Asylum Seekers Not Always Illegal Migrants; Madras HC Upholds Right Of Sri Lankan Refugees To Seek Indian Citizenship [Read Judgment]

While intense debates are going on regarding citizenship status, especially in view of Assam-NRC issue and Rohingya crisis, the Madras High Court, Madurai bench has passed a significant judgment recognizing the right of asylum seekers to apply for Indian citizenship.

This was in a plea by 65 Indian-origin Tamil refugees, who had fled to India in 1983 from Sri Lanka after ethnic strife against Tamils intensified in the island nation.  Since then they have been staying in a refugee camp in Trichy.

While directing the Centre to consider their applications for grant of Citizenship, regardless of their status as 'illegal migrants' as per strict application of Citizenship Act, Justice G R Swaminathan of the Madurai bench observed :

"The Government of India must take note of the fact that the petitioners came to India when faced with a grave threat to their lives and limbs. They had to seek asylum in India. A person who is running for his life cannot obviously be expected to wait for a visa. Therefore, viewing the petitioners' case through the prism of the technical requirements of law, does not appear to be a humanitarian approach.

An illegal migrant cannot claim such a relaxation if he had merged with society surreptitiously. That is not the case here. The writ petitioners have been housed in camps set up by the Government" 

The petitioners were the descendants of indentured labourers who were sent to Sri Lankan tea estates during colonial times, and their forefathers hailed from the present day Tamil Nadu. They cannot go back to Sri Lanka now as they are not welcome there. They are living as stateless people.

In this backdrop, they approached the Madras High Court seeking conferment of Indian Citizenship, highlighting the fact that they are genealogically Indians and that they have blood relatives in Tamil Nadu. 

Both the Governments of Centre and Tamil Nadu were unanimous in their stand that the Lankan refugees have no right to get Indian citizenship. It was pointed out that as per Section 5(1) of the Citizenship Act, an illegal migrant has no right to seek Indian citizenship. Since the petitioners had entered India without valid passport or travel documents, they are illegal migrants as per the definition under Section 2(1)(b) of the Act, said both the Governments in unison.

Justice Swaminathan however observed that the petitioners' case stood on a different footing, as they are rooted to India and have made clear their intention to make India their permanent home. It was observed :

"But, the petitioners can invoke Article 21 of the Constitution of India. It applies to all persons, citizens and non citizens alike. It would apply to refugees and asylum seekers. And most certainly to the petitioners who are genealogically rooted to this soil and who speak our language and who belong to our culture.  

The petitioners have amply demonstrated that they have formed the intention of making India their permanent home"

It was also noted that in an earlier case, the Government of India had undertaken before the Court that Tamil refugees will not be forcefully deported back to Sri Lanka. Therefore, the petitioners are in a peculiar situation, noted the Court, which likened it to the mythological concept of "thrisanku sorgam" , as they have come away from Sri Lanka but they have not been absorbed here.

The Court further observed that the conditions of refugee camps were "hellish". 

Refugees have rights under Article 21

To get over the technical hurdle in Section 5(1)(c), the Court invoked Article 21 of the Constitution. It observed that keeping the petitioners in stateless state resulted in violation of right to life under Article 21.

"The petitioners have been in camps for close to 35 years. Keeping them under surveillance and severely restricted conditions and in a state of statelessness for such a long period certainly offends their right under Article 21 of the Constitution of India", observed Justice Swaminathan.

The Court added that the Central Government had "implied powers" to give relaxation under Citizenship Act.

"The Central Government need not feel helpless or take shelter behind Section 5 of the Citizenship Act, 1955. Notwithstanding the absence of an express power to relax the rigour set out in the opening clause of Section 5(1) of the Act, this Court must hold that the sovereign authority does have an implied power to do so". 

The judgment of the Delhi High Court in Felix Stefan Kaye vs Foreigners Regional Registration Office had recognized the existence of such "implied power" while directing the consideration of OCI status of a British artist, noted the Court.

The Court however acknowledged that the grant of citizenship was the discretion of the Government, and refrained from directing so.

However, it directed the Central Government to consider their applications within sixteen weeks, bearing in mind that it has the power to consider the applications favorably notwithstanding the technical status of the applications as that of illegal migrants. The Central Government should also take note of the unique situation in which the petitioners are placed. The undertaking given before the Madras High Court that the applicants will not be sent back should  also be factored in the process of consideration. 

(Image Courtesy : The Hindu)

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