Mad HC | Art. 21 of the Constitution of India applies to all persons, citizens and non-citizens alike, including refugees and asylum seekers

Madras High Court: G.R. Swaminathan, J. while hearing a petition seeking conferment of citizenship, declined to issue mandamus for the same on the ground that citizenship falls within the exclusive executive domain of the Central Government. However, directions were given to the Government to consider the request of the petitioners.

Petitioners herein were descendants of indentured laborers, who hailed from the present-day State of Tamil Nadu. Their case was that they faced severe discrimination at the hands of the Sri Lankan Government after it gained independence in the year 1948, suffered the 1983 riots and thus were forced to flee from there. Hence, they should not be considered as a part of the Tamil-speaking natives of Sri Lanka and owing to their genealogical roots in Tamil Nadu, while those from northern and eastern Sri Lanka were treated as refugees, persons like them must be treated as Indian repatriates. It was submitted that once they entered India, most of them were kept in Kottapottu camp in Trichy, and when they apprehended forcible deportation back to Sri Lanka, they filed a writ petition in Madras High Court, whereby, an interim injunction was granted, and the case was disposed of by recording the undertaking given by the Government that the petitioners will not be forcibly sent back to Sri Lanka. Since then the petitioners had been periodically submitting representations seeking conferment of Indian citizenship.

The petitioners had blood relatives only in India, and solely because their forefathers had gone to work as laborers in tea estates of Sri Lanka, the petitioners had to suffer the condition of statelessness. They were forced to escape from Sri Lanka to save their lives and limbs and as the authorities showed no positive approach, the petitioners moved the Court seeking conferment of citizenship.

The Government of Tamil Nadu filed a counter-affidavit stating that the petitioners were given monthly cash doles, ration essential commodities, accommodation, dress materials, utensils and free education, etc., however, the grant of citizenship was a policy matter for the Government of India to decide. The Government of Tamil Nadu prayed for the dismissal of the writ petition on the basis that petitioners were refugees and not repatriates. Further, they were not eligible for grant of citizenship under the provisions of the Indian Citizenship Act, 1955, as the petitioners were illegal migrants and never had a valid residential permit/ long term VISA because they came through an illegal route. Thus, the petitioners could not demand citizenship as a matter of right, as it was at the discretion of the Central Government to grant or refuse an application for grant of Indian citizenship.

The Government of India contended that it had not received any application for the petitioners, even when in the typed set of papers; a number of representations had been enclosed urging the authorities to grant citizenship to the petitioners.

The counsel for the petitioners relied on many international documents such as Universal Declaration of Human Rights and Conventions relating to the status of stateless persons and resolutions passed in various conventions, however also admitted the non-commitment of India to any of these conventions. The counsel invoked Article 51(c) of the Constitution of India which mandates the Government to foster respect for the International law and treaty obligations in dealings of the organized people with one another. The Court, however, opined that it cannot ignore the observations made by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 that “the duty of the State is to protect the nation from external aggression and internal disturbances on account of large scale illegal migration from neighboring countries which is also a form of aggression”.

On a reading of the provision of Citizenship Act, it was opined that the petitioners were evidently illegal migrants. However, owing to petitioners’ intention of making India their permanent home, the Court opined it to be a unique situation, for they had been in camps for 35 years under surveillance in severely restricted conditions and a state of statelessness for a long period which violated their right under Article 21 of the Constitution. Thus, the Central Government was directed to use its implied power as given under the opening clause of Section 5(1) of the Act and also as recognized by the Hon’ble Delhi High Court in Felix Stefan Kaye v. Foreigners Regional Registration Office, 2018 SCC OnLine Del 8212, keeping in mind the application of Article 21 of the Constitution of India to refugees and asylum seekers, and most certainly to the petitioners who were genealogically rooted to the Indian soil.

Taking into consideration the fact that the petitioners came to India when they faced grave threat to their lives and limbs, and had no other option but to seek asylum here, the Court allowed the petitioners to submit a fresh application seeking citizenship to the respective District Collector concerned, and directed him to forward the same without any delay to the Central Government, which when once received must pass appropriate orders subsequently within a period of sixteen weeks. The Court also reminded the Central Government of its power to consider the applications favorably notwithstanding the technical status of applications as that of illegal migrants, and also to keep in mind the unique situation in which the petitioners were placed.

Refraining from issuing any positive mandamus directing the Central Government to provide citizenship to the petitioners, the Court disposed of the writ petition accordingly.[P. Ulaganathan v. Government of India, Writ Petition (MD) No. 5253 of 2009, decided on 17-06-2019]

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