Friday, July 27, 2012

Rights of a Refugee. The Court as Refuge

Arani Sanyal and Anwesha Sengupta

Say this city has a million souls,
Some live in mansions, some live in holes:
Yet there is no place for us,
My dear, there is no place for us,
Once we had a country and we thought it fair,
Look in the atlas and you will find it there:
We cannot go there now,
My dear, we cannot go there now.

W.H. Auden, ‘Refugee Blues’

Being a Tamil in Sri Lanka had been increasingly difficult since 1980s when the country witnessed intense civil war between the government and LTTE, the most important Tamil militant organisation. The war had killed thousands, forced millions of Tamils to migrate to India and caused massive hardship for the people, economy and the environment of the country. Tamil refugees from Sri Lanka arrived in India in four waves. Among them, one was Chandra Kumar who fled to India in 1990 as the second Elam War began. After spending around two decades in India, he decided to go to Italy in search of a better life. However, he was arrested by the immigration officers as he did not have valid travel documents. He was charged for committing the offences of cheating, impersonation and forgery r/w/s 14 of the Foreigners Act, 1946. He spent six months in judicial custody before he was brought to the court. There, Chandra Kumar admitted his crime, but claimed that he committed them unknowingly, being duped by a travel agent. If he was an Indian citizen, in all probability he would have set free, after spending 6 months in judicial custody. But his status was complicated because of his refugee identity. The government wanted this man to be deported to Sri Lanka for his offence. This position was based on the Government Order F.No. 25019/3/97 – F.III dated 2.7.1998 of the Foreign Division, Ministry of Home Affairs, which stated that a foreigner is to be deported from India in case s/he commits any offence.

For Chandra Kumar, deportation would mean going back to Sri Lanka. Of course, Kumar was unwilling to make this return trek to his homeland, as he feared persecution. The counsel of the convict tried to revoke the verdict. He pointed out that according to the principle of non-refoulement of Customary International Law; Indian government had no right to deport him to Sri Lanka as his life was not safe there.1 And, the Article 51(c) of the Constitution of India states that ‘the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.’ According to the Indian Constitution too, the government is bound to protect the life and liberty of all citizens and non-citizens alike (article 21). The counsel also referred to numerous other judgments delivered by various High Courts of India, where the High Courts have stopped the deportation proceedings on humanitarian grounds. Since, Kumar, had done nothing that might have threatened the security of the country, he ought not to be deported, argued the Counsel. He requested the court to allow his client consult UNHCR, Delhi to avert deportation.

After listening to both the sides, Arul Varma, a metropolitan magistrate of New Delhi (Special Court No 2, Dwarka Courts), gave his verdict in favour of Chandra Kumar. Recognising the plight of the Tamils in Sri Lanka, he accepted that Chandra Kumar indeed had a ‘well founded fear of persecution’ (wherein he stated that such possibility must appear to be reasonable and the refugee need not show that persecution will result on deportation) in case he was sent back to Sri Lanka. Therefore, deportation would mean a violation of the principle of non-refoulement, which was ‘a cornerstone of basic human rights’. Though India is not a party to the 1954 Convention or its optional protocol relating to status of refugees (1967), the principle of non-refoulment is implicit in the Article 21 of Indian Constitution, opined Arul Varma. He cited a particular verdict (Louis De Raedt Vs. Union of India, AIR 1991 SC 1887) of the Supreme Court which stated that this Article, which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, was valid for citizens and non-citizens alike. Similarly, citing another case, the judge argued that every person, irrespective of his/her nationality, should be considered as equal before the law and the state should protect his/her life and liberty. Since persecution denies the right to live with dignity, deportation of Chandra Kumar to Sri Lanka would mean denial of Article 21. To quote Arul Varma: ‘By handling over a person to a nation where he fears persecution, would make us nothing short of abettors in that persecution’. Also, Varma questioned the definition of ‘foreigner’ in the 1946 Foreigners Act, where a foreigner was defined as a non-citizen of India, and therefore included refugees within its ambit. He stressed on the need of treating the refugees in a humane way and to consider them as a separate category different from tourists or illegal migrants as otherwise, refugees would be deprived of privileges available under numerous international instruments. The Court opined that treating refugees, and illegal migrants on the same footing as the Foreigners Act does, would be violative of Article 14 of the Constitution which mandates equality before the law. (A logical extension of this is that unequals are to be treated unequally by applying the principle of ‘intelligible differentia’) Also, a ‘well founded fear of persecution’ includes, within its scope, a fear of being subject to torture and since India is a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, should ideally be bound by its international commitment to follow the principle of non-refoulement.

The judge applied a liberal interpretation of Constitutional tenets to accommodate refugees’ rights under Article 21 and went as far as to say that a law (The Foreigners Act, 1946) which treats persons unequally circumstanced at par, is on the face of it unconstitutional. He also laid emphasis on the non-derogability of the principle of non-refoulement and more importantly, by citing Vishakha vs. State of Rajasthan, 1997 (6) SCC 241, he noted that in case of a void in domestic law, it was the Court’s prerogative to fill such void by taking recourse to international law. (Something which the Court actually did in this case)


1. Non-refoulement is a principle of the international law, i.e. of customary and trucial Law of Nations which forbids the rendering a true victim of persecution to their persecutor; persecutor generally referring to a state-actor (country/government). See

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