The Indian Supreme Court on Thursday denied relief in a petition challenging the detention of nearly 150 Rohingya refugees in Jammu and the government’s proposed move to deport them to Myanmar. The order was made with respect to an interlocutory application filed by the petitioners pending disposal of their main writ petition of 2017 that seeks basic human amenities for the Rohingya refugees in India.

The petitioners had argued the principle of non-refoulement is part of the fundamental right to life under Article 21 of the Indian Constitution that is available to non-citizens as well. They also relied on international law covenants ratified by India such as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, and the Convention on the Rights of the Child 1992 to argue that non-refoulement is a binding obligation on the Indian state.

They also referred to the International Court of Justice’s (ICJ) decision in January last year in The Gambia v. Myanmar to argue that even the ICJ has recognized the ongoing genocide and serious danger to Rohingya in Myanmar, which would be further exacerbated in 2021 with a military junta in power.

In contrast, the Indian government argued that the persons sought to be protected against deportation were foreigners under Section 2(a) of the Foreigners Act 1946 and that Section 3 of this Act empowers the central government to issue orders “for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom.” It argued that the organized influx of “illegal immigrants” posed a serious threat to the national security of the country and that with regards to the Constitution the fundamental right to reside and settle in India is guaranteed under Article 19(1)(e) is available only to citizens.

The bench, comprising Chief Justice S.A. Bobde, Justices A.S. Bopanna and V. Ramasubramanian, noted that national courts can draw inspiration from international conventions or treaties so long as they are consistent with municipal law. They refrained from commenting on the state of affairs in Myanmar, and instead held:

“It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But 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).”

Lastly, it held that while relief cannot be granted at this stage, the proposed deportation will not take place unless the procedure prescribed for such deportation is followed.