Bailly Gui Landry v. The State of Telangana, Criminal Petition Nos. 4396 and 4400 of 2021

Read the judgement here.

Date of decision: 22.06.2021

Court: Telangana High Court

Judge: Justice K. Lakshman

Summary: The High Court of Telangana quashed the orders of deportation issued by a Magistrate against the Petitioner, a foreigner who was the national of Ivory Coast. The High Court held that a Magistrate does not have the power to issue an order for deportation. 

Facts: The Petitioner, a national of Ivory Coast was prosecuted  in two similar criminal cases of cyber cheating scams. The Magistrate acquitted the Petitioner in both the cases. However, as the Petitioner was holding an Indian employment visa, which was valid only till 07.02.2020, the Magistrate also ordered the authorities to immediately deport the Petitioner to Ivory Coast. Subsequently, the Foreigners Registration Regional Office (FRRO) detained the Petitioner as deportation was not possible due to COVID-19 restrictions. The Petitioner filed this petition, challenging the power of the Magistrate to order the deportation. 

Holding: The High Court held that the “Learned Magistrate has to confine his findings with regard to either acquittal or conviction of accused therein under Section 248 of the Cr.P.C, Learned Magistrate is not having power to order deportation of any foreign citizen for any violation” (paragraph 11). In other words, the High Court held that the power of the Magistrate is confined to a finding of acquittal or conviction of the accused. The Magistrate does not have the power to order deportation of any foreign citizen for any violation. Accordingly, the order of deportation of the Petitioner was quashed. However, the Court rejected the Petitioner’s prayer to release him from custody observing that the FRRO’s order of deportation and movement restrictions was valid, since it is a body recognised under Sub Rule (1) of Rule 3 of the Registration of Foreigners Rules, empowered to implement the rules  regarding  foreign nationals. The FRRO  exercised its power conferred under  Section 3(2)(c) of the Foreigners Act, 1946, which allows FRRO and other authorities to identify, detain and deport foreign nations who are in violation of any law. The detention of the Petitioner authorised by FRRO’s order was considered valid because the Petitioner has been illegally residing in India after the expiry of his visa.  At the same time, the Court observed that the Petitioner could challenge the FRRO’s order separately. Perhaps, this indicated that the exercise of the wide powers conferred under the law could be challenged.

Significance: This decision clarifies that a Magistrate does not have the power to order deportation of a foreign national even if they are in violation of any law. Similarly, the Assam government had directed the Foreign Tribunals to refrain from passing any “consequential orders” authorising deportation as the Tribunal, like the Magistrate, is not competent to do so. The deportation can only be done by the ‘competent authorities’ (like the ‘FRRO’) after following the procedure established by law under The Foreigners Act, 1946. The procedure for deportation of a foreign person was discussed in Babul Khan v. State of Karnataka where the High Court of Karnataka held that a foreign national residing in India without visa would be considered an ‘illegal migrant’ and should be deported immediately. In the case of Bhim Singh vs. Union of India, the Supreme Court, after observing the problem of overstaying foreign nationals in prison, directed that the government authorities should avoid delay in administrative procedure and carry out the deportation within four weeks from the date of receipt of the ‘No Objection’ certificate.

In the present case, even though the Petitioner was acquitted of non-serious offences, the FRRO directed him to remain in the premises of Cybercrime Cyberabad on the ground of ‘national security’ concerns and on the possibility of him indulging in illegal activities till his deportation, delayed due to COVID-19 restrictions. Although COVID-19 has been cited as a reason in the present case, detention before deportation of foreing nationals is becoming a matter of routine in India (for instance, here and here). 

At present, there is an alarming increase in the anxiety surrounding the activities of foreign nationals who have been illegally residing in India. This has led to the burgeoning detention centres in states across India (here, here, here and here). In fact, in an interview, Karnataka’s Director General of Police Praveen Sood explained the logic behind the setting up of detention centres is to create a separate detention regime from jail where foreign nationals could not apply for bail and continue staying in India. The absence of citizenship enables detention centres to operate as a “parallel punitive system where deprivation of liberty is compounded by the lack of detention limits, delayed deportations, fewer due process safeguards and constitutional protections.” In effect, apart from being denied the right to bail, ex-prisoners who are foreign nationals may even be held for considerable periods of time post-sentence. 

In summation, the “‘crimmigration’ laws in India include weak procedural safeguards that fail to protect against prolonged detentions and impose few restrictions on deportation powers”. Foreign nationals, including genuine refugees and asylum seekers, are being routinely detained to be deported without any scrutiny of grounds or justification. COVID-19 has only exacerbated the problem of delayed deportations and is being used as an excuse to allow authorities to detain foreigners like the Petitioner in custody without violation of any law in what could become indefinite detention. While dismissing the Petitioner’s plea of release from custody, the Court observed that the Petitioner can challenge the FRRO’s order separately. This establishes that the exercise of power by the authorities under the broad provisions of the Foreigners Act could be challenged, however, the High Court failed to look into the validity of the detention itself  and whether it was appropriate to have the person detained in the Police station pending deportation, especially in the prevailing circumstances of the pandemic .

Table of Authorities:

  1. Babul Khan v. State of Karnataka, CRL.P. NO.6578/2019
  2. Bhim Singh vs. Union of India, [W.P. (Criminal.) No. 310/2005]

Resources: 

  1. Meha Dixit, Stateless in Amritsar: India’s Convicted Foreign Nationals and Their Eternal Wait to Go Home, The Caravan, 9 September, 2015
  2. Hira Nagar Jail Turned Into ‘Holding Centre’ For Rohingyas, Kashmir Observer, 2 April, 2021
  3. Sujata Ramachandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019
  4. Rahul Tripathi, ​​States told to set up Centres to detain illegal migrants, The Economic Times, 29 July, 2019
  5. Rohini Swamy, A year after it was set up, Karnataka ‘detention centre’ gets first detainee — a Sudanese, The Print, 20 November, 2020
  6. Meha Dixit, In Jammu, Prisoners Detained for Border Crossing Languish in Jails Despite Completing Their Sentences, The Caravan, 29 April, 2016
  7. India: Release Detained Myanmar Asylum Seekers, Human Rights Watch, 28 July, 2021

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Dewangi Sharma.

Sujab Ali v. Union of India, WP(C)/2221/2020

Read the judgment here.

Date of decision: 20.08.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court quashed an order passed by the Foreigners Tribunal, declaring the petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that the order neither demonstrated proper consideration of the Petitioner’s evidence nor provided sufficient reasons for rejecting it. The matter was remanded back for fresh hearing and the Petitioner was released from detention subject to conditions.

Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. In response, the Petitioner submitted that he is a ‘citizen’ and produced 4 witnesses and 39 documents to support his case. Since he was born on 11.01.1992, he submitted evidence to trace a lineage to his parents and establish that they were born in India prior to the cut-off date of 24.03.1971. This means that the Petitioner was seeking to prove that his parents are citizens under Section 6A of the Citizenship Act, 1955 and that he is a descendant of ordinary residents of Assam prior to 01.01.1966 or 25.03.1971. The FT did not consider the evidence as admissible and did not provide reasons for rejecting the documents and witness testimonies. It also held that the evidence did not prove the link between the Petitioner and his alleged parents, grandparents or great-grandparents. The FT declared the Petitioner as a ‘foreigner’ who entered India after 25.03.1971. Accordingly, it ordered for his detention, deportation and the deletion of his name from all voter lists.

The Petitioner filed the present writ petition challenging this order. The Petitioner contended that the FT did not assess and properly consider the evidence before it. The counsel on behalf of the FT rebutted this argument by citing Section 9 of the Foreigners Act, 1946. Section 9 places the burden of proof on the person considered to be a ‘foreigner’ to show that he is not a ‘foreigner’.

Holding: The High Court examined the FT’s order. First, it held that,“The Tribunal, while referring to all the 39 exhibits, has not described as to why…the documents…were not accepted by the Tribunal. The Tribunal did not give reasons as to why the exhibits are not admissible in evidence. What is also noticed is that the oral evidence by four (4) witnesses produced by the petitioner including himself have been disbelieved without giving any reasons” (paragraph 12). In other words, the High Court held that the FT did not provide reasons for why it rejected the documentary or oral evidence. In this regard, the Court affirmed the position on the appreciation of evidence laid down in State of Assam v. Moslem Mandal. It held that the FT has to consider and assess all of the evidence before coming to the conclusion that it is insufficient for establishing linkage.

Second, the Court discussed the standard of admissibility with respect to the documents. It held that: “If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish” (paragraph 14). In other words, documents have to be accepted as long as the procedure for admission satisfies the requirements under the Indian Evidence Act, 1872. In the present case, the Court noted that although the documents were admitted as evidence, it was not clear from the impugned order whether the documents satisfied the procedure laid down under the evidence law. Thus, the FT must reconsider the documents in light of whether the requirements of admissibility had been satisfied or not. 

Third, the Court observed that while 39 documents were admitted as evidence, the “order did not contain any observations about the manner in which they were presented before the Tribunal” (paragraph 14). The Petitioner produced photocopies from the certified copies of land documents, which were accepted as exhibits by the Tribunal. “As per the Indian Evidence Act 1872, unless the documents presented before the court satisfy the procedure laid down under the Act, the same will not be admissible” (paragraph 14). The order of the Foreigner’s Tribunal did not indicate whether such procedure had been fulfilled or not by the petitioner. If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish. 

The Petitioner argued that all oral evidence must be considered in terms of Section 50 of the Evidence Act. Section 50 states that when the court has to form an opinion on the relationship between two or more persons, then the opinion, expressed by conduct, of any person who would have a special knowledge about the (impugned) relationship, either as a member of the family or otherwise, is a relevant fact. In other words, the opinion of a person who has knowledge about the impugned relationship is a relevant fact for the purpose of evidence. In this regard, the High Court referred to the Supreme Court’s discussion on Section 50 in the case of Dolgobinda Paricha v. Nimai Charan Misra. It was held that there are three essential requirements of Section 50. Crucially, the Court held that the term ‘opinion’ in Section 50 means “something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question” (paragraph 15). In other words, opinion means a belief or a conviction that results from one’s thoughts on a particular question. Resultantly, the Court must infer this opinion through conduct, which cannot be willed without the inner existence of the opinion. Then, the Court assesses this opinion to determine the existence of the relationship in question.

The Court applied Section 50 of the Evidence Act and held that “under the circumstances, we find that the documents exhibited and the oral evidences adduced by the petitioner before the Tribunal have not been considered by the Tribunal, and no reasons are discernible in the impugned order so as to enable this Court to appreciate the basis of rejection of these evidences by the Tribunal” (paragraph 16). Therefore, the writ petition was partially allowed. Accordingly, the Court remanded the matter back to the Tribunal for rehearing and arriving at a judicious finding based on proper appreciation of evidence. 

Lastly, the Court took notice of the fact that the Petitioner had been in detention since the date of the FT order and ordered his release on bail. However, the bail was on the condition that the Petitioner will appear before the Deputy Commissioner of Police, Guwahati and furnish a bail bond of Rs.5000/. At the time of executing the bail bond, the Deputy Commissioner of Police (B), Guwahati shall take photographs of the Petitioner and also record the biometrics of the iris of both the eyes as well as the fingerprints of both the hands of the Petitioner. 

Significance: The High Court recognised the applicability of Section 50 of the Indian Evidence Act, 1872 to proceedings before the FTs. This is in line with the earlier decision in Haider Ali v. Union of India and in contrast with the previous decision in Nur Begum v. Union of India. This is a significant development in the field and will lead to a positive outcome. FTs routinely disregard oral evidence and have held individuals to be foreigners due to the lack of documentary evidence of linkage in their cases, even when their parents or siblings testify in the FT about the identity of the parents of the suspected person. Section 59 of the Evidence Act recognises oral evidence as a valid mode of proof. In particular, Section 50 expressly acknowledges the relevance of oral evidence for cases on establishing the existence of a relationship between two persons. The failure to consider oral evidence as valid in citizenship cases has a disproportionate impact on poor and illiterate married women who do not have birth certificates or school records due to their disadvantaged socio-economic backgrounds. Such women have no documentary proof of their parents’ identities. Their existence is documented in government records only in their adult lives as wives of their husbands following the patriarchal norms of identification of women alongside their husbands. This is also true for children. Some children, especially girls, do not go to school and hence do not have school certificates. Some struggle to establish their identity in the absence of fathers. Similarly, transgender persons are also discriminated against in the process. Swati Bidhan Baruah explained that transgender persons are likely to lack access to the necessary legacy and linkage documents. Even in cases where such documents are available, these documents are often rejected on the basis of the inconsistencies in their gender and names. Therefore, the recognition that Section 50 is to be applied is an important step towards ensuring that marginalized groups are not disproportionately burdened when defending their citizenship.

At the same time, this judgment is flawed insofar as the High Court imposed onerous conditions for bail. We have previously criticized this in our discussion of Samsul Hoque v. UOI. Notably, the Court did not even condemn the wrongful detention as a consequence of an inadequately reasoned order passed by the FT.

Table of Authorities:

  1. State of Assam and Anr. v. Moslem Mandal and Ors., 2013 (1) GLT 809
  2. Dolgobinda Paricha v. Nimai Charan Misra, 1959 AIR 914 
    1. Affirms discussion of Section 50 in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299, 309.

Resources:

  1. Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian state of Assam, Statelessness and Citizenship Review, Volume 2 No 1.
  2. Designed to Exclude: How India’s courts are allowing Foreigners Tribunals to render people stateless in Assam, Amnesty International, 2019. 
  3. Arushi Gupta and Eeshan Sonak, Case Note: Samsul Hoque v. Union of India, WP(C)/6056/2019, Parichay Blog, 19th September 2021. 
  4. Parichay, Interview With Swati Bidhan Baruah, Parichay Blog, 5th October 2020.
  5. Trisha Bhapandit and Padmini Baruah, ‘Untrustworthy’ and ‘Unbelievable’: Women and the Quest for Citizenship in Assam, Statelessness and Citizenship Review, Vol. 3 No. 1.
  6. Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021. 
  7. Sadiq Naqvi, Captain Sanaullah’s Burden Of Extraordinary Proof, Article 14, 19th May 2020. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Khush Alam Singh and Arushi Gupta.

Mamtaz Begum v. Union of India, WP(C)/7305/2021

Read the judgement here

Date of decision: 03.01.2022

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh

Summary: The petitioner was declared as a foreigner by an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal for reconsideration on the ground that the Tribunal had not actually arrived at a specific finding as to when the petitioner had entered India. 

Facts: The petitioner had failed to appear before the Foreigners Tribunal No. 6, Barpeta, on two occasions. The Tribunal passed an ex parte order against her on 11.03.2019, declaring her a foreigner on the ground that she had entered India illegally on or before 25.03.1971. 

Holding: The petitioner argued that she could not appear before the Tribunal as she had been preparing for the case by gathering necessary evidence. The Standing Counsel for the Foreigners Tribunal argued that the petitioner may be allowed to appear before the Tribunal again, provided that costs were imposed upon her for non-appearance. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal, asking it to deliver a specific finding with respect to the status of the petitioner. It found that the “finding arrived at by the learned Tribunal is ambiguous as there is no specific finding as to whether the petitioner had entered India (Assam) illegally before 25.03.1971 or after 25.03.1971 with different consequences.” (paragraph 6)

Significance: The Gauhati High Court correctly noted that “if a person is declared to have entered illegally India (Assam) before 25.03.1971, certain benefits would accrue to him or her as provided under Section 6A(3) of the Citizenship Act, 1955.” (paragraph 6) According to Section 6A, persons who settled in Assam between 1st January 1966 and the cut-off date would have to register themselves according to the rules laid down by the Central Government and would enjoy all other rights except the right to vote for a ten-year period. The Foreigners Tribunal, in finding that the petitioner had entered the country illegally on or before 25.03.1971, neglected to note this aspect.

This lapse on the part of the Tribunal, and its attempt to pass it off as a typographical error, is part of larger, systemic issues that plague Foreigners Tribunals in Assam. These Tribunals are quasi-judicial bodies, often staffed by untrained persons with no knowledge of law, following opaque procedures that ultimately harm petitioners. This case is illustrative of the improper application of the law by the Tribunal in determining the question of citizenship. 

Resources:

  1. Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam, Amnesty International India, 2019. 
  2. Talha Abdul Rahman, Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam, Statelessness & Citizenship Review, 2020. 

Section 6A and Assam, Parichay Blog, 17 July 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

Idrish Ali @Idris Ali v. Union of India, WP(C)/7349/2021

Read the judgment here.

Date of the decision: 03.01.2022

Court: High Court of Gauhati

Judges: Justice N Kotiswar Singh and Justice Malasari Nandi

Summary: The High Court of Gauhati set aside the ex-parte order passed by the Foreigner’s Tribunal declaring the Petitioner as a foreigner. The High Court decided to give the Petitioner another opportunity to make his case as the Petitioner was unable to attend the proceedings because he could not collect necessary documents in time to contest the reference. 

Facts: The Petitioner had appeared before the learned Tribunal after receipt of the notice and sought time to collect documents and to file the written statement. Later the Petitioner failed to appear before the Tribunal on three occasions and file the written statement as he could not collect the necessary documents to file the statement in time. Consequently, the Tribunal, being of the opinion that a reasonable opportunity has been given to the Petitioner, passed an ex-parte order declaring him as a foreigner on 06.10.2018. Pursuant to the order, the Petitioner was arrested on 12.03.2021 and remains in detention. 

Holding: The Court set aside the impugned order passed by the Foreigner’s Tribunal deciding to give the Petitioner another opportunity to make his case before the Tribunal. The Court noted “it is not the case of total absence of the petitioner to appear before the Tribunal. Rather, it appears that the inability of the petitioner to appear before the tribunal stems from the fact that he could not collect the necessary documents and file the written statement in time to contest the reference.” (Para 5) The Court clarified that the ex-parte order was not valid as the Petitioner was not completely absent from the entire proceedings and has a reasonable cause justifying his inability to appear before the Tribunal. 

The Court allowed the Petitioner to be released on bail  on furnishing a bail bond of Rs.5,000/- with two local sureties of the equal amount and imposed a fine of Rs. 2,000/- on the Petitioner.

Significance: This decision is significant because this is possibly the first time when the High Court has set aside an FT ex-parte order where the inability of the petitioner to appear before the Tribunal stemmed from time taken to collect necessary documents. It reaffirms the importance of giving sufficient opportunity to the respondent to make their representation before the FT passes an ex-parte order. This decision also highlights the problem of routine ex parte orders passed in cases due to complexity of proceedings. The decision means that a ‘reasonable opportunity’ given to the Petitioner cannot disregard the difficulties faced by the respondents in making a representation and sufficient time should be given to do so. 

Another significant element is the bail condition and the fine imposed by the High Court akin to previous orders of the court. In this case,  the court fails to consider that the Petitioner has had to remain in detention for almost a year before he could even make a fair representation and the amount may not be affordable for the Petitioner. 

Table of authorities:

  1. Rahima Khatun v. Union of India WP(C)/8284/2019.   
  2. Dharmananda Deb, Foreigners Tribunals In Assam : Practice Lamp; Procedure, Live Law, 13 June 2019
  3. In Re The Union of India and Ors. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Dewangi Sharma.

Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021

Read the judgment here

Date of decision: 03.05.2021

Court: Manipur High Court 

Judges: Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir 

Summary: The Manipur HC held that the principle of non-refoulement was part of Article 21, thereby protecting Myanmarese nationals who entered India illegally under the threat of persecution by declaring them to be ‘refugees’ and not ‘migrants’.

Facts: The case arose out of a writ petition filed by the petitioner on behalf of 7 Myanmarese citizens before the Manipur HC. After the military coup in Myanmar during February 2021, the military junta banned Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. Of the 7 individuals represented in the petition, 3 were journalists, the others being the wife and 3 minor children of one journalist. They entered India and took shelter at Moreh in Tengnoupal district, Manipur, and sought the help of the petitioner as they feared that they would be sent back to Myanmar due to lack of proper travel documents.

The writ petition was filed on behalf of the 7 Myanmarese nationals, requesting passage for them to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR). 

The Home Ministry, Government of India, vide its letter dated 10.03.2021, had directed the authorities of the border States in North-East India to check the flow of illegal migrants coming into India from Myanmar. However, a letter dated 29.03.2021 was issued by the Government of Manipur stating that it would come to the aid of Myanmarese nationals who had illegally entered the State.

By its order dated 17.04.2021, the Manipur HC adjourned the case to enable the State and the Central Governments to put forth their stands. In its order dated 20.04.2021, the Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal, where they resided in the petitioner’s local residence. 

Holding: The petitioner argued that the Home Ministry’s letter did not draw a distinction between a ‘migrant’ and a ‘refugee’ and that the 7 Myanmarese citizens were refugees, and sought their safe passage to approach the UNHCR at New Delhi for protection. 

The Manipur HC held that the Myanmarese citizens could not be categorized as migrants. According to the court, “The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another, especially in order to find work or better living conditions. The word ‘refugee’, on the other hand, refers to a person who is forced to leave his/her country in order to escape war, persecution or natural disaster” (paragraph 6). As per the court, the 7 persons were compelled to flee Myanmar under threat of persecution, and were therefore asylum seekers, and not migrants. 

The HC also granted them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. This decision of the court was based upon its finding that Article 21 of the Constitution of India encompasses within its scope the principle of ‘non-refoulement’.

‘Non-refoulement’ is a principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.

Significance: This decision clearly states India’s responsibilities towards refugees and asylum seekers despite India not being a signatory to the 1951 Refugee Convention. 

The Manipur HC read non-refoulement within Article 21 of the Constitution and concludes that “The far-reaching and myriad protections afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again, would indubitably encompass the right of non-refoulement…” (paragraph 10). The Manipur High Court’s reading of non-refoulement into Indian law conflicts with India’s official position, and the court also takes a step that the Supreme Court was reluctant to take in its interlocutory order in the case of Mohammad Salimullah v. Union of India

The Central Government’s position is that since it is not a signatory to the Refugee Convention or the Protocol Relating to the Status of Refugees, it does not have any obligation to follow the principle of non-refoulement. It has even argued before the Supreme Court that it does not consider non-refoulement a part of customary international law. 

In Mohammad Salimullah (our analysis here), the Supreme Court had, by way of an interim order, rejected Rohingya refugees’ constitutional right to remain in India and allowed their deportation by the Government of India, on the ground that the right not to be deported was concomitant to the rights under Article 19(1)(e). This decision has been widely criticized for lack of sound legal reasoning. In Nandita Haksar, however, the Manipur HC correctly notes that Salimullah “was an interlocutory order and no ratio was laid down therein, constituting a binding precedent under Article 141 of the Constitution.” (paragraph 18). Unlike the Supreme Court in Salimullah, the Manipur High Court drew the principle of non-refoulement from Article 21, which extends to all persons regardless of nationality. Thus, despite India not being a signatory to the Refugee Convention, it has to follow the principle of non-refoulement since it is enshrined in Article 21 of the Constitution. 

This case also distinguishes itself from Salimullah on the argument of national security. The Manipur HC concluded that the petitioners presented no threat to national security, reaching this conclusion on the basis of various documents such as a certification of refugee status by UNHCR, and a sanction of ‘Visa Gratis’ by the Indian government to one of the petitioners. In Salimullah, on the other hand, the Supreme Court took note of ‘serious allegations of threat to internal security’ (paragraph 14) which was partly the reason it allowed the refugees’ deportation. Whereas the Manipur HC referred to several documents in order to assess whether the petitioners would be a threat to national security, the Supreme Court did no such analysis. 

This is also not the first time that a court has enshrined non-refoulement within Article 21. In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat HC had reached a similar conclusion. In Ktaer Abbas, the petitioners were Iraqi refugees who sought release from detention and invoked the principle of non-refoulement to request that they be allowed to approach the UNHCR. The Gujarat HC allowed their request, holding that the principle of non-refoulement is encompassed in Article 21 of the Constitution, despite India not being a signatory to the Refugee Convention. 

While the Manipur HC’s decision is appreciable in that it protects the petitioners from persecution, its approach of distinguishing between migrants and refugees and privileging the latter over the former warrants criticism. The  migrant/refugee distinction has been criticized for ignoring the fact that economic violence can be a key driver of migration and is no less insidious than religious, political, or ethnic persecution, and it presents the danger of reinforcing a false distinction, namely that migrants, who are moving for economic reasons, may be less deserving of asylum and aid than refugees, who are escaping war or persecution. This could, in turn, lead to blurring or even legitimization of the injustice faced by migrants. Some scholars have even argued that the distinction should be done away with. The court, by merely defining the categories of refugees and migrants, falls short of engaging with the issue in the depth and nuance that it deserves. 

Table of Authorities:

  1. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296. 
  2. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919.

Resources:

  1. Gautam Bhatia, Breathing Life into Article 21: The Manipur High Court’s Order on Refugee Rights and Non-Refoulement, Indian Constitutional Law and Philosophy, 3 May 2021.   
  2. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  3. Snehal Dhote, Right to Life Encompasses Non-refoulement: Indian High Court Advances Refugee Policy, Jurist, 30 June 2021. 
  4. Heaven Crawley & Dimitris Skleparis, Refugees, migrants, neither, both: Categorical fetishism and the politics of bounding in Europe’s ‘migration crisis’, Journal of Ethnic and Migration Studies, 6 July 2017. 
  5. Dr. Ben Whitham, On seeking asylum from poverty: Why the refugee/migrant paradigm cannot hold, Mixed Migration Platform, 30 September 2017. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Radhika Dharnia.

Mohammad Salimullah v. Union of India, W.P. No. 793 of 2017

Read the judgment here

Date of decision: 08.04.2021

Court: Supreme Court of India

Judges: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian

Summary: The petitioners, Rohingya refugees, sought the release of detained Rohingya refugees in Jammu who were facing deportation. The Supreme Court allowed deportation of the refugees, holding that the right against deportation is concomitant to rights under Article 19(1)(e). 

Facts: In March 2021, several newspaper reports indicated that about 150­-170 Rohingya refugees detained in a sub jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which advised them to initiate deportation processes against refugees housed in various camps across the country. The petitioners, who were themselves Rohingya refugees, sought, through an interlocutory application, release of the detained Rohingya refugees and a direction to the government to not deport them. The present petition was therefore an interlocutory application in the main case. 

Holding: The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. 

The Supreme Court dismissed the plea and ordered that the detained refugees be deported, following proper procedure. The court stated that, “the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” (paragraph 13), implying that India is not bound by the principle of non-refoulement. It also acknowledged the government’s concerns that refugees posed threats to internal security and would lead to increase in illegal immigration. 

Significance: While the Supreme Court’s decision can be understood as implying that the principle of non-refoulement is not a part of Article 21, this was not explicitly stated in the court’s order. So, it would be incorrect to say that the present case lays down an authoritative position of law with respect to non-refoulement and Article 21. 

The court’s decision is only an interlocutory order, and therefore should not be considered as laying down a ratio, as was also correctly noted by the Manipur HC in Nandita Haksar v State of Manipur (our analysis here). The issue of non-refoulement is a substantial question of law, and should be decided by a proper Constitution Bench. The petitioners’ arguments of Article 21 and non-refoulement amounted to a substantial question of law, which should have been referred to a Constitution Bench in line with Article 145(3). Instead, it was determined by a division bench in a mere interlocutory order. 

The court locates the right to not be deported within Article 19(1)(e), a misinterpretation of the petitioners’ arguments. The petitioners did not argue for a total right against deportation, they argued that that the refugees had a right not to be deported to a country accused of genocide against them. Deporting them would violate their right to life under Article 21, which is guaranteed to all persons. 

Further, the court acknowledged that, “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” (paragraph 12), but in its order, it referred to no such sources of law. Nothing in Indian law contravenes the principle of non-refoulement, and therefore, by the court’s own reasoning, it had the leeway to read non-refoulement into Indian law which it did not do. The court disregarded the fact that other international treaties that India is a party to, such as the ICCPR, encapsulate the principle of non-refoulement and will stand breached if the refugees are deported. Such a breach would also violate Article 51 of the Constitution, which calls for honouring international treaty obligations. 

By disregarding international conventions, the Supreme Court also contradicted its own judgement in Vishakha v. State of Rajasthan, wherein it had held that international conventions that are consistent with fundamental rights must be read into the Constitution. 

The decision also represents a break from several High Court judgements that have read non-refoulement into Article 21. The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India, and the Delhi HC in Dongh Lian Kham v. Union of India, have both held non-refoulement to be a part of Article 21. Both cases involved refugees from different nations seeking protection against deportation. 

The court’s acceptance of the national security argument is also flawed and stands in contrast to the Manipur HC’s treatment of a similar argument advanced before it in Nandita Haksar v. State of Manipur. Unlike the present case, in Nandita Haksar, the Manipur HC concluded that the petitioners, Myanmarese refugees seeking safe passage to UNHCR, represented no threat to national security. In order to reach this conclusion, the court examined several documents of the petitioners, noting the circumstances under which they had sought refuge in India. However, in the present case, the Supreme Court undertook no such examination and seems to have relied on the government’s unsubstantiated arguments.

Resources:

  1. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
  2. Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 2021. 
  3. Malcolm Katrak and Shardool Kulkarni, Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law, Journal of Liberty and International Affairs, June 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

Golapi Begum v. Union of India, WP(C)/2434/2020

Read the judgement here.

Date of the Decision: 15.07.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court held that the Tribunal went beyond its jurisdiction by declaring the Petitioner a ‘foreigner’ on a ground not referred to it. The High Court observed that the Tribunal cannot assume suo motu jurisdiction to give an opinion beyond what is sought and the matter was remanded to the Tribunal for a fresh decision in terms of the reference.

Facts: The Superintendent of Police (Border) referred the Petitioner, along with her family members, as a ‘foreigner’ coming into Assam after 01.01.1966 and before 25.03.1971. This power was exercised under Order 2(1) of the Foreigners (Tribunals for Assam) Order, 2006. Order 2(1) states that the Central Government may refer the question as to whether a person is or is not a foreigner to a Foreigners’ Tribunal. The High Court noted that the “power of the Central Government to make reference in terms of Order 2(1) has since been delegated” (paragraph 8). It is on the basis of this reference that the Tribunal registered a case and proceeded to answer it. The Tribunal held that the Petitioner was a ‘foreigner’ who entered India (illegally) after 24.03.1971, the cut-off date under Section 6A of the Citizenship Act. 

However, the terms of reference clearly stated that the Tribunal had to determine whether the Petitioner, along with her family members, is a ‘foreigner’ coming into Assam, after 1.01.1966 and before 25.03.1971. Thus, the writ petition was filed before the High Court on the ground that by declaring the petitioner as a ‘foreigner’ who entered India illegally after 24.03.1971, the Tribunal went beyond its jurisdiction. 

Holding: The Court observed that “In terms of Order 2(1), the Tribunal gets its jurisdiction to render its opinion only when any reference is made to it under Order of the Foreigners (Tribunals for Assam) Order, 2006… It is only when a reference is made as above that the Tribunal assumes jurisdiction to render its opinion… the Tribunal will have to confine its opinion to the terms of the reference made to it and not go beyond the same…Therefore, the view taken by the Tribunal that the Foreigners’ Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct. The Tribunal cannot suo motu assume jurisdiction to give an opinion which is not sought” (paragraph 12). In other words, the High Court held that the Tribunal went beyond the reference as no opinion was sought from the Tribunal as to whether the petitioner had entered India after 24.03.1971 or not. Further, the Tribunal does not have suo motu jurisdiction to give an opinion beyond the reference. Consequently, the Court set aside the impugned opinion and remanded the matter to the Foreigners Tribunal for a fresh decision in terms of the reference made i.e. render a finding as to whether the Petitioner entered India between 01.01.1966 and 25.03.1971 or not.

Significance: The decision of the Court reaffirms the position laid down in Santosh Das v. Union of India and SonaKha @ Sona Khan v. Union of India and Ors. In both of these cases, references were made against the respective petitioners suspected to be ‘foreigners’ belonging to the 1966-1971 stream. The Gauhati High Court had observed that the Tribunal was only required to answer the reference either in favour of the State or in favour of the petitioners, and not go beyond the terms of the reference. The present case reiterates the law on this point. In summation, the Tribunal cannot suo motu assume jurisdiction to give an opinion that is not sought. Accordingly, the reference has to be limited to the period of time referred to it.

The distinction between a reference alleging a person to have entered into Assam on or after 01.01.1966 but before 25.03.1971, and a reference alleging entry into Assam on or after 25.03.1971, becomes relevant when seen in the light of Section 6A of the Citizenship Act.  Under Section 6A, a ‘foreigner’ having entered into Assam in the 1966-1971 stream, is entitled to Indian citizenship if he has been a resident of Assam for 10 years. However, this benefit has not been conferred on those who entered Assam on or after 25.03.1971. Thus, it is important for the Tribunal to not extend its jurisdiction. 

In addition, this rule is important in view of the principles of natural justice. It is important to give due notice to the alleged ‘foreigner’ about the main grounds against them. This will inform the defence that needs to be put up. In case the main grounds against the alleged ‘foreigner’ are distinct from what the Tribunal deliberates, it will strip the individual of a reasonable opportunity to present their case.

Table of Authorities:

  1. Santosh Das v. Union of India, (2017) 2 GLT 1065.
  2. SonaKha @ Sona Khan v. Union of India and Ors., WP(C) No.1293/2021.

References:

  1. Nupur Thapliyal, Foreigners’ Tribunal Can’t Suo Moto Assume Jurisdiction To Give An Opinion Which Is Not Sought While Answering Reference: Gauhati High Court, Live Law, 30th September 2021. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Khushi Singh.