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.

Excerpt: Rights of Child Detainees

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the last in a three-part series of excerpts from the report. The previous excerpts on legal recognition of the status of statelessness and the framework of socio-economic rights of non-nationals can be found here and here. The entire Report will be published in the final week of November, and the schedule of events can be found here.

IV. RIGHTS OF CHILD DETAINEES

All the rights and prohibitions against detention established and elaborated above apply in the case of children. However, given their special and vulnerable condition, children enjoy additional standards of protection. This section begins with an argument against detaining children on the premise that such detention violates international law pertaining to child rights. Moreover, the state can deploy less intrusive measures in dealing with children. However, given that children may be under detention at present, this section details the rights of such child detainees to be ensured by the state.

The situation of children detained in Assam is worrisome. There is a lack of clarity about the number of children that are currently in detention; however, their presence in detention centres is a confirmed fact. A recent affirmation is found in the application filed before the Supreme Court seeking the release of declared foreigners in the detention centres in light of the COVID-19 outbreak. The application mentions the increased vulnerability of the detainees, which includes elderly people and children living in crowded conditions. There were 31 children in detention centres as per available information. The conditions of these detention centres pose debilitating effects on mental health, without adequate treatment and opportunities for education and recreation. The impact of this situation on children is exponentially greater and liable to pose severe harm to their health.

  1. Detention of children should not take place in principle

As per international law and Indian statutes, detention of children should not take place. The Central Government’s submission before the Supreme Court in the ongoing case of Assam Public Works is a welcome development, stating that children of parents declared as citizens in the NRC shall not be sent to detention centres and shall not be separated from their parents. The absolute prohibition of detention also applies to ‘foundlings’ as a particularly vulnerable category of children. It is argued that children should qualify for protection under the Juvenile Justice Act, 2015 (‘JJ Act’) as ‘Children in Need of Care and Protection’ (‘CNCP’). This section addresses the categories of children who are vulnerable and need protection. This section also seeks to establish safeguards that necessitate compliance when dealing with children in detention.

A.1 Principle of ‘Best Interests of the Child’

Detention of children for the purpose of deportation is a flagrant and unjustified breach of the fundamental principle of best interests of the child protected by Article 3 of the CRC. India is a party to the convention and has incorporated the principle in Chapter II of the JJ Act. As stated by the CRC Committee, the best interests principle is satisfied by the strong prohibition of detention of children since such deprivations of liberty have an extraordinarily adverse impact on the child’s well-being and development. This prohibition particularly must be enforced if the child is detained on the sole basis of their or her parent’s migration status.

While the lack of data is deplorable with regard to the age of the children currently detained in Assam, it is extremely likely that all categories of children and more specifically the most vulnerable ones, such as unaccompanied and young children, are in detention. In light of these elements, India is obligated to cease its current practice of detaining children in detention centres. All the children currently in detention must be immediately released as per international law and Indian law on the issue.

A.2 Detained children as ‘Children in Need of Care and Protection’ under the JJ Act

The Juvenile Justice (Care And Protection Of Children) Act, 2015   1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including — (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law; (ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.   2 (14) “child in need of care and protection” means a child — (i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or (vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed;  

The Object of the Act includes the making of comprehensive provisions for all children in consonance with the standards prescribed in the CRC. Therefore, the JJ Act can be used to operationalise India’s international obligations to address the vulnerabilities of both stateless children and children at risk of statelessness.

The scope of the term CNCP encompasses the broad categories of children who are at the risk of detention and its consequent negative impact. Section 2(14)(i) of the JJ Act refers to a child who is found without any home or settled place of abode and without any ostensible means of subsistence. This can cover children whose parents are in detention, who are stateless or are suspected of being foreign nationals. Such children would qualify for protection under the JJ Act. Further, Section 2(14)(vii) extends the scope of CNCP to foundlings i.e. children ‘whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed’. [A foundling is a child of unknown parentage found abandoned within the territory of a state.] This argument is further corroborated by the view taken by Justice Lokur on the scope of the definition of CNCP, stating that the term must be given a broad interpretation. This means stateless children as well as children at the risk of statelessness qualify for protection under the JJ Act.

A.3 Conclusion and recommendations

The CRC and the JJ Act extend a large set of protections to these vulnerable children. The state must conform with best interests of children as mentioned in the JJ Act, keeping in line with international law. Detention of children for removal shall never take place, irrespective of the citizenship status of their parents.

  • Release all children in detention in Assam as well as stateless children in detention in India as per international law and Indian law. NGOs shall be allowed unimpeded access to detention centres in Assam to ensure that no children remain in detention.
  • Children at the risk of statelessness and currently in detention should be presented before the district Child Welfare Committee for drawing up protection plans on a case-by-case basis, bearing in mind the best interests of the child.
  • Develop alternatives to detention for stateless children and their families. Non-custodial, community-based alternatives shall be prioritised.
  • Rights of children in detention

As argued above, despite the prohibition of arbitrary detention of children, there is evidence indicating that children remain in detention in Assam due to their precarious citizenship. This section responds to rights of children in detention until they are released as per international law and Indian law on the issue.

RightIndian contextEuropean contextRecommendations
Right to family unity (if parents are also being detained)Children below 6 years of age are kept alongside their mothers in the detention centre. There is no clarity on circumstances of children over 6 years of age.Families in detention must be provided with separate accommodation to ensure their privacy.   Best practice: In Belgium, children accompanied by their parents are, in principle, not detained but transferred to return houses or to an open reception centre which are adequate, child-friendly alternatives to detention.Conduct an assessment on the compliance of the detention measure with the best interest of the child as per the family unity principle. Develop more alternatives to detention for stateless children to avoid the disruption of family unity, such as reception centres.
Right to education at an off-site facilityThe Supreme Court hasheld that India is obligated to provide free and compulsory education to all children between 6 and 14 years. The court has clarified the vast scope of Article 21A of the Constitution, referring to India’s participation in the drafting of the UDHR as well as the ratification of the CRC.   Issue: lack of data regarding any educational opportunity for children in detention in Assam.EU member states must provide minors, whose removal has been postponed, with access to a basic education system, depending on the length of their stay.   Best practice: Czech Republic allows migrant children to attend schools at the local elementary school outside the detention facilities. The ECtHR also requires the classes to be free as a bar against discrimination on the immigration and nationality status.Children must have access to an education system where they are taught by qualified teachers through programmes integrated in India’s education system, regardless of the length of their stay in detention facilities.They must benefit from free classes to avoid any discrimination.Education should be provided outside of detention facilities in line with the best interests of the child.
Right to recreation and playArticle 31, CRC + Best Interests of the Child. Issue: lack of data concerning children’s access to leisure activities in detention in Assam.This right is protected in Europe but suffers from poor and uneven implementation in the region. Best practice: In Lithuania, children may participate in recreational activities in one of the country’s detention centres.Ensure recreational activities in which children facing statelessness can meet local children and young people through NGOs or social workers.Sensitise the public with information on the significance of this right for children.Guarantee access without discrimination on the child’s legal status.
Right to medical treatmentThere is an obligation to provide access to health care services to all children. The state must ensure satisfactory health conditions and health-related education. Issue: lack of information on the health conditions of children.Necessary healthcare must be provided, at least with regards to emergency care and to essential treatment of illness and serious mental disorders. First challenge: the consent of unaccompanied children to medical treatment (rigorous assessment of the age and maturity of the child by Finland, the Netherlands, Slovenia and Spain). Second challenge: lack of paediatricians and mental health specialists Best practice: In Poland, children benefit from regular visits from paediatricians in the centre. In Portugal, children may benefit from psychological services to help them deal with anxiety, stress, depression, etc. and can also be referred to the hospital or psychiatric services if necessary.Ensure that the consultations are conducted in a child-friendly manner and are respectful of the child’s right to confidentiality.Organise regular visits by medical professionals from outside the facilities.Provide children information about available mental health services. Conduct medical screenings of newly arrived stateless children identifying potential issues, both physical and mental, that need care.Ensure a rigorous assessment of the child’s free and deliberate consent to medical treatment.

Excerpt: Framework of Socio-Economic Rights for Non-Nationals

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the second in a three-part series of excerpts from the report. The previous excerpt on legal recognition of the status of statelessness can be found here. The next excerpt will cover ‘Rights of Child Detainees’. The entire Report will be published in the final week of November, and the schedule of events can be found here.

Socio-Economic Frameworks

B.1 International law obligations

As previously mentioned, this report acknowledges the fact that Indian citizens themselves are routinely deprived of these rights in practice. However, despite this unfortunate reality, a State has a legal and moral duty to provide access to fundamental entitlements to all individuals in its territory, regardless of their nationality. These fundamental entitlements refer to social and economic protection which includes access to healthcare, the right to housing and sanitation, the right to education and the right to work and employment, among others.

In international law, Article 25 of the UDHR covers a vast range of rights, including access to adequate water, food, clothing, housing, medical care and other social protections. This ‘minimum threshold’ for a standard of living is applicable to all persons and is certainly not conditional on citizenship. Based on the principles of equality and non-discrimination, the rights espoused in Article 25 of the UDHR provide the core grounding to the more specific articulations of socio-economic rights in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). The vast majority of human rights are applicable to everyone, regardless of nationality or immigration status (including stateless persons) as confirmed by General Comment No. 15 and 31. Specifically, in relation to socio-economic rights, the Committee for Economic, Social, and Cultural Rights (‘CESCR’) in 2009 clarified the interpretation and applicability of ICESCR, stating that the Covenant rights apply to ‘everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation’. This unequivocally clarifies that socio-economic rights recognised in international law are positively enforceable or applicable to all persons, including non-citizens, stateless persons and precarious citizens, regardless of their citizenship status.

Article 25 of the UDHR Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.  

The 1954 Convention is the sole treaty framework that directly prescribes standards of treatment of stateless persons to be implemented by states. While India is not yet a signatory to this pertinent treaty, many of its provisions are now either customary international law, or at the very least offer important approaches relating to the protection of stateless persons that can serve as a useful model, as stated in the UNHCR Statelessness Handbook. The 1954 Convention provides a broad framework of civil, economic, social and cultural rights that must be granted to stateless persons. The broad categories include welfare rights to rationing, housing, public education, public relief, labour legislation, social security, access to identity documentation and gainful employment (wage earning, self-employment, access to liberal professions), among others.

B.2 Lessons from protection frameworks for non-nationals

India does not have a comprehensive policy governing refugees that have fled to India or for stateless persons and their protections. The Indian government’s approach towards different precarious citizens of other nationalities and stateless persons has been varied. The Tibetan community and those refugees recognised by (and registered with) the UNHCR serve as two distinct examples. Though the legal, social and political positions of these two communities are clearly distinguishable, their access to socio-economic rights present a blueprint of the rights that could and should be made available to stateless persons. Much like stateless persons, refugees find themselves at the risk of sliding further on the slippery slope of citizenship. Therefore, it is appropriate to refer to the Indian refugee framework and approaches to inform our recommendations for stateless persons and precarious citizens. The nexus between the two frameworks can also be observed from the fact that the 1954 Convention and the 1951 Refugee Convention have a shared drafting history where the former is largely modelled on the provisions of the latter.

An important caveat, however, is that the status of the Tibetan community is not a completely transposable model to stateless individuals, as Tibetans are specifically recognised and protected by the Indian Government. Depending on when they arrived in India (after the Dalai Lama’s ‘flight into exile’ in 1959) they possess stateless identity certificates, are considered ‘temporary refugees in India’, or fall into the category of ‘Long Term Stay’.  On the other hand, the refugees who are recognised and registered by the UNHCR, such as the Afghans, Somalians and certain Burmese groups, are ‘entitled to an assessment for a Refugee Certificate; a visa if granted a certificate, though often shorter-term; and the possibility of naturalisation, but this depends on irregular and opaque criteria’. Their access to socio-economic rights, therefore, is dependent on and varies according to their specific contexts and the kind of documentation they have. The UNHCR works with a number of implementing partners, such as Don Bosco and the Development and Justice Initiative (‘DAJI’) to facilitate support and access to these rights. Don Bosco particularly focuses on assisting vulnerable refugee children. It provides them with support in the form of ‘rescue operations, short-stay homes, home reparation, institutional rehabilitation, child protection mechanisms, advocacy, education skill trainings, accompaniment and foster care’. Nonetheless, despite the variations in the terminology and categorisation of the legal status of precarious citizens in India, the refugee framework illustrates the crucial socio-economic rights that have been made available to non-citizen communities, as outlined below.

RightMeasures by Government of India/UNHCR for TibetansMeasures by Government of India for Rohingya refugees
  HealthcareAccess to facilities in settlement colonies, administered by the Central Tibetal Administration.Access to Indian hospitals but ineligible for state healthcare subsidies available to citizens.In principle, they have equal access to Primary Health Centres. However, reports persist of Rohingyas being denied treatment due to lack of Indian documentation. Prescription medicines are expensive and inaccessible.Limited coverage by Anganwadis for maternal, neonatal, and early childhood care.
Food and Nutrition Access to PDS rations.Dependent upon rations supplied by UNHCR/local NGOs.Limited access to Anganwadis in certain states for infant nutritional requirements.
  Shelter, Housing, SanitationTibetan refugee settlements, established in the 1960s on Government land and administered through officers appointed by the Tibetan Government-in-Exile. Lease agreements signed with the Central Tibetan Relief Committee.The majority live in clusters of shanties, with shared toilets and water facilities. Wastewater from toilets flows out into open drains; some are forced to manually collect and dispose of faeces. Access to clean drinking water remains erratic, dependent upon sympathetic local residents.
  EducationTibetan secondary and high schools.Access to higher education in Indian colleges and universities. Eligible for Government scholarships.Children under age 14 technically have access to primary schools under the RTE Act, but implementation is erratic – admissions denied due to lack of documentation.When allowed to attend local schools, they are barred from the midday meal scheme.
  EmploymentNon-interference with employment. Seasonal sweater selling, agriculture, and small enterprises are their primary sources of income.Eligible for trade licenses in nursing, teaching, chartered accountancy, medicine, and engineering as per Tibetan Rehabilitation Policy, 2014.Not eligible for government jobs.Common sources of livelihood are rag-picking, construction work, sanitation work, and various kinds of unskilled labour in the informal sector. This work is precarious and makes for a very unstable source of income.

Excerpt: Legal Recognition of Status of Statelessness in India

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the first in a three-part series of excerpts from the report. The next two excerpts will cover ‘Rights of Child Detainees’, and ‘Socio-Economic Rights of Stateless Persons’. The entire Report will be published in the final week of November, and the schedule of events can be found here.

II. LEGAL RECOGNITION OF STATELESSNESS IN INDIA

A. Recognition of Status

Statelessness poses a moral and normative challenge to the legitimacy of the international state system. In simpler terms, since the world is comprehensively divided between nation states, then every person should be able to claim citizenship and its attendant rights somewhere. Yet, thousands of people around the world face barriers in claiming citizenship rights in any nation because of several aggravating factors.

There are several stateless groups in India who either arrived or were born in India as stateless persons, such as the Tibetans and the Rohingyas. This section pertains to these stateless persons in Indian territory whose citizenship was not deprived as a result of any action of the Indian state. They have no avenues of return to their country of nationality as a result of their statelessness i.e. their state does not accept them as nationals. Thus, they are prohibited from exercising their right to return. In this situation, they cannot be deported and continue to reside in India as subjects of a legal framework which does not formally recognise their status.

A close reading of the Indian domestic law framework governing the status of non-citizens [the Constitution (Articles 5 – 11); the Citizenship Act, 1955 (Sections 2, 3, 6, 6A, 6B, 10); the Foreigners Act, 1946 (Sections 2, 3, 8, 9); and the Passports Act, 1967 (Section 4)] reveals that the definitional categories determining the legal status of an individual are inadequate for guaranteeing the rights of stateless persons. The use of the terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’, as distinct and oppositional categories, operates on the implicit assumption that the person whose status is to be ascertained must be in possession of at least one nationality, even if that nationality is not Indian. None of these terms can be used interchangeably for a stateless person; the Acts simply do not define or acknowledge the phenomenon of statelessness.

International law on the right to nationality of every individual along with the obligation on the state to prevent and reduce statelessness commands states to naturalise all stateless persons in their territory. Hence, it is imperative that the Indian state recognise stateless persons formally and issue identity certificates to them, thereby ensuring recognition of their equal legal personhood for them to avail their rights. These certificates will ensure that their special situation would be addressed. The only pieces of legislation that recognise the status of stateless persons are the Passports Rules, 1980, framed under the Passports Act, 1967, which grant the MEA the power to issue certificates of identity. However, the duty of the state under international law, constitutional law and human rights law (as argued above) does not end with issuing certificates of identity. India must grant them nationality in accordance with international law obligations to ensure that they can enjoy their right to nationality.

As emphasised in previous sections, the lack of legal status is a direct infringement of an individual’s right to a dignified life under Article 21 of the Indian Constitution. In a juridical framework, a dignified existence can only be secured through recognition as an individual member of the civic community, which in turn forms the foundation for the free exercise of bodily integrity, autonomy, and self-determination. In Sheikh Abdul Aziz, the Delhi High Court recognised this urgency of determining the legal status of the petitioner. The Court excoriated the Central Government for its inaction in issuing a stateless certificate to the petitioner after nationality determination had failed, particularly after he had been confined in detention for an additional seven years, well beyond his initial sentence under Section 14 of the Foreigners Act. It understood that the issuance of a stateless certificate, under Rule 4 of the Passports Rules, 1980, and the subsequent granting of a Long-Term Visa (‘LTV’), were essential for the petitioner’s release from detention, and enabling his right to a dignified existence upon Indian soil. In National Human Rights Commission (Chakma case), the Supreme Court held that eligible stateless individuals, like the Chakmas in Arunachal Pradesh, have constitutional and statutory rights to be considered for Indian citizenship. Local administrative officers cannot refuse to act upon Chakma individuals’ applications under Section 5 of the Citizenship Act to the Central Government. The Court also held that the state is obliged to protect Chakmas from eviction and threats of assault even while their citizenship applications are pending. These cases indicate Indian courts’ proactive approach in reducing indeterminacy of status for individuals, assuring the terms of their membership in the civic community. 

For stateless persons in India, international law necessitates that the burden is always upon the Indian state to fairly and expeditiously determine legal status for such persons. As we have argued at length above, the state’s sovereign prerogative in citizenship matters is implicitly circumscribed by international law and human rights standards. Therefore, it is the state’s obligation to establish whether they are recognised nationals of any other country. If the state fails in establishing that, they must be naturalised i.e. granted Indian nationality.

It is also important to note that statelessness should not operate as an impediment to an eventual path to Indian citizenship. The naturalisation of stateless persons within the ambit of India’s existing citizenship laws has precedent: the Delhi High Court in Namgyal Dolkar ordered the MEA to issue an Indian passport to the petitioner who, despite holding a stateless identity certificate and being born to two Tibetan refugees, was eligible for Indian citizenship by birth under Section 3 (1)(a) of the Citizenship Act.

The significance of naturalising stateless persons residing in a State was recently followed by the ECtHR as well. In Sudita Keita, the applicant had arrived in Hungary in 2002. He was subsequently recognised as a stateless person after the local courts recognised that the burden on the applicant to prove lawful stay was contrary to Hungary’s international law obligations relating to statelessness. Furthermore, in the case at hand, the ECtHR held that the stateless applicant had been left in a vulnerable position for 15 years without access to an effective and accessible naturalisation procedure. With reference to international law on statelessness, the Court highlighted that his situation had resulted in grave difficulties in access to healthcare and employment and violated his right to private and family life.

This report further argues that the stateless persons should be automatically naturalised (i.e. grant of nationality) since any formal requirements in this regard would place an undue burden upon them. Such a process would fail to recognise the underlying discrimination and lack of access to documents. This is visible in the Sri Lankan experience with grant of nationality as elaborated in Section I.C.1 of this chapter in the full report.

Hence, it is only through naturalisation that stateless persons can access the full extent of their rights. Their exceptionally vulnerable situation and international law obligations demands that the state shall automatically recognise them as citizens.

Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid

This research 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 edited by Sreedevi Nair.

We have seen how Foreigners’ Tribunals have repeatedly passed  ex parte orders declaring persons to be foreigners, and how such orders can be set aside. This research note will look into the challenging of ex parte orders on the ground that legal aid was not provided to the petitioners. This is especially relevant for the NRC process, where multiple individuals belonging to impoverished and marginalized sections of society have been left out of the NRC, and would have to challenge their exclusion. To do so, one would have to rely on legal services, which might not always be within the reach of those belonging to the aforementioned sections of society. This research note delves into the issue of legal aid, and looks at the intersection of legal aid and ex parte orders by FTs. Over the years, thousands of people in Assam have been declared as ‘foreigners’ through ex parte orders. Therefore, this research note will look into the setting aside of ex parte orders on the ground that legal aid was not provided to petitioners.

1. What is legal aid?

Legal aid means the provision of free legal services to any persons, who by virtue of some marginalization or disability, are unable to access legal services to carry on legal proceedings before courts and tribunals.

2. Legal Aid under the Indian Constitution

Article 39A of the Indian Constitution, a Directive Principle of State Policy (‘DPSP’), requires the state to:

…secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 39A has been read along with Article 21 of the Indian Constitution to hold that the right to legal aid is a necessary part of a just, fair, and reasonable procedure under Article 21 of the Constitution. (Hussainara Khatoon v Home Secretary, State of Bihar (1980 (1) SCC 98), and Khatri and Others v State of Bihar and Others (AIR 1981 SC 928)).

2.1 Important Cases

A. In Hussainara Khatoon v State of Bihar (AIR 1979 SC 1360), the right to free legal services was held to be a part of every accused person’s fundamental right under Article 21 and Article 39A. A procedure which does not make available legal services to an accused person, who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair, and just. It was held that:

Article 39A emphasizes that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal service is therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

B. In Madhav Hayawadanrao Hoskot v State of Maharashtra (1978 AIR 1548),the Supreme Court, speaking through J Krishna Iyer, held that the right to legal representation would apply to all cases, from the lowest to the highest court, where deprivation of life and personal liberty is in substantial peril.

 C. In Khatri and Others v State of Bihar and Others (AIR 1981 SC 928), the Supreme Court held that, “the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”Further, the Supreme Court held that the judicial officer has the obligation of informing the person that she is entitled to legal aid. It also held that: 

…it would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services… The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

D. In Superintendent of Legal Affairs v Home Secretary, State of Bihar (1979 AIR 1369), the Supreme Court held that it is always the duty of the court to see and inform the accused that she has a right to legal service, even if she does not ask for the same.

E. In Sukh Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401), the Supreme Court held that the absence of legal awareness must be taken into consideration and that the onus is on the state to pro-actively inform the person facing deprivation of liberty that she has a right to free legal aid. It was observed:

It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves…. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor… It would in these circumstances make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose.

F. In Gopalanachari v State of Kerala (AIR 1981 SC 674), it was held that it is well established that the state is under a constitutional mandate under Article 21 and Article 39A to provide a lawyer to an accused person if the circumstances of the case and needs of justice so requires, provided of course that the accused person does not object to the provision of such a lawyer.

G. In State of Maharashtra v Manubhai Pragaji Vashi and Ors (1995 SCC (5) 730), the Supreme Court held that the combined effect of Article 21 and Article 39A of the Constitution of India mandates that the state shall provide free legal aid by suitable legislation or schemes, or in any other way,to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It was further held that the duty cast on the state to provide free legal representation under Article 21, read with Article 39A, cannot be whittled down in any manner, either by pleading paucity of funds or otherwise.

H. In Mohd. Hussain @ Julfikar Ali v NCT of Delhi ((2012) 9 SCC 408),and Ajmal Kasab v State of Maharashtra ((2012) 9 SCC 1), the Supreme Court applied the right of free legal aid to foreign nationals.

3. Claiming a right to legal aid before the Foreigner’s Tribunals

3.1. Legal entitlement under the Legal Services Authority Act, 1878

A notification dated 28 December 2018, bearing No. LGL 165/2018/7, issued by the Legislative Department, Government of Assam, stipulated that only a person with an annual income below three lakhs would be eligible for legal aid under Section 12(h) of the Legal Services Authority Act, 1987. Therefore, the FT members must inform any person who appears before the tribunal about their entitlement under this notification to receive free legal aid, prior to the initiation of any proceedings.

3.2. Failure to provide free legal aid renders the proceedings unjust, unfair, and unreasonable

The provision of legal aid is mandatory for any proceeding that has an impact on the life or personal liberty of any person, to qualify as a fair, just, and reasonable procedure, under Article 21. Therefore, proceedings before the FTs are equally bound by this obligation.

Proceedings before the FTs have been held to be sui generis,being neither civil suits nor criminal trials [Shariful Islam v Union of India, (2019) 8 Gau LR 322]. The FT is empowered to exercise the powers of a civil court under the Civil Procedure Code, 1908, as well as the powers of a Judicial Magistrate First Class under the Code of Criminal Procedure, 1973, in accordance with Paragraph 4 of the Foreigners (Tribunals) Order, 1964. Hence, it cannot be said that proceedings before the FTs are purely civil proceedings, where principles applicable to criminal justice are inapplicable altogether. The observations made in the cases which recognized the fundamental right to free legal aid must necessarily be extended to the process of citizenship determination. This is because, the finding that a person is not an Indian citizen results in restrictions upon a person’s right to life and personal liberty, given that such persons are to be detained or deported [See Paragraph 3(13) of the Foreigners (Tribunals) Order, 1964]. Further, even in rendering a quasi-judicial order, such as those rendered by the FTs, there must be compliance with principles of natural justice and fair trial under Article 21 of the Indian Constitution.

Additionally, those who are declared as foreigners under the reference procedure do not have access to an appellate mechanism. Instead, they may only approach the High Court in exercise of writ jurisdiction under Article 226, which has a limited scope of review. Thus effectively, there is no appeal from findings of facts from the FT. In this scenario, the failure of the state to extend free legal aid to persons at the FT stage would further violate the standards of fair trial under Article 21 of the Indian Constitution.

In Shariful Islam v Union of India ((2019) 8 Gau LR 322), a Division Bench of the Gauhati High Court observed that access to justice was a fundamental right of the persons against whom reference was made to the FTs.

3.3. Failure to provide free legal aid results in a denial of a ‘reasonable opportunity’

Paragraph 3(1) of the Foreigners (Tribunals) Order, 1964, requires that, “reasonable opportunity of making a representation and producing evidence in support of his case”, must be given to any person in proceedings before the FT. In Kanachur Islamic Education Trust v Union of India ((2017) 15 SCC 702), the Supreme Court had defined reasonable opportunity as being “synonymous to ‘fair hearing’, it is no longer res integra and is an important ingredient of the audi alteram partem rule and embraces almost every facet of fair procedure.”The failure to provide free legal aid and to inform the opposite party that she is entitled to free legal aid would result in the denial of fair hearing and thus, a denial of ‘reasonable opportunity’ required under Paragraph 3(1) of the Foreigners (Tribunal) Order, 1964.

3.4. Proceedings are vitiated in the absence of availability of free legal aid

The Supreme Court and various High Courts have repeatedly set aside criminal proceedings where legal aid was not pro-actively provided to the accused facing deprivation of her liberty. In Suk Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401),the trial was held to be vitiated on account of a fatal constitutional infirmity (failure to provide free legal aid), and the conviction and sentence were set aside. Similarly, in Rajoo @ Ramakant v State of MP ((2012) 8 SCC 553), the Supreme Court set aside the High Court judgment upholding the conviction and remanded the case for re-hearing by the High Court after providing the accused an opportunity of obtaining free legal representation.

In Arjun Karmakar v State of Assam ((1986) 2 Gau LR 287),a Division Bench of the Gauhati High Court held that the appointment of a fresh lawyer on the date of trial was mere fulfilment of formality and no legal aid was actually provided. The High Court set aside the conviction and sentence, and directed a retrial in the case, while observing:

There is a marked tendency to take very lightly the procedure for providing legal aid to the poor. The poor are mute. They have no media, no means to express their pangs and agonies and therefore, with impunity they are provided with assistance but perhaps “no legal assistance by competent lawyer.” If it is the constitutional right of the poor to be provided with legal assistance, the assistance must be genuine, real and the best lawyers should be engaged, otherwise it might be said in the future that their constitutional rights were trampled by the judiciary. We say “caveat actor”. Let not posterity say that the poor were provided lip service or we shed crocodile tears in the name of legal aid.

The Gauhati High Court has also set aside proceedings under special legislations for the failure to provide legal aid. In Anurag Saxena v Ct S Damodaran, where the accused, a constable, was charged under section 10(n) of the Central Reserve Police Force Act, 1949, and sentenced to six months of rigorous imprisonment, the Gauhati High Court observed that:

Since the constitutional right of the accused has been deprived, it is necessary that free legal assistance should be provided to make the trial reasonable, fair and just. I am, therefore, of the view that in the instant case the accused is entitled to get legal assistance, if necessary, at State expense during the trial. Since no such assistance was given during his trial by the Magistrate-cum-Assistant Commandant, the denial of the same would render the trial non est in the eye of law as it was not reasonable, fair and just, and was hit by Art. 21. On this ground also, the judgment and Order of the learned trial Court cannot stand. However, I want to make it clear that each and every trial cannot be held bad for want of legal service and the Court may-judge and consider the case from all angles before arriving at any decision.

Therefore, in the absence of free legal aid, the High Court should set aside the ex parte order and remand the case to the FT for a re-hearing.

4. Plea for setting aside an ex parte order on the ground of absence of proper legal representation – Index of cases

4.1. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964, provides for filing an application before the FT for setting aside an ex parte order within a period of thirty (30) days from the date of the said FT Opinion. The relevant extract is as follows:

“3C. Procedure for setting aside ex parte order.–

(1) Where the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

(2) The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

4.2. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of the person. See the ratio in State of Assam v Moslem Mandal((2013) 3 GLR 402). It was stated in Para 91:

The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has the jurisdiction to entertain and pass the necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such an application at the threshold, if no ground is made out.

4.3. Table of Cases

S NoCase NameCitationOutcomeReasoning
  1.  Huran Nessa v Union of India  MANU/GH/0792/2018  Allowed  The proceedee was not aware that she was required to register herself with the FRRO in the stipulated time as her husband/father had passed away before conveying such important information. This constituted an exceptional circumstance.
  2.  Samad Ali v Union of India  2012 (5) GLT 162, MANU/GH/0614/2012  Allowed  The proceedee being an illiterate and poor man submitted the requisite documents to the clerk, who assured him that they will be admitted. He was of the bona fide beliefthat there was no need for him to attend the proceedings after that. The ex parte order was set aside.
  3.  Narayan Das v State of Assam  MANU/GH/1139/2017  Dismissed  The proceedee being wholly dependent on his lawyer and that being the reason for his non-attendance was not considered a special circumstance.
  4.  Anowara Begum v State of Assam and Ors.  2017 (3) GLT 104, MANU/GH/0350/2017  Dismissed  The appellant was an illiterate person and suffered from acute poverty. After submission of the written statement, she was told by her lawyer that she would be informed as and when her presence was required. Along with the written statement, the lawyer did not enclose the relevant documents handed over to him by the appellant. The written statement also did not disclose the case of the appellant and no steps were taken by the lawyer to produce her witnesses. But these contentions were held to be contradictory and untenable. It was held that FT proceedings are not to be taken so lightly.  
  5.  Jakir Hussain v Union of India  2016 (5) GLT 319, MANU/GH/0612/2016  Dismissed  Being misled by people due to illiteracy and ignorance as grounds for non-appearance were rejected.  
  6.  Asmul Khatun v The Union of India and Ors.  MANU/GH/0794/2016  Dismissed  The petitioner was an illiterate lady and was not well-versed with court procedures. Due to wrong advice given by people, she did not attend the proceedings. This reason was not accepted.  
  7.  Idrish Ali (Md.) and Ors. v Union of India and Ors  2016(3) GLT 886, MANU/GH/0360/2016  Dismissed  The petitioners being illiterate and ignorant about the court procedure relied upon the engaged counsel, and as he did not provide proper guidance to the petitioners about the procedure of the case, they could not appear, and the case was decided ex-parte. The High Court held that it was not the case of the petitioners that they approached their engaged counsel after filing of the case and he suppressed the result of the case etc. Such a casual approach by the petitioners cannot be held as an exceptional circumstance which prevented them from appearing before the Tribunal.