Marium Khatoon v. State of Bihar, CWJ No. 390 of 2020

Read the judgment here.

Date of decision: 18-08-2021

Court: Patna High Court

Judges: Chief Justice Sanjay Karol and Justice S. Kumar

Summary: The Patna High Court intervened and expedited a matter for repatriation of two Bangladeshi illegal migrants staying in an After Care Home in India. The court conducted an investigation of these Homes and ordered the State Government to set up Detention Centres for such migrants in accordance with Central Government guidelines.

Facts: Two minor Bangladeshi migrants were arrested from the Patna Railway Station and kept in After Care Homes (Nari Niketan) for several years. The two migrants were admittedly illegal migrants who had entered India without valid documents. Their repatriation was still pending. The question to be addressed was about the conditions in which foreign citizens who had been prosecuted, convicted and had completed their sentence, were being kept. The court constituted a committee of three advocates to look into the conditions of the After Care Home in a fair manner. The Committee reported that migrants were being treated well, with no sexual/mental harassment or slavery, appropriate medical assistance, nourishment and tutoring. Meanwhile, the two migrants were deported back to Bangladesh. The amicus argued that such migrants should not be staying in such Homes and instead the State should create a Holding Centre or Detention Centre for migrants arrested in the State of Bihar.

Holding: The court held that such Detention Centre could not be created within the jail and must be created in terms of the instructions given by the Central Government. It is a primary duty of the State to create such Detention Centres. It was also held that it is a duty of the Union of India to respond to the court’s queries, including all its Departments and Ministries. Accordingly, the State eventually took up the setting up of such Detention Centres. The court further asked for details about (a) the time frame for setting up of the Detention Centre, (b) whether the temporary Detention Centre is equipped with the requisite minimum infrastructure stipulated under Chapter-4 of Model Detention Centre/Holding Centres/Camp Manual, 2019, (c) what steps have been taken by the State Government for sensitizing the general population of Bihar about the mechanism of identifying and deporting illegal migrants from Bangladesh, and (d) steps taken to digitalize the records sought to be maintained under Section 6 and Section 7 of the Foreigners’ Act 1946.

The matter currently stands pending and the State Government is yet to reply to the court.

Significance: Both, the judgment as well as the action of the executive here are quite irregular. As has been stated by an advocate of the Calcutta High Court, “Ideally, a legal proceeding should come to a halt as soon as the subject matter of such proceeding is exhausted. In this case, the writ petition ought to have been disposed of as soon as deportation took place, as the fate of all concerned persons was decided.” On the executive’s part, the two migrants were kept in the Nari Niketan, instead of being tried under the Foreigners’ Act. Yet, the court never called this into question. The court’s order is also plagued with several factual inconsistencies, such as there being three and not two women from Bangladesh who had been arrested and placed in the Nari Niketan and that the women had been minors at the time of their arrest. Moreover, the foreigners in question were women who were victims of cross-border human trafficking. In 2015, a Memorandum of Understanding was signed between India and Bangladesh on bilateral cooperation on matters concerning the cross-border trafficking of women and children between India and Bangladesh. The MoU sets out the process for repatriation of victims of trafficking, and the language used suggests that trafficked women and children are not to be treated as illegal migrants, but as victims, and repatriated accordingly. The court fails to account for the fact that victims of trafficking are accorded treatment distinct from other categories of foreigners. The fact that the court reached its conclusion despite these inconsistencies shows that the women and their predicament were completely sidelined, and were rather used by the court to make a policy decision about detention centres, in a case instead concerning repatriation of victims of human trafficking.. 

The court’s concern here for human rights violation can be appreciated, especially in the context of the horrible conditions in the Assam Detention Camps. While the Central Government’s Model Detention Centre/Holding Centres/Camp Manual, 2019 lay down some standards for humane treatment of detainees, it has been criticised for being far too ambiguous, putting into question the court’s insistence on establishing these Detention Centres.

Resources:

  1. Neel Madhav How a Trafficked Woman’s Petition Is Being Used to Push for Detention of ‘Illegal Migrants’, The Wire, 3 September 2021.  
  2. Where hope fades and time stands still: Assam’s Detention Camps, Citizens for Justice and Peace, 13 November 2018.
  3. Vijaita Singh, Explained: Indian Home Ministry’s guidelines on migrant camps, The Hindu, 4 August 2019.
  4. Ruhi Tewari, Modi govt sets norms for ‘model’ detention camps to ensure dignity of ‘illegal foreigners’, The Print
  5. Deborah Grey, Ambiguous guidelines for ‘model’ detention camps raise questions, CJP, 28 November 2019.
  6. Ministry of Home Affairs, Government of India, Conditions of Foreign Prisoners, 2 July 2019.
  7. Ministry of Home Affairs, Government of India, Detention Centres in the Country, 24 July 2019.
  8. Sparsh Upadhyay, Deportation Of Illegal Migrants Is Of Paramount Importance, In National Interest: Patna High Court Directs Govt To Sensitize People Of Bihar, LiveLaw, 28 August 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 Farhan Zia.

Suresh Raj v. State, Criminal O.P. No. 5875/2021

Read the judgement here.

Date of decision: 27.09.2021

Court: High Court of Madras

Judge: Justice M. Dhandapani

Summary: The High Court of Madras rejected the bail petitions of several foreigners who overstayed in or illegally entered India. It also issued several directions to the Ministry of Home Affairs and other authorities to curb and strictly regulate the presence of illegally staying foreign nationals in the country. 

Facts: The Court was hearing a batch of petitions filed by persons of different nationalities such as Srilankan, Nigerian, Chinese, Iranian and Bangladeshi, who had been either overstaying their visa period or had entered the country illegally. They had been arrested for committing various petty offences and subsequently filed bail/anticipatory bail applications before the Court. One of the Petitioners challenged the conditional bail granted by the lower court. The Petitioner argued that the condition to stay at the Trichy Special Refugees Camp was onerous.

Looking into the case of the Petitioners, the Court observed that such cases of illegally staying foreigners are not in isolation and sought data from the authorities on the entry, exit and status of all foreigners staying in and around Coimbatore and Tirupur Districts. The district authorities and DGP submitted status reports accordingly. Further, the FRRO was impleaded by the Court to obtain information that was unavailable with the district authorities. A comprehensive memo was filed by the Centre on behalf of the FRRO detailing the total number of foreign nationals who were overstaying their visa period. Given that the same is illegal, the Court directed the Central Government to file a report as to the mechanism available for identifying the foreign nationals, who are overstaying their visa period and the mechanism that has been devised/available to deport the said foreign nationals back to their country.

Holding: The Court undertook a review of the existing laws and guidelines detailing the procedure issued by the Central government for identification, monitoring and timely deportation of illegally staying and arrested foreign nationals. There are different guidelines for Pakistani and Bangladeshi nationals, which involves communication from their respective countries’ consular office or High Commission and confirmation of nationality in all cases. In case of other arrested foreign nationals, they can be deported by the State authorities/FRRO after completion of their sentence and the procedure for the same has to be initiated 3 months prior to their release. Looking into the implementation of these guidelines, the Court observed that “the security of our motherland is being jeopardized due to the lethargic act of the Governmental machinery in not adhering to the guidelines issued by the Ministry of Home Affairs pertaining to deportation/repatriation of the foreign nationals, who stay put in the country without any valid permission/visa.” (paragraph 23). Thus, the Court considered such foreign nationals who illegally stay in India or who find illegal ways to extend their stay as a serious threat to India’s economic stability and security. Referring to the communications and data presented by different authorities, the Court observed that the exhaustive guidelines formed by the MHA for identification and deportation of illegal foreigners are not being followed, and the number of such foreigners has been increasing despite the presence of the guidelines. Consequently, the Court issued directions in this regard to curb the “menace” of illegal immigrants and foreign nationals illegally staying in India for long durations.

It directed inter alia (i) the MHA to frame appropriate laws within 3 months with regards to illegal immigrants who repeatedly commit petty offences in order to continue living in the country, (ii) the state government to set up detentions centres to hold illegal migrants when they are identified by the State law enforcement agency, (iii) the police authorities to establish a separate wing to monitor movement of all foreign nationals, record the entry and exit of all foreign nationals at various levels and spot, identify and deport overstaying foreign nationals, (iv) in case of foreigners who have committed serious offences, take necessary action to ascertain the nationality and complete the deportation formalities of foreign nationals as per MHA guidelines prior to their release so that they could be deported immediately without even moving them to detention centres, (v) the FRRO/ICP to communicate fortnightly, the entry of any foreign national within the State, along with details regarding their visa, passport and nationality and (vi) in case of foreign nationals/illegal immigrants who are serving prison sentence, the concerned authorities to take necessary steps for their deportation three months for prior to their release as per MHA guidelines. The Court adjourned the cases to 4th January 2022 for the authorities to report compliance.

Further, the Court rejected the bail petitions of all the Petitioners on the ground “of the very many grave nature of the allegations against the petitioners and also their status with regard to their stay within the Indian territory without valid permission being put in issue” (paragraph 31). In other words, the Court rejected the bail of the Petitioners on the ground that such foreign nationals posed a risk to the security of the country. With regards to the Petitioner who had challenged the conditional bail ordering him to stay at the Trichy Refugees Camp, the Court refused to interfere in the matter on the basis that MHA guidelines allow authorities to impose such conditions on foreign nationals to restrict and monitor their movement. 

Significance: The order joins a series of others in which directions have been issued on the deportation and detention of the accused or convicted or the overstaying and illegally entered foreign nationals (here, here and here). The directions issued by the Court in this case highlight various concerns regarding the procedure of deportation of foreigners in India. The Court reprimanded the state authorities for not ensuring timely deportation of foreigners and directed the same to be followed. The Court also suggested mandatory detention of foreigners before their deportation and directed authorities to set up more detention centres in this regard. However, there exists no centralised time-bound procedure assisting the states in ensuring that foreigners are timely repatriated. In the absence of proper regulations governing the conditions at detention centres and detention limits, the detainees could be left exposed to several human rights violations and exceedingly long detentions, which can take a form of “coercive confinement” and lack Constitutional protections. Further, the Court’s decision to not interfere with one of the Petitioner’s challenge to the bail condition to stay at the Trichy Refugees Camp shows how extremely wide and unrestrictive powers have been conferred on the executive under the Foreigners Act, 1946 to control and regulate the movement, stay and expulsion of foreigners in India.

The Petitioners were only accused of petty offences like preparing fake Aadhar cards, which the Court referred to as “grave allegations” and referred to such foreign nationals as “unscrupulous elements”. The Court’s observations are underlined with a sense of paranoia that perceives foreigners as security threats and potential criminals which is often used to justify harsher and punitive standards of legal frameworks to deal with foreigners. The Court presumed that all the Petitioners were security threats for the sole reason that they were foreigners, without looking into the merits of the bail applications or the conditions of the Petitioners. Increased patterns of crimmigration are being observed in judicial decisions as courts across India regularly deny bail and impose harsh fines on persons identified as illegal migrants. 

Table of Authorities:

  1. Model Detention Centre, Suo Motu Writ Petition No. 1 of 2019
  2. Prof. Bhim Singh v. Union of India & Ors., 2015 (13) SCC 605
  3. Babul Khan v. State of Karnataka, CRL.P. No. 6578/2019
  4. Bawalkhan Zelanikhan vs B.C. Shah

Resources:

  1. Aaratrika Bhaumik, ‘Unscrupulous Elements: Madras HC Directs MHA To Frame Laws Within 3 Months’, Live Law, 27 September, 2021 
  2. Palak Chaudhari and Madhurima Dhanuka, ‘Strangers to Justice,’ Commonwealth Human Rights Initiative, 2019
  3. Arijit Sen and Leah Varghese, Weaponizing Citizenship in India, Border Criminologies Blog, 19 February 2020
  4. Sujata Ramchandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019 
  5. Darshana Mitra, From Citizen to Criminal: Citizenship Determination in India and the Limits of Due Process, The Leaflet, 27 January 2021
  6. Aman and Roshni Shanker, Identity in Exile, The Hindu, 28 May 2018
  7. Abantee Dutta, Indefinitely Incarcerated: Assam and Its Non-Citizens, Studio Nilima, January 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 Dewangi Sharma.

Asor Uddin v. Union of India, WP(C)/6544/2019

Read the judgment here.

Date of decision: 09.09.2021

Court: Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Manish Choudhary

Summary: The Gauhati High Court set aside an ex-parte order by the Foreigners’ Tribunal which declared the petitioner a “foreigner” due to his repeated non-appearance before the tribunal. The court reasoned that there were sufficient reasons which made the petitioner unable to present himself before the tribunal. 

Facts: The petitioner was declared a foreigner by the Foreigner’s Tribunal under Section 2(a) of the Foreigners’ Act, 1946, via an ex-parte order. The petitioner was a poor person and had to travel to Kerala for livelihood. Due to this, he had difficulty readily gathering documents containing his father and grandfather’s names, communicating with his counsel, appearing before the tribunal and filing a written statement. 

Due to his repeated non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring him a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the grounds mentioned above. The counsel for the Foreigners’ Tribunal argued that in the absence of the procedee, the law allows passing an ex-parte order. Since the petitioner had failed to file a written statement despite several dates given by the tribunal, the order was valid and legal. 

Holding: The court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings. It was reasoned that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” [Para 7] 

The court deemed the reasons for the petitioner’s non-appearance sufficient to be considered by the Tribunal on merits. The court recused itself from deciding on the question of whether the petitioner is a foreigner or not, and instead remanded it to the Foreigners’ Tribunal for reconsideration. The petitioner was also directed to be released on a bail bond of Rs. 5000/- and to submit costs worth Rs. 5000/- to the tribunal. 

Significance: The High Court setting aside the ex-parte order is appreciable, considering the history of the large number of ex-parte orders being pronounced by the Foreigners’ Tribunal. Such orders are common since in many cases, procedees do not receive notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. In a previous case, a similar ex-parte order was passed by the tribunal where the proceedee’s child appeared before the tribunal without her knowledge, and then proceeded to remain absent for subsequent hearings. 

At the same time, however, the judgment problematizes the exact situations in which cases can be remanded back to the Foreigners’ Tribunal by the High Court. Unlike the above-mentioned case, the court has not found any fault by the tribunal in serving notice or hearing a representative without a thorough checking. The reasoning relied upon by the High Court was that the case is a matter of citizenship, which is the case with all the matters heard by the Foreigners’ Tribunal, and that the petitioners’ reasons for non-appearance seemed sufficient to the court. It remains unclear what is the exact parameter that a court can deem reasons “sufficient” to set aside such an ex-parte order and remand the case back to the tribunal. 

Resources

  1. Abhishek Saha, Explained: How do Foreigners’ Tribunals work?, Indian Express, 9 July 2019.
  2. Gau HC | [Assam NRC] Citizenship is one of the most important rights of a person which shall not be taken away by an ex-parte order; HC remands the matter to the Tribunal for reconsideration, The SCC Online Blog, 22 April 2021.
  3. Shrutika Pandey, Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner, LiveLaw, 13 September 2021.
  4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021. 
  5. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 24 September 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 Farhan Zia.

Kabir Uddin v. Union of India, WP(C)/7901/2019

Read the judgment here

Date: 02.09.2021

Court: The Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Petitioner had been declared a foreigner through an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court set aside the Tribunal’s order due to the improper procedure followed and remanded the matter to the Foreigner’s Tribunal for fresh consideration.

Facts: The Petitioner had shifted from his village many years ago in search of work and had not been in the State. When his name did not appear in the National Register for Citizens, he came to know from the NRC Seva Kendra in Doboka (Hojai District) that the Foreigners’ Tribunal had declared him a foreigner. He had not been served any notice and the process server had pasted the notice in a public place in the village where it was seen by the Gaonburah and others, none of whom had knowledge of the Petitioner.

Holding: The Court held that Order 3(5) of the Foreigners (Tribunals) Order, 1964 does not permit simply pasting notices in public places as a method of serving notice. While the procedure was unclear on what must be done when a proceedee was not found in the house or village, the Court held that the server ought to submit a report in accordance with Order 3(5)(f) and the Tribunal ought to take necessary steps in accordance with Order 3(5)(j). It was held that the notice could not be deemed to have been served and the ex parte proceeding could not continue. The Tribunal’s order was set aside and the Petitioner was directed to appear before the Tribunal for a fresh hearing of the matter. However, since the nationality of the Petitioner was still uncertain, the Court directed that he would remain on bail upon furnishing a bail bond for Rs. 5,000 with one local surety of the like amount, following the Court’s previous decision. The Court also noted that the Petitioner’s failure to appear before the Tribunal would result in the High Court order being vacated and the revival of the Tribunal order, with the Petitioner being liable for detention and deportation.

Significance: This decision indicates that in the instance that a proceedee’s whereabouts are unknown and their residence is not traceable, the server must report the same to the Tribunal and the onus falls on the Tribunal to take the further steps necessary and that simply pasting notices in public places would not amount to serving notice to the person. In so far as the bail conditions are concerned, the requirement for a local surety within the jurisdiction of the Tribunal in question seems especially problematic in such situations where no one in the village knew the Petitioner and vice versa. Moreover, when the Court speaks about the possibility of the Petitioner’s non-appearance and directs that the High Court order will stand vacated, it is not clear whether the holding regarding pasting of notices in public areas will also stand vacated or not.

Resources:

  1. Parichay Team, Challenging Ex Parte Orders – Special Circumstances, Parichay Blog, 2 November 2020.
  2. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 23 September 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 Aayushmaan Thakur. 

Smt. Sefali Rani Das v. Union of India, WP(C)/206/2018

Read the judgement here

Date of the decision: 20.07.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

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 citizenship should be decided on merit, and not by default.  

Facts: The petitioner had appeared before the Foreigners Tribunal 6th, Silchar, after notice was served, filing her written statement along with certain documents. However, she did not get proper legal advice and later failed to appear before the Tribunal on several occasions. As a result, the Tribunal passed an ex parte order against her on 19.9.2017, declaring her a foreigner. Accordingly, the present writ petition was filed, the petitioner pleading that she be permitted to approach the Tribunal again to prove her case as an Indian citizen. 

Holding: The petitioner argued that there was no wilful negligence or disregard on her part about the proceeding as she had duly appeared and filed her written statement. The Gauhati High Court granted the relief, remanding the matter to the Foreigners’ Tribunal for reconsideration. The Court, in its order, stated that “citizenship being a very important right of a person should ordinarily be decided on merit rather than by way of default as has happened in the present case” (paragraph 5).

Significance: The case deals with an ex parte order depriving an individual of their citizenship. It is significant because it reaffirms the importance of citizenship as a right, and that it cannot be taken away without proper consideration of its merits. While the Gauhati HC has also stated in previous orders that citizenship cases should not be determined on an ex parte basis, these orders are decided on a case-to-case basis, and it is unclear whether they indicate a general prohibition on ex parte orders. 

More than 60% of cases are decided ex-parte by Foreigners’ Tribunals. A large number of these orders are because the persons do not receive notices, or stop attending the proceedings midway through. Ex parte orders often affect vulnerable and marginalised persons such as wage labourers, who cannot appear before the Tribunals either due to lack of sound legal advice or because they stand to lose a day’s wage. While Foreigners’ Tribunals have the power to summon and enforce attendance of persons, there currently exists no mechanism to ensure that persons are able to attend hearings, which points to larger structural issues in the functioning of the Tribunals. Although laws like the Legal Services Authorities Act provide free legal aid for marginalised and disadvantaged persons, experiences show that such laws are ineffective in practice, making it difficult for the poor and marginalised to access legal aid.  

Table of Authorities:

Rahima Khatun v. Union of India WP(C)/8284/2019.   

Resources: 

Nupur Thapliyal,Gauhati HC Sets Aside Ex Parte Order Declaring Woman As Foreigner, LiveLaw, 29 July 2021.

Sabrang India, Citizenship Should Ordinarily be Decided on Merit Rather Than by Default: Gauhati HC, Newsclick, 30 July 2021.

Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid, Parichay Blog, 9 November 2020.

The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court, Parichay Blog, 23 June 2021.


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

Akhlima @Aklima Begum v. Union of India, I.A.(Civil)/1335/2021

Read the judgment here

Date of decision: 03.09.21 

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia 

Summary: The Petitioner, a declared foreigner, was granted bail by the Gauhati High Court in a previous order. In response to the risk posed by overcrowded jails in the COVID-19 pandemic, the High Court extended the bail until the disposal of the writ petition which challenged the Foreigners’ Tribunal’s order.

Facts: The Petitioner, Akhlima @Aklima Begum was declared as a “foreigner” in an order passed  by the Foreigners’ Tribunal on 24.06.20. Pursuant to this order, the Petitioner was in detention. The Petitioner filed a writ petition challenging the impugned order. In the meanwhile, the Petitioner filed an interlocutory application seeking an extension of the three-month bail granted by the Gauhati High Court vide order dated 02.06.21. The bail was granted on the sole ground that decongestion of jails and detention centres is a must during the COVID-19 pandemic. 

Holding: The Petitioner requested for the bail to be extended for a further period of time or till the disposal of the case in view of the overcrowded jail conditions that posed a health risk in light of the COVID-19 pandemic. The Gauhati High Court granted the relief, stating that “considering that the present COVID-19 pandemic situation and also since the Tribunal records have also been requisitioned and the matter can be heard on a short date, the applicant can be allowed to remain on bail till disposal of the writ petition” (paragraph 7). 

Significance: This decision indicates that detenues may be released on bail on the ground of COVID-19 for a limited period of time, and the same may be extended as long as the pandemic persists. In a move forward from the previous decisions of this court in Gauhati High Court v. Union of India and Samsul Hoque v. Union of India, the bail in the instant case was granted irrespective of the number of years served in detention. This is a positive development. Similarly, the court must not insist on the two year detention period before granting bail in a case where a person’s status as a “declared foreigner” is upheld by the High Court. This would be coherent with the ground for the bail, i.e. COVID-19 which applies to all detenues and is likely to persist for the foreseeable future. 

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 Arushi Gupta and Dewangi Sharma.

Samsul Hoque v. Union of India, WP(C)/6056/2019

Read the judgment here

Date of the decision: 10.05.21

Court: Gauhati High Court

Judges: Justice Sudhanshu Dhulia and Justice Manash Ranjan Pathak 

Summary: In response to the second wave, the Gauhati High Court modified its previous order and directed the authorities to release ‘foreigner’ detenues who have completed two years of detention on a personal bond of Rs.5000 with a like amount of one surety instead of two. 

Facts: The Petitioner, a person declared as a ‘foreigner’ by the Foreigners’ Tribunal had been in detention since 2019 for a period of two years. The Petitioner had filed a writ petition against the order. In the meanwhile, the Petitioner filed for bail as he was completing two years in detention. This bail was filed in consideration of the law laid down by the Supreme Court of India, which had been followed by the Gauhati High Court, which stated that a detenu was liable to be released after completing two years in detention on his furnishing personal bond of Rs.5,000/- and like amount of two sureties.

Holding: The Court held that given the exceptional circumstances of the second wave, a detenu is to be released after completing two years in detention on the fulfilment of certain conditions, like a personal bond of Rs.5000 with a like amount of one surety. It modified its earlier order, passed during the first wave as per the Supreme Court order, directing a detenu to be released with two sureties of Rs.5000. 

Significance: This decision indicates that detenues who have completed two years in detention must be released on bail after furnishing a personal bond of Rs.5000 with a like amount of one surety. A reduction from two sureties to one surety is a positive development considering that the process of citizenship disproportionately excludes the poor and the marginalised who may not have the means to provide a surety. However, the order, like the original, falters as it bases the release on the amount of time served even though the same lacks nexus with the likelihood of contracting COVID-19. Further, the release is subject to other onerous conditions, like reporting weekly to the nearest police station with a border branch. This is a cumbersome condition since it has to be complied with irrespective of a lockdown or the distance between a person’s place of residence and the station. In fact, Two Circles reported that making these weekly visits imposes a financial and emotional burden on the former detainees. This is exacerbated as most of these former detainees are daily labourers, making these weekly visits a financial burden as work is difficult to find, especially when migration to another state to work to earn money is not possible. 

Table of Authorities:

  1. In Re: Contagion of Covid 19 Virus In Prisons, Writ Petition (C) (Suo Moto) No.1/2020
  2. Gauhati High Court v. Union of India & Ors., Writ Petition (C) (Suo Moto) No.1/2020

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 Arushi Gupta and Eeshan Sonak.

CAA Revisited: A Conversation on Citizenship, Refugee Protection and Migration along India’s Western Borders

On the 27th of August, Parichay organized a panel discussion on the May 2021 order of the Ministry of Home Affairs, which significantly relaxes the citizenship process for minority communities from Bangladesh, Afghanistan and Pakistan. The panel focused on migration across India’s Western border and the making of the identities of the refugee and citizen, exploring the legal and social journeys of recognition and assimilation, the structural impediments in the legal regime and the possibility of an alternative system. The speakers were Dr. Farhana Ibrahim, Prof. Natasha Raheja and Ms. Darshana Mitra and the panel was moderated by Prof. Mohsin Alam Bhat.

The themes that emerged out of the panel are as follows:

The need to historicize citizenship and migration along the Western border

Dr. Farhana Ibrahim pointed out that there have been several MHA executive orders that have relaxed immigration and long-term visa requirements for Pakistani Hindus and other religious minorities from Pakistan like the 2003 amendment. These changes have happened continuously after 1947. Prof. Natasha Raheja spoke about her research in Rajasthan, and how people have shared histories and connections, and their mobility predates the existence of borders. Speaking about her research in Rajasthan, she pointed out, “our assumptions about people making these journeys are fixed within the logic of the contemporary India- Pakistan border. Until the more recent border fencing in Rajasthan and Sindh in Punjab in the 1990s, there wasn’t the same sense of partition the way we understood it in other parts of South Asia.” The research conducted by the panelists also revealed other reasons why people choose to migrate. Prof. Raheja indicated that in addition to experiences of religious persecution, caste also played a role in the decision to migrate.  Dr. Ibrahim gave the example of migration by the Sodha community to India from the Tharparkar region in Pakistan after 1971, as they were the only remaining upper caste community in Pakistan and endogamous marriage alliances were increasingly difficult.

Legal inclusion and social inclusion

The speakers also spoke about processes of legal inclusion and social inclusion. They emphasized that even when a statute guarantees visas and subsequently citizenship to a category of refugees, the process itself still takes a very long time. Applicants must undergo immigration inquiries and interviews that can be difficult and humiliating. Within these spaces, the position of lower caste applicants is especially precarious. This painful process of interacting with the citizenship regime is what Prof. Raheja calls a selective welcome. She highlights that, “on one hand, there is a welcoming of Hindu migrants from Pakistan but the reality on the ground is that they undergo the undignifying experience of documentation. Some of the statements that I hear from people is that “In Pakistan we may die because of religion but here we die by paperwork.” 

She highlights how Hindu migrants spoke of the “undignifying experience of documentation.” 

Dr. Ibrahim mentioned that legal inclusion is not always followed by social inclusion. She noted that migrants struggle to be accepted into the Hindu community, even if they had caste privilege, and had to struggle for resources and livelihood. Also, they were still identified socially as “pakistan-wallahs”, keeping intact the stigma of migration and forcing them to establish their Hinduness for acceptance. One can only imagine how much more difficult social assimilation is for people belonging to marginalized communities. 

Darshana Mitra then proceeded to emphasize on the existing legal regime for citizenship applicants and discussed possible alternatives and suggestions that could be borrowed from other jurisdictions. 

Legal impediments to citizenship seekers

Darshana Mitra spoke of how Indian law does not recognize or grant refugees a separate legal status, and most refugees fall into the category of illegal migrants under the Citizenship Act 1955. This becomes a significant barrier as illegal migrants are prevented from applying for citizenship and renders them vulnerable to prosecution for immigration offences under the Passports Entry into India Act or the Foreigners Act. This ‘illegal migrant’ tag does not allow people to avail various government schemes, send their kids to school or even avail proper housing. 

Once they have fallen into the criminal justice system as a criminal or an accused, the pathway to citizenship is effectively closed for them because and then if they are convicted under any of these legislations then the state’s response after conviction is detention and deportation. Granting citizenship to a person who has been convicted under an immigration offense is not an option that is exercised by the state.

The state’s response has been the selective easing of processes for certain communities. The May 2021 order is an example of a significantly truncated process for citizenship registration and naturalization procedure for minorities from Afghanistan, Pakistan and Bangladesh. The order creates a single tier process for registration and naturalization current process, which non-Muslim minorities can avail, while Muslim applicants must go through the existing three-tier process. This means that at the very point of entry, Muslim claims of persecution are rejected, and their pathways to citizenship made significantly harder. A proposed alternative was the rigorous scrutiny of all refugee claims, but after a refugee is admitted, they have the same pathway to citizenship as everyone else, determined by a case-by-case assessment. This would be similar to the system of refugee status determination and subsequent pathways to citizenship implemented in the United States. 

The discussion ended with questions on the way forward, and a consensus that the current legal regime, even with amendments and orders that presumably help migrants and refugees obtain citizenship, is discriminatory and arbitrary, and that there is a need to reimagine a legal system that recognizes why and how migrations take place along India’s borders, and one that can adequately respond to people’s lived realities.

Further references:

  1. Farhana Ibrahim, “Re-Making a Region: Ritual Inversions and Border Transgressions in Kutch” 34.3 Journal of South Asian Studies 439 (2011) https://www.tandfonline.com/doi/abs/10.1080/00856401.2011.620555
  1. Farhana Ibrahim, “Cross-Border Intimacies: Marriage, migration, and citizenship in western India” 52.5 Modern Asian Studies 1664 (2018) https://www.cambridge.org/core/journals/modern-asian-studies/article/crossborder-intimacies-marriage-migration-and-citizenship-in-western-india/72B0E16730FD62F0A18768FF8D919727
  1. Farhana Ibrahim, “Defining a Border: Harijan Migrants and the State in Kachchh” 40.16 Economic and Political Weekly 1623 (2005) https://www.jstor.org/stable/4416504?casa_token=6xdhQ_jmPgcAAAAA%3ABlqAjrS7BTDaCMTwOeLVBTGTUrFL8tpM1eaNaIV71MnBGn-4LpOR_M9zD7Fsxz9P341Yxim_MlcNovOo0c51hxiGuy0sobNv9OKXhmYy7Vv8ZdoF6A&seq=1#metadata_info_tab_contents
  1. Natasha Raheja, “Neither Here nor There: Pakistani Hindu Refugee Claims at the Interface of the International and South Asian Refugee Regimes” 31.3 Journal of Refugee Studies 334 (2018) https://academic.oup.com/jrs/article-abstract/31/3/334/4922733
  1. You can find Parichay’s note on the May 28, 2021 order here.

Mangla Das v. Union of India, Review.Pet./73/2021

Read the judgment here.

Date of the decision: 04.09.21

Court: Gauhati High Court

Judges: Justice Achintya Malla Bujor Barua and Justice Prasanta Kumar Deka 

Summary: The Gauhati High Court granted the Petitioner, a person declared as a “foreigner”, the liberty to seek citizenship under the Gazette notification of 2015 on the ground that he was a persecuted minority as he belonged to the Hindu faith and migrated from Bangladesh. 

Facts: The Petitioner filed a review petition before the Gauhati High Court to request for the review of an order in which the High Court had dismissed a writ petition challenging an order of the Foreigners’ Tribunal declaring the Petitioner to be a foreigner. The High Court had dismissed the writ petition on the ground that the Petitioner failed to establish his lineage with his claimed father and thus there was no error apparent in the Foreigner Tribunal’s order. Subsequently, the Petitioner approached the Supreme Court, asking it to grant relief to file a review petition before the Gauhati High Court. The Petitioner argued that there existed two documents that were relevant to the issue but could not be produced before the High Court in spite of due diligence. The first document was a 2015 Gazette Notification issued by the Government of India under Section 3 of the Foreigners Act and the second was the draft NRC in which the name of the petitioner appeared. The Supreme Court did not interfere with the judgment of the Gauhati High Court but gave the liberty to the Petitioner to institute a review petition before the same. Accordingly, this review petition was filed. 

Holding: The Petitioner argued that he had a right to be granted Indian citizenship under the Gazette Notification passed in 2015. The notification dated 07.09.15. stated that the provisions of the Foreigners Act, 1946 would not apply to the minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who “were compelled to seek shelter in India due to religious persecution or fear of religious persecution” and entered into India on or before 31st December 2014 without valid documents or with expired documents. Based on this, the Petitioner argued that “there exists a right in favour of the petitioner to be granted Indian Citizenship on the ground that the petitioner belongs to the Hindu religious faith and was required to leave his original Country of Bangladesh because of fear of religious persecution” (paragraph 5). The High Court granted liberty to the petitioner to approach the appropriate authority to file an application raising the plea that he is entitled the grant of Indian Citizenship. It also granted interim protection of two months’ time to the petitioner to file such application, and directed that the authority shall pass a reasoned order without being influenced by the conclusions and findings arrived at by the HC in its previous decision dismissing the writ petition. 

Significance: The case deals with a declared foreigner approaching the Gauhati High Court on a review petition seeking to apply for citizenship. It is significant because this is the first instance we know of where a person who is a declared foreigner by the Foreigners Tribunal is seeking to apply for citizenship because of religious persecution. While the order does not refer to the Citizenship (Amendment) Act, 2019, it is only under the CAA, 2019 that persons covered under the 2015 Gazette Notification are exempted from the definition of “illegal migrant” and hence eligible to apply for citizenship. This indicates that the CAA 2019 is operational and can be invoked as a path back into citizenship by non-Muslim declared foreigners in Assam. 

Refer to a more detailed note on the CAA 2019 and its continuing implementation here.


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 Arushi Gupta and Eeshan Sonak.

Hostile Territory: Behind the Indian Government’s Response to the New Refugee Stream from Myanmar

Angshuman Choudhury is a Senior Researcher at the Institute of Peace and Conflict Studies, where he coordinates the South East Asia Research Programme. He is also a former GIBSA Visiting Fellow to the German Institute for International and Security Affairs, Berlin. He works on armed conflict, foreign policy, forced displacement and citizenship.

“I take this opportunity to renew the commitment of India, a generous host to and not a source of refugees, for the protection of refugees and cooperation with the international community,” declared Dr Sadre Alam, India’s First Secretary at India’s Permanent Mission in the UN headquarters in Geneva, during the fifth round of formal consultations on the Global Compact on Refugees (GCR) held in June 2018. India reiterated the same narrative in all the other consultative rounds, and even spoke against the dilution of the non-refoulement principle in the Compact’s first thematic discussion.

Barely three years later, in early March 2021, as people from neighbouring Myanmar fled into India to escape the brutal crackdown of a new military regime, the same Indian government that Dr Alam spoke on behalf of in Geneva sent a certain letter to four Northeastern states sharing a border with Burma, which said the following:

“It has been reported that illegal influx from Myanmar has started. Attention is invited to MHA letter…wherein instructions were issued to sensitize all law enforcement and intelligence agencies for taking prompt steps in ‘identifying the illegal migrants’ and initiate the deportation processes expeditiously and without delay.” 

The letter, exuding much urgency in tone, went on to remind the governments of these border states that they have no power to grant “refugee status to any foreigner” and that India has not ratified the 1951 UN Refugee Convention or its 1967 Optional Protocol. This missive from the Narendra Modi-led central government in New Delhi came two days after the coup regime in Myanmar requested India to hand over eight Burmese police officers who had defected and fled to the neighbouring Indian state of Mizoram some days earlier.

Later that month, the Home Department of the Manipur government, led by the Bharatiya Janata Party (BJP), shot off an even more terse letter to five district chiefs, directing the local administrations and civil society organisations “to not open any camps to provide food and shelter” to the fleeing asylum seekers who had entered India from Myanmar. It even asked the district administrations to “politely turn [the asylum seekers] away”. The peculiarly uncharitable letter quickly caught the attention of Indian media (and social media) and fueled widespread outrage, ultimately forcing the government in Imphal to withdraw it.

The glaring contradiction between India’s stated position on refugees at international forums and the reality of its asylum policy at home isn’t lost on anyone. In fact, the entire episode is a profound reflection of the Indian state’s pathological anxiety over its Northeastern borders. More importantly, it reveals a changing attitude towards asylum seekers within the current political context – one from passive acceptance to sweeping rejection. This, however, is hardly the full story. 

Shifting attitudes 

While New Delhi has gradually softened its position on the incoming Burmese refugees since the initial overreaction, its first response – deploying paramilitary forces to seal the border and directing states to instantly deport the asylum seekers – shows New Delhi’s shifting stance towards refugees. There was a time not long ago when the Indian government welcomed anti-military dissenters from Myanmar with open arms and even set up camps for them. While that benevolence was eventually seen by successive Indian governments as politically damaging and India became more reticent in admitting Burmese asylum seekers, people kept trickling in over the decades without New Delhi bothering too much. 

The refugee streams mostly included Chins and later, the Rohingya, who were fleeing extreme persecution and sectarian violence in Myanmar’s Rakhine State. Many of them were registered by the UN High Commissioner for Refugees (UNHCR) office in New Delhi as refugees, with the previous UPA government even issuing Long Term Visas to several with refugee cards. UNHCR was also able to largely undertake its operations with limited interference from the government. 

“Despite increasing security concerns, refugees and asylum-seekers continue to have access to the territory of India and asylum procedures. The Government allows all refugees and asylum-seekers to have access to public health, education services and the national legal system. However, a lack of awareness of these services and the local language, constitute practical barriers to effective access,” noted the 2012 UNHCR report on India as part of the Universal Periodic Review process at the UN Human Rights Council. 

India, notably, did all of these despite not being a state party to the 1951 UN Refugee Convention or its 1967 Optional Protocol. But today, the message from New Delhi is somewhat different. It is that India is no longer willing to use its executive discretion to shelter asylum seekers, least of all recognise them as ‘refugees’; that people in dire straits outside India shouldn’t take her open-door policy for granted; and that if those in India’s neighbouring countries still manage to reach the Indian border from their side, they should be ready to confront paramilitary personnel or worse, court arrest. 

For a nation that has always fretted about its borders and territorial sovereignty, and yet allowed all manner of persecuted people to take shelter within its borders during troubled times, this is a tragically uncharacteristic memo to send out to the world.

Counter-attitudes

There is a chink in this otherwise dreary story – one that offers hope and drives a profound point about not just Indian federalism, but also its judicial integrity. 

Just a few weeks after the Modi government ordered four Northeastern states to prevent the refugee influx and send back “illegal migrants” to Myanmar, Zoramthanga, the current Chief Minister of Mizoram (which has so far received the lion’s share of Burmese refugees) sent a rare letter of defiance to the Prime Minister. Labeling the situation in Myanmar as a “human catastrophe of gigantic proportions”, he plainly stated that New Delhi’s order was “not acceptable to Mizoram”. 

“India cannot turn a blind eye to this humanitarian crisis unfolding right in front of us in our own backyard,” Zoramthanga wrote, without mincing words.

While the central government hasn’t yet publicly responded to the letter, it hasn’t outrightly stopped Burmese asylum seekers from entering India or hindered local humanitarian work since Zoramthanga dissented. On the contrary, Union Home Minister, Amit Shah, even offered to provide limited humanitarian assistance to the refugees (it is another matter that the offer is yet to materialise). It is perhaps because of the Mizo CM’s letter that the number of refugees from Myanmar has steadily climbed up to a sizable 16,000. More are expected to enter India in the months to come, as Myanmar descends into a full-fledged civil conflict. 

Zoramthanga’s letter is a reminder of a certain reality, which no policymaker or political leader in New Delhi can wittingly dodge – that the central government cannot have a veto on every single matter in the country even if it wants to. Local interests and social dynamics will continue to have great sway over both national politics and statecraft, including on matters concerning other countries. 

This is particularly true in the case of India’s Northeast – a complex, multi-ethnic, heterogeneous region with historical ties to its border regions. A large chunk of those fleeing across the border from Myanmar to India happen to be Chins, who share the common ‘Zo’ ethnic umbrella with the Mizos. Both communities have maintained a fraternal relationship for centuries that transcends international borders and the very history of postcolonial state-making. A single letter from the Home Ministry in New Delhi wasn’t going to break that ancient legacy of ethnic togetherness.     

In fact, the Modi government’s knee-jerk attempt to bypass Aizawl while deciding its asylum policy on Chin refugees is a pinpoint reflection of how detached the Centre in India remains from its peripheries, despite its concerted attempts to co-opt the Northeast into its political-cultural fold and foreign policy narratives (such as the ‘Act East Policy’).

Since Zoramthanga’s refusal to toe New Delhi’s line, the refugees from across the border have found a familiar home in Mizoram. Despite severe logistical and material insufficiencies, compounded by the looming threat of a COVID-19 surge, ordinary Mizos have gone the extra mile to ensure that the displaced have a roof above their heads and two square meals a day. In one video posted on Twitter, for instance, locals were seen building makeshift shelters for refugees in Mizoram’s Saikah village. This, perhaps, is what a “whole of society approach” – a phrase so very frequently recalled in the global refugee literature – really looks like. 

In that sense, the collective Mizo response to the Burmese refugees may be seen as a revolt against the political border. In a way, it is a rejection of the postcolonial nation-state as an entity that punctuates natural ethnographic continuities. However, it is not a rejection of those who cross the border. This is in stark contrast to the ethnonationalist view of the India-Bangladesh border in Assam wherein the border itself as a national entity is embraced, but those crossing it are rejected overwhelmingly. For the Assamese nationalists, the border is a subject of constant anxiety and an essential instrument of ethnic self-preservation that is vulnerable to “external aggressors” (read: undocumented migrants). On the other hand, for the Mizos, it is a banality that must be transcended precisely for the same objective – ethnic self-preservation. It is a different matter, however, that the Mizo response might have been different if they did not share ethno-cultural affinities with those crossing the border – like in the case of Assam. Rejection of border-crossers who are seen as the “other” by the population in destination regions is a pattern visible across most international borders, with variations in the degree and nature of the backlash.

Judicial Interventions 

Alongside Zoramthanga’s letter, another intervention – a judicial one this time – punctuated New Delhi’s restrictive asylum policy on Burmese refugees. In early May, the Manipur High Court directed the government to provide “safe transport and passage” to seven refugees working for Myanmar’s Mizzima news media portal – to travel to New Delhi and seek protection from the UNHCR. Not just that, the court validated their status as ‘asylum seekers’ – not ‘migrants’ – and established their legal right to not be sent back to Myanmar.

“They did not enter our country with the clear-cut and deliberate intention of breaking and violating our domestic laws. They fled the country of their origin under imminent threat to their lives and liberty,” the bench said.

The entire order, in fact, is in stark contrast to an earlier one passed by the Supreme Court of India in April, which allowed the central government to deport hundreds of Rohingya refugees currently detained in Jammu back to Myanmar. The apex court bench – led by former Chief Justice of India, S.A. Bobde – had taken an unusually obtuse view of the Rohingya refugee situation, refusing to cross-examine the government’s submission that they are a ‘national security threat’ to India or do its own research on the threatening ground reality in Myanmar, where the Rohingya remain a stateless minority who were violently chased out only four years ago. 

In an almost antithetical judicial reading, the Manipur High Court noted that “no material [was] produced in support” of the government’s claim that the seven refugees posed a “possible threat” to the “security of our country”. It went on to argue that “the media coverage that has surfaced from within Myanmar after the military coup, even if discounted to some extent, leaves this Court in no doubt that these Myanmarese persons, given their links with the banned Mizzima Media Organization, face imminent threat to their lives and liberty if they return.” 

Notably, the meticulously-researched order also highlights specific provisions within Indian law that offer certain safeguards to asylum seekers, such as the principle of ‘non-refoulement’ – the norm of not sending asylum seekers back to their home countries where they face a clear threat of persecution. It lays down the whole spectrum of binding and non-binding international instruments that contain the non-refoulement principle in one form or the other (including the most recent GCR) and ties it all to Article 51 of the Indian Constitution, which “casts a non-enforceable duty upon the ‘State’ to promote international peace and security, apart from fostering respect for international law and treaty-obligations in the dealings of organized peoples with one another.” It further goes on to remind the government that Articles 14 (equality before law) and 21 (right to life) of the Indian constitution guarantee certain legal safeguards even to non-citizens, and backs this up with past case precedents (such as the landmark National Human Rights Commission vs. State of Arunachal Pradesh and Another).

Most importantly, it argues 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.” There truly cannot be a more unequivocal reaffirmation of the non-refoulement principle by any Indian court, and one can only hope that future benches in the Supreme Court and other High Courts look to this order for precedence while adjudicating over asylum-related cases.

But, this is just one order. In general, the Indian legal framework is not very friendly to asylum seekers. In the absence of a national refugee law, the heavily punitive Foreigners Act 1946 comes into play, allowing governments to sweepingly portray asylum seekers as “illegal migrants”, which then courts could validate on legal technicalities. The sitting government, instead of broadening the legal-policy space for asylum, has only made it discriminatory and sectarian by introducing legal provisions that exempt migrants from six specific, non-Muslim religious groups belonging to three specific, Muslim-majority neighbouring countries from the punitive provisions of the Foreigners’ Act. These amendments made in 2015 eventually paved the way for the controversial Citizenship Amendment Act (CAA) 2019. Needless to say, asylum seekers from Myanmar aren’t covered under this law.

Is India violating international law?

The key premise that the Modi government cited while closing India’s borders to the fleeing Myanmar refugees or sending those who had already entered back to Myanmar is that India is not a state party to the 1951 UN Refugee Convention or its 1967 Optional Protocol. In itself, this isn’t wrong. 

The Convention provides the most explicit legal basis for refugee protection amongst all international treaties, and since India hasn’t ratified it yet, it is neither obligated to take in asylum seekers, nor bound by its core principle of ‘non-refoulement’. It is municipal law that takes precedence here, according to which, anyone who enters India without valid papers (such as a visa) is in violation of the Foreigners Act 1946 and is classified as an “illegal migrant” under the Citizenship Act, 1955

However, this is the narrowest possible interpretation of India’s international obligations to asylum norms. In fact, one may firmly argue that by sending Burmese asylum seekers who have already entered India back to Myanmar where they face a clear threat of persecution and torture by the military regime, India would be violating international law. There are two main reasons for this. 

One, ‘non-refoulement’ has been recognised as a peremptory norm of international law (or jus cogens), taking it beyond the sole remit of the Refugee Convention. This means that even those countries that have not ratified the 1951 Convention or its 1967 Optional Protocol, like India, are bound by it. 

To be clear, whether the non-refoulement principle really has reached the status of jus cogens remains up for debate amongst international law theoreticians and practitioners. At the same time, a growing body of academic literature and more importantly, a series of advisory opinions (see Point 21 of this) issued by the Executive Committee of the UN High Commissioner for Refugees (UNHCR) have validated the universally binding nature of non-refoulement based on “consistent State practice combined with a recognition on the part of States that the principle has a normative character”.  

Two, the non-refoulement principle is enshrined within other international instruments that India has ratified or signed. Primarily, this includes the International Covenant on Civil and Political Rights (ICCPR), which India ratified way back in 1979. According to a UNHCR advisory opinion (see footnote 37), the principle is woven into the Covenant through the Right to Life provision in Article 6. This simply means that a member state may not send an asylum seeker back to their home country where their right to life may be violated. 

In the Myanmar refugees’ context, this is relevant because more than 1049 civilians have been killed by the military regime since the 1 February coup, according to one estimate. Further, in Chin State and Sagaing Division, both sharing borders with India, intense clashes between regime forces and civilian militias have erupted in recent weeks, fueling a growing humanitarian crisis and even driving accusations of war crimes against civilians.  

Secondarily, India remains normatively committed, though not legally obligated, to the non-refoulement principle by virtue of signing the Convention Against Torture (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), both of which enshrine it. Since the coup, Myanmar has seen hundreds of enforced disappearances and extensive use of torture in detention. Even the Universal Declaration of Human Rights (UDHR), which India has signed, contains the non-refoulement principle in Article 14. 

The Global Compact on Refugees, which was officially affirmed by the UN General Assembly in December 2018 and in the development of which India “took an active role”, explicitly recognises the non-refoulement principle as “a cardinal principle” (see Clauses 5 and 87 of the Compact). While these are only soft commitments, abiding by them steadfastly would place India as a positive norm-setting country in the domain of international humanitarian law.

Refugees are people, not pathogens

It is a rather jarring juxtaposition of circumstances – how the Indian government scrambled heavily-armed paramilitary forces to keep away a few thousand refugees even as it mobilised resources to also keep a rapidly-spreading deadly virus at bay. For a moment, it looked like refugees who were literally fleeing for their lives were no different from a mutating pathogen that is out to take lives – as if both threatened Indians in equal measure. In fact, one could argue that the central government was more proactive in stopping the refugees than the new strains of Coronavirus.

Yet, this stoic, if not hostile, attitude towards the new refugees from Myanmar is hardly surprising. The majoritarian political ideology that drives the ruling dispensation in New Delhi today is inherently and reflexively anti-immigrant (and ‘refugees’ are, broadly speaking, a certain class of immigrants). It is premised on the idea of maintaining a sense of national demographic purity (eventually segueing to cultural purity) by keeping “the outsiders” away and appearing muscular while doing so. While the impulse to preserve territorial and demographic integrity through border control has been a longstanding trait of the Indian state, regardless of the government in power, the current regime has only dialed it up with an intent to deploy it as a hypernationalistic political tool.

An attendant aspect of such an ideology is projecting asylum seekers as threats to India’s ‘national security’ and territorial integrity, and the very act of border-crossing as a de facto criminal act. This heavily securitised approach to immigration and borders, which predates the BJP, has been most pronounced in India’s Northeast, a region that is seen by the politico-security establishment in New Delhi as particularly vulnerable to external security threats because of its porous borders, ethnic rebellions, and historical-cultural continuities with neighbouring countries. If the idea is to ‘tame’ the region, then taming the borders becomes the sine qua non.  

This is exactly why successive governments and even the higher judiciary have borrowed terms such as “external aggression” from the Indian Constitution to characterise cross-border migration, as in the context of the India-Bangladesh border. The ruling government has only successfully doubled down on this hyper-securitised border policy while also introducing a political element to it. 

The Indian state is not likely to shed this institutional thinking anytime soon, not at least under the current BJP-led political regime in power at both the centre and various border states in the Northeast, despite its blustering rhetoric about humanitarianism and protecting persecuted minorities in the neighbourhood. After all, this is the same government that reiterates its “commitment on protection of refugees” every year at the UN and at the same time, declares in the country’s highest court that “India cannot be the refugee capital of the world.”

This contradictory policy approach allows the government to dodge criticism at the UN while enjoying the freedom to push its anti-migrant political propaganda at home. Ultimately, the homeland approach is designed to serve as a deterrent against asylum-seeking and entrench a certain idea in the popular imagination that India’s borders are sacrosanct, regardless of what international or municipal law may stipulate. This is sour news not just for prospective asylum seekers in strife-torn neighbourhood countries, such as Myanmar, but also for asylum seekers and undocumented migrants who are already in India. Yet, India remains a vast country with a deeply pluralistic demography and border regions that carry complex transnational legacies. Delhi may find it hard to rule by decree in such quarters, as it did this time when the Mizo Chief Minister put his foot down to help his people.