Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In an anticipatory bail application, Rajesh Chauhan, J. has directed the police to release the applicant on transit bail on executing personal bond of Rs. 50,000/- with two sureties of the like amount. The Court has also observed that there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered; and directed the. The Court observed that there is no legislation or law which defines ‘transit or anticipatory bail’ in definitive or specific terms. Further, the 41st Law Commission Report recommended the provision of anticipatory bail to safeguard the right to life and personal liberty of a person under Article 21 of the Constitution of India; and on such recommendation the provision of anticipatory bail was inserted under Section 438 of the Code of Criminal Procedure Code (CrPC), 1973. It was also observed that the term “transit” means the act of being moved from one place to another while the word “anticipatory bail” means a temporary release of any accused person who is anticipating arrest; therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.

The Court reiterated that Section 438 CrPC specifies direction for grant of bail to a person apprehending arrest and it confers power only upon the High Court and the Court of Sessions to grant anticipatory or transit bail if they deem fit. However, “transit anticipatory bail” is different from “ordinary bail”, as ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. Thus, when an accused is arrested in accordance with the order of the court and whereas the accused needs to be tried in some other competent court having jurisdiction in the matter, the accused is given bail for the transitory period i.e., the time period required for the accused to reach that competent court from the place he is arrested in.

The Court viewed that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail, and the mere fact that an accused has been granted transit bail, does not mean that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail, and upon the grant of transit bail, the accused, who has been granted such transit bail, must apply for anticipatory bail before the regular court. Further, the regular court would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. Therefore, it could be easily said that transit bail is temporary.

The Court took note of the decisions in Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819 and Nikita Jacob v. State of Maharashtra (Anticipatory Bail Application No. 441 of 2021 decided on 17.02.2021) wherein it was held that the “High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 CrPC, The Court observed that there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. Further, there is no doubt that the right to liberty is enshrined in Part-III of the Constitution of India and such rights cannot be impinged except by following procedure established by law. Thus, in the present case the applicants should get the privilege of transit pre-arrest bail in the light of the order passed in the case of Nikita Jacob (supra). Further, this protection was granted for a period of six weeks from the date of the order to enable the applicant to approach the competent Court seeking appropriate relief.

[Ajay Agarwal v. State of UP, Criminal Misc Anticipatory Bail Application u/s 438 CR.P.C. No. – 1669 of 2022, decided on 30.9.2022]


Advocates who appeared in this case:

Prashant Shukla, Advocate, Counsel for the Applicant;

Government Advocate, Counsel for the Opposite Party.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In an appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (CrPC) r/w Section 36-B of Narcotic Drugs and Psychotropic Substances, Act, 1985 (‘NDPS Act’) to set aside the conviction and sentence rendered by the Trial Court, G. Jayachandran, J. has set aside the conviction of the appellant/accused, and has observed that by preponderance of probability, he has established the absence of knowledge, further the evidence relied by the complainant does not prove that the appellant was conscious of the presence of heroin in the parcel given to him by another accused.

In this case, the appellant was alleged to be found possessing 1½ kg of Heroin with intention to transport it illegally to Kuwait, thereby committed offences under Sections 8(c) r/w 21(c), 22(b), 23(c) and 29 of NDPS Act. The issue in this case was, whether the Trial Court was correct in holding the accused guilty of possession of heroin relying upon Sections 35 and 54 of the NDPS Act, which provides for presumption of culpable mental state and the animus to possess.

The Court observed that the Trial Court, for reasons not properly explained, had failed to follow the dictum laid down in Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 and in Noor Aga v. State of Punjab (2008) 6 SCC 417 and has wrongly applied the dictum laid in Madan Lal v. State of Himachal Pradesh 2003 (7) SCC 465 and Megh Singh v. State of Punjab (2004) SCC (Cri) 58 which are factually different from the case in hand.

The Court noted that the appellant claimed that he was not aware of the contents of the parcel given by the absconding accused, as he came and gave the parcel to the appellant saying it contained tamarind and wheat flour. Further, the appellant without any hesitation identified his bag and allowed the officials to examine his bag, as he was not aware of the character of the powder he was carrying, till the officials disclosed to him that it was heroin. Thus, the appellant was not conscious that he was in possession of heroin. Moreover, by preponderance of probability, the appellant has rebutted the presumption of culpable mental state. Further, to establish that the possession was conscious, the prosecution relied on the Call Details Records, however, no proof was produced by the complainant that cell number belongs to the appellant.

The Court also viewed that the previous statement recorded by Police Constable under Section 161(3) of CrPC has to be treated on a par with the statement recorded under Section 67 of the NDPS Act by the Officer of Narcotics Control Bureau (NCB) and the Trial Court erred in referring this inadmissible document to presume culpable mental state of the appellant. It further viewed that the complainant has failed to probe the case properly and there has been a perfunctory investigation at all stages.

The Court observed that “though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case, the knowledge of contraband in the airbag cannot be attributed to the appellant”. Thus, the appellant is set at liberty in this case.

[Anandam Gundluru v. Inspector of Police, 2022 SCC OnLine Mad 4486, decided on 01.09.2022]


Advocates who appeared in this case :

T.S.Sasikumar, Advocate, for the Appellant;

Special Public Prosecutor N.P.Kumar, Advocate, for the Respondent.

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;
  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).


Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide


*Kamini Sharma, Editorial Assistant has put this report together

Op EdsOP. ED.

Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix “trans” is across or beyond2 and the gender of a person is culturally and socially constructed.3 From the aforementioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex i.e. male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves as neither men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called “transgender”.

Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and various other identified and unidentified sources. These sources from the past make it clear that transgender people have a historical background in various countries all over the world and have existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by the archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioural patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, creates and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in books, mythologies, epics, incidents and various other forms of art and literature. For instance, Professor Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian. As per the above-mentioned article of Professor Whittle, German Sexologist Magnus Hirschfeld has used the word “transvestite” in the year 1910. Magnus later developed the Berlin Institute where the very first “sex change” operations took place. The term “transsexual” was not coined until 1949, “transgender” not until 1971 and “trans” (a very British term) not until 1996.4

If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during the medieval era. Muslim rulers of the Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.

Inspite of the presence of the trans people in human history, the community faces challenges at different levels in the society. These people have to undergo discrimination in all facets of life. Starting from their homes to the place of work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion, similar to the set categories of sex i.e. male and female. But unlike the straight people, this community has not been accepted by the regressive society, they are ill-treated and are economically backward.

They are alienated from the mainstream of the society which is violative of Articles 145, 156, 197 and 218 of the Indian Constitution9. The fact that they have a right to life is not recognised even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the society towards the trans community is regressive and breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are basic to an individual; they are needed for survival and to lead a normal life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.

In spite of making the basic structure of the Constitution of India as a supreme power, societal biases towards the trans community have caused a tremendous breakdown of the democratic structure. Besides, these prejudice to not give recognition to the word “Republic” as given in the Preamble of the Constitution of India. Republic means a State where the supreme authority is in the hands of people and their representatives.

This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalised. This normalisation of the alienation of the transgender persons has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherisation of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonised hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.

Despite this coerced normalisation of the transgender persons segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. The European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.10

Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. The Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down an application for adoption based on their sexuality.11

Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett12 is the genesis of all transgender marriages since 1970. In MT v. JT13, MT, a male had a vagina and was able to function sexually as a female. Thereby, she was legally recognised as a female for the purpose of marriage. Considering the judicial pronouncements by Australian courts, marriage between a female to male transgender individual and his wife, a biological female was affirmed valid in Attorney General (Cth) v. Kevin and Jennifer.14 It is for the reason that Court was of the view that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, but these should not be limited to biological and physical characteristics at birth; the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage. Hence, the case considers the marriage between female to male transgender individual and his wife, a biological female was affirmed valid.

In the backdrop of the marital and adoption rights given to the trans population internationally, the Indian courts and judicial system are also democratising the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of “liberty”, “equality”, “justice”, “fraternity” to all the people living in the India, “a sovereign, socialist, secular, democratic, republic”. The same principles have been taken into consideration by Part III of the Constitution of India i.e. fundamental rights including right to equality, prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of the authoritarian male dominance. For the sake of same, the Indian Parliament has passed the Transgender Persons (Protection of Rights) Act, 2019.15 The Act was introduced with the objective of eliminating marginalisation from the society. The background behind this legislation goes back to the judgment of National Legal Services Authority v. Union of India16 by K.S. Radhakrishnan, J.where the foundation for establishment of transgender persons as “third gender” was made. The view behind this judicial pronouncement was to curb the discriminatory practices by laying down several measures. This landmark judgment recommended providing reservation in government jobs and educational institutions. It also declared the right to self-perceived gender identity without undergoing sex reassignment surgery. In the year 2016, a Bill was drafted and referred to the Standing Committee of Parliament for further suggestions. Keeping in view the suggestions made by the Standing Committee, a new Bill was introduced in Parliament in the year 2018. This Bill was introduced again in Parliament in the year 2019 which was later passed by both the houses and the assent of President was also granted. The basic aim of this legislation is to curb the discrimination against trans community and provide them equal status in the society by breaking the stigma against them. The subaltern trans groups of people must be given a voice so that they are represented in this patriarchal society. Parochialisation of the transgender people leads to their deprivation from the society and the people. The Act of 201917 was made with a view to follow constitutional and humanitarian values for the segregated trans people.

Despite providing the basic human rights to the trans community, the Act may have some more features for removing the social biases against the community. The Act, though a landmark piece of legislation, requires further scrutinised amendment for raising the voices of the trans people.

No piece of legislation is ever final and absolute. Lawmaking is a continuously evolving kinetic process and newer lights are thrown on the key points through debates, arguments and counter-arguments. The system of dialogue and debates has been existing in human society since ages including India. The Upanishadic debates and Socratic inquisitions show that no human truth is final. There is always scope for further enquiry.

Certain points, as far as this revolutionary Act is concerned, need to be further elaborated upon, debated, argued and discussed to reach a more logical and scientific conclusion. The first question that needs further elaboration is how transgender groups were consulted prior to making of this legislation. Legislation making is a consultative process where the opinion of the maximum number of stakeholders should be taken care of. For further amendments to the Act, the point of views of the trans people should be taken. The Act must further reflect the aspirations of the trans community.

In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike the straight community, they are not given humanitarian behaviour by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the court will decide further the residence and send that child to the rehabilitation centre. Basically, rehabilitation centers are for getting someone’s life to normalcy, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.

The Act provides that the people who belong to transgender community will have to go through a screening process which will determine their sexuality. This will include a certification by a District Screening Committee. The certificate will acknowledge them as transgender. However, those transgender persons who wish to identify themselves as a man or woman will need to go through a gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This provision of the Act violates the Supreme Court’s judgment of National Legal Services Authority v. Union of India18 which states that the only thing needed to identify a person is their word for it. It seems like the Act was made keeping in mind the fact that all transgender people either want or have the ability to go through surgical methods. Is this method even feasible for them economically? Isn’t the Act indirectly pushing them to go for surgical methods? The system of the screening process and the need for medical certificate, which will help in determining the sexuality, will actually restrict the equality before law. Now as per the Rules of 202019, they do not have to go through medical examination, but will have to submit an affidavit of their sexuality. After this, an identity card will be issued which will determine their sexuality. This will end their right to self-declaration of sex, which males and females are entitled to. Are the males and females of this society asked to go through such a screening process? Are there separate identity card, for males and females? The classification made is not reasonable and may create alienation of the trans people in the society. This will increase red-tapism forcing the members of trans community to go through bureaucratic procedures.

Next, the punishment of imprisonment against sexual abuse is just two years in case of transgender persons. However, as per the Penal Code, 1860, the punishment for rape against women is seven years.20 This is in clear violation of their equal treatment and status in the society and may be violative of their equality and dignity.

The affirmative action of providing reservations in government jobs and educational institutions is for uplifting the marginalised sections of society. Those who are maltreated, unprivileged and who suffered or are suffering social and economic backwardness are generally given this opportunity so that they may be able to match the mainstream sections of the society. There is no such mention of reservation for trans community under the Act.

The civil rights of transpeople are obstructed by the all power centric patterns in society. In general, males and females are entitled to the right to marry, divorce and adopt. But the transgender community is deprived of such rights. Even after continuous judicial pronouncements, the life and dignity of transgender community is endangered. The case of K.S. Puttaswamy v. Union of India21 lays down the principles of individual liberty and the right to a dignified life. And in Navtej Singh v. Union of India22, the Court referred to a Canadian case wherein it was stated that human dignity is harmed when unfair treatment is meted out based on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It was held that the LGBT community has the same individual needs as the straight community. They too require the same human, fundamental and constitutional rights as other citizens. The community should not be given step-motherly treatment on the pretext of social morality. The disentitlement of adoption by LGBT couples harms the dignity of the people. It is based on their sexual orientation which does not relate to the capacity or merit as prospective parent.

The concept of the National Council for Transgender Community23 for trans community is actually a paper tiger. First of allout of thirty members, only five members will be from the transgender community. So again majority will be of the dominating class of the society and the transgender community will be ignored at the Council. As a result of this, the straight community will have a hold over the transgender community. The voices of trans people may be suppressed if the majority lies in the hands of powerful and dominating class of the society. The ratio of the number of members in the Council may create a disparity. The Council lacks independence in carrying out functions.

The provisions relating to begging have been decriminalised by the Act of 2019 and the word ‘begging’ in Section 19under Chapter VIII (Offences and Penalties)of the Bill of 201624 (Section 18 of the 2019 Act) has been removed. The High Court of Delhi in Harsh Mander v. Union of India25 had also marked the Bombay Prevention of Begging Act, 195926 as unconstitutional holding that it violates Articles 14 and 21. The Court opined that there is a class of society who has no other means of sustenance but to seek alms for it. Criminalisation of begging is clear violation of the basic rights that are needed for the community. The people who are suffering from poor economic conditions also need to fill their stomachs. Hunger, housing and clothing are the basics for any individual or species. The one who is living in the outskirts of economic valuation has to beg as the last resort. They do not have any other choice left. The judgment defends the right to life of poor persons who sustain and lead their lives through begging. The Court order challenges the middleclass resentment towards “illegitimate denizens”.27 But the above argument of the Court and the Act of 2019 can also be seen as not mitigating the problem of unemployment among the trans community. To weed out the extreme conditions of object poverty and deprivations, along with the decriminalisation of beggary, employment resources must be generated for the transgender people. The Act has made commendable provisions by decriminalising begging. But to uplift the economic conditions of the transgender people, job opportunities and startups should be opened for them. It is to be noted that the Act and such judicial pronouncements are pushing these people to beggary and not towards jobs and services. These people must be provided with an adequate means of survival and not the act of beggary. This will embark their dignity and social status in the society. Transgender persons must also be given such rights for their proper and dignified survival.

From the above-mentioned arguments it can be clearly stated that the trans communities are not treated fairly. They are subject to continuous discrimination by the society, set norms and even the legislations. They are not provided with the basic human rights. To empower them, basic constitutional rights must be taken care of. This will break the hierarchy and the deprived trans people will live their lives with dignity. Also, there is a need for revolutionary steps to be taken. All the provisions of the Transgender Act must be implemented properly and necessary amendments to the same may be introduced. This will help to provide liberty, equality and fraternity. Trans people must not be segregated, they should be a part of this society. Legislations should be made inclusive and so that the marginalised and weaker sections of this society will be provided with basic rights. Thereby, the transgender persons must be provided with human, civil and constitutional rights. This will embark a change in the patriarchal social normative theories of the people. And the trans community will be able to lead their lives with dignity and freedom.


† BA LLB 5th year, student at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan. Author can be reached at <bhavyaagarwal9989@gmail.com>.

2. Oxford Advanced Learner’s Dictionary, Oxford University Press, 8th Edn., 2010, p. 1644.

3. Nicholas Abercrombi, Stephen Hill and Bryan S. Turner, The Penguin Dictionary of Sociology, Penguin, 2006, p. 163.

4. Prof. Stephen Whittle, “A brief history of transgender issues”, The Guardian, <https://www.theguardian.com/lifeandstyle/2010/jun/02/brief-history-transgender-issues>(accessed on 20-2-2022).

5. Constitution of India, Art. 14.

6. Constitution of India, Art. 15.

7. Constitution of India, Art. 19.

8. Constitution of India, Art. 21.

9. Constitution of India.

10. E.B. v. France, [2008] ECHR 55: (2008) 47 EHRR 21.

11. <https://www.stonewall.org.uk/help-advice/parenting-rights/adoption-and-fostering>(accessed on 20-03-2022).

12. (1970) 2 WLR 1306 : (1970) 2 All ER 33.

13. 6 Cap UL Rev 403 (1976-1977):(1976) 355 A 2d 204.

14. (2003) 77 (7) LIJ, the decision was affirmed on appeal by the Full Court of the Family Court of Australia [Attorney General (Cth) v. Kevin and Jennifer], 2003.

15. Transgender Persons (Protection of Rights) Act, 2019.

16. (2014) 5 SCC 438.

17. Transgender Persons (Protection of Rights) Act, 2019.

18. (2014) 5 SCC 438.

19. The Transgender Persons (Protection of Rights) Rules, 2020.

20. Penal Code, 1860.

21. (2017) 10 SCC 1.

22. (2018) 10 SCC 1.

23. Ministry of Social Justice and Empowerment, Noti. No. S.O. 2849(E), dt. 21-8-2020.

24. The Transgender Persons (Protection of Rights)Bill, 2016.

25. 2018 SCC OnLine Del 10427.

26. Bombay Prevention of Begging Act, 1959.

27. Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427 and Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Op EdsOP. ED.

Introduction

After the independence of India from the British colonial rule, it was observed that Parliament by itself cannot legislate on each and every facet of certain matters nor can it directly entrust the power to the executive to enforce the same. To fill in these gaps delegation of authority and power became a necessity.

The six decades after independence have played a major role in the rapid expansion and smooth functioning of administrative activities.

The executive is given authority by the statute to use this discretion and act accordingly. An extensive power is given to the executive to choose a path of operation from numerous possible courses of action and select the best depending upon the situation. Power of discretion ensures that the administrative authority has sufficient independence and liberty in carrying out its activities.

However, to regulate the power and to ensure that this discretion is not misused, the law has established scrutiny to make certain that this discretionary power is exercised according to the guidelines of the statute.

Abuse of discretion

Power of discretion given to the administrative authority ensures that they get adequate independence and liberty in carrying out their activities. However, this discretion is often misused. Abuse of power is one of the classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, besides competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers were granted.[1]

The abuse of discretion is done in the following manner. The administrative authority may not duly exercise the power and authority entrusted to it (sub-delegation, acting mechanically, imposing fetters on discretion, acting under dictation, non-application of mind, power coupled with duty) or they may exercise the power and authority under the coercion of another body, which may have improper motives (like abuse of power, mala fides, improper purpose, irrelevant considerations, leaving out relevant consideration, colourable exercise of power, judicial discretion, unreasonableness). This leads to biases and incorrect usage  of power delegated to such administrative authority.

The power of discretion given to the administrative authorities is a complex process. A Government may not be able to function properly without the exercise of some discretion by the officials. It is impossible to lay down the rules for every plausible aspect. This has led to conflicts as to whether there should be absolute discretion of administrative authorities or whether it should be subject to reasonable control. Giving discretionary power to the administrative authority is not wrong however, people often misuse it.

Some of the abuses of administrative discretion are as follows:

Mala fides

Mala fide is a broad term and means something done with bad intent, corrupt motive, or not in good faith. An administrative action must  be without mala fides. The burden of proof lies on the person who alleges mala fides. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact includes personal ill will, corrupt motive, spite, vengeance, and personal benefit to the authority itself.

One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this case, the appellant was a civil surgeon employed under the State Government. He was initially accorded leave in advance of his retirement but in due course of time it was cancelled, also he was given a suspension order and disciplinary action was initiated against him on the charge that he had agreed to receive a bribe of Rs 16 from some patients before going on leave. It was alleged by the appellant that the disciplinary proceedings against him were started in the wake of the personal vendetta of Pratap Singh who was then the Chief Minister of Punjab as the doctor had declined to surrender to the illicit demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held that such exercise of power is mala fide, and quashed the order.

In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman dealing in the sale of wholesale kerosene oil. He was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 on the ground that he was operating without a licence and dealing in kerosene illegally. The petitioner challenged the validity of the order of detention by and large on the pretext that it is mala fide. It has been passed as a consequence of malevolent and erroneous reports, devised at the order of the Deputy Superintendent of Police (DSP). The alleged reason of the Deputy Superintendent in securing the preparation of these incorrect reports was to get rid of the petitioner from the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that his family members  could obtain the dealership. The Deputy Superintendent did not even file a counter-affidavit to controvert the allegations made against him by the appellant. Due to these considerations, the Supreme Court declared the order of detention to be clearly and plainly mala fide.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh took on a proposal of the State Government to nationalise certain bus routes. It was purported that the Chief Minister had acted with mala fide intentions while giving the instructions. The allegation against him was that the specific route way had been chosen for the reason that he sought to take revenge from the private operators on those routes because they were his political opponents. Considering the facts of the case, the Supreme Court held that the Chief Minister had mala fide intention.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Improper purpose

A statute confers discretionary powers upon an administrative authority for one purpose and if it is used for some purpose other than the one that was decided, it will not be regarded as a valid exercise of the powers and the same may be rescinded by declaring it as ultra vires. Hence, we can see that the power of discretion is not unlimited and is constricted to the objective for which the law was enacted.

Therefore, where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by the Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where the Municipal Corporation refused to approve the construction of buildings with a view to pressurise the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene any rule.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.[5]

However, with time as the authorities were accorded discretion to increase the scope of their functioning, the cases of exercise of this discretion for improper purposes started increasing tremendously. In order to curb this problem and restrict this unconstrained power, the  courts can check the primal target of the statute in endowing the discretionary power. The rationale behind an administrative action should be in conformation with the legal objective.

In S.R. Venkataraman v. Union of India[6], the appellant, was a Central Government officer. She was compulsorily retired from service in “public interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50 years. Her contention was that there was non-application of mind by the Government as they did not take into consideration her service record and that her retirement was based on extraneous circumstances, outside the extent of the Act. This was validated from the fact that there was not a thing in her service record to rationalise premature retirement. The Supreme Court revoked the order of the Government and held that in a case where discretionary power is exercised for an unauthorised purpose, the principles of good faith or bad faith stand irrelevant. An administrative order formulated on the basis of non-existent reasons or facts should be deemed to be contaminated with an abuse of power.

Irrelevant or relevant considerations

Discretionary power allows an authority to choose from alternative actions and select the most appropriate one. However, this discretionary power should always be exercised on relevant grounds and not on extraneous grounds, it should not be influenced by considerations that cannot be lawfully taken into account, in other words, all discretionary work must be in conformance to the considerations mentioned in the parent statute. If no such considerations are laid down in the statute, then power is to be exercised on the basis of the considerations relevant to the purpose for which the statute was conferred. If the authority uses this power for irrelevant cases, then the administrative action would be considered ultra vires and will be quashed.

To determine whether the considerations are relevant or irrelevant, one has to infer from the general terms of the statute.

In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board exercising its power under Section 237 of the Companies Act, 1956[8] can order an investigation into the matters of the company if such affairs are carried out with a motive to defraud creditors or if the persons involved in the management are guilty of fraud.

Exercising this power an investigation was ordered into the affairs of Barium Chemicals Ltd. for the reason that the company was suffering continuous losses as a consequence of faulty planning and many eminent persons resigning from the Board of Directors. This order was challenged. The court quashed the order of the Board stating that these grounds were immaterial and irrelevant to the objective enshrined in the law. It did not comply with the direction of Section 236[9].

In Rohtas Industries v. S.D. Agarwal[10],  an investigation was ordered into the affairs of a firm on the grounds of misconduct by one of the leading directors. There were several complaints against him. Also shares of another company held by it, were being sold at an inadequate consideration. About the former, the Court was of the view that it was not an admissible situation. About the other ground, the Court found no evidence of the shares having been sold for insufficient remuneration. The order was revoked as these grounds were held to be insubstantial in order to solicit an inquiry under Section 237 of the Companies Act, 1956.

Leaving out relevant considerations

While exercising its discretionary power if an administrative authority turns a blind eye to relevant considerations, its acts will be considered null and void. An authority should always take heed of the considerations which  law lays down expressly or impliedly. In case the law does not lay down any considerations but grants power in a general way, the court might imply some appropriate considerations for the exercise of the power and rescind a directive since the officials concerned did not take these into account.

In Ranjit Singh v. Union of India[11], the allotted quota for production of guns by a licensed manufacturer was lowered from 30 to 10 guns per month. This order was challenged on the ground that the decree was not based on relevant considerations but on immaterial consideration. It was held by the Court that the order was out of place as the Government had not taken into account material considerations like the quality of guns produced, economic viability of the unit, capacity of the factory, etc. in making the order. It was observed by the Court that any curtailment of quota should be based on reason and relevance. If all the material factors are not considered, the decision is corrupt.

Colourable exercise of power

The courts often use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise signify that under the “appearance” of power accorded for one objective, the authority is trying to achieve something else which it is not permitted to do under the statute. Such acts  of the  authority shall be null and unlawful.

In Somawanti v. State of Punjab,[12]  the Supreme Court in relation to acquisition of land under the Land Acquisition Act[13] expressed as follows:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.

The above extract would show that the term “colourable exercise of power” is used in the sense that the exercise of power is unlawful, but it has been given the illusion of legitimacy.

Unreasonableness

                The law requires the authority to act fairly and rationally. The term “unreasonableness” does not provide a separate ground of judicial control  other than the grounds already mentioned. The term also comprises those cases where either the authority has acted in accordance with law but in the wrong manner or in accordance with law and in the right manner but on the wrong grounds. The courts usually do not exercise such extensive power to interfere in the exercise of administrative discretion. However, the courts do interfere with the order where it has been passed  irrationally.

Proportionality

To keep a lid on the exercise of administrative discretion judicial control has been formulated. This assures that unrestricted power is not given to the authorities to allow erratic decision-making. The rule of proportionality is one such major rule which make sure that there is a connection between the goal that must be achieved, and the method undertaken to enable so.

This tool was applied in Union of India v. Ranjit Thakur[14]. In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior officer by refusing to eat food offered to him. As a result of this court-martial proceedings were instituted and sentence of rigorous imprisonment of one year was levied on him. Also, he was expelled from service, with the additional disqualification that he would be incompetent for future employment. The said direction was called into question on the ground that the penalty was flagrantly inordinate. The Supreme Court implemented the doctrine of proportionality while revoking the punishment of expulsion from employment and sentence of incarceration awarded by the court martial under the Army Act[15].

Conclusion

With more and more discretion being given to the administrative authorities to take action without intervention from other bodies has led to increased independence of the authorities to choose between the different approaches and select the best alternative. However, to keep a check on this wide freedom, the courts in India have developed various controls over discretionary action which ensures that this power is exercised within the limits prescribed by law, is just and fair, and is based on pertinent grounds and good faith.

From the above cases we see that the abuse of administrative discretion takes place in a number of forms, for example, acting on mala fide basis, disregarding relevant considerations and pursuing irrelevant ones, misapprehending the power granted by the statute, etc.

The authorities must have an established extent of liberty to carry out its activities because excessive liberty accorded to the administration will always result in violation of the fundamental rights of an individual. The only method to guarantee individual freedom is judicial review of public administration. Hence, it is a matter of controversy as to what degree the public administration is susceptible to judicial review while performing the tasks assigned.

The work of public administration is to ensure proper execution of the administrative policy whereas the function of the  Administrative Tribunals is to assess whether this execution is exercised correctly under the provisions of law. The separation of these functions limits the scope of judicial review. The scope is limited to the basis of legality and the court’s function to directly rectify the administrative decision is relinquished. This separation of functions does not allow the court to act as a replacement to the administrative bodies.

For the proper exercise of discretion of power,  constructive framework was developed by the courts. The judicial control process of administrative discretion can be done by either establishing control at the stage of delegation of discretion or by establishing control at the stage when the discretion is exercised.

Freedom granted to the administrative authorities to make a decision on certain matters by using their best judgment opposed with the extensive judicial control represents the equilibrium maintained in Indian jurisprudence. On one side of this equilibrium lies unconstrained power and on the other,  judicial supremacy. Mid way is possibly the finest place to be.


*Second year student, BBA LLB, Vivekananda Institute of Professional Studies, New Delhi. Author can be reached at <barkhatandon09@gmail.com.

[1]Jerzy Parchomiuk, Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: from “Administrative Morality” to the Principle of Proportionality, Vol. 3, MUNI Journals, 2018.

[2]AIR 1964 SC 72.

[3]1966 SCC OnLine SC 2.

AIR 1964 SC 962.

[5]Laksheyender Kumar, Abuse of Administrative Discretion, legalservicesindia.com, 21-6-2021, <http://www.legalservicesindia.com/article/756/Abuse-of-Administrative-Discretion.html>.

[6](1979) 2SCC 491.

[7]AIR 1967 SC 295.

[8]Companies Act, 1956, S. 237.

[9]Companies Act, 1956, S. 236.

[10](1969) 1 SCC 325.

[11](1980) 4 SCC 311.

[12]AIR 1963 SC 151, para 36.

[13]Land Acquisition Act, 1894.

[14] (1987) 4 SCC 611

[15]Army Act, 1950.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Apprehension of harassment and violence at the hands of their relatives, led a young couple to knock on the doors of the Court. The bench of M.A. Chowdhary, J., while perusing the facts and the fears presented by the petitioners, made some profound observations vis-a-vis two adults consensually marrying. The Court stated that, Arts. 19 and 21 of the Constitution duly recognises the right of two consenting adults entering into wedlock. “Consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and values it stands for”.

As per the facts, the petitioners claiming to be majors, contracted marriage out of their free will and started living as husband and wife. The said marriage was contracted as per Muslim personal laws and traditions. Upon developing a fear for their safety and life, the petitioners approached the Court seeking protection and security cover from their relatives.

Upon examining the prayer, the Court observed that Right to Marry has sanction of the Constitution, therefore it needs to be protected and it cannot succumb to conception of class honour or group thinking and that the Constitutional Courts should act as a watchful sentinel to guard the right to liberty of an individual, as dignified existence has an inseparable association with liberty. “Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person“. Noting that choice is an inextricable part of dignity, thus no one should be allowed to interfere with the fulfilment of an individual’s choice. “When two adults marry out of their volition, they choose their path… and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation”.

With the aforementioned observations, the Court directed the respondents to provide adequate security cover to petitioners and act in accordance with the law laid down by the Supreme Court in Lata Singh v. State of U. P. (2006) 5 SCC 475, and Shakti Vahini v. Union of India, (2018) 7 SCC 192. The Court also directed the respondents to verify petitioners’ claims vis-a-vis their age and proper solemnization of marriage. The Court also clarified that the observations made in the instant petition do not authenticate the petitioners’ marriage, as the same is dependent on fulfilment of requisites as envisaged under prevalent laws.

[Sugra Fatima v. Union Territory of J&K, 2022 SCC OnLine J&K 472, decided on 14-06-2022]


For the petitioners: Asma Rashid, Advocate

For the respondents: Insha Rashid, GA


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Op EdsOP. ED.

But in our camp, his story was everyone’s story, a single tale of dispossession, of being stripped to the bones of one’s humanity, of being dumped like rubbish into refugee camps unfit for rats.” [1]

Introduction

Imaginably one of the most significant alliances is that of between a State and its nationals. This bond, which predominantly owes its genesis to an individual’s birth/jus soli or blood relationship(s)/jus sanguinis or naturalisation, etc., binds a personage into an inviolable and everlasting association. Appreciably, nationality permeates every aspect of a person’s identity and often proves to be the core of his existence. Ergo, it is quite understandable that this propinquity between a citizen and his nation is often manifested by christening a country by its nationals as a “motherland”. According to the International Court of Justice (ICJ)[2],

 … nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State….

 

Further, the Inter-American Court of Human Rights (IACtHR) in one of its advisory opinions[3], observed, “nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity”.

In the same vein, Warren, C.J. while rendering his dissenting opinion in Perez v. Brownell[4], inter alia, remarked,

  1. Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the State within whose borders he happens to be. In this country the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights.

Notably[5], the political and legal bonds that link a person to a State and bind him with ties of loyalty and fidelity by virtue of nationality, not only entitles him to diplomatic protection from that State, rather, also vouchsafes a certain degree of protection against the demands for extradition from other nations. Concurrently, while on one hand, affiliation of nationality entitles a State, liberty of even forcible intervention[6]for the protection of rights of its citizens/nationals abroad; State’s nationality, on the other hand, obliges such individuals/citizens to abide by its laws and serve their country as and when a need arises. However, notwithstanding such obligations and encumbrances on individuals, nationality is regarded as one of the most cherished attributes and a fundamental human right, creating an important incident of international law, besides ensuring the dignity of individual. As a corollary, it may be effortlessly deduced that the perplexities and quandaries, encompassing persons deprived of this basic human right, are incessant and unrelenting.

Statelessness: De jure and de facto

Significantly under the international law[7], de jure statelessness/stateless individual “means a person who is not considered as a national by any State under the operation of its law”. Per contra, de facto stateless persons[8] are often understood as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country”. In this regard, the United Nations High Commissioner for Refugees (UNHCR)[9], inter alia, observed:

stateless person would be a person who possesses no nationality, but the lack of nationality must be provable and proven. It may be easy if the person was born of, or married to, a stateless person and did not acquire a nationality by birth, or lose it by marriage…. Quite different is the position of persons who have no proof of expatriation and cannot obtain such evidence and those who have not, either in law or in fact, lost or been deprived of their nationality but refuse to avail themselves of the protection of their former home country for whatever reason. The first category of persons (i.e. those who actually lack a nationality) are called stateless persons de jure. The others are, in fact, in the same position as de jure stateless persons because they have no state to turn to for protection, but legally they are nationals of a certain state although they do not derive any benefits therefrom. These persons are called de facto stateless persons.

 

Simply put[10] the dissimilarity between de jure and de facto statelessness lies in the fact that while the former relates to a lack of recognition of an individual as a national of any State, the latter relates to an individual’s inability to demonstrate a status of de jure statelessness, coupled with the lack of an effective nationality and national protection. Interestingly, as per some authors of international law[11], despite there being conceptual legal dissimilarities between de jure and de facto statelessness, “they both essentially refer to persons lacking protection from a State. From this perspective, they should be entitled to equal protection under international law”. Whilst some other jurists[12]proclaim that the term, “de facto statelessness” is a misnomer, and that it is more appropriate to denominate such individuals as “de facto unprotected persons”. However, irrespective of varied opinions on nomenclatures/terminologies or manner of its eventuation, it is quite explicable that statelessness ensues prodigious hardships, privation, vulnerability to abuse, lack of social and economic security, grave risks of psychological problems, such as hopelessness, depression, etc., to such individuals. Further, startlingly, despite the momentous societal evolution around the word and notwithstanding an increased consciousness and response to human rights concerns, perseverance of statelessness in colossal proportions in present times is quite difficult to ratify and accede to.

Statelessness: Reasons and disquieting implications

Eloquently, the reasons leading to statelessness may be broadly accredited to the factors such as reintegration, succession, dissolution or cessation of territories by States; operation of complex citizenship laws or administrative practices; discrimination onbaccount of gender, age, ethnicity and/or race; or arbitrary deprivation of nationality. As per the UNHCR[13], statelessness may occur as a result of conflict of laws, transfer of territories, laws relating to marriage, administrative practices, discrimination, laws relating to registration of birth, jus sanguinis (nationality based solely on descent, often only of the father, which in some regions results in the inheritance of statelessness), denationalisation, renunciation and/or automatic loss by operation of law. Notwithstanding its impetus, morosely, statelessness perseveres as one of the core reasons for discrimination, exploitation, and forced displacement in all the regions of the world. It is, in fact, widely conceded that statelessness leads to solemn humanitarian implications, denuding those under its garb from legal protection or the right to participate in political process, besides, engendering[14], “poor employment prospects and poverty, little opportunity to own property, travel restrictions, social exclusion, sexual and physical violence, and inadequate access to healthcare and education”. At the same time, it is widely and aptly discerned[15], “statelessness is both a cause and a consequence of trafficking. Without legal identity, stateless people can be vulnerable to trafficking”. Undoubtedly, statelessness[16], characteristically, “leaves people unable to enjoy basic rights that most people take for granted, including the ability to go to school, see a doctor, get a job, open a bank account, vote, get married, and pass on nationality to their children. It can lead to desperation making victims vulnerable to extreme forms of exploitation and abuse”. Significantly, the UNHCR[17], while dealing with the issue of statelessness, lamentably observed, “statelessness can have a severely detrimental impact on the lives of the individuals concerned…the negative effects of statelessness are not limited to the persons immediately concerned, but may also affect their families, the wider community, the State and even inter-State relations”. Predictably, the sting of statelessness overwhelms persons’ generations to come, divesting them of basic human essentials and in majority cases, their sheer existence.

Divestment of Nationality: Arbitrary versus justifiable grounds

Article 15(2) of the Universal Declaration of Human Rights[18] (UDHR) provides, “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Noticeably, the embargo provided under the UDHR relates to arbitrary deprivation of nationality, in distinction to a divestment which serves a legitimate purpose and complies with the principle of proportionality. As a matter of fact, international law is not averse to and in fact, acknowledges dispossession of nationality under certain circumstances, such as, voluntary renunciation, relinquishment, etc. However, in order for a privation of nationality not to be termed as arbitrary, such deprivation must[19], “be in conformity with domestic law and in addition comply with specific procedural and substantive standards, in particular the principle of proportionality. Measures leading to deprivation of nationality must serve a legitimate purpose that is consistent with international law and in particular the objectives of international human rights law”. As a corollary, the term(s), “arbitrary/arbitrariness” may, reasonably, be understood to include acts which are not only in violation of explicit legal provisions, rather, also those tainted with elements of inappropriateness, injustice, lack of predictability, etc. Therefore, where the basis of divestment of nationality is premised on barbaric grounds, such as; ethnic cleansing, pogrom, persecution, genocide, etc., it cannot be denominated as a valid forfeiture. It is, correspondingly quite understandable that the incidents of arbitrary deprivation of nationality, inter alia, on racial, national, ethnic, religious, political or gender grounds were, appropriately, labelled as violation of human rights and fundamental freedoms by the United Nations Human Rights Council (UNHRC) in its Seventh Session[20], subsequently, reaffirmed from time to time.[21]

Conventions on Reduction of Statelessness and Status of Stateless Persons

Conspicuously, earlier to the UNHRC’s declaration(s) on statelessness, provisions, inter alia, relating to prevention of statelessness and conferment of citizenship by contracting States to avoid/minimise such instances were envisaged under the Convention on the Reduction of Statelessness, 1961 (the 1961 Convention)[22]. Significantly, in this regard, Article 8(1) of the 1961 Convention cautioned and bound its contracting States/parties, subject to the provisions under Articles 8(2) and (3) thereof, not to, “deprive a person of its nationality if such deprivation would render him stateless”. At the same time, Article 9 of the 1961 Convention vividly avowed, “A contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.” In fact, the 1961 Convention, favours the grant of nationality to persons born within the territory of contracting State or even those born outside, in terms of or as per the manner envisaged under Articles 1 and 4 respectively, thereof, in order to avoid the incidents of statelessness. Articles 5, 6 and 7 of the 1961 Convention further ensure that the event of loss of nationality by virtue of incidents specified therein would be consequent and conditional only upon the possession or acquisition of nationality of other State by such individuals.

Clearly, the 1961 Convention envisioned both affirmative and proscriptive measures so that the incidents of statelessness may be exterminated or curtailed to a significant range. Further, perceptibly, in order to, “overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives,” provisions of equal import, to those existing under the 1961 Convention, were earlier adopted under the 1954 Convention Relating to the Status of Stateless Persons (the 1954 Convention). Outstandingly, the 1954 Convention provided for several measures to warrant basic human rights to stateless individuals, inter alia, acknowledging an imminent need to, “regulate and improve the status of stateless persons by an international agreement”.

Markedly, while on one hand, Article 2 of the 1954 Convention obligated stateless persons to, inter alia, conform with the laws and regulations of the country in which they find themselves, on the other hand, Article 3 thereof bound the contracting States to, “apply the provisions of this Convention to stateless persons without discrimination as to race, religion or country of origin”. At the same time, the 1954 Convention, not only contained provisions regarding the endowment of right to freedom of movement; right of association and access to courts; offering administrative assistance, identity papers and travel documents to stateless persons within the limits of contracting States, etc., in the manner as provided therein, rather, also prohibited expulsion of stateless persons, existing lawfully within the territory(ies) of such signatory States. Understandably, the various directives under the 1954 Convention were aimed towards the alleviation of the plight of stateless persons by, inter alia, equating certain rights of such individuals with that of the nationals of such contracting States at several instances. However, regardless of numerous resolute manifestations, admonitory declarations and obligatory exhortations against statelessness, deplorably, the problem of statelessness has not only continued to subsist, rather, propagated to monstrous proportions across the globe. Increasingly concerning is the fact that impetus to the evil of statelessness in majority instances is predicated on severe crimes against humanity, such as genocide, persecution, mass extermination, ethnic cleansing, etc. Undoubtedly, though, sporadic States around the world have presently consummated or acceded to deliver their commitments under the international laws and conventions to minimise the occurrence of statelessness and its consequent ill-effects, however, despite their tenacious endeavours, neither has the leviathan of statelessness been exterminated, nor the plight of those persistently enduring under its talons and fangs, truncated. Consequently, extremely barbaric and merciless incidents of human extermination and banishment continue unabated across several regions of the world, leading to millions of individuals being rendered stateless, without a refuge, protection, sanctuary or any hope thereof, forthcoming from any part of the world.

Genocide and ethnic cleansing: Grave crimes against humanity

The term “genocide” is commonly understood as[23] “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, which may manifest in the form of assassination or causing serious bodily or mental harm to members of a group; deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and/or forcibly transferring children of the group to another group. Similarly, “ethnic cleansing”, though, not specifically defined under the international law, connotes, coercive means[24] such as “mass murder, torture, rape and other forms of sexual assault; severe physical injury to civilians; mistreatment of civilian prisoners and prisoners of war; use of civilians as human shields; destruction of personal, public and cultural property; looting, theft and robbery of personal property; forced expropriation of real property; forceful displacement of civilian population”, devised to remove civilian population from given area, often with an intent of making a region ethnically homogeneous. Unfortunately, history is replete with episodes of mass genocide, ethnic cleansing, etc., being continually adopted as means of extermination of countless individuals or subjecting them to grave outrages. It is, as a matter of fact, difficult to envision anyone who is not aware of the extreme savagery administered by the Nazi regime on the population of Jews during the period in and around the Second World War i.e. early to mid-twentieth century. Sorrowfully, the ravages and ill-effects of this dark-era are still being endured by millions of people and families around the globe. Agonisingly, the repercussions of Hitler regime were so striking that the concepts of genocide and crimes against humanity[25], “came about as a reaction to the horrors committed by the Nazis during the Second World War–genocide being more particularly associated with the holocaust”. Though, the Nazi crimes should have proved to be of everlasting deterrence for generations of human beings, however, owing to several incoherent reasons, regrettably, human annihilation and bloodbath perseveres as a melancholic reality.

Woefully, and as another exemplification of this madness and delinquency, during the period between the months from April to July 1994, vast majority of members of the Tutsi minority ethnic group, as well as some moderate Hutu and Twa, were senselessly massacred by the Rwanda armed militias. While chronicling the severity of atrocities administered on children during this period, Human Rights Watch[26], observed,

[t]hose who planned and executed the genocide of 1994 violated children’s rights on a massive scale. Not only did they rape, torture, and slaughter children along with adults in massacre after massacre around the country. Carrying their genocidal logic to its absurd conclusion, they even targeted children for killing – to exterminate the “big rats”, they said, one must also kill the “little rats”. Countless thousands of children were murdered in the genocide and war. Many of those who managed to escape death had feared for their own lives, surviving rape or torture, witnessing the killing of family members, hiding under corpses, or seeing children killing other children. Some of these children now say they do not care whether they live or die.

Unfortunately, these incidents are not only recurrent manifestations of grave hatred against fellow individuals, solely on the basis of race, cast, ethnicity, etc., rather, the savagery and extreme brutality of the manner in which the propagandist implement their nefarious designs, befittingly, designate them as nothing less than crimes against the entire human race.

Genocide Convention: Dawning of a new era-hassle recognition and management

Markedly, while appreciating that genocide is a crime under international law and contrary to the spirit and aims of the United Nations necessitating condemnation by the civilised world, the General Assembly of the United Nations, approved and proposed for signature and ratification, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) on 9-12-1948[27]. Pertinently, the said Convention was conceived largely in response to the Second World War and the adoption thereof is often acknowledged as[28], “a crucial step towards the development of international human rights and international criminal law as we know it today. It was the first human rights treaty to be adopted by the General Assembly of the United Nations and signified the international community’s commitment to “never again’ after the atrocities committed during the Second World War”. Laudably, Article II of Genocide Convention not only defines the term, “genocide”, rather, Article III thereof further provides that the acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide shall all, be punishable as offences. Further, strikingly, Article IV of the Genocide Convention ensures that the persons committing genocide or any of the other acts enumerated in Article III thereof shall be punished, notwithstanding the fact, “whether they are constitutionally responsible rulers, public officials or private individuals”. Additionally, Article VII of the said Convention excludes the offences delineated therein from the definition of political crimes for the purpose of extradition. In fact, Article VII of the Genocide Convention encumbers and obliges the contracting States thereof to grant extradition, in accordance with their laws and treaties in force under, “such circumstances”. Concomitantly, Article VIII of the Genocide Convention empowers any contracting party thereof to call upon any of the competent organs of the United Nations to take, “such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III”. Further strikingly, the method of dispute resolution, between the contracting parties to the Genocide Convention in relating to the interpretation, application or fulfilment of terms/commitments thereof, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, by the invocation of jurisdiction of the ICJ, is stipulated under Article IX of the said Convention.

Imploration for safety delivery and waning commitment of nations

Appositely, the ICJ, while dealing with the provisions under the Genocide Convention, inter alia, avowed[29] that the, “Contracting Parties are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III. Thus if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred.” Subsequently, the UNHRC in the year 2015[30], while inter alia, reaffirming the significance of the Genocide Convention as an effective international instrument for the prevention and punishment of the crime of genocide, reiterated the responsibility of each individual State to protect its population from genocide, “which (responsibility) entails the prevention of such a crime, including incitement to it, through appropriate and necessary means”. Additionally, the States that had not, till then, ratified or acceded to the said Convention were urged to ratify or accede to the Genocide Convention as a matter of high priority and, wherever necessary, to enact national legislation in conformity with the provisions thereof. UNHRC simultaneously, implored States to, “deter future occurrences of genocide, to cooperate, including through the United Nations system, in strengthening appropriate collaboration among existing mechanisms that contribute to the early detection and prevention of massive, serious and systematic violations of human rights”.

Markedly, in another instance, the Independent International Commission of Inquiry on the Syrian Arab Republic (Commission) in its report[31], while reckoning and delving into multiple crimes against humanity, genocide, war crimes, etc., committed by the Islamic State of Iraq and Al-Sham (ISIS) against the Yazidis, observed, “[l]ike all genocides, it is born of the warped thinking that the world, as the perpetrators understand it, would be better without a particular group of people in it and that by doing the work of destroying what they consider impure, the perpetrators are creating a more perfect society.” Accordingly, the Commission endorsed several recommendations to United Nations Security Council, Governments of Syria Arab Republic, Iraq and the Kurdish Regional Government, international community, etc., inter alia, to ensure the release of captive Yazidis; protect the pre-existing Syrian Yazidi community from attack; investigate and prosecute ISIS members involve in crimes, perpetrated in Syria against the Yazidis; recognise ISIS’s commission of the crime of genocide against the Yazidis of Sinjar; accelerate processing of asylum applications of Yazidi victims of genocide; etc. Deplorably, despite such recommendations, crimes against the Yazidis’ community continue unabated, replete with countless reminiscence of abominations and grave atrocities against men, women and children, separated from their families or abducted, forced into sexual slavery, massacred, and so forth. Increasingly dismal actuality seems to be a sheer and apparent failure of civilised societies and the contracting parties to the Conventions and Covenants of like-kind to deliver their oath of sanctuary and refuge to the masses, most of whom claim their ties and allegiance with such nations. Irrefutably, it is the withdrawal of States and civilised nations from their commitments to acknowledge the acts of such viciousness and massacre, owing to nothing less than an extremely perverted thought process, which provides an impetus to the perpetuation and continuance of such crimes against human race.

Memoir of Rohingyas: A tale of horrors and despondence

Regrettably, notwithstanding the existence of countless disconsolate recollections of horrors, several indelible incidents of bereavement and numerous international commitments aimed towards the eradication of the monsters of genocide and ethnic cleansing, these abominations persevere to rear their ugly heads from time to time. Incontestably and forlornly,  this time, in form of transgression and mass extermination of the Rohingya people of Myanmar/Burma[32] (Rohingyas), primarily, residents of the Rakhine State of the country. Inconsolably, the memoir of Rohingyas is one brimming with infinite chronicles of travesties and cataclysms, precipitated by those in whom the community placed their trust for aegis and tutelage. The scarred and brutalised community of Rohingyas, unfortunately, owns a legacy of enduring paramount savagery, cruelty and sadism that is bequeathed to succeeding generations from quite early in their existence. Instead of stories of hope, love and kindness, sadly, Rohingya toddlers are compelled to be prepared for the worst and manoeuvre strategies for sustenance in extremely docile surroundings. Further, besides been deprived of their nationality and identity, these individuals are compelled to bear constant resentment from their peers, neighbours, etc. Sadly, Rohingyas are often denominated[33] with awfully degrading and spiteful expletives such as, “poisonous plants”, “catfish” and a “black tsunami” and oft-times accused of conducting a “slow invasion” to the country. Needless to mention that such prejudice emanates not only from the general public of the country, rather, from its top officials, consuls, etc. Sadly, in one such instance, Ye Myint Aung, Consul General of Myanmar in Hong Kong, while addressing a letter[34] to the heads of Mission, Consul Corps, Hong Kong and Macau SAR, brazenly, remarked, “[i]n reality, Rohingya are neither ‘Myanmar People’ nor Myanmar’s ethnic group. You will see in the photos that their complexion is ‘dark brown’. The complexion of Myanmar people is fair and soft, good looking as well.” Grievously, those who endeavour to raise their voices against such resentment and bitterness are mercilessly deprived of their homes, possession and in majority instances, lives. In variance, the so-called “fortunate” enough to escape such enduring desecrations and scarring of bodies and minds alike from extreme gruesome acts of murders, violence, rapes, arson, etc., are extorted to live a nomadic life, fending for basic necessities of life and escaping threats of incumbent demise of self or one or the other surviving family members on an everyday-every second basis.

Significantly, the United Nations Secretary-General, António Guterres, on his visit to Cox’s Bazar, Bangladesh, remarked[35], “… the Rohingya population was… extremely discriminated against, very probably the most discriminated population in the world”. Similarly, in one of its publications,[36] Human Rights Watch, noted, “Burmese authorities have systematically persecuted the Rohingya, a Muslim minority who live primarily in western Arakan State, for more than 30 years….” However, despite international consciousness of tribulations of Rohingyas and ubiquitous censures and condemnation of the Burmese regime, sadly, hardly any assistance is forthcoming from the worldcommunity for the elevation of the plight of these individuals and for the suppression of perilous crimes against the community.

Enactment of 1982 citizenship law and the sequential intensification of Rohingyas’ quandaries

Ominously, though, the Rohingyas of Burma have been shadowed with misfortune as early as 1970s[37], however, their repression, lamentably, gained acute momentum around the year 1982, with the enactment of the Burma Citizenship Law[38](1982 Citizenship Law). Considerably, at the said point in time, Burma was under the regime of General Ne Win, who was reigning over Burma as its military dictator and by which time, the country had adopted a new Constitution[39]. Pertinently, under its earlier citizenship laws, especially under the Union Citizenship Act, 1948 (the Union Citizenship Act), all those persons who were designated as citizens under Sections 11(i), (ii) and (iii) of the (earlier) Constitution of the Union of Burma, 1948(1948 Burmese Constitution) or entitled to elect for citizenship under Section 11(iv) thereof and were granted a certificate of citizenship under the Union Citizenship (Election) Act, 1948 (Citizenship Election Act); or individuals conferred with a certificate of naturalisation or citizenship or a status of ‘citizen(s)’ under the Union Citizenship Act were entitled to, “continue to be a citizen of the Union, until he or she loses that status under the provisions of this Act”. Simultaneously, as per Section 4(2) of the Union Citizenship Act, “[a]ny person descended from ancestors who for two generations at least have all made any of the territories included within the Union[40] their permanent home and whose parents and himself were born in any of such territories” was deemed to be a Burmese citizen. Notably, the incidents and rights accruing out of citizenship till that point in time were further, contemplated to be uniformly available to all such individuals as per Chapter II[41] of the 1948 Burmese Constitution. However[42], with the enactment of the 1982 Citizenship Law, the thitherto observed single citizenship status of the (then) “nationals” with a consistent set of rights, irrespective of the mode by which citizenship had been acquired, was arbitrarily and instantaneously substituted with three categories of citizens i.e. citizens by birth[43] or by race/ethnicity[44] (true or pure blood nationals); associate citizens[45] and naturalised citizens[46]. Furthermore, though Sections 30[47] and 53[48] of the 1982 Citizenship Law, shockingly, qualified the enjoyment of rights by associate and naturalised citizens, respectively, to certain exceptions, which may be stipulated by the Council of State[49] from time to time, however, no such embargo was envisioned under the said enactment for the enjoyment of rights by persons designed as Burmese citizens by virtue of their birth or ethnicity (“true or pure blood citizens”). Markedly, as per Section 3 of the 1982 Citizenship Law, “Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period anterior to 1185 BE, 1823 AD.” were denominated as Burmese citizens. At the same time, Section 4 of the said enactment empowered the Council of State to decide whether any ethnic group could be termed as a Burmese national or otherwise. Further, as per Section 5 of the 1982 Citizenship Law, for a person to be christened a citizen by birth, both the parents of such an individual were required to be the nationals of Burma. Correspondingly, only the foregoing categories of individuals were designated as citizens or “true-citizens” under the 1982 Citizenship Law and for the remaining individuals, limited citizenship rights under the denomination of “associate” or “naturalised” citizen(s) was envisioned. Therefore, clearly, while on one hand, ethnicity was made the basis of acquisition and denomination of true citizenship rights of the country, on the other hand, entitlement of deemed citizenship was abolished under the 1982 Citizenship Law.

General Ne Win’s declaration: A web of trickery and duplicity

Significantly, an insight into the impetus and objectives behind the enactment of the 1982 Citizenship Law may be derived from the speech of General Ne Win in a meeting held on 8-10-1982[50]. Relevantly, in his speech General Win outrightly professed Burma to be a nation, which was composed of only “true nationals” or “pure blood citizens” prior to 1824 and it was only pursuant to series of subsequent annexation or dominion under foreign rule(rs), the population of country, at the time of its independence in 1948, was professed to comprised of nationals/pure bloods, guests, issues of unions between nationals and guests and issues from unions between guests and guests. Regrettably, General Win, at the same time, while expressing serious doubts and grave prejudice towards any individuals who did not align with the “true national” status, evinced a yearning to rebuild a nation of true and pure blood, inter alia, by the means of the 1982 Citizenship Law and under a declaration,“[r]acially, only pure-blooded nationals will be called citizens” and that limited citizenship rights would be conferred to the remaining persons.

In furtherance of such propaganda, it was further elucidated by General Win that with the enactment of the 1982 Citizenship Law, “citizenship will… be granted in three categories (i) citizens; (ii) eh-naing-ngantha; (iii) naing-ngan-tha-pyu-khwint-ya-thu.”As per Ne Win, eh-naingngan-thaand naing-ngan-tha-pyu-khwint-ya-thucomprised of individuals who came as guests to Burma prior to its independence in 1948 and eventually could not go back, having decided to reside in the country for the rest of their lives. The distinction, if any, between these two denominations was further expounded to lie in the fact that while the former individuals had already applied for citizenship under either the Union Citizenship Act or Citizenship Election Act, at the time of enactment of the 1982 Citizenship Law, the latter group failed to do so, out of ignorance or otherwise. Lamentably, while further expressing serious apprehensions regarding the conduct of eh-naing-ngantha, General Win justified his assertion by observing,

… we accept them as citizens…But leniency on humanitarian ground cannot be such as to endanger ourselves…. We are aware of their penchant for making money by all means and knowing this, how could we trust them in our organisations that decide the destiny of our country? We will therefore not give them full citizenship and full rights. Nevertheless, we will extend them rights to a certain extent. We will give them the right to earn according to their work and live a decent life. No more.

Unmistakably, General Ne Win’s avowal determined that the innate principle behind the enactment of the 1982 Law was to segregate people on the basis of race and ethnicity and, eventually, to pave way for atrocities which were to, sadly, follow against the communities and individuals, not conforming with the “pure or true-blood” tag. Ludicrous, General Ne Win, despite being cognizant of the serious repercussions of his declaration and the said new law on citizenship, as an exemplification of his extreme duplicity, cautioned the so-called true Burmese citizens that “they should not treat such persons arrogantly, saying they came from abroad or they are guests, but should realise that one day they will become one with us and all will be travelling in the same boat”. Appreciably, such declaration explicitly reinforced the fact that General Win was well aware of the horrors that were to follow the enactment of 1982 Citizenship Law. Nevertheless, the country went ahead with the enactment of the 1982 Citizenship Law and, subsequently the stringent implementation of the provisions thereof.

Loss of citizenship and subjection to systemic persecution: Rohingyas’ double jeopardy

Palpably, notwithstanding the sugar-coated assertions by General Ne Win and the seemingly “welfare provisions” under the 1982 Law, agonisingly, with the enactment of the 1982 Citizenship Law, life and reality for millions of Rohingya inhabitants of Burma retrogressed overnight. Firstly, the Rohingyas were intentionally not identified as one of the recognised ethic groups/national races of Burma, out rightly, divesting them from placement under the class of “pure or true blood” nationals. At the same time, unfortunately, the prerequisites for procuring status of associate or naturalised citizenship of Burma had become quite onerous and bigoted, by that time. Needless to mention, concurrently, with the omission to acknowledge the “deemed citizenship” status under the 1982 Citizenship Law, as earlier prevalent under the Union Citizenship Act, Section 6[51] of the 1982 Law too could not be of any recourse to/rescue of the Rohingyas. Distressingly, though, the Rohingyas persistently asserted themselves as one of indigenous races of Burma, having roots in the country from period, way prior to 1823, however, these claims were blatantly rejected by the Burmese Government. In fact, the regime in power designated Rohingyas as trespassers and illegal migrants from neighbouring countries, such as Bangladesh. Unfortunately, the plight and miseries of Rohingyas exemplified astronomically due to the absence of any documentation to substantiate their claims or demonstrate their allegiance with Burma. Accordingly, it goes without saying that while on one hand, Rohingyas were stripped of their identity as nationals of Burma and corresponding rights accruing pursuant to such acknowledgement, contemporaneously, the Government and military of the country proceeded with their orchestrated master plan to evict these individuals from Burma by subjecting them to grave tortures. Evidently, commencing 1982, with the enactment of the Citizenship Law and their consequent loss of status as citizens(hip)[52], “Rohingya have been systematically persecuted and oppressed. They have been particularly targeted for atrocities committed by the Burmese army (the tatmadaw) such as torture, cruel, inhuman and degrading treatment and punishment, extrajudicial killing and summary execution, arbitrary arrest and detention, rape, destruction of homes, forced labour, forced relocation and eviction, and confiscation of land and property.”

Flight of humanity and a forced gypsy life

Consequently, owing to such extreme gruesome acts, the surviving members of the Rohingya community were compelled to flee in haste to foreign lands, such as Bangladesh, India, Thailand, Malaysia, etc., abandoning their country, ties and affinities of relations, property, wealth, etc. As per one of the reports[53] of the Equal Rights Trust, hundreds and thousands of Rohingyas were forced to flee Burma in order to evade repression and persecution to Bangladesh, which has been, “burdened by an ongoing steady flow of Rohingya refugees into the country, and two mass refugee exoduses of about 2,50,000 Rohingya refugees each in 1978 and 1991-1992”. Further, in one of the publications of the Refugees International[54] it was noted, “State-orchestrated violence in Myanmar in 2012 forced the displacement of 140,000 people and the death of more than 200 Rohingya. Since then, more than 1,00,000 Rohingya have fled Rakhine State by boat, and more than 1000 have died during the journey.” Similarly, the Human Rights Watch[55] observed,

… Rohingya have been denied full citizenship rights because the discriminatory 1982 Citizenship Law made it almost impossible for Rohingya to prove their claims to citizenship. In 1991, Burmese security forces again violently expelled hundreds of thousands of Rohingya into Bangladesh…. The Burma Government has refused to accept the term ‘Rohingya’ and refers to them as “illegal Bengalis”.

Subsequently, in the year 2017 pursuant to a study conducted by Amnesty International[56] it was divulged that at that point in time, there were about, “32,000 registered Rohingya refugees in Bangladesh, as well as an estimated 3,00,000-5,00,000 unregistered Rohingya refugees, living mainly in the southeastern Cox’s Bazar District.” Understandably, with the huge influx of Rohingyas to the limited, overcrowded and unhygienic makeshift camps in Bangladesh and the consequent scarcity of basic resources, these individuals were compelled to pursue a sanctuary in other parts of the world, including India. In fact, it is commonly fathomed that the harsh conditions in Bangladesh served as a significant compelling factor for Rohingyas’ migration in India from Bangladesh. This movement was further fueled[57] by the fact that the conditions of living at theBangladeshi camps escalate the vulnerability of women and adolescent girls, either subjecting or threatening them with risks of sexual violence/offences, forced prostitution, forced marriages, human trafficking, etc.

Markedly, taking a note of such nomadic migration of Rohingyas to India, UNHCR in its 2018 publication[58] noted, “[a]s of April 2018 around 17,705 Rohingya refugees are registered with UNHCR in India, in addition to an unknown number who remain unregistered.” However, under the said report, it was bewailed, “Rohingya live across different urban/semi-urban locations in the country. They often live in impoverished slum-like settings in poor sanitary conditions with limited access to water and toilets…. Most Rohingya refugees in India lack skills and are poor, only being able to find low skilled jobs in the informal sector.” According to one of the recent promulgations[59], India as on date, “hosts about 40,000 Rohingya living in camps and slums in many cities and regions, including Jammu, Hyderabad, Nuh and New Delhi.”

 

Fact-finding and unheeded appeals

Exigently, in order to scrutinise the veracity of the allegations of several incidents of human rights violation in Myanmar, UNHRC established an Independent International Fact-Finding Mission on Myanmar (IIFFMM/Fact-Finding Mission) in March 2017. Appositely, the Fact-Finding Mission in its report in the year 2018[60], abysmally, noted, “gross human rights violations and abuses committed in Kachin, Rakhine and Shan States are shocking for their horrifying nature and ubiquity. Many of these violations undoubtedly amount to the gravest crimes under international law. They are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades. They are shocking for the level of denial, normalcy and impunity that is attached to them”. Subsequently, IIFFMM in its detailed findings[61], while inter alia observing that the history of Burma since 1948, “has been marred by decades of armed conflicts between the military, now called the Tatmadaw, and armed organisations based in Myanmar’s ethnic minority regions. Each conflict has invariably entailed widespread killings and injury to civilians, torture and ill-treatment, gender-based violence, forced labour, displacement and restrictions on the use of land and livelihoods, access to education, health services and other basic services, and other severe consequences for the people of Myanmar”, concluded, “on reasonable grounds that the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention”.

In the meanwhile, the United Nations General Assembly adopted a resolution[62] (the 2018 Resolution), inter alia reiterating its concern on the fact that, “in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.” Simultaneously, while expressing extreme disquietude over the continuing reports of serious human rights violations and abuses in the Rakhine State, the Government of Myanmar was urged by the UN to imminently adopt necessary measures to address the spread of discrimination and prejudice and to combat the incitement of hatred against Rohingya Muslims and other persons belonging to minorities; expedite efforts to eliminate statelessness and the systematic and institutionalised discrimination against members of ethnic and religious minorities; dismantle the camps for internally displaced persons in Rakhine State, ensuring that the return and relocation of internally displaced persons is carried out in accordance with international standards and best practices, etc. However, these implorations, failed to deliver any response from Burmese regime or beget any transformation in the conditions of Rohingyas in Burma, as anticipated.

The Gambia v. Myanmar: Rohingya Genocide case

Latterly, the Republic of The Gambia (The Gambia), as a signatory to the Genocide Convention[63] and pursuant to several reports, publications, resolutions, etc., regarding the acts of genocide and ethnic cleansing directed towards the Rohingya community, initiated a proceeding against the Republic of Union of Myanmar (Myanmar/Burma) before the International Court of Justice (ICJ), in terms of Article IX of the Genocide Convention. Appositely, in the said proceedings, The Gambia, while alleging violation and persistent breach of the provisions under Articles I, III(a), III (b), III (c), III (d) & III (e), IV, V and VI of the Genocide Convention by Myanmar, inter alia, prayed for an adjudication and declaration to the said effect. Simultaneously, The Gambia, further entreated ICJ for certain provisional measures against Myanmar, such as, directions refraining Myanmar from the commission of act of genocide, conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group; commandments ensuring that Myanmar shall not destroy or render inaccessible any evidence or the remains of any member of the Rohingya group who was a victim of alleged genocidal acts, etc.

Strikingly, in the said proceedings, ICJ out rightly negated[64] Myanmar’s objection to its jurisdiction under Article IX of the Genocide Convention, inter alia, to the effect that The Gambia had failed to prove any exclusive loss to itself, owing to such alleged violations and further that the instant proceedings were in a nature of “proxy” litigation by The Gambia on behalf of the Organisation of Islamic Cooperation (OIC). In context of the former argument, ICJ, while observing that in view of the shared values of the Contracting States to the Genocide Convention and that all the State parties to the Genocide Convention, “have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity”, held that any State party to the Genocide Convention, “and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to  comply with its obligations erga omnes partes, and to bring that failure to an end”. At the same time, dismissing Myanmar’s latter objection, ICJ noted, “the fact that The Gambia may have sought and obtained the support of other States or international organisations in its endeavour to seise the Court does not preclude the existence between the parties of a dispute relating to the Genocide Convention”. Accordingly, ICJ reached a conclusion that The Gambia has, “prima facie standing to submit to it the dispute with Myanmar on the basis of alleged violations of obligations under the Genocide Convention”.

Findings of ICJ and grant of provisional measures

Further, ICJ, in light of the unearthing in several reports and transcripts of various international organisations and bodies, including the Fact-Finding Mission, conveyed a prima facie opinion regarding a link between, “the rights claimed and some of the provisional measures being requested by The Gambia”. Contemporaneously, while determining a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia, ICJ was pleased to allow certain/indicate certain provisional measures, “for the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof”. Consequently, ICJ while opining, “Rohingya in Myanmar remain extremely vulnerable”, inter alia, directed Myanmar that in relation to the members of the Rohingya group in its territory, the country shall take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, in particular, restraining; “(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group”, etc. Clearly, this determination by ICJ, befittingly, exemplifies an ostensible recognition by the world community of paramount disregard of human rights and grave apathy towards Rohingya community by the Burmese administration.

Notably, these observations of the ICJ are even more valued as earlier, one of country’s top leaders and Nobel laureate, Aung San Suu Kyi, shockingly and audaciously defended Burmese military’s several discernible incidents of genocide, massacre, etc., directed against Rohingyas at the ICJ. Sadly, in her speech[65] Ms Suu Kyi not only intentionally refrained from using the term “Rohingya”, stripping these individuals of their identity and rights, rather, blatantly disputed, The Gambia’s charges, terming them as, “an incomplete and misleading factual picture of the situation in Rakhine State in Myanmar”. Simultaneously, the attitude of country’s general passivity and outright negation of the Rohingyas’ plight became apparent from Aung San Suu Kyi’s comments, “Rakhine today suffers an internal armed conflict between the Buddhist Arakan Army and Myanmar’s Defence Services. Muslims are not a party to this conflict, but may like other civilians in the conflict area, be affected by security measures that are in place. We pray the Court to refrain from taking any action that might aggravate the ongoing armed conflict and peace and security in Rakhine.” Evidently, considering the flagrant indifference of country’s top leaders towards their own nationals, it emerged as no surprise that notwithstanding several unremitting censures, condemnations and reprimands by the world community and numerous international organisations such as, the United Nations and ICJ, there has scarcely been any vicissitude in Rohingyas’ status. Grievously, even as on date, millions of Rohingyas are constrained to endure extreme inhumane and vicious conditions, as refugees in foreign lands, impelled to survive on bare minimum necessities, holding on to the last shreds of their lives. As Mr Phil Robertson, Deputy Director of Human Rights Watch, Asia remarked[66], “These latest satellite images show why over half a million Rohingya fled to Bangladesh in just four weeks. The Burmese military destroyed hundreds of Rohingya villages while committing killings, rapes, and other crimes against humanity that forced Rohingya to flee for their lives.”

Refugee, migrant and stateless: Discerning the heterogeneity

The term, “refugee” under the Constitution of the International Refugee Organisation[67] relates to a person, “who has left, or who is outside of, his country of nationality or of former habitual residence and who, whether or not he had retained his nationality, belongs to one of the following categories: (a) victim of the nazi or fascist regimes or of regimes which took part on their side in second world war,… (b) Spanish Republicans and other victims of Falangist regime in Spain… (c) persons who were considered refugee before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion.”

Similarly, from a conjoint reading of the provisions under Article 1(A)(2) of Convention Relating to the Status of Refugees[68] (the 1951 Refugee Convention) and Article 1(2) of the Protocol Relating to the Status of Refugees[69] (the 1967 Refugee Protocol), refugee denominates any/a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it”.

Clearly, in layman’s term, refugees are individuals who are devoid of sanctuary as well as the protection of their nation and State and who are compelled or opt to cross international borders in fear of persecution, genocide, etc. Pertinently, refugees are in slight variance with the internally displaced persons (IDPs), who, though may be subjected to same or similar atrocities or fears, are unable or elect not to cross a border between States/countries. Concomitantly, refugees are also in variance with migrants[70], who are commonly understood as persons, “who moves from one country to another to live and usually to work, either temporarily or permanently, or to be reunited with family members”. Clearly, the stimulus behind a migrant’s movement is primarily premised on aspirations of better opportunities, in contrast, with that of refugees who are forced to flee from a country/region under a well-founded fear of persecution and the fact that their Government cannot or will not protect them.

Concurrently, it must be appreciated that the persons denominated or classified as “refugees”under the 1951 Refugee Convention may not always coincide with individuals who are classified as stateless persons under international law. Relevantly, in this regard, the New Zealand’s Refugee Status Appeals Authority[71], observed, “[b]eing without a nationality does not necessarily signify persecution under the terms of the Refugee Convention. The definition of a stateless person was, in fact, chosen with the intent to exclude the question of whether the person faces persecution, as there are conflicts of laws issues which might result in statelessness without any wilful act, discrimination or violation on the part of the State.”

Similarly, as per Carol Batchelor[72], “majority of de jure and de facto stateless persons requiring assistance on their nationality status are not, today, refugees”. Therefore, it may be easily conceived that though, statelessness may in certain cases, beget a fear of persecution to individuals, on return to such country of habitual residence, etc.; however, all stateless individuals cannot be casually equated with refugees. In fact, the basis of designation of an individual as a refugee inheres in it, a well-founded fear of persecution in a State where such an individual was habitually resident or even was a national of. Undeniably, it has more to do with a reasonable and a prospective risk of persecution which an individual bears, in contrast with a national denomination, if any. However, regrettably in cases of Rohingyas, the gravity of situation is exemplified prolifically as the community suffers under the afflictions of statelessness and refugee crisis with equal proportions.

1951 Refugee Convention: Endorsement of non-refoulement principle

 

Significantly, there is a prodigious similarity between the provisions under the 1951 Refugee Convention and that under the 1954 Convention and understandably so, for the latter Convention was principally modelled on the basis of the former. However, notwithstanding the close association and relationship between the said two Conventions[73], “both of them are formally and materially independent international treaties: they apply to different groups of persons and grant divergent benefits to them”. Exceptionally, in this regard, reference may be made to the provisions under Article 31(1) of the 1951 Refugee Convention that are designed to confer protection on refugees, from imposition of penalties against illegal entry or presence into the country of refuge, “who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

Further, as per Article 31(2) of the said Convention, the contracting States thereof are prohibited to apply restrictions on the movements of such refugees, other than those which are necessary and ensuring, “such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country.” In fact, Article 31 of the 1951 Refugee Convention obligates the contracting States to afford refugees a reasonable period and all the necessary facilities to obtain admission into another country. Another noteworthy provision under the 1951 Refugee Convention pertains to the prohibition of expulsion or return of refugees by contracting States, under the situations as envisaged under Article 33 thereof, embracing the principle of “non-refoulement”.

In this regard, Article 33(1) of the 1951 Refugee Convention provides, “No contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” However, an exception to the said rule is encapsulated under Article 33(2) of the said Convention, inter alia, to the effect that the benefit of the principle of non-refoulement may not be claimed by or accrue upon a refugee against whom there are reasonable grounds for being regarded as a danger to the security of the country in which he is, or who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.

Aside from these variations, the 1951 Refugee Convention, akin to the 1954 Convention, makes provisions regarding the protection of rights of religion, continuity of residence, association, access to courts, gainful employment, etc., of the refugees. At the same time, Article 38 of the 1951 Refugee Convention, stipulates, “Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.”

 

Non-ratification of Refugee Convention/Protocol and lack of refugee policy in India

 

Outstandingly, as on date, one hundred and forty-six nations around the world have acceded to the provisions under the 1951 Refugee Convention and one hundred and forty-seven nations, signed the 1967 Refugee Protocol. Additionally, in furtherance of their commitment under the said Convention and Protocol, laudably, various countries have enacted laws to incorporate the provisions thereof under their respective domestic legislations. Illustratively, the Republic of Ireland enacted the Refugee Act, 1996[74], inter alia, containing provisions relating to the extension to refugees of certain rights; dictates governing grant of travel documents and prohibition of refoulement, etc., under Sections 3, 4 and 5, respectively, thereof.  Unquestionably, the pre-eminence of the provisions under the 1951 Convention and 1967 Protocol cannot be overemphasised. However, despite the widespread realisation about the significance thereof, India has lamentably remained to be one of few countries, which has till date, failed to ratify these provisions. Though, the inherent reasons of India’s reluctance to endorse the provisions under the said Convention/Protocol are undocumented, however, as per some authors[75], the country’s reservation primarily stems from the restricted meaning assigned to the term “refugee” under the 1951 Refugee Convention; a reasonable fear/threat to India’s sovereignty in light of the provisions under Article 35 thereof, etc.

However, notwithstanding its rationale behind the non-ratification of the said provisions, India has always remained in the forefront, offering sanctuary and protection to millions of refugees who find themselves in the country, permeating its porous borders. In fact, it is well renowned and documented that with the partition of country in the year 1947, there was a huge influx of refugees and asylum seekers from Pakistan, who found sanctuary in India. Similarly, in the year 1959, India was quite forthcoming in offering haven to Dalai Lama and the massive influx of Tibetan refugees who migrated to India in view of the Chinese invasion. In another illustration, the Chakmas and Hajongs, who were displaced from the area that became a part of East Pakistan (now Bangladesh)on the construction of Kaptai Dam, around 1964-1969, were allowed to be rehabilitated in India under the decision of its then prevailing Government. Correspondingly, India granted asylum to several Tamils from Sri Lanka in an around the years 1983-1995, Afghans in the year 1980, etc. Conspicuously, as per one report[76], at the end of 1999, “more than 2,92,000 refugees were living in India, including 1,10,000 from Tibet (China), 1,10,000 from Sri Lanka, 42,000 from Burma, 15,000 from Bhutan, 14,500 from Afghanistan, and more than 400 from other countries. Sixty Afghans repatriated from India in 1999.”

Further, the UNHCR[77], has resolutely avowed that despite India, not being a signatory to the 1951 Refugee Convention, 1967 Refugee Protocol and a lack of any national refugee protection legislation in place in the country, “has a long-standing tradition of hosting refugees and the Government largely respects the principle of non-refoulement”. At the same time, the Supreme Court of India[78] (Supreme Court)while appreciating the factum of lack of a refugee policy and statutory provisions regarding the same in India, nevertheless, acknowledged, “refugee status can be granted and has been granted in India through executive orders passed by the Central Government”.

Indian constitutional provisions and country’s commitment towards international law

Undoubtedly, though legislation would have gone a long way in explicitly itemising and enumerating the rights of refugees in India, however, even in the absence of such an overt law, the Indian Constitution[79] (Constitution) envisions ample safeguards to secure the rights of every person(s), including that of expatriates who traverse through international borders, seeking a sanctuary in the country. Strikingly, in this regard reference may be made to the provisions under Article 14 of the Constitution[80], which obliges the State, “not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Simultaneously, Article 21 of the Constitution[81] provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Further, Article 20 of the Constitution guarantees protection to all persons from the retrospective operation of penal laws (expost facto law), besides conferring fortification against double jeopardy and self-incrimination. Similarly, protection against arrest and detention and rights to freedom of conscience, free practice and propagation of religion, etc., are conferred to all persons, whether citizens or not of the country, under Articles 22 and 25-28, respectively, of the Constitution[82]. The enforcement of these rights, in turn is sheltered under the provisions of Article 32 of the Constitution[83], vesting right on any aggrieved persons to move the Supreme Court of the country by means of appropriate proceedings.

Additionally, Article 51(c) of the Constitution[84] endeavours State to, foster respect for international law and treaty obligations in the dealings of organised peoples with one another”, besides Article 253 of the Constitution[85] empowers Parliament of the country to, “make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”.

Remarkably, the Supreme Court, acknowledging India’s commitment towards the world community and human rights issues has persistently stimulated the courts across the country to dynamically adopt the principles and rules of international law in appropriate cases, in accordance with the principles of comity of nations, unless their adoption and espousal is overridden by the clear rubrics of domestic law. As per the Supreme Court[86],

  1. 58. … If Parliament has made any legislation which is in conflict with the international law, then Indian courts are bound to give effect to the Indian law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.

In fact, in light of this guiding principle, there have been several instances where the Indian courts have been extremely enterprising in taking aid, assistance and recourse to several international conventions and norms to fill in the lacunae under the India’s domestic law and to meet the exigent societal and humanitarian demands. Illustratively, the Supreme Court in Vishaka v. State of Rajasthan[87], while articulating measures to contain the evil of sexual harassment at workplace, exemplified the imminence of international conventions and norms as guiding canons, in the absence of domestic laws governing a field. Verily, in the instant case, the Supreme Court reiterated,

  1. 7. … [a]ny international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.[88]

Declarations to similar effect have subsequently been rendered by various courts across the country, seeking recourse to international covenants, conventions and treaties, whether ratified or not by India, in cases where the provisions thereof were not found  to be in conflict with the extant Indian laws. Clearly, in light of the repeated declarations by the Supreme Court, it is quite understandable that despite the absence of domestic legislation pertaining to refugees in India, the principles enshrined under the international covenants/conventions/norms, whether ratified or not, could have and have, in fact, often been invoked by the Indian courts to confer aegis and security to refugees.

State’s refugee policy: Aggravation of refugees’ disconcertment

Insofar as the policy of the Indian Government regarding refugees is concerned, the provisions under the Passport (Entry into India) Act, 1920[89]; the Passports Act, 1967[90]; the Registration of Foreigners Act, 1939[91]; the Foreigners Act, 1946[92]; the Foreigners Order, 1948[93]; the National Security Act, 1980[94]; etc., have often been espoused by the Central and State Governments to determine upon the issues regarding the entry, stay and expulsion of such individuals. Appreciably, reference in this regard may be made to Section 2(a) of the Foreigners Act, 1946[95] which defines “foreigner” as a person who is not a citizen of India. Further, Section 3(1) of the said enactment[96] empowers the Central Government of India (Central Government) to make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, “for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.”

Conspicuously, Section 14 of the Foreigners Act, 1946[97], inter alia, penalises the contravention of the provisions of the said enactment or of any order made thereunder or any direction given in pursuance thereto with imprisonment for a term which may extend to five years along with fine. Similarly, the Registration of Foreigners Act, 1939, while providing an identical definition of foreigner under the said enactment, confers power on the Central Government to make rules, inter alia, requiring any foreigner entering, or being present in or about to leave India to report his presence or the date of his intended departure, as the case may be, to a prescribed authority within such time and in such manner and with such particulars as may be prescribed. As per Preamble to the said enactment, the provisions thereof are aimed towards, “registration of foreigners entering, being present in, and departing from India”.

Further, the Passports Act, 1967, inter alia, provides for the issuance of passports and travel documents; procedure to regulate departure from India of citizens of India and other persons, etc. Significantly, Section 20 of the said enactment confers a power on Central Government to, “issue, or cause to be issued, a passport or travel document to a person who is not a citizen of India if that Government is of the opinion that it is necessary so to do in the public interest”.

Notably, the provisions under the Passports Act, 1967 attain gravity when read in light of that enumerated under the Passport (Entry into India) Act, 1920, conferring power on Central Government to may make rules requiring that persons entering India shall be in possession of passports, etc. Similarly, provisions related, inter alia, to the Central and State Government’s power to make orders detaining certain persons; regulation of place of detention; revocation of detention orders; etc., are envisaged under the National Security Act, 1980.

Perceptibly, the Supreme Court has time and again upheld the validity of these enactments, besides highlighting the prominence thereof. In one such instance[98], the Supreme Court, while conjointly reading the provisions under the Foreigners Act, 1946 and the Constitution, observed,

  1. [t]he Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.[99]

Undoubtedly, the significance of these enactments cannot be overstated for their provisions are primarily aimed towards ensuring the safety and security of country and even more so, to tackle the problem of illegal migrants in India. However, when the provisions under these enactments have been mindlessly applied to the refugees, experience has shown that the same have, lamentably, proved to be grossly inadequate to account for the difficulties faced by these personages and bestow adequate respite to their travails. Increasingly agonising is the fact that the Government, while taking recourse to the provisions under these legislations usually fail to appreciate the fact that these enactments do not distinguish between refugees, foreigners and illegal migrants, usually, treating them alike. In fact, in majority of such instances, it is brazenly disavowed that perplexities of refugees are primarily dictated by the doctrine of necessity, in contrast with any intention or a ploy on the part of these individuals to jeopardise the safety and security of the country of retreat.

Needless to state that in the absence of discrete statutory provisions regarding refugees in India, these enactments have proved to be a source of extreme hardships and perturbations to several classes of these individuals. Further, though these enactments were passed in furtherance of momentous objectives, however, deplorably, their provisions have every so often been misused and discriminatorily applied by the Indian Government, aggravating the quandaries and disconcertment of refugees.

Indian courts as guardians and saviours of refugees’ rights: Traversing beyond statutory realms

Notwithstanding the often capricious and desultory government policies and subterfuges to deal with refugees, felicitously, in several instances, the Indian courts have traversed beyond the statutory realms, pivoting on the constitutional provisions and international regimes to determine the fate of these individuals. Outstandingly, in majority of such instances, the courts have bestowed their patronage to refugees notwithstanding an adamant and unswerving attitude of the governments to hurl refugees out of the country by strictly and mindlessly invoking the provisions under the existing laws on foreigners, passport, detention, etc.

In fact, on several occasions[100], the Supreme Court has been extremely spirited in granting interim protection to the refugees against deportation, police custody and detention, etc. Contemporaneously, the Court has oft-times asserted[101] that the protection conferred under Article 21 of the Constitution[102] is available not only to every citizen of the country, rather also to persons who may not be Indian citizens. In this regard, the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh[103], while resorting to the provisions under Articles 14 and 21 of the Constitution, observed,

  1. 20. [w]e are a country governed by the rule of law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise….

Similarly, the Supreme Court, whilst accentuating that a foreigner’s right to life in India including a right to live with human dignity, avowed[104],

  1. even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions. They also have a right to “life” in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.

 

However, the Supreme Court has, simultaneously, asserted and cautioned that the foreigners though conferred with the protections as envisaged under Article 21 of the Constitution, are, however, not entitled to claim a right of residence or settlement in any part of India. In fact, in this regard, it has been persistently explicated by the  Court[105],

“fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country”.

Non-refoulement: Inherent in Article 21 of the Indian Constitution

Impressively there have also been several instances where the Indian courts have interpolated the principles of non-refoulement within the ambit of fortifications conferred under Article 21 of the Constitution. Illustratively, the High Court of Gujarat in Ktaer Abbas Habib Al Qutaifi v. Union of India[106] outrightly pronounced that the principle of non-refoulement is encompassed in Article 21 of the Constitution of India. As per the Court,

  1. …principle (of non-refoulement) prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India….

 

Similarly, High Court of Delhi in Dongh Lian Kham v. Union of India[107], observed,

  1. [t]he principle of “non-refoulement”, which prohibits expulsion of a refugee, who apprehends threat in his native country on account of his race, religion and political opinion, is required to be taken as part of the guarantee under Article 21 of the Constitution of India, as “non-refoulement” affects/protects the life and liberty of a human being, irrespective of his nationality. This protection is available to a refugee but it must not be at the expense of national security.

Following suit, the High Court of Manipur in Nandita Haskar v. State of Manipur[108] iterated that the far-reaching and myriad protections afforded by Article 21 of Constitution encompasses the right of non-refoulement, “albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or adverse to the security of this country.” In fact, in the instant case, while granting interim protection (safe passage) to the Rohingya refugees to approach the office of UNHCR at Delhi, the Court clarified that though, India may not be a signatory to the 1951 Refugee Convention, however, its obligations under various other international declarations/covenants, read with the provisions under Article 21 of Constitution, “enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere”.

In a similar vein, reference may be made to the decision in State v. Chandra Kumar[109], wherein one of the District Courts in the country held,

“principle of non-refoulement is a part of customary international law, and binds India, irrespective of whether it has signed the convention on refugees or not inasmuch as it is a party to other Conventions which contain the principle of non-refoulement.”

Rohingyas’ predicament, natheless Supreme Court’s closefisted approach: Mohd. Salimullah case

Unquestionably, appreciating the indispensability of non-refoulement principle, it seems quite reasonable that this ideology has been read into the provisions of Article 21 of the Constitution by the various High Courts and trial court(s) of the country from time to time. However, lamentably, the Supreme Court, in its recent decision in Mohd. Salimullah v. Union of India[110](Mohd. Salimullah case) has expressed a diametrically opposite perspective, adopting an extremely regressive and closefisted approach.

In fact, in the instant case while deciding on a prayer for interim relief by Rohingya migrants/refugees in India, the Supreme Court, untroubled and unsympathetically, remarked, “[r]egarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.” In fairness, though the Court reiterated that the protections under Articles 14 and 21 of the Constitution are available to all persons who may or may not be citizens, however, peculiarly, accorded supremacy to the provisions under Article 19(1)(e)[111] of the Constitution over these provisions by iterating that the foreigners cannot claim residence in India as a matter of right. Inconsolably, while denying the urgent prayer of Rohingyas against deportation by the Indian authorities, the Supreme Court not only failed to observe its responsibility as a guardian of rights, rather, outwardly negated to acknowledge the plight these personages. Concomitantly, while reaching its conclusions the Supreme Court further did not even discuss several earlier decisions of various courts wherein non-refoulement was affirmed to be inherent under Article 21 of the Constitution and simultaneously therein, the courts had expressed their inclination to apply the principles of international law in appropriate cases, to satiate exigent needs. Increasingly, bizarre was the fact that the Court’s observations in the instant case seem to be influenced by the government’s contention that the presence of Rohingyas in India would result into a threat to country’s internal security, besides providing an impetus to touts and agents to assist illegal immigrants in procuring a safe passage to the country. The same is manifested from the fact that the Court in one of its concluding remarks/passages in its orders recorded such contentions, though deliberately refrained from rendering any observations and independent finding thereupon, cognizant of the aspect that the proceedings in the instant case were at an interim stage and that no tangible evidence in favour of government’s said contentions was forthcoming. Needless to say, the decision of Supreme Court in Mohd. Salimullah case[112] has created waves and come under a lot of criticism and disapproval from those within and outside the legal fraternity, inter alia, on a rationale that despite India’s impressive past record of welcoming refugees, the Court’s reticence to exercise its jurisdiction in favour of Rohingyas has virtually determined the fate of these individuals for the worst. Simultaneously, it is objurgated by such critics that despite the hitherto enthusiasm of the Indian courts to adopt an altruist and humanitarian approach, Supreme Court’s exposition in this instance has, in effect, obliterated the judicial headway achieved till date and turned the wheels of progression rearwards. Per contra, proponents favouring this dictate have legitimised their beliefs on the ground that the right of deportation, being an exclusive domain and discretion of government, cannot be fettered on foreigners’ trifling fear of persecution abroad. At the same time, it is advocated by such exponents that repatriation of foreigners from India per se does not amount to a violation of these individuals’ right to life and liberty, which is environed within and sheltered only to the extent of such immigrants’ legal permissible presence within the country. Obviously, akin to the Supreme Court, these averments are sought to be further fortified by taking recourse to the provisions under Article 19(1)(e) of the Constitution, asserting that residence in India cannot be claimed as a matter of right by anyone except Indian citizens. However, considering the all-embracing and recurrent past proclamations by the various courts, including the Supreme Court, these rationalisations seem to fall flat as antagonistic to not only the provisions of Indian Constitution, rather to the country’s obligations under several other international conventions, treaties, etc., other than the provisions under the 1951 Refugee Convention. At the same time, the arguments in favour of the Supreme Court’s avowal fail to discern that the extant law cannot be envisaged as “procedure established by law” under Article 21 of the Constitution as none of said laws deal with the refugees.

Principle of non-refoulement: Not exclusive to 1951 Refugee Convention

Markedly, the principle of non-refoulement is not exclusive to the 1951 Refugee Convention. In fact, analogous to the provisions under Article 33(1) of the 1951 Refugee Convention, Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[113] (Convention against Torture) provides,

“No State party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture[114].”

Similarly, Article 13 of the International Covenant on Civil and Political Rights[115] (ICCPR) stipulates,

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

The principle of non-refoulement is further recognised by the UNHCR as a part of the international customary law, inter alia, under an observation[116],

[t]he view that the principle of non-refoulement has become a rule of international customary law is based on a consistent practice combined with a recognition on the part of States that the principle has a normative character. This conclusion is supported by the fact that the principle has been incorporated in international treaties adopted at the universal and regional levels to which a very large number of States have now become parties.

In furtherance to this declaration by UNHCR, it is often supposed[117] that being a part of the customary international law, the States are bound by the principle of non-refoulement, “whether or not they are party to the Convention relating to the Status of Refugees”. Significantly, India ratified the provisions of the ICCPR in the year 1979 and is a signatory to the Convention against Torture. Therefore, as a ratifying and a signatory State to the provisions of the respective conventions, the country is obligated to act in consonance with the objectives of the said Conventions, by bestowing adequate concession to the principle of non-refoulement. Even otherwise, when the said ideology is palpably accepted as a part of customary international law, India cannot shirk from its responsibility of endowing a fair and reasonable veneration thereto. This is especially true when the Supreme Court[118] of the country has time and again asserted that rules of customary international law, which are not contrary to the municipal law, shall be deemed to be incorporated in the domestic law. Wherefore, taking into account all these elements the inherent shortcomings in the observations of the Supreme Court in Mohd. Salimullah case[119] are quite discernible. Despite the same, till the time these observations of the Supreme Court are set aside or clarified by a lager Bench of the Court, mournfully, the same would persevere to serve as steering guidelines for any forthcoming litigation on similar lines, leading to serious ramifications in coming times.

The Asylum Bill, 2015: Fervent endeavour towards statute enactment

 

Interestingly, in the year 2016, the Asylum Bill, 2015[120] (the 2015 Bill) was introduced in one of the houses of the Indian Parliament, inter alia, aimed to provide for the “establishment of an effective system to protect refugees and asylum seekers by means of an appropriate legal framework to determine claims for asylum and to provide for the rights and obligations flowing from such status”. Significantly, Section 2(1)(u) of the 2015 Bill defined refugee to mean, “an applicant whose application for asylum has been determined to meet the criteria under Section 4[121] by the Commission or the Appellate Board, as the case may be, under the terms of this Act or who has been declared to be a refugee by a notification under Section 30”.

Further under the said Bill, principle of non-refoulement was explicitly specified under Section 8 thereof, inter alia, to the effect that there shall be no expulsion or return of any refugee present within the national territory of India, in any manner whatsoever to any country where the life or freedom of such persons would be threatened on account of his or her race, religion, sex, nationality, ethnicity, membership of a particular social group or political opinion. Significantly, Section 5 of the 2015 Bill excluded the protection sought to be accorded under the proposed enactment, inter alia, to persons guilty of commission of crime against peace, a war crime or a crime against humanity as defined under any international legal instrument dealing with any such crimes, which India has acceded to; or in case such person has committed a serious non-political crime outside India, prior to his entry into the national territory; or to an individual who has committed inhumane acts for any reason(s), whatsoever, outside of India. At the same time, the persons involved in instigation, abetment or otherwise involved with the commission of said acts or those who pose a serious threat to public order or national security, subject to the riders envisaged under the said section, were denied the protection and sanctuary envisioned under the provisions of the 2015 Bill.

Provisions relating to the rights and duties of the refugees and asylum seeker were further encapsulated under Chapter VII (Sections 35 to 37) of the said Bill. At the same time, appreciating a possibility of a “mass influx situation”, provisions to deal with such contingency were provided under Sections 30 to33 of the said Bill. Laudably, the 2015 Bill incorporated several postulates and fundamentals, compatible with international norms and conventions; however, unfortunately, the same could not be adopted in a statutory format.

Fall of Refugee and Asylum Bill, 2019 and the hastened enactment of the Citizenship (Amendment) Act, 2019

Subsequently, in the year 2019, the Refugee and Asylum Bill, 2019[122] (the 2019 Bill) was introduced in the Upper House of  Parliament, containing similar provisions, inter alia, relating to non-refoulement; exclusion and cessation of refugee status; processing of applications for asylum; etc. Strikingly, Section 8 of the 2019 Bill, while dealing with the principle of non-refoulement, endeavoured to accord protection not only against expulsion, extradition or deportation, rather, also against the refusal of entry into India of person, where as a result of such refusal, expulsion, extradition, deportation, return or other measure, such person is compelled to return to or remain in a country where;

“(a) his life or freedom would be threatened on account of his race, religion, gender, sex, sexual orientation, nationality, ethnicity, membership of a particular social group or political opinion; or

(b) there are serious and indiscriminate threats to his life, physical integrity or freedom resulting from armed conflict, generalised violence or internal conflicts, massive violation of human rights against which the State is unable or unwilling to protect.”

Evidently, the extent of patronage envisioned under the 2019 Bill was quite wide and comprehensive. However, as in the past, this Bill, too, was shelved and failed to transmute into a statute. In contrast, recently, Parliament dashed ahead and enacted the controversial Citizenship (Amendment) Act, 2019[123] (CAA), inter alia, granting exemption to Hindu, Sikh, Jain, Parsi, Buddhist, and Christian migrants from Afghanistan, Bangladesh and Pakistan, who entered India before 2014 following their religious persecutions, from the definition of illegal migrants under Section 2(1)(b) of the Citizenship Act, 1955[124]. Notably, considering the limited applicability of the sanctuary under the CAA to only a few religious communities, understandably, this enactment has been widely criticised as discriminatory on the basis of religion, by meticulously and consciously excluding the Muslims from the auspice accorded therein. Simultaneously, the legislation of CAA has exacerbated the fear in the minds of the poor as well as the Muslim community of India that they might be rendered stateless, leading eventually to their detention.

Ominously, seen in this perspective, the decision of Supreme Court in Mohd. Salimullah case[125] has subliminally not only succoured the ploy and bigotry of the Government as manifest under the CAA, rather added fuel to fire by hastening the deportation of Rohingyas from India, majority of who are Muslims, to lands where their life and existence would reasonably be under jeopardy and endangerment. Further, the said dictate of the Supreme Court and concomitant enactment of CAA have often been interpreted by certain sections of the society as country’s metamorphosis into a religious State, which runs contrary to the constitutional ethos and India’s indispensable spirit of secularism. Unquestionably, the State and courts of India cannot afford such a perspective to persist.

Needless to mention, the hasty enactment of CAA by the present Government is quite incongruous for the reason that previously in the year 1949, proposal of one of the members of the Constituent Assembly to amend the provision under Article 5 of the draft Constitution to define Indian citizenship on religious lines[126]was out rightly reprobated[127]and denied. Clearly, even as on date the Indian Constitution does not envision grant of citizenship on the basis of religion and stands by the principle of secularism, even in its Preamble. Ergo, seen in this context, the legislatures’ reluctance to enact suitable legislation for refugees’ ameliorations, per contra enactment of a law in the form of CAA, which does not coincide with the heart and nucleus of the country’s Constitution, is quite perplexing.

Devotion to non-refoulement principle: Need of solidarity for triumph of humanity

Someone[128] once remarked, “No one leaves home unless home is the mouth of a shark.” Indubitably, it would not be an exaggeration to state that nationality and citizenship are not merely phraseologies of legal import, rather, sentiments and bonds which are ordinarily established long before a person’s birth. Nationals and citizens pride over their relatedness and association with their respective nations and build their entire world in and around their “motherland(s)”. Therefore, every act that unfairly, unjustly and arbitrarily seeks to deprive an individual or a community from such associations is nothing less than a transgression and worthy of universal reprimand. Though, it would be ideal that the instances of persecution, genocide, ethnic cleansing, etc., are nipped in the bud, however, where such situations, nevertheless arise, it becomes incumbent on nations of the world to exhibit solidarity and humanitarian approach, notwithstanding the absence of any specific statutory laws facilitating a grant of sanctuary to refugees. In fact, under such circumstances it becomes peremptory that even the stringent procedural requirements regarding the entry, refuge, sanctuary of foreigner/migrants, etc., are bypassed to permit the triumph of altruism, compassion and humanity. Concomitantly, adoption of such an approach must never be permitted to hinge upon the existence of a specific domestic enactment, especially, where the countries across the world have universally recognised rights to life and liberty of all individuals as inherent to the core of their existence and rule. Needless to emphasise, the international community and States are required to demonstrate their absolute devotion to the principle of non-refoulement so that the world becomes a refuge for those in imminent need of hope, protection and shelter.

Conclusion: Need for enactment and hope for Rohingyas’ amelioration

In the Indian context, it is world-renowned that the country has never shirked from its responsibility towards its citizens and world community alike. In fact, Indians pride themselves as a nation built on compassion and a heritage explicating the adoption of an ideology based on the unity and oneness of the world family: “Vasudhaiva Kutumbakam[129]. Therefore, perceiving in this frame of reference, India’s present approach towards the strained and harried community of Rohingyas does not acquiesce with the virtues and ideals of the Indian society nor is the same compatible with the persistent avowals of several courts and the provisions of the Indian Constitution. Unfortunately, even the recent declaration of the Supreme Court is blatantly antagonistic to several international conventions, treaties and obligations to which India is a signatory or a ratifying State, and which imbibe the principle of non-refoulement, even otherwise than its manifestation under the unratified provisions of the 1951 Refugee Convention and/or 1967 Refugee Protocol.

Doubtlessly, the recent dictate of the Supreme Court and the Government’s policy towards Rohingyas would have been justified and defensible had the Supreme Court and the State reached a perspicuous conclusion regarding the threat to country’s safety and security in case Rohingyas are permitted to stay in India. However, in the absence of any such conclusion or reasonable apprehension against the presence of Rohingyas in India, the country’s prevailing closed-door policy and denial of non-refoulement principle are difficult to comprehend and concede to. Understandably, not only has this approach been censured by the world community, rather, evinces a transformed approach of the present government, state and judicial setup, directed toward rebuffing refugees, heedlessly of the perils and quandaries awaiting such personages on their deportation from India. Consequently, appreciating the gravity of the situation and the possible implications of India’s existing strategy towards refugees, the need of country’s ratification of the Refugee Convention and Protocol and consequent enactment of a suitable legislation, in tune with the international principle, is more than ever needed so that not only the distinction between a refugee and foreigners under the existing laws of India is explicated, rather their resultant rights are satisfactorily vouchsafed.

Needless to iterate that considering the inalienability of the non-refoulement principle and the factum that the same has been persistently been avowed as implicit under Article 21 of the Constitution, need for such an enactment may not have been of imminence had the Supreme Court not adopted an extremely regressive approach in its recent declaration. However, appreciating the Supreme Court’s glaring precedent in Mohd. Salimullah case[130] and the unbridled/unguided exercise of powers by the Indian Government, while dealing with Rohingyas, the impendence of a suitable law on refugees in India cannot be over-stressed. Consequently, time is ripe for the country to realise its obligations and the place which it enjoys in the world map as a paradigm for others to follow and, accordingly, to substitute its extant “closed-door policy” with that of a “welcoming approach”. In the meanwhile, one can hope that sanity and justice prevails in Burma so that the instances of massacre and bloodshed are ceased and Rohingyas are able to unite with their motherland.


*Advocate, Supreme Court and High Court(s) of India. The author can be reached at abhigoyal85@gmail.com.

[1]Susan Abulhawa, Mornings in Jenin.

[2]Nottebohm case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6-4-1955, available at <https://www.refworld.org/cases,ICJ,3ae6b7248.html>  (accessed on31-7-2021).

[3]Advisory Opinion on Proposed Amendments to the Naturalisation Provision of the Constitution of Costa Rica, OC-4/84, Inter-American Court of Human Rights (IACrtHR), 19-1-1984, available at <https://www.refworld.org/cases,IACRTHR,44e492b74.html> (accessed on11-8-2021).

[4]1958 SCC OnLine US SC 61 : 2 LEd 2d 603 :356 US 44 (1958).

[5]Castillo Petruzzi et al. case, Inter-American Court of Human Rights, 30-5-1999, available at <https://www.refworld.org/cases,IACRTHR,44e494cb4.html> (accessed on 3-9-2021).

[6] However, under such state of forcible intervention it has been recurrently cautioned, “The protection involves removal of the foreign nationals, not the establishment of order out of chaos. The intervening State is not able to establish a non-consensual presence in the host State for any longer than is required to remove its citizens.” Refer to Andrew W.R. Thomson, Doctrine of the Protection of Nationals Abroad: Rise of the Non-Combatant Evacuation Operation, 11 Washington University Global Studies Law Review 627, 668 (2012), <https://openscholarship.wustl.edu/law_globalstudies/vol11/iss3/3> (accessed on 3-9-2021).

[7]Art. 1(1) of the 1954 Convention Relating to the Status of Stateless Persons.

[8]The United Nations High Commissioner for Refugees (UNHCR), Expert Meeting —The Concept of Stateless Persons under International Law (Prato Conclusions), May 2010, available at  <https://www.refworld.org/docid/4ca1ae002.html> (accessed on31-7-2021).

[9] UN High Commissioner for Refugees (UNHCR), Convention Relating to the Status of Stateless Persons. Its History and Interpretation, 1997, available at< https://www.refworld.org/docid/4785f03d2.html> (accessed on 31-7-2021).

[10]UN High Commissioner for Refugees (UNHCR), Nationality and Statelessness: A Handbook for Parliamentarians, 20-10-2005, available at <https://www.refworld.org/docid/436608b24.html> (accessed on17-7-2021).

[11]UN High Commissioner for Refugees (UNHCR), Overview of Statelessness: International and Japanese Context, April 2010, available at <https://www.refworld.org/docid/4c344c252.html> (accessed on 22-7-2021).

[12] Weis, Nationality and Statelessness in International Law, p. 164; Further, refer to UN High Commissioner for Refugees (UNHCR), UNHCR and De Facto Statelessness, April 2010, LPPR/2010/01, available at <https://www.refworld.org/docid/4bbf387d2.html> (accessed on 22-7-2021).

[13] UN High Commissioner for Refugees (UNHCR), Information and Accession Package: The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness,  January 1999, available at <https://www.refworld.org/docid/3ae6b3350.html> (accessed on 21-7-2021).

[14]Refugees International, Lives on Hold: The Human Cost of Statelessness, February 2005, available at

<https://www.refworld.org/docid/47a6eba00.html> (accessed on 21-7-2021).

[15]Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness, 11-3-2009, available at <https://www.refworld.org/docid/49be193f2.html> (accessed on27-7-2021).

[16] UN High Commissioner for Refugees (UNHCR), Good Practices in Nationality Laws for the Prevention and Reduction of Statelessness, November 2018, Handbook for Parliamentarians N° 29, available at <https://www.refworld.org/docid/5be41d524.html> (accessed on 17-7-2021).

[17]UN High Commissioner for Refugees (UNHCR), The Situation of Stateless Persons in the Middle East and North Africa, October 2010, available at <https://www.refworld.org/docid/4cea28072.html> (accessed on 25-7-2021).

[18] UN General Assembly, Universal Declaration of Human Rights,10-12-1948, 217 A (III).

[19] UN Human Rights Council, Arbitrary Deprivation of Nationality: Report of the Secretary-General, 26-1-2009, A/HRC/10/34, available at <https://www.refworld.org/docid/49958be22.html> (accessed on17-7-2021).

[20] UN Human Rights Council, Report of the Human Rights Council on its 7thSession, 14-7-2008, A/HRC/7/78, available at <https://www.refworld.org/docid/49997ae80.html> (accessed on 17-7-2021).

[21]UN Human Rights Council, Human Rights and Arbitrary Deprivation of Nationality: Resolution /adopted by the Human Rights Council, 16-7-2012, A/HRC/RES/20/5, available at

<https://www.refworld.org/docid/5016631b2.html> (accessed on27-7-2021).

[22]Convention on the Reduction of Statelessness, 1961.

[23] Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. Further, refer to Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda, available at < https://www.refworld.org/docid/4b5438802.html> (accessed on18-7-2021).

[24]UN Security Council, Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780 (1992), 27-5-1994, s/1994/674, available at <https://www.refworld.org/docid/582060704.html> (accessed on18-7-2021).

[25]Prosecutor v. Goran Jelisic (Trial Judgment), IT-95-10-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 14-12-1999, available at <https://www.refworld.org/cases,ICTY,4147fe474.html> (accessed on 18-7-2021).

[26] Human Rights Watch, Lasting Wounds: Consequences of Genocide and War for Rwanda’s Children, 3-4-2003, 1505A, available at <https://www.refworld.org/docid/3f4f595a12.html> (accessed on 18-7-2021).

[27]Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

[28]Factsheet on the Convention on the Prevention and Punishment of the Crime of Genocide (1948), available at <https://www.un.org/en/genocideprevention/documents/Genocide%20Convention-FactSheet-ENG.pdf> (accessed on19-7-2021).

[29]Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43.

[30] UN Human Rights Council, Prevention of Genocide: Resolution Adopted by the Human Rights Council, 7-4-2015, A/HRC/RES/28/34, available at <https://www.refworld.org/docid/558ac6f04.html> (accessed on 27-7-20211).

[31]UN Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis, 15-5-2016, A/HRC/32/CRP.2, available at <https://www.refworld.org/docid/57679c324.html> (accessed on 25-7-2021).

[32]Myanmar and Burma have been used interchangeably throughout this article, though officially, the country is presently designated as the Republic of the Union of Myanmar.

[33]International Court of Justice, Application Institution Proceedings and Request for Provisional Measures, Republic of the Gambia v. Republic of the Union of Myanmar, 11-11-2019, available at <https://www.icj-cij.org/public/files/case-related/178/178-20191111-APP-01-00-EN.pdf> (accessed on 31-8-2021).

[34]Letter dated 9-2-2009, available at <https://www.newmandala.org/wp-content/uploads/2009/02/the-consul-generals-letter.pdf> (accessed 1-9-2021).

[35]Transcript of Secretary-General’s Remarks at Press Encounter with President of the World Bank, Jim Yong Kim,2-7-2018, available at <https://www.un.org/sg/en/content/sg/press-encounter/2018-07-02/transcript-secretary-general%E2%80%99s-remarks-press-encounter> (accessed on19-7-2021).

[36] Human Rights Watch, Thailand: Give UN Access to Rohingya “Boat People”, 2-9-2011, available at <https://www.refworld.org/docid/4d4ba5391a.html>  (accessed on19-7-2021).

[37]“The 1974 Emergency Immigration Act stripped Burmese nationality from the Rohingya. In 1977, Operation Nagamin (Dragon King) constituted a national effort to register citizens and screen out foreigners prior to a national census. The resulting military campaign led to widespread killings, rape, and destruction of mosques and religious persecution. By 1978, more than 200,000 Rohingya had fled to Bangladesh. The Burmese authorities claimed that their flight served as proof of the Rohingya’s illegal status in Burma.” Refer to; Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness, 11-3-2009, available at <https://www.refworld.org/docid/49be193f2.html> (accessed on31-8-2021).

[38]Burma Citizenship Law, 15-10-1982, available at <https://www.refworld.org/docid/3ae6b4f71b.html> (accessed on 25-7-2021).

[39]Constitution of the Union of Burma, 1974.

[40]As per S. 2 of the Union Citizenship Act, 1948, “ ‘Union’ means the Union of Burma.”

[41]Refer to the Constitution of the Union of Burma, 1948 which, inter alia, envisages  right to equality (Ss. 13-15), right to freedom (Ss. 16-19), rights relating to religion (Ss. 20-21), cultural and educational rights (S. 22), economic rights (S. 23), rights in relation to criminal law (S. 24), rights of constitutional remedies (Ss. 25-29).

[42]Myanmar’s 1982 Citizenship Law in Context, by Peggy Brett and Kyaw Yin Hlaing Policy Brief Series No. 122 (2020), available at <https://www.toaep.org/pbs-pdf/122-brett-kyh/#:~:text=Article%203%20of%20the%201982,1823%20A.D.%20are%20Burma%20citizens> (accessed 25-7-20210.

[43]Burma Citizenship Law, 1982, S. 5, “Every national and every person born of parents, both of whom are nationals are citizens by birth.” Also refer to S. 7 of the said enactment.

[44]Burma Citizenship Law, 1982, Ss. 3, 4 and 6.

[45]Burma Citizenship Law, 1982, Ch. III. In particular, S. 23 thereof, which provides, “Applicants for citizenship under the Union Citizenship Act, 1948, conforming to the stipulations and qualifications may be determined as associate citizens by the Central Body.”

[46]Burma Citizenship Law, 1982, Ch. IV. S. 2(d) thereof provides, “ ‘Naturalised citizen’ means a prescribed by this law;.”

[47]Burma Citizenship Law, 1982, S. 30 —“An associate citizen shall—(c) be entitled to enjoy the rights of a citizen under the laws of the State, with the exception of the rights stipulated from time to time by, the Council of State.”

[48]Burma Citizenship Law, 1982, S. 53 —“A naturalised citizen shall—(c) be entitled to enjoy the rights of a citizen under the laws of the State, with the exception of the rights stipulated from time to time by, the Council of State.”

[49]Constitution of the Union of Burma, 1974, Ch. V, Arts. 64 to 82.

[50] Meeting held in the Central Meeting Hall, President House, Ahlone Road, 8-10-1982. Translation of the speech by General Ne Win provided in The Working People’s Daily, 9-10-1982, available at <http://www.netipr.org/policy/downloads/19821008_Gen-Ne-Win-speech-on-Citizenship-Law.pdf> (accessed on 31-7-2021).

[51]S.6 of the Burma Citizenship Law, 1982 “A person who is already a citizen on the date this Law cones into force is a citizen. Action, however shall be taken under S. 18 for infringement of the provision of that section.” [Clearly, as per this section, no acknowledgement to citizenship status is provided under the 1982 Citizenship Law to persons who were deemed to be Burmese citizens under S. 4(2) of the Union Citizenship Act, 1948.]

[52]Minority Rights Group International, World Directory of Minorities and Indigenous Peoples — Myanmar/Burma: Muslims and Rohingya, October 2017, available at  <https://www.refworld.org/docid/49749cdcc.html> (accessed 1-8-2021).

[53] Equal Rights Trust, Burning Homes, Sinking Lives: A Situation Report on Violence against Stateless Rohingya in Myanmar and their Refoulement from Bangladesh, 2-7-2012, available at  <https://www.refworld.org/docid/5034fadb2.html> (accessed on1-8-2021).

[54]Refugees International, Malaysia: Rohingya Refugees Hope for Little and Receive Less, 17-11-2015, available at <https://www.refworld.org/docid/564b3d5b4.html> (accessed 1-9-2021).

[55]Human Rights Watch, Southeast Asia: Accounts from Rohingya Boat People, 27 May 2015, available at  <https://www.refworld.org/docid/556868b94.html> (accessed on1-8-2021).

[56] Amnesty International, Bangladesh: Submission to the United Nations Human Rights Committee, March 2017, available at <https://www.refworld.org/docid/58de16e84.html> (accessed 1-8-2021).

[57]Mixed Migration Centre, Rohingya Migration to India: Patterns, Drivers and Experiences, April, 2019, available at <https://mixedmigration.org/wp-content/uploads/2019/04/063_briefing-paper_Rohingya_India.pdf>  and UN Women, Gender Brief on Rohingya Refugee Crisis Response in Bangladesh, January 2018, available at <https://asiapacific.unwomen.org/-/media/field%20office%20eseasia/docs/publications/2017/10/gender-advocacy-paper-for-rohingya-refugee-crisis-response-in-bangladesh-r10.pdf?la=en&vs=2521> (accessed on 1-9-2021).

[58] UN High Commissioner for Refugees (UNHCR), Culture, Context and Mental Health of Rohingya Refugees: A review for staff in mental health and psychosocial support programmes for Rohingya refugees, 2018, available at <https://www.refworld.org/docid/5bbca9377.html> (accessed on 1-9-2021).

[59]Dozens of Rohingya Camping outside UNHCR Office in India Detained, 11-3-2021, available at <https://www.aljazeera.com/news/2021/3/11/dozens-of-rohingya-camping-outside-unhcr-office-in-india-detained> (accessed on 4-8-2021).

[60]Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12-9-2018, available at <https://undocs.org/en/A/HRC/39/64> (accessed on 1-8-2021).

[61]Detailed findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, 16-9-2019, available at <https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf> (accessed on1-8-2021).

[62]Resolution adopted by the General Assembly on 22-12-2018, UN doc. A/RES/73/264, 22-1-2019, available at <https://undocs.org/en/A/RES/73/264> (accessed on1-8-2021).

[63]The Gambia and Myanmar are, both, parties to the Genocide Convention. Significantly, Myanmar ratified the convention with the deposit of its instrument of ratification on 14-3-1956, expressing reservations to Arts.VI and VIII (however, no reservation was expressed towards Art. IX thereof). Subsequently, on 29-12-1978, The Gambia acceded to the Convention without entering any reservation.

[64]ICJ-Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Request for the Indication of Provisional Measures, 23-1-2020, available at <https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf> (accessed on 2-8-2021).

[65]Transcript: Aung San Suu Kyi’s Speech at the ICJ in Full, available at <https://www.aljazeera.com/news/2019/12/12/transcript-aung-san-suu-kyis-speech-at-the-icj-in-full/> accessed on 15-8-2021).

[66]Burma: New Satellite Images Confirm Mass Destruction, available at  <https://www.hrw.org/news/2017/10/17/burma-new-satellite-images-confirm-mass-destruction> (accessed on 15-8-2021).

[67]United Nations, Constitution of the International Refugee Organisation, 15-12-1946, United Nations, Treaty Series, Vol. 18, p. 3, available at <https://www.refworld.org/docid/3ae6b37810.html> and <https://treaties.un.org/doc/Treaties/1948/08/19480820%2007-01%20AM/Ch_V_1p.pdf>  (accessed on 2-8-2021).

[68]UN General Assembly, Convention Relating to the Status of Refugees, 28-7-1951, United Nations, Treaty Series, Vol. 189, p. 137.

[69] UN General Assembly, Protocol Relating to the Status of Refugees, 31-1-1967, United Nations, Treaty Series, Vol. 606, p. 267.

[70]Amnesty International, Italy: Beatings and Unlawful Expulsions amid EU Push to Get Tough on Refugees and Migrants, 3-11-2016, available at <https://www.refworld.org/docid/5825d5514.html> (accessed on 17-8-2021).

[71]Refugee Appeal No. 72635/01, 72635/01, New Zealand: Refugee Status Appeals Authority, 6-9-2002, available at <https://www.refworld.org/cases,NZL_RSAA,402a6ae14.html> (accessed on11-8-2021).

[72]Statelessness and the Problem of Resolving Nationality Status, International Journal of Refugee Law, Vol. 10, Issues 1-2, January 1998, pp. 156-182, available at <https://doi.org/10.1093/ijrl/10.1-2.156> (accessed on11-8-2021)

[73]UN High Commissioner for Refugees (UNHCR), Convention relating to the Status of Stateless Persons. Its History and Interpretation, 1997, available at <https://www.refworld.org/docid/4785f03d2.html> (accessed on11-8-2021).

[74]Refugee Act, 1996 (last amended in 2003) (Ireland, 15-7-2003, available at  <https://www.refworld.org/docid/3ae6b60e0.html> (accessed on14-8-2021).

[75]Why India Did Not Sign the 1951 Refugee Convention, available at <https://www.hg.org/legal-articles/why-india-did-not-sign-the-1951-refugee-convention-41414> (accessed on14-8-2021).

[76] United States Committee for Refugees and Immigrants, US Committee for Refugees World Refugee Survey 2000 – India, 1-6-2000, available at <https://www.refworld.org/docid/3ae6a8d02c.html> (accessed on 14-8-2021).

[77] UN High Commissioner for Refugees (UNHCR), UNHCR Submission on India: UPR 27th Session, August 2016, available at <https://www.refworld.org/docid/5a12b5420.html> (accessed on 14-8-2021).

[78]Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

[79]Constitution of India.

[80]Constitution of India, Art. 14.

[81]Constitution of India, Art. 20.

[82]Constitution of India, Arts. 22 and 25-28.

[83]Constitution of India, Art. 32.

[84]Constitution of India, Art. 51(c).

[85]Constitution of India, Art. 253.

[86]National Legal Services Authority v. Union of India, (2014) 5 SCC 438, 486. Refer also to Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534.

[87](1997) 6 SCC 241.

[88]Vishaka v. State of Rajasthan, (1997) 6 SCC 241, 248-249.

[89]Passport (Entry into India) Act, 1920.

[90]Passports Act, 1967.

[91]Registration of Foreigners Act, 1939.

[92]Foreigners Act, 1946.

[93]Foreigners Order, 1948.

[94]National Security Act, 1980.

[95]Foreigners Act, 1946, S. 2(a).

[96]Foreigners Act, 1946, S. 3(1).

[97]Foreigners Act, 1946, S. 14.

[98]Hans Muller of Nurenburg v. Supt., Presidency Jail, AIR 1955 SC 367.

[99]Hans Muller of Nurenburg v. Supt., Presidency Jail, AIR 1955 SC 367.

[100]Mailwand’s Trust of Afghan Human Freedom v. State of Punjab, WP (Crl.) No. 125 and 126 of 1986, order dated 28-2-1986, available at: https://www.refworld.org/cases,IND_SC,3f4b8cfd4.html [accessed 24 August 2021]; N.D. Pancholi v. State of Punjab, WP (Crl.) No. 243 of 1988, 9-6-1988, available at: https://www.refworld.org/cases,IND_SC,3f4b8e224.html [accessed 24 August 2021] and Malavika Karlekar v. Union of India, 1992 SCC OnLine SC 249.  [Pending uploading]

[101]O. Konavalov v. Commander, Coast Guard Region, (2006) 4 SCC 620.

[102]Constitution of India, Art. 21.

[103](1996) 1 SCC 742, 751.]

[104]Railway Board v. Chandrima Das, (2000) 2 SCC 465, 484.

[105]Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665; State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615 and Louis De Raedt v. Union of India, (1991) 3 SCC 554.

[106]1998 SCC OnLine Guj 304.

[107]2015 SCC OnLine Del 14338.

[108]2021 SCC OnLine Mani 176.

[109]2011 SCC OnLine Dis Crt (Del) 1.

[110]2021 SCC OnLine SC 296.

[111]Constitution of India, Art. 19(1)(e) —“All citizens shall have the right – (e) to reside and settle in any part of the territory of India;”

[112]2021 SCC OnLine SC 296.

[113]UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10-12-1984, United Nations, Treaty Series, Vol. 1465, p. 85, available at  <https://www.refworld.org/docid/3ae6b3a94.html> (accessed on28-8-2021).

[114]Art. 1(1) of the Convention against Torture provides, “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[115] UN General Assembly, International Covenant on Civil and Political Rights, 16-12-1966, United Nations, Treaty Series, Vol. 999, p. 171.

[116]UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31-1-1994, available at  <https://www.refworld.org/docid/437b6db64.html> (accessed on 28-8-2021).

[117]The Principle of non-refoulement. What is its standing in international law, JU Dr Kamil Šebesta, MBA, available at <http://www.elaw.cz/clanek/the-principle-of-nonrefoulement-what-is-its-standing-in-international-law>  (accessed on28-8-2021).

[118]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.

[119]2021 SCC OnLine SC 296.

[120]Asylum Bill, 2015, Bill No. 334 of 2015.]

[121]Asylum Bill, 2015, S. 4

  1. Criteria for recognition as a refugee.—(1) A person qualifies as a refugee for the purposes of this Act if such person-

(a) is outside his country of origin and is unable or unwilling to return to or avail himself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnicity, membership of a particular social group or political opinion; or

(b) has left his country owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalised violence or events seriously disturbing public order.

(2) Dependants of a person who qualifies as a refugee under sub-s.(1) shall also be deemed to be refugees.

(3) In the case of a person who has more than one nationality.

[122]Refugee and Asylum Bill, 2019, Bill No. 70 of 2019.]

[123]Citizenship (Amendment) Act, 2019.

[124]Citizenship Act, 1955, S. 2 (1)(b).

[125]2021 SCC OnLine SC 296.

[126]Art. 5 of the draft Constitution was proposed to confer Indian citizenship, inter alia, to every person,

“(iii) who is a Hindu or a Sigh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India.”

[127]Mr Mahboob Ali Baig Sahib (Member of Constituent Assembly) in this regard, condemned, “It is very strange that Dr Deshmukh should contemplate giving citizenship rights only to persons who are Hindus or Sikhs by religion. He characterised the provision in the article granting citizenship rights as ridiculously cheap. I would say on the other hand that his conception is ridiculous. Therefore let us not follow the example of those countries which we are condemning everywhere, not only here but also in the United Nations and complaining that although Indians have been living in those countries they have not been granted citizenship rights there.” Further, Mr Jawaharlal Nehru (Former Prime Minister and member of Constituent Assembly), remarked, “You cannot have rules for Hindus, for Muslims or for Christians only.”

[128] Warsan Shire, Teaching My Mother How to Give Birth.

[129] Sanskrit phrase found in Hindu texts such as the Maha Upanishad, which means “the world is one family”.

[130]2021 SCC OnLine SC 296.

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Tarlada Rajashekhar Rao and K Manmadha Rao, JJ. disposed of the petition and directed the respondents to set free of detenu’s liberty and the petitioner to take her back to lead happy marital life.

The brief facts of the case are that an inter-religious marriage was performed between the petitioner and detenu, namely, Mrs. Shaik Rijvana as per the rites and customs of Christian religion against the will and wishes of the parents and other relatives of the detenu. Due to solemnization of their marriage, the parents and relatives of detenu bore grudge against them and started harassing with active assistance of Police authorities. One day, on the pretext of causal check, the police authorities visited the house of the petitioner, manhandled his family members, including the detenu and forcibly abducted the petitioner’s wife. Subsequently, the petitioner requested the official respondents to refrain from forcibly abducting her but they bluntly refused to heed to it. On reliable information, the petitioner learnt that the detenu was confined in respondent 8, bungalow. Therefore, the efforts of the petitioner and his family members in securing the presence of the detenu ended futile. On the contrary, the action of police authorities in unlawfully detaining her is unsustainable and untenable. The present writ petition was filed by the petitioner seeking a direction to the official respondents to secure the presence of petitioner’s wife namely Mrs. Shaik Rijvana before the Court and set her at liberty.

The Court directed the respondent to produce the detenu before Court and on production of the same, the detenu was found to not be willing to stay with the parents and reported that there is no safety to her life and also further informed that she is major and she wants to live with Karthik/petitioner herein. On further production of the husband, it was fairly stated that he is ready to take his wife, who is the detenu, namely, Mrs. Shaik Rijvana and the detenu also stated that she is also willing to go and live with him.

The Court observed and held that on considering the submissions of the petitioner and the detenu, as they are majors and they have agreed to live together, this Court is of the considered view that there is no need for any interference of the parents in this writ petition. Therefore, this Court is not inclined to implead the petitioner/respondent NO.9 on record, and accordingly, the I.A No.1 of 2022 is dismissed.

[Chundura Karthik v. State of AP, 2022 SCC OnLine AP 1270, decided on 26-05-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Instant application had been filed under Section 438 CrPC for grant of anticipatory bail in respect of FIR under Sections 420, 406 and 34 Penal Code, 1860.

Factual Background


An FIR was lodged by an authorized representative of M/s Vaishali Infratech (P) Ltd. on the allegations of cheating and misappropriation. The applicant, through his company, is a builder and has a project, namely ‘Rudra Palace Heights’, in which the complainant/Company booked 11 flats.

Large sums of money had also been paid for the flats amounting to Rs 1,33,87,500 towards 75% of the consideration. Applicant was the promoter and director of M/s Rudra Buildwell (P) Limited. There were others also named as accused in the FIR.

It was stated that despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant, rather the complainant came across a Charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons.

Hence, the allegation that the applicant had cheated the complainant.

Analysis, Law and Decision


“While it is no doubt true that the case arising out of contracts would have civil and criminal contours, but it is not that if no civil case was filed it would detract from the complaint made to the police nor would the opposite hold true.”

High Court expressed that, custodial interrogation is more effective to question a suspect.

The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals.

Further, the Bench stated while interrogation of a suspect of one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.

High Court noted that the views of the Supreme Court explained in numerous judgments have been incorporated in the amended Criminal Procedure Code, particularly with the introduction of Section 41A CrPC and amendments to Section 41A CrPC.

Thus, even for arresting any person in connection with an offence punishable with imprisonment of upto 7 years, the police have to first issue a notice and arrest only when there is no cooperation from the noticee/suspect. There are, of course, other conditions in which the police officer may arrest, as provided for under Section 41(1)(a) & (b) CrPC.

It had been held in Shri Gurbaksh Singh Sibbia v.  State of Punjab, (1980) 2 SCC 565, as well as reiterated in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 that the power to release on anticipatory bail is extraordinary in character, it would “not justify the conclusion that the power must be exercised in exceptional cases only”.

High Court opined that, the present matter is the one wherein investigations would be hampered without custodial interrogation.

The Bench observed that, the powers of the police for conducting a holistic and complete investigation in the matter, including into alleged resale and backdating/uploading of documents on the ROC website, are wide, assuming that the applicant has not revealed to them the true details.

The disposal of an anticipatory bail application does not require a trial, even a mini trial, on the allegations and defence.

fundamental question would only be whether or not the liberty of the applicant ought to be curtailed by refusal of anticipatory bail or whether the interest of justice would still be served if he is granted the benefit.  

High Court held that the applicant be released on bail and shall be bound by the following conditions:

  • Applicant shall join the investigation as and when required to do so by the investigating officer and shall cooperate with the investigating agencies and make a disclosure of complete details of the 11 persons relating to whom the resale had allegedly occurred.
  • The applicant shall not leave NCR without orders of the Trial Court;
  • Applicant shall furnish his mobile phone/landline number and residential address as well as that of his surety to the I.O./SHO concerned and both shall keep their mobile/landline phones operational at all times during this period and in the event of any change of the same, will immediately inform the same to the I.O./SHO;
  • Applicant shall drop a pin location on Google Maps so that the location of the applicant is available to the Investigating Officer;
  • Applicant shall not directly or indirectly contact the complainant or any other witnesses and any attempt shall be deemed to be an attempt to influence them;
  • SHO is directed to accept the bail bond only after verifying the address of the applicant.

In view of the above, the bail application stood disposed of. [Mukesh Khurana v. State of NCT Delhi, 2022 SCC OnLine Del 1032, decided on 13-4-2022]


Advocates before the Court:

For the applicant:

Ms. Rebecca John, Senior Advocate with Mr. Vishal Gosain, Ms. Adya, Ms Megha Bahl, Ms. Sahiba Singh and Mr. Yash Chaturvedi, Advocates

For the Respondent:

Mr. G.M. Farooqui, APP for respondent/State with SI Yashpal

Mr. Aman Lekhi, Senior Advocate, Mr. Mohit Mathur, Senior Advocate with Mr. Mudit Jain, Advocates for complainant

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

The facts of the case are such that the convict prisoner Nand Lal is serving the sentence awarded to him and has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner filed an application averring therein that conduct of his husband  had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. The said application is pending consideration before the District Collector-cum-Chairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.

The Court, however, instructed the police officials concerned to make an inquiry regarding family status of the convict-prisoner and place the report on record. The report stated that Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home along with her in-laws

The Court observed that having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. As mentioned above, the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.

Right of Progeny 

  1. Religious Aspect:

As per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. In Judaism, Christianity, and some other Abrahamic religions the cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

  1. Social Aspect

There are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married. At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her. Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt.

  1. Legal Aspect

The Court relied on judgment Jasvir Singh v. State of Punjab, 2015, Cri LJ 2282 and observed that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also.

The Court thus observed that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

The Court thus held “though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”[Nand Lal v. State, 2022 SCC OnLine Raj 678, decided on 05-04-2022]


Appearances:

For Petitioner(s) : Mr. K.R. Bhati

For Respondent(s) : Mr. Anil Joshi


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., rejected a bail application which was filed by the applicant who was in judicial custody under Sections 153A, 298 Penal code, 1860.

FIR stated that a Dharm Sansad was organized in Haridwar which resolved to wage a war against a particular religion; objectionable words close. The petitioner had released a video message abusing a particular religion, Prophet and made utterances to wage a war against a particular religion.

Senior Counsel appearing for the applicant submitted that these offences were a punishable maximum of three years of imprisonment and triable by the Magistrate.

Counsel for the State had submitted that the applicant provoked masses in general to take up arms against a particular religion, and promoted enmity between different religions. It was further brought into notice that the applicant had criminal history of 34 cases.

The Court stated that bail balances individual liberty with social interest and that right to life and liberty were illuminated rights in our constitution but Court was of the view that there are various factors, which are taken into consideration, while considering the bail application.

The Court refrained to produce the transcripts which were filed by the State because there were huge derogatory remarks against a particular religion; against Prophet. The Court was of the view that the Prophet had been abused; it intended to wound the religious feelings of persons belonging to a particular religion; it intended to wage war. It promoted enmity. It was a hate speech.

The Court rejected the bail application holding that Right to freedom, as granted under the Constitution is not an absolute right. It has limitations. Right to freedom of speech and expression is subject to the restriction as given under Article 19(2) of the Constitution relying on the excerpt by Dr B.R. Ambedkar in the Constituent Assembly Debate of 04-11-1948.

The Court also relied on the Supreme Court judgment in Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477 which discussed the far reaching effect of hate speech. Court finally was of the view that this was not a fit case for bail.[Jitendra Narayan Tyagi v. State of Uttarakhand, 2022 SCC OnLine Utt 188, decided on 08-03-2022]


Mr Rakesh Thaplyal, Senior Advocate assisted by Mr Lalit Sharma, Advocate for the applicant.

Mr Pratiroop Pandey, AGA for the State.

Mr Pranav Singh, Advocate for the informant.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. rejected the petition and disposed off the stay application.

The instant petitions were filed by couples who have fled home and have decided to marry and are now before the Court seeking police protection.

The Court relied on judgment Lata Singh v. State of U.P., AIR 2006 SC 2522, wherein it was observed that the Courts are not meant to provide protection to such youths, who have simply fled to marry according to their own wishes.

The Court observed that there is no material or reason for this Court to conclude that the petitioners’ life and liberty are at peril. There is not even an iota of evidence to evince that private respondents (relatives of the petitioner 1) are likely to cause physical or mental assault to the petitioners. If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face and to persuade the society and their family to accept the step they have taken.

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

The Court held “any serious threat perception to the petitioners is not found and, therefore, there is no requirement of passing any order for providing police protection to them”

[Shobha v. State of Rajasthan, S.B. Civil Writ Petition No. 545/2022, decided on 11-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr Ankit Chaudhary

Case BriefsSupreme Court

 Supreme Court: In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Asim Bhattacharya was arrested on 6th July, 2012 for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. The matter was then tranfereed to the National Investigation Agency (NIA).

The Court noticed that though the charges against the accused are “undoubtedly serious”, the same will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded.

The Court, hence, considered the following factors,

  • the old age of the accused
  • the statement of the de-facto complainant has still not been completed,
  • there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.
  • The Accused is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.

Section 19 of the National Investigation Agency Act, 2008 mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008. The Court, however, noticed that the ground realities are totally different. In the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. The order sheets indicate that hearing is taking place only one day in a month.

The Court, hence, noticed that,

“looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration.”

Noticing that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India, the Court said that,

“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.”

Hence, once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.

The Court, hence, directed that the accused be released on post-arrest bail. However, the trial Court will be at liberty to consider and impose appropriate conditions.

[Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156, decided on 01.12.02021]

*Judgment by: Justice Ajay Rastogi

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., ordered the release of persons detained for protesting against the controversial Lakshadweep regulation. The Bench stated,

“The most important concern for us is the liberty of the persons who are in custody. They shall not be deprived of the means of access to justice.”

The instant petition was filed espousing the cause of persons detained in connection with a crime registered in Lakshadweep Island. According to the petitioners, though the case registered against them was bailable, they had been remanded by the Executive Magistrate for no reasons. On the contrary, the counsel for the Lakshadweep Island submitted that the SHO and the Executive Magistrate were prepared to release the protestors on bail but they had refused to get released on bail. However, the above submission had been refuted by the counsel for the petitioner, stating that no such attempt had been made by the SHO and the Executive Magistrate.

Opining that the most important concern before the Court was the liberty of the persons who were in custody, the Bench said the protestors should not be deprived of the means of access to justice. In the above backdrop, the Bench directed the CJM, Amini, to take up the case of protestors who were in custody pursuant to registration of the case by SHO of Kilthan Island by 3pm on the day of passing of order itself. The Bench further said that the CJM need not to ask for the physical production of the persons in custody and the same should be held through video conference. The CJM was also directed to release the detainees on execution of self. Additionally, the Executive Magistrate was directed to file a report detailing the persons who had been kept in custody pursuant to registration of the case and date from which they were in custody and the offences under the penal enactments. The Medical Officer of Kilthan Island was directed to examine all persons in regard to their health conditions.[Sayed Mohammed Koya v. U.T. of Lakshadweep, 2021 SCC OnLine Ker 2355, decided on 01-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. R.Rohith

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of led by former CJI SA Bobde, along with AS Bopanna and V. Ramasubramanian, JJ has set aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Rajnarain Singh was murdered by the accused, a contract killer and a sharpshooter, in conspiracy with others. In fact, previously, the accused has been prosecuted in fifteen cases for serious offences including murder, attempt to murder and criminal conspiracy.

It was argued before the Supreme Court that the Allahabad High Court granted bail on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. “The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities.”

The deceased victim’s wife also contended that the conduct of the accused during the trial has been one of non-cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses.

Making a strong case, the appellant also argued that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The Court was reminded of the case where Vikas Dubey, who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured.

Taking note of all the factors concerned, the Court said that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

“It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.”

[Sudha Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 342, decided on 23.04.2021]

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the “subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

OP. ED.SCC Journal Section Archives

CNLU_LJ_6_2016_17_1_1.png

(Let noble thoughts come to us from the universe)

Writing in 1859 J.S. Mill in “on liberty” emphasized that ‘the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm’… In the part which merely concerns himself, his independence is of right absolute over himself, over his own body and mind, the individual is sovereign. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions.

Content and viability are essential for the assertion of Right in the wider sense. Content includes Ethical assertion which forms the critical importance of certain freedoms viz. freedom from (torture) and correspondingly about need to accept some social obligation to promote or safeguard these freedoms. Viability includes Open impartiality or open and informed scrutiny. Viability in impartial reasoning is central to the vindication of rights even if such reasoning is ambiguous or dissonant as in the case of American declaration, French Declaration, Universal Declaration of Human Rights. The focus is on fresh legislation.

The acceptance of a class of human rights will still leave room for further discussion, disputation and argument that is indeed that nature of discipline. The validity is ultimately dependent on the presumption of the claims of survivability in unobstructed discussion. It is extremely important, as Prof. Sen puts to understand this connection between human rights and public reasoning especially in relation to demands of objectivity.

The universability of human rights relates to the ideas of survivability in unobstructed discussion – open to participation by persons across national boundaries. Partisanship is avoided not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world … but through an interactive process, in particular by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view.

Read more… 


[This Article was first published in CNLU Law Journal CNLU LJ (6) [2016-17] 1. It has been reproduced with the kind permission of Eastern Book Company]

* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.

** Dean & Principal of New Law College, Bharati Vidyapeeth University, Pune.

3 Sardar Bhagat Singh was hanged on midnight of 23rd March 1931, thus advancing it from the dawn of 24th March, 1931. Martyr Bhagat Singh was 23 years at the time where he kissed the noose as it was lowered to his head.

4 Shreya Singhal v. Union of India(2015) 5 SCC 1.

5 AIR 1952 SC 196.

6 AIR 1967 SC 1643.

7 AIR 1952 SC 196.

8 (1973) 4 SCC 225.

9 (2005) 8 SCC 534, 563.

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., addressed a petition where protection was sought of the Court by a couple against threats and harassment by family members.

The Petitioners (a wife and her husband) sought directions upon respondents not to interfere in their married life and also sought the protection of their life and liberty.

Harassment & Threat

Petitioners stated that they are adults and living together as husband and wife out of their own free will. For the said reasons, the respondent and his other family members were angry with them and that there was serious danger to the petitioners’ lives as they were being threatened and harassed.

Age

To substantiate their claim the petitioner-wife submitted her high school certificate as proof that she was a major now and along with that, the petitioner-couple have brought on record the complete online application for registration of their marriage.

Family Honour

Petitioners have an apprehension that the respondents would eliminate them for the honour of the respondent’s family.

Contentions

Standing Counsel for the State submitted that an FIR is already pending against the petitioner-husband when he and the petitioner-wife had eloped and that the petitioner-husband has been charged with having committed an offence under POCSO Act (the petitioner-wife being a minor at that time) and therefore, he ought not be granted protection of the Court.

Petitioners’ counsel submitted that the FIR was lodged when the petitioners had first eloped but now they have entered into wedlock and the petitioner-wife is now major and therefore, the FIR not being recent but of 2018, cannot come in way of their getting married and getting protection by this Court.

Decision

The Bench stated that there is no need to issue any notice to the private respondents and with the consent of the petitioners’ counsel, the petition is disposed of in terms of the Rules of the Court. The Supreme Court in a long line of decisions has settled the law that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has any authority to interfere with their living together.

Cases for reference:

Gian Devi v. Superintendent, Nari Niketan, Delhi, (1976) 3 SCC 234; Lata Singh v. State of U.P., (2006) 5 SCC 475; and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396.

Therefore, in view of the facts and circumstances of the case, the Court stated that in case of any disturbance being caused in the peaceful living of the petitioner, they shall approach the police authority concerned.

Petition was partly allowed. [Priya Verma v. State of U.P., 2020 SCC OnLine All 1023, decided on 07-09-2020]

Case BriefsSupreme Court

“While the mountains of Himalayas spell tranquillity, yet blood is shed every day.”

Supreme Court: In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Stating that it’s limited scope, in the matter wherein the two sides have shown two different pictures which are diametrically opposite and factually irreconcilable, was to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, the Court said,

“It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”

Fundamental rights under part III and restrictions thereof

  • Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.
  • Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

Right to access internet as a fundamental right

The Court refused to offer views on the said issue as none of the counsels had argued for declaring the right to access the internet as a fundamental right.

Publication of orders on Internet shut down

The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural   justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.

“Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.

It further added that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.

Restrictions under Section 144 CrPC

“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two   distinct situations.”

Freedom of press

When Anuradha Bhasin argued before the Court that she was not able to publish her newspaper Kashmir Times from 06­08­2019 to 11­10­2019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose.”

The Court, however, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

Operative order

  1. The J&K State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
  2. Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
  3. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
  4. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
  5. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). Hence, J&K State/competent authorities must review all orders suspending internet services forthwith.
  6. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
  7. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
  8. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Hence, the power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
  9. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
  10. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
  11. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
  12. The J&K State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

The 3-judge bench had reserved the judgment on November 27, 2019 on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

[Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, decided on 10.01.2020]