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Abdur Sukur And Another v. State Of West Bengal And Others
Factual and Procedural Background
The petitioners belong to the Rohingya community, who are currently stateless as Myanmar has disowned them. They have allegedly completed their sentences for offences for which they were detained by respondent nos. 1 to 5. The respondents are attempting to deport the petitioners to Myanmar, a country reportedly conducting an all-out onslaught against the Rohingya community. The petitioners seek protection from deportation on humanitarian grounds and constitutional fundamental rights. Despite service of process, the proforma respondents did not appear, although respondent nos. 1 to 5 were represented by counsel. The Ministry of External Affairs was noted as a necessary party but sought an adjournment.
Legal Issues Presented
- Whether the petitioners, being stateless Rohingya who have completed their sentences, can be deported to Myanmar given the risk of death or persecution.
- Whether the respondents should be restrained from deporting the petitioners during the pendency of the writ petition.
- Whether the petitioners are entitled to basic protection and amenities pending the final decision on the writ petition.
Arguments of the Parties
Petitioners' Arguments
- The petitioners have completed their detention sentences for alleged offences.
- Deportation to Myanmar would amount to a death sentence due to the hostile environment and persecution of Rohingya in Myanmar.
- They are entitled to protection under the Fundamental Rights guaranteed by the Constitution of India, the U.N. Charter, and norms of civilized society.
Respondents' Arguments
- The writ petition is vague regarding the period of sentence served by the petitioners.
- The Ministry of External Affairs is a necessary party and must be heard before any decision on deportation.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court recognized the imminent and grave plight of the petitioners, emphasizing that despite the absence of a final decision on the writ petition, a minimum level of protection consistent with fundamental human rights and the spirit of humanity must be afforded. The court balanced procedural requirements, such as the need for the Ministry of External Affairs to be heard, with the urgent humanitarian concerns. Consequently, the court directed the respondents to file affidavits by a specified date and restrained them from deporting the petitioners during the pendency of the petition. The court also mandated provision of basic amenities to the petitioners and allowed monitored access to their legal representatives, ensuring protection and oversight while the matter is pending.
Holding and Implications
The court issued an injunction restraining the respondents from deporting the petitioners during the pendency of the writ petition.
The respondents were directed to provide the petitioners with basic amenities compatible with a life worthy of respect and to facilitate monitored access to their legal counsel. The decision directly protects the petitioners from deportation until the matter is finally adjudicated. No broader precedent was established beyond the interim relief granted in this case.
Sabyasachi Bhattacharyya, J.:— Affidavit-of-service filed in court today be kept on record.
2. Despite service, none appears on behalf of the proforma respondents, although the respondent nos. 1 to 5 are represented through counsel. The grievance of the petitioner is that the petitioners belong to the “Rohingya” Community, who are at present state-less in view of Myanmar having disowned them.
3. The plight of the petitioners is that they have, according to learned counsel for the petitioners, completed their sentence for the alleged offences against them upon being detained by the respondent nos. 1 to 5 and that the said respondents are now attempting to deport them to Myanmar.
4. It is argued that such deportation would tantamount to a death sentence against the petitioners, in view of the plight of the petitioners in Myanmar, which country has the declared policy of an all-out onslaught on the said “Rohingya” Community.
5. Learned counsel for the respondent nos. 1 to 4 submits that the writ petition is vague as regards the period of sentence which has been undergone by the petitioners. It is further submitted that the Ministry of External Affairs of the Union of India is a necessary party and ought to be heard in this regard.
6. At this juncture, an adjournment is sought for on behalf of the Union of India.
7. However, in view of the imminent plight of the petitioners, who, despite having basic human rights in consonance with the Fundamental Rights provided by the Constitution of India as well as the U.N. Charter and the norms of any civilized society, a minimum protection ought to be given to the petitioners till the writ petition is decided, in order to uphold the spirit of humanity, if not the Fundamental Rights enshrined in the Constitution of India, which is the grundnorm of all Indian statutes.
8. Accordingly, the respondents are directed to file their affidavit(s)-in-opposition within January 10, 2020. Reply/replies, if any, shall be filed by the petitioners within January 17, 2020.
9. The respondents shall be restrained by an order of injunction from deporting the petitioners from India during pendency of the writ petition.
10. The respondents are further directed to ensure that the petitioners are provided with the basic amenities, compatible with a life worthy of respect. It is further clarified that, if the advocate-on-record and/or any other advocate, representing the petitioners, seeks leave to have access to the petitioners in the meantime, such advocate(s) will be granted such access by the respondents to the limited extent that the respondents might monitor the timing of such access and such access may be, at the discretion of the respondents, under the supervision of the respondents.
11. Let the matter appear next “For Hearing” on January 20, 2020.
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