Name of Author

 Divya A. Jain

Name of College/University –
 Bishop Cotton Women’s Christian Law College (Bangalore)
 BEFORE THE HON’BLE SUPREME COURT OF INDIGO
IN THE CASE OF

COMMITTEE OF CITIZENSHIP RIGHTS

……..Petitioner

versus

1) THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIGO

…..Respondent No. 1
2) NATIONAL HUMAN RIGHTS COMMISSION
….. Respondent No. 2
3) UNITED NATIONS HUMAN RIGHTS COMMISSION ON REFUGEES
…..Respondent No. 3

Case number: Review Petition (Civil) No.____of 2018

Decided on: 5th September, 2018

1
 JUDGEMENT
“No one leaves home unless home is the mouth of a shark.
You only run for the border
when you see the whole city running as well”1
1) There are three ways in which a host country can respond to displaced people – ‘it can do
nothing, it can respond negatively towards the refugees, or it can respond positively’
(Jacobsen 1996).
2) Before we get into the facts and submissions with respect to the instant case, it is pertinent
to recapitulate the grounds for maintainability of this Review Petition. The Petitioner here
has filed a Review Petition aggrieved by the decision of this court on the basis that, firstly,
the Citizenship (Amendment) Act, 2016 is unconstitutional. Secondly, deportation of the
Rohingya Muslims is a violation of International Human Rights Conventions.The instant
petition is Civil in nature and it can be moved in accordance with Order XLVII, Rule 1(1)
of the Code of Civil Procedure,1908. The power to review a case is vested in this court by
the Constitution under Article 137, which reads as follows:
“Subject to the provisions of any law made by the Parliament or any rules made under
Article 145, the Supreme Court shall have power to review any judgement pronounced or
order made by it.”
3) An aggrieved person might be provided with an opportunity under inherent powers of this
Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage
of justice because against the order of this Court the affected party cannot have recourse
to any other forum.2
4) The All Vassam Student Union (AVSU) filed a writ petition under Article 32 of the
constitution by way of a PIL in this court pleading to, firstly, implement the Vassam
Accord and secondly, declare the IMDT Act, 1983 as unconstitutional. Subsequently, the
said Act was declared unconstitutional on 20th January, 1995 by this court and this court
issued guidelines to the State of Vassam and the Governement of Indigo for the
implementation of Vassam Accord. Considering this, on 15th December 2017, The
Citizenship (Amendment) Bill, 2016 was passed by the Parliament, which provided that
the illegal immigrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians for

1
Home, by Warsan Shire
2
Rupa Ashok Hurra v. Ashok Hurra & Anr (2002) 4 SCC 388

2
 Nafganistan, Sangladesh and Zakistan are eligible for Citizenship and have been exempted
from the provisions of the Passport (Enrty into Indigo) Act, 1920 and the Foreigners Act,
1946 by the Central Government.
5) Distressed by the passing of the said Bill, on 2nd January 2018, the “Committee of
Citizenship Rights” moved this court by way of a writ petition contending that, the
Citizenship (Amendment) Act, 2016 makes discrimination with the Muslim-Minorities
from Nafganistan, Sangladesh and Zakistan and allowed the illegal migrants from other
religions eligible for citizenship, which is violative of Article 14 of the Constitution. Later,
on 22nd January 2018, violence broke out in the Rakhine province of Myanmar, a
neighbouring country of Indigo. This caused more than three lakh Rohingya Muslims to
flee from Myanmar, out of which nearly forty thousand Rohingya Muslims have entered
Indigo illegally, within the period of a month. Resulting which, the Ministry of Home
Affairs, Government of Indigo took an ad hoc action by issuing a circular dated 28th April
2018 stating that the Government of Indigo would not be able to accommodate these illegal
migrants from Uyanmar as they pose a serious and potential threat to the internal and
national security of Indigo.
6) Aggrieved by this, the “Committee of Citizenship Rights” filed a writ petition in this court
on 30th April 2018 on the grounds that they do not citizenship of Uyanmar. This court, on
15th May 2018 clubbed both the petitions filed on 2nd January 2018 and 30th April 2o18,
respectively and issued notices for the same to the Ministry of Home Affairs India,
National Human Rights Commission and the United Nations High Commission for
Refugees. As the matter is of public interest and national importance, this court perused
and examined the record and ruled on 25th July 2018 that:
 The Chakmas and Hajongs refugees living in Tarunachal Pradesh were not to be
deported back as it is impossible to detect them for they are residing in the territory
from last 50 years and issued directions to the Central Government to grant
citizenship to them. In addition, held that the The Citizenship (Amendment) Act,
2016 is constitutionally valid.
 Directed that the Rohingya Muslims all over the territory must be detected and
deported back to Uyanmar for the sake of national security.
 Issue guidelines to the Parliament to draft a specific refugee law for the country.

3
 7) Uyanmar 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.
In April 2008, the low-lying Irrawaddy River Delta in central Uyanmar was hit by Cyclone
Nargis, and it resulted in the deaths of around 90,000 people.3 Even as people were
struggling to come to terms with their losses from cyclone Nargis, from 2012 to 2014,
many incidents of deadly violence left hundreds of dead, mostly Rohingyas, while
thousands fled the country. The Rohingyas were never given the status of citizens in the
land of Uyanmar. This obsession of viewing the Rohingya as an outsider was on full
display when in 2014, after sustained international pressure, the government agreed to
grant them a reduced form of citizenship provided they register themselves as ‘bengali’
rather than as Rohingya. And, for people who had been living in apartheid-like conditions
for so long, such a deal was unpalatable. “Because of that law, today more than 1.3 million
Rohingya are not citizens of Burma and are denied the right to have food, denied the right
to have medical treatment, denied the right to have movement, denied the right to have
children, denied the right to have education and [it leads to] state-sponsored violence
against them, and burning down their houses and pushing them the camps”, says Tum
Khin, president of Burmese Rohingya Organisation.4 That systematic human rights
violations and lack of opportunities have triggered irregular migration flows of Rohingya
from Rakhine State to neighbouring countries, including Indigo.
8) Aggrieved by the decision disposed by this court on 25th July 2018, the petitioner has filed
a Review Petition challenging the decision on the basis that—Firstly, the Citizenship
(Amendment) Act, 2016 is unconstitutional. Secondly, deportation of the Rohingya
Muslims is a violation of International Human Rights Conventions as they have no
citizenship of the Sate of Uyanmar.
9) The issues raised under this review petition are as follows:
I. Whether the Citizenship (Amendment) Act, 2016 is constitutionally valid?
II. Whether the deportation of Rohingya Muslims violate the International
Human Rights Conventions?

3
IFRC 2008. “Myanmar: Cyclone Nargis 2008 Facts and Figures”, May 03 2011. [http://www.ifrc.org/en/news-and-
media/news-stories/asiapacific/myanmar/myanmar-cyclone-nargis-2008-facts-and-figures/]
4
Centre for Advanced Studies in Human Rights (CASIHR), Human Rights Communique, Vol. IV, Issue II, at 4

4
 III. Whether the deportations of Rohingya Muslims violate the fundamental rights
enshired in the Indian Constitution?
- Whether he Citizenship (Amendment) Act, 2016 is constitutionally valid?
10) So long as the beginning of 19th century, Marshall. C.J., observed, “ All those who have
framed written constitutions contemplate them as forming the fundamental and paramount
law of the nation, and, consequently, the theory of every such government must be, that
an Act of the legislature repugnant to the Constitution, is void. This theory is essentially
attached to a written Constitution, and, is consequently to be considered by this court as
one of the fundamental principles of society.”5
11) Article 14 of the Indian Constitution guarantees to every person, including non-citizens,
the right to equality before the law or equal protection of the laws. 6 Non-citizens, under
Article 14 of the Constitution have been recognised and have been given certain rights.
The Citizenship (Amendment) Act, 2016, takes away this right from the Rohingya
Muslims by excluding them from the privilege of being exempted from the provisions of
the Passport (Entry into Indigo) Act, 1920 and the Foreigners Act, 1946, where the other
minority groups can enjoy such an exemption.
12) The Right to Equality is also recognised as one of the basic features of the constitution.7
Any Act or provision of law which goes in the opposite direction of the principle of “basic
structure” of the Constitution cannot have the force of law and shall be declared
unconstitutional. The said Amendment Act, clearly violated the Right to equality
guaranteed under Article 14 of the Constitution and hence is declared unconstitutional.
13) Further, the new developments in equality also include increasing emphasis on positive
equality or affirmative action. In several decisions, this court has emphasised that equality
is a positive right and requires the State to minimise the existing inequalities and to treat
unequals or unprivileged with special care as envisaged in the Constitution.8
14) In the instant case, the Rohingya Muslim minority are the unprivileged community, not
only in Indigo, but also in their place of origin, in Uyanmar. Hence, special care must be
given to them in pursuance of Article 14. Therefore, the Citizenship (Amendment) Act,

5
Marbury v. Madison, 1 Cranch 137, 177 (1803)
6
National Legal Services Authority v. Union of India (2014) 5 SCC 438, 487
7
Indra Sawhney (2) v. Union of India (2000) 1 SCC 168: AIR 2000 SC 498
8
Sri Srinivasa Theatre v. Gov’t of T.N., (1992) 2 SCC 643: AIR 1992 SC 999

5
 2016, does arbitrarily with the Right to Equality and hence is declared unconstitutional by
this court.
- Whether the deportation of Rohingya Muslims violate the International Human
Rights Conventions?
15) The principle of Non Refoulement has been enunciated explicitly under Article 33(1),
United Nations Convention on the Status of Refugees, 1951-
“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.”
16) 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 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. Under Article 38(1)(b) of Statute of the International Court of Justice
“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 opinion juris, that is, the understanding held by States that
the practice at issue is obligatory due to the existence of a rule requiring it. This stands
true when it comes to Indian practices of refugee treatment, as it has hosted refugees from
neighbouring countries, including Sri Lanka, Tibet, Bangladesh, Bhutan, Myanmar,
Afghanistan, Pakistan and a few hundred refugees from other parts of the world as well.
India has a a total of 2,09,234 people as refugees.9
17) Non- refoulement is not an absolute principle, and ‘national security’ and ‘public order’
have long been recognised as potential justification of derogation. 10 Article 33(2) of the
1951 Convention expressly provides that the benefit of non-refoulement may not be

9
United Nations High Commissioner for Refugees. 2016. “Factsheet India”
10
Guy S. Goodwin-Gin, The Refugee in International Law, published in the US by Oxford University Press,
reprinted in1990

6
 claimed by a refugee whom there are reasonable grounds for regarding as a danger to the
security of the country or who, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community of the country.
18) Hence, in the instant case the respondents cannot deport or refoul all the Rohingya
Muslims claiming that these people are a threat to national security, unless, all these
refugees have been convicted by a court of competent jurisdiction.
19) It has been noted by the International Court of Justice that “in 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.”11
20) Though India has not ratified the UNCHR Convention on Refugees, India has ratified the
many other conventions and is also a signatory to a few conventions that, explicitly or
otherwise, lay down the Principle of Non-Refoulement. The following ae the said
conventions:
 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,

11
Nicaragua v. U.S., Merits, 1986 ICJ Reports, para. 186, at 14

7
 either in the country to which removal is to be effected or in any country to which the
person may subsequently be removed.”
 International Convention on Protection of All Persons against Enforced
Disappearances
India became a signatory to the convention in 2007. Article 16 of the Convention explicitly
lays down the Principle of Non-Refoulement:
“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. Article 3 of the Convention explicitly recognises the Principle of Non-
Refoulement:
“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.”

- Whether the deportations of Rohingya Muslims violate the fundamental rights

enshired in the Indian Constitution?
21) The Indian Constitution accords refugees some degree of constitutional protection while
in India. The following are the Articles of the Indian Constitution which guarantees certain
rights to the noncitizens of the country:
 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” according protection to refugees, this court has interpreted these

8
 constitutional provisions to extend the protection of the right to equality and the right to
life and personal liberty of refugees.
The Constitution of Indigo 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.12
 Article 14- Right to Equality
It states that “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. As this Article
applies not only to the citizens of this land but also to noncitizens.
 Article 51 Promotion of International Peace and Security
This is a Directive Principle of State Policy which requires fostering of respect for
international law and treaty obligations in the dealings of organised peoples with one
another. As discussed in the previous contentions, India is a signatory and party to many
International conventions which explicitly deal with protection to refugees
In the People's Union for Civil Liberties v. Union of India13, 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.”
NHRC v. State of Arunchal Pradesh14, 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.
22) Therefore, on the first contention, the court is of the opinion that based on the principle of
“basic structure” of the Constitution and Right to Equality enshrined under Article 14 of

12
The National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742
13
(1997) 3 SCC 433
14
1996 (1) SCC 742

9
 the Constitution to every person, including non-citizens, the Citizenship (Amendment)
Act, 2016 is declared unconstitutional.
23) On the second contention, the court is of the opinion that the deportation of Rohingya
Muslims is a violation of various International Human Rights Conventions as they do not
have the citizenship of Uyanmar and deporting them back to Uyanmar causes threat of
persecution to them.
24) On the third contention, the court is of the opinion that the deportation of Rohingya
Muslims back to Uyanmar infringes upon the various constitutional provisions, namely,
Article 14- Right to equality, Article 21- Right to life and Personal Liberty and Article 51-
Promotion of International Peace and Security.
25) The court further directs the Central, as well as, the State Governments to try and track
down the refugees who have not registered themselves with the UNHRC and take
necessary actions. It also becomes a duty of the Centre and the State Governments to find
out the refugees who are committing serious crimes in the territory of Indigo and to start
legal proceedings against them. Once such refugees are convicted by the courts, then they
can be deported to Uyanmar, until then, no refugee can be sent back or deported. 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.

10