ORDER

% 16.02.2024

1. This petition has been preferred seeking the following reliefs:

“I. Issue a writ of habeas corpus, or any other writ, direction, or order of like nature directing the Respondent Authority to release the Petitioner's sister from the Detention Centre at Shazadabad in order to join her baby son and the Petitioner living in Kalindi Kunj.

II. Issue a writ of mandamus or any other writ, direction, or order of like nature for the assessment of dietary needs as per ICMR standards of the Petitioner's sister and the provision of a nutritious diet to her.”

2. The jurisdiction of the Court is sought to be invoked in the backdrop of the placement of the petitioner’s sister in a centre designated by the respondents for housing Rohingya refugees who have illegally entered the country. The prayer for the issuance of a prerogative writ of habeas corpus is pressed on the ground of Section 3(2)(e) of the Foreigners Act, 1946 [“Act”] having been violated with it being contended that the respondents have failed to follow the Standard Operating Procedure as framed by the Ministry of Home Affairs and consequently, the continued detention is liable to be declared to be invalid in law.

3. We note that undisputedly, the petitioner’s sister is stated to be a refugee who has entered the country without requisite permissions.

Section 3 of the Act itself enables the Union Government to stipulate various conditions which must be adhered to while dealing with the case of such persons. It is in the aforesaid backdrop and pending her deportation that the petitioner’s sister is stated to have been placed in a centre designated for the said purpose. Her residence in that centre thus cannot be said to fall foul of the restrictions placed by virtue of Section 3(2)(e) of the Act.

4. Although learned counsel also referred to the Passport (Entry into India) Act, 1920 [“Passport Act”], we fail to find any provision of that enactment which could be said to stand attracted and which may warrant the petitioner’s sister’s placement in the centre being viewed as illegal in law. We are further informed by the respondents that the Mynmaar authorities have also not recognised the nationality of the sister of the petitioner.

5. We additionally note that the issue of Rohingya refugees and their right to movement within the country till such time as they are deported, fell for consideration before the Supreme Court in Himar Kulsuma (Through Noor Alam) v. Union of India & Ors. [WP (Crl.) No. 383/2023], where the writ petition came to be dismissed in the following terms:

"The petitioner is admittedly an illegal immigrant. Her arrival in India is not traceable. In response to her prayer for release from the Detention Center, the respondents have taken a categoric stand that the petitioner would be required to be deported to her home country as per the procedure established by law after verification of nationality. Till such time, only her movements have been restricted so as to ensure that she remains available for deportation, as and when required. It is not in dispute that the movements of the petitioner are restricted to Sarai Rohila and for that purpose an appropriate order under Section 3(2) of the Foreigners Act, 1946 read with the provisions contained in the Foreigners Order, 1948 has been passed on 9th June, 2022. That being so, the restriction on movements of the petitioner cannot be termed or declared as illegal confinement. No effective direction therefore can be issued.

The writ petition is dismissed.

Pending applications, if any, stand disposed of."

6. An identical question came to be raised before a Division Bench of this Court in Kinadhan Chakma v. Union of India & Ors. [2024 SCC OnLine Del 139] and yet again pertaining to an illegal entrant to the country and the claimed right of movement. Negating those contentions, the Division Bench observed as follows:

"13. Prayer in the present writ petition is limited to relief