Thamarai v. Union of India, H.C.P. No.1456 of 2020 & W.P. No.11754 of 2021
Read the judgement here.
Date of decision: 23.06.2021
Court: High Court of Madras
Judge: Justice P.N. Prakash and Justice R. Pongaippan
Summary: The Petitioner filed two writ petitions in the court to allow Bhaskaran, a Tamil refugee in detention, to visit the Swiss Embassy to get a humanitarian visa for asylum and to quash his deportation to Sri Lanka. The Court dismissed both the pleas on the grounds that Bhaskaran cannot be recognised as a refugee and as a foreign national has no fundamental right to stay in India. It also observed that the government has no legal duty to allow Bhaskaran to visit a foreign embassy.
Facts: Bhaskaran, a Tamil refugee from Sri Lanka, has been staying in India in various refugee camps since 2004. The Government of Tamil Nadu had ordered the deportation of Bhaskaran in 2019 stating that he is no longer a refugee as he had gone to Sri Lanka in 2014 and was also indulging in human trafficking offences in India. The Court was informed by the Tamil Nadu authorities that Bhaskaran had left the refugee camp on his own accord and is no longer registered as a Sri Lankan Tamil refugee in the records of the Commissionerate.
The Petitioner, a person working for the cause of Sri Lanka Tamils, filed a habeas corpus petition in 2020 and a writ petition in 2021 requesting the court to quash the deportation of Bhaskaran on humanitarian grounds and allow him to represent himself at the Swiss Embassy to get a humanitarian visa to land as a refugee in Switzerland as he faces a threat to his life in Sri Lanka. In such circumstances, he argued, that the government’s order to deport him is also illegal. In an earlier order in the habeas corpus petition, the Court had stayed the deportation order until further notice.
Holding: The Court dismissed both the petitions. It refused to order the government to quash the deportation order in view of allegations that the Petitioner was indulging in human trafficking offences within India and also vacated the stay imposed on Bhaskaran’s deportation by its earlier order. It observed that the Petitioner’s claims that Bhaskaran faces threats in Sri Lanka have not been substantiated as the genuineness of the document presented (a letter issued by a Justice of the Peace in Sri Lanka) in this regard cannot be verified. The Court also relied on the government’s submission that Bhaskaran can no longer be considered as a refugee from Sri Lanka as he had left India voluntarily. Furthermore, the Court observed that the Sri Lankan problem is not at its peak anymore, the final war with the LTTE is over and the Court cannot perpetually prevent the deportation of Sri Lankan nationals on humanitarian grounds. The Court observed that:“[He] does not have a fundamental right to stay in India and get Indian citizenship. He knows that his stay in India cannot be eternal. He has to leave India one day or the other” (paragraph 14). Therefore, the Court suggested that the law in Maneka Gandhi, i.e. no one can be deprived of their personal liberty without due process of law, cannot be applied in the present case as the deportee is a foreign national and is also involved in human trafficking cases (whether he was convicted or acquitted was immaterial).
According to the Court, Bhaskaran’s detention is not per se illegal as he is detained in a Special Camp in Trichy and not a prison, and the inmates enjoy sufficient freedom for taking recourse to legal remedies. Therefore, the Court found no infirmity in the Government’s detention orders.
As regards the prayer to allow him to visit the Swiss Embassy to obtain a humanitarian visa for asylum in Switzerland, the Court declined the prayer on the ground that “obtainment of visa of another country by an individual has to be by his own efforts and no statutory provision has been placed before this Court” (Paragraph 38). This means that as there is no statutory provision that places a legal duty on the government in this regard, the Court cannot issue a writ of mandamus thereto.
Significance: The Court’s arguments to arrive at its decision in the present matter is problematic due to multiple reasons. Firstly, it ignored the observation made in the High Court’s August 2020 decision staying Bhaskaran’s deportation orders which clearly stated that Bhaskaran should not be deported to Sri Lanka as he faces a threat to his life. Secondly, it did not take into account that in 2019, Bhaskaran was also acquitted of the human trafficking charges, which the government submitted to argue his loss of refugee status. Thirdly, it did not investigate the reasons for Bhaskaran’s return to Sri Lanka before declaring his loss of refugee status, putting him in a highly vulnerable position as he would be deported to Sri Lanka involuntarily where he allegedly fears a threat to his life. Fourthly, the court’s understanding that a detention order is not per se illegal if a person is detained in a detention camp and not a prison is indicative of a bigger problem with India’s immigration regime which has normalised detention. For example, other cases (here and here), High Courts have held that an order restraining a foreigner to a Refugee Camp is not an order of detention, but only an order that restricts their movement (under Section 3(2)(e) of the Foreigner’s Act). This distinction is important, especially because only the Central government has power to issue detention orders under the Foreigner’s Act (under Section 3(2)(g)) as that power has not been delegated to any other authorities. Therefore, it would bring into question the validity of similar orders regularly issued by state authorities detaining foreigners in refugee camps or detention centres. Fifthly, the observation that ‘due process’ principles as declared in Maneka Gandhi would not apply in the present case because the concerned individual is not an Indian citizen is a questionable legal argument as Article 21 guarantees the right to life and liberty to non-citizens as well.
The Court’s approach in deciding Bhaskaran’s refugee status reflects the uncertain and ambiguous status of refugees in India, in the absence of a specific law and application of international law principles. There are no policy or guidelines in place that lay down the process for the determination of refugee status of migrants in India or for granting residence to refugees, except the Long-Term Visa policy, which is also not applied universally and has been tailored to favour certain communities over others. The government and courts deal with the status of individuals and groups as refugees on a case-to-case basis, making the whole process ad hoc. The decision highlights that there is an urgent need for a refugee law in India in line with international and constitutional humanitarian principles.
Table of Authorities:
Latha Vs The Secretary to Government, Public (SC) Department and others, MANU/TN/2614/2007
Innocent vs. State of Goa, LD-VC-CRI-7-2020
Resources:
Jaya Bathuri, Amid conflicting court orders, former LTTE man faces threat of deportation, loss of refugee status, (The Caravan, 20 August, 2021)
Sujata Ramachandran, The Contours of Crimmigration Control in India, (Global Detention Project, August 2019)
Hamsa Vijayaraghavan, Roshni Shanker and Vasudha Reddy, It's Time India Had a Refugee Law, (The Wire, 19 December, 2015)
Meera Emmanuel, Law in Maneka Gandhi case cannot be stretched beyond a point: Madras High Court dismisses plea against deportation of Sri Lankan national , (Bar and Bench, 28 June, 2021)
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Dewangi Sharma.