accepted as law”, as one of the sources of law which
it applies when deciding disputes in accordance with
international law. For a rule to become part of customary
international law, two elements are required: consistent
State practice and opinio juris, that is, the understanding
held by States that the practice at issue is obligatory due to
the existence of a rule requiring it.

20. That the UNHCR advisory opinion, states

“That the UNHCR has been of the view that the
prohibition of refoulement of refugees, as enshrined in
Article 33 of the 1951 Convention and complemented by
non- refoulement obligations under international human
rights law, satisfies these criteria and constitutes a rule
of customary international law. As such, it is binding on
all States, including those which have not yet become
party to the 1951 Convention and/or its 1967 Protocol. In
this regard, UNHCR notes, inter alia, the practice of non-
signatory States hosting large numbers of refugees, often
in mass influx situations. Moreover, exercising its
supervisory function, UNHCR has closely followed the
 practice of Governments in relation to the application of
the principle of non-refoulement, both by States Party to
the 1951 Convention and/or 1967 Protocol and by
States which have not adhered to either instrument. In
UNHCR’s experience, States have overwhelmingly
indicated that they accept the principle of non-
refoulement as binding, as demonstrated, inter alia, in
numerous instances where States have responded to
UNHCR’s representations by providing explanations or
justifications of cases of actual or intended refoulement,
thus implicitly confirming their acceptance of the
principle.” Annexure P 11

21. That, as noted by the International Court of Justice in

Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. U.S.), Merits, 1986 ICJ Reports, page 14, para.
186
“[i]n order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of States should, in
general, be consistent which such rules, and that instances of
State conduct inconsistent with a given rule should generally
have been treated as breaches of that rule, not as indications
of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained
within the rule itself, then whether or not the State’s conduct
is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule.”

22. That the above submissions on re foulment being recognised

as a part of customary international law and obligatory also
on States like India that has not ratified the 1951 convention,
further strengthen the case of the petitioners against
deportation to Mayanmar where they will face untold
persecution, violence and threat to their lives.
 23. Though India has not ratified the UNCHR Convention on
Refugees, India has ratified the Universal Declaration
of Human Rights, International Covenant on Civil and
Political Rights and International Convention on the
Elimination of All Forms of Racial Discrimination. Further,
India is also a signatory to the Protection of All
Persons Against Enforced Disappearances, Convention
against Torture and Other Cruel and Inhuman or
Degrading Treatment or Punishment. All the above
mentioned International Treaties and Conventions,
explicitly or otherwise, lay down the Principle of Non-
Refoulement.

The relevant Provisions of these conventions are mentioned

below:
Universal Declaration of Human Rights
India ratified the Universal Declaration of Human Rights on
10th December 1948. UDHR, while laying down the basic
foundation for Human Rights, protects the Refugees by
explicitly recognising the Principle of Non-Refoulement.
- Article 14:
(1) Everyone has the right to seek and to enjoy in other
countries asylum from persecution.

International Covenant on Civil and Political Rights

India ratified the ICCPR in 1979. The United Nations High
Commission on Refugees in their Advisory Opinion on Non-
Refoulement stated that the ICCPR also “encompass the
obligation not to extradite, deport, expel or otherwise remove
a person from their territory, where there are substantial
grounds for believing that there is a real risk of irreparable
harm, such as that contemplated by Articles 6 [Right to life]
and 7 [Right to be free from torture or other cruel, inhuman
or degrading treatment or punishment] of the Covenant,
either in the country to which removal is to be effected or in
any country to which the person may subsequently be
removed.” Annexure P 11
 International Convention on Protection of All Persons against
Enforced Disappearances
India became a signatory to the convention in 2007. The
Convention seeks to protect people extreme seriousness of
enforced disappearance and protects the right of any
person, to not to be subjected to enforced disappearance.
Article 16 of the Convention explicitly lays down the
Principle of Non-Refoulement.
- Article 16
i. No State Party shall expel, return ("refouler"), surrender or
extradite a person to another State where there are
substantial grounds for believing that he or she would
be in danger of being subjected to enforced disappearance.
ii. For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all
relevant considerations, including, where applicable, the
existence in the State concerned of a consistent pattern of
gross, flagrant or mass violations of human rights or of
serious violations of international humanitarian law.

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment
India became a signatory to the Torture Convention in 1997.
The Convention puts an obligation on States to take all
necessary measures to prevent acts of torture. This
includes legislative, administrative and judicial measures,
as well as any other measures that may be appropriate.
States are also obliged to prevent other cruel, inhuman or
degrading treatment or punishment. Article 3 of the
Convention explicitly recognises the Principle of Non-
Refoulement.
- Article 3:
i. No State Party shall expel, return ("Refouler") or extradite a
person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to
torture.
ii. For the purpose of determining whether there are such
grounds, the competent authorities shall take into
account all relevant considerations including, where
applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of
human rights.

24. That in a recent judgement the Delhi High Court, In Dongh

Lian Kham v. Union of India, 226(2016) DLT 208,stated,
“The principle of “non-refoulement”, which prohibits expulsion
of a refugee, who apprehends threat in his native country on
account of his race, religion and political opinion, is required
to be taken as part of the guarantee under Article 21 of the
Constitution of India, as “non-refoulement” affects/protects the
life and liberty of a human being, irrespective of his
nationality. This protection is available to a refugee but it must
not be at the expense of national security…
Since the petitioners apprehend danger to their lives on return
to their country, which fact finds support from the mere grant
of refugee status to the petitioners by the UNHCR, it would only
be in keeping with the golden traditions of this country in
respecting international comity and according good treatment
to refugees that the respondent FRRO hears the petitioners and
consults UNHCR regarding the option of deportation to a third
country, and then decide regarding the deportation of the
petitioners and seek approval thereafter, of the MHA
(Foreigners Division).”

25. The Gujart High Court in Ktaer Abbas Habib Al Qutaifi v.

Union Of India, 1999 CriLJ 919, held,
“ 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 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. All member nations of United Nation including
our country are expected to respect for international treaties
and conventions concerning Humanitarian law. In fact, Article
51(c) of the Constitution also cast a duty on the State to
endeavour to "foster respect for international law and treaty
obligations in the dealing of organized people with one
another".

UNHCR and its granting refugee status to the petitioners

26. UNHCR has been charged by the United Nations General

Assembly with the responsibility of providing international
protection to refugees and other persons within its mandate
and of seeking permanent solutions to the problem of
refugees by assisting governments and private organizations.
The views of UNHCR are informed by over 50 years of
experience supervising international refugee instruments.
UNHCR is represented in 116 countries. It provides guidance
in connection with the establishment and implementation of
national procedures for refugee status determinations and
also conducts such determinations under its own mandate.
UNHCR’s interpretation of the provisions of the 1951
Convention and 1967 Protocol is considered an authoritative
view which should be taken into account when deciding on
questions of refugee law.

27. That each of the petitioners have been granted I-cards from
UNHCR recognising them as refugees. That India cannot send
them back in keeping with the international law provisions,
which assert that refugees should not be returned to a
country where they face serious threats to life or freedom. The
principle of non refoulement, now considered a rule of
customary international law, is binding on all states whether
they have signed the convention or not.

28. That responding to the statement of the Minister of State for

Home Affairs, Human Rights Watch, South Asia Director,
Meenakshi Ganguly stated “Indian has a long record of
helping vulnerable populations fleeing from neighbouring
 countries, including Sri Lankans, Afghans and Tibetans.
Indian authorities should abide by India’s international legal
obligations and not forcibly return any Rohingya to Burma
without first fairly evaluating their claims as refugees.” A copy
of the scroll.in article carrying these statement is annexed as
Annexure P 12 (Page to _ )
That Amnesty International stated, “Forcing Rohingya asylum
seekers and refugees back to Myanmar would violate the
international principle of non-refoulment – which is recognised
in customary international law and is binding on India
– that forbids states from forcibly returning people to a
country where they would be at real risk of serious
human rights violations.”

29. That UNHCR is mandated by its parent statue to conduct

individual refugee status determination test and issue
certificates of refugee status to those who fulfil the criteria of
the Refugee Convention. The Refugee certificates are not
formally recognised by the Indian Government, however
authorities have, in general practice, taken cognisance of the
UNHCR’s Refugee Certificates to allow most refugees an
extended stay in India in the absence of political opposition.
Therefore, while a de jure system of refugee protection in
India goes not exist, there is a system of procedures and
practices that serve to create a de facto refugee
protection regime in India. This must be extended to the
petitioners to bar their deportation.

Constitutional provisions that accord protection to

refugees

30. That the Indian Constitution accords refugees some degree of

constitutional protection while in India. The following
constitutional provisions offer a framework for protecting the
rights of refugees:
 That Article 51 (c) of the Indian Constitution, a Directive
Principle of State Policy, requires fostering of respect for
international law and treaty obligations in the dealings of
organised peoples with one another.

Article 14 Right to equality states:

“The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India.”
This article guarantees to refugees in India, the right to
equality before law and the equal treatment under the law.

Article 21 Right to life and liberty

“No person shall be deprived of his life of personal liberty
except according to procedure established by law”
That in according protection to refugees, the Hon’ble Supreme
Court has interpreted these constitutional provisions to
extend the protection of the right to equality and the right to
life and personal liberty of refugees.

31. That the Supreme Court in its landmark judgement on the

right to privacy dated 24th August 2017, in, Justice K.S.
Puttaswamy (Retd) and Anr. v. UOI and Ors WP (C ) No.
494/2012, has categorically stated,
“Constitutional provisions must be read and interpreted in a
manner which would enhance their conformity with the
global human rights regime. India is a responsible member of
the international community and the Court must adopt an
interpretation which abides by the international commitments
made by the country particularly where its constitutional and
statutory mandates indicate no deviation.”

32. That In the National Human Rights Commission v. State

of Arunachal Pradesh (1996) 1 SCC 742, the Supreme
Court , states“Our Constitution confers certain rights on
every human being and certain other rights on citizens. Every
person is entitled to equality before the law and equal
protection of the laws. So also, no person can be deprived of
his life or personal liberty except according to procedure
 established by law. Thus, the State is bound to protect the life
and liberty of every human being, be he a citizen or otherwise”

33. That in the People's Union for Civil Liberties v. Union of

India (1997) 3 SCC 433, the Supreme Court states:
“provisions of covenant, which elucidate and go to effectuate
the fundamental rights guaranteed under our Constitution can
be relied upon by the Courts, as facets of those fundamental
rights and hence, enforceable as such.”

34. That in NHRC v. State of Arunchal Pradesh, 1996 (1)

SCC 742, the case was regarding the deportation of
Chakmas, who migrated from East-Pakistan (now
Bangladesh) in 1964, first settled down in the State
of Assam and then shifted to areas which now fall
within the State of Arunachal Pradesh. The court
reitirated that the fundamental right under article 21
was indeed available to all persons, not just citizens and
directed the State government to provide adequate
protection to the refugees and to ensure that they are
not forcibly evicted. The court held:
“We are a country governed by the Rule of Law. Our
Constitution confers contains rights on every human
being and certain other rights on citizens. Every person is
entitled to equality before the law and equal protection of the
laws. So also, no person can be deprived of his life or personal
liberty except according to procedure established by law. Thus
the State is bound to protect the life and liberty of every
human-being, be he a citizen or otherwise, and it cannot permit
any body or group of persons, e.g., the AAPSU, to threaten the
Chakmas to leave the State, failing which they would be forced
to do so. No State Government worth the name can tolerate
such threats by one group of persons to another group of
persons; it is duty bound to protect the threatened group from
such assaults and if it fails to do so, it will fail to perform its
Constitutional as well as statutory obligations. Those giving
such threats would be liable to be dealt with in accordance
 with law. The State Government must act impartially and carry
out its legal obligations to safeguard the life, health and well-
being of Chakmas residing in the State without being inhibited
by local politics”

35. That the petitioners and other members of their community,

being refugees who have a well-founded fear of persecution in
their countries of origin and hence cannot return and should
not be deported. That India has traditionally been
hospitable host of refugees and displaced people, both from
South Asia and across the world. Considering the mass
massacre of the Rohingya community in their home county,
India must continue to accord refuge to the Rohingya
population residing in India and refrain from deporting them.

36. The petitioners have not filed any other petition, application,
suit or case seeking similar relief before this Hon’ble Court or
any High Court or any other Court throughout the terriroty of
India. The petitioners have no better remedy available.

GROUNDS:
A. Because the action of Respondent number 1, in seeking to
deport the petitioners and other members of the Rohingya
community is in violation of their rights guaranteed under the
Constitution of India, namely the right to equality under
article 14 and the right to life and personal liberty under
article 21. The Delhi High Court in Dongh Lian Kham v. Union
of India, 226(2016) DLT 208, states, “The principle of “non-
refoulement”, which prohibits expulsion of a refugee, who
apprehends threat in his native country on account of his
race, religion and political opinion, is required to be taken as
part of the guarantee under Article 21 of the Constitution of
India, as “non-refoulement” affects/protects the life and
liberty of a human being, irrespective of his nationality.”
B. Because article 51 (c), a Directive Principle of State Policy,
requires India to foster respect for international law and
treaty obligations in the dealings of organised peoples with
one another, hence India must respect the various
Conventions and treaties that provide a framework for refugee
protection and extend such protection to the Rohingya
refugees in India.

C. Because the petitioners are being persecuted in their home

country. Even today, they apprehend that in case they are
deported to the country in their native region, they would be
face a server threat of bodily harm. The ongoing violence
against the Rohingyas in Myanmar has been reported widely
in the media. The principle of non – refoulment, enunciated
explicitly under Article 33(1) of the 1951 United Nations
Convention on the Status of Refugees prohibits sending back
refugees to a place where they face danger – is considered
part of customary international law and binding on all states
whether they have signed the 1951 UNHCR Refugee
Convention or not, mandating India to recognise this principle
in the protection of the Rohingya refugees and prevent
their deportation to their country where they are facing
discrimination and threat to their life

PRAYERS

In view of the above facts and circumstances, it is most respectfully

prayed that this Hon’ble Court may be pleased:
a. To issue an appropriate writ, order or direction, directing the
Respondents not to deport the petitioners and other members
of the Rohingya community who are presently in India.
b. To issue appropriate writ or order directing the
respondents to provide the petitioners and other members of
the Rohingya community in India, such basic amenities to
ensure that they can live in human conditions as
required by International law in treatment of refugees.
c. To pass such other order as this Hon’ble Court may deem fit
and proper in the interest of equity, justice and conscience.
Through:

(PRASHANT BHUSHAN)
(COUNSEL FOR THE PETITIONERS)

Drawn By: Cheryl D’souza, Advocate

Drawn On: 28.08.2017
Filed On :30th August 2017.
New Delhi,