Saidur Rahman v. Union of India, WP(C)/3576/2017
Read the order here.
Date of the decision: 31.03.2022
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh (authoring) and Justice Nani Tagia
Summary: The Gauhati High Court held that notwithstanding the fact that detained proceedees were liable to be deported to their country of origin after serving their sentence, the State could not deny the petitioners the right to seek refugee status with the UNHCR. Further, the State was required to facilitate their applications for the same.
Facts: The Court was hearing the case of ten petitioners, who were citizens of Myanmar, and had been convicted under Sections 14A(b) of the Foreigners Act, 1946 and Rule 6 of the Passport (Entry into India) Rules, 1950 for entering the country without proper documentation. As per Section 14A (b), any person who enters or stays in India without valid documentation is liable to be punished with imprisonment for a minimum period of 2 years. Meanwhile, Rule 6 provides for a term of imprisonment of upto 3 months for those persons who enter India without a valid passport, or enter or attempt to enter the country with a forged passport or visa.
The Petitioners had served the 2 year sentence imposed under such conviction, and were due to be repatriated to their country of origin i.e. Myanmar. Despite serving their sentence, nine of the petitioners were still detained at transit camps, due to the nationality verification process being pending for six of them. One of the petitioners had already been repatriated. It was stated that since all nine members belonged to the same family, the Authorities desired to repatriate them together.
Fearing mistreatment in Myanmar, the petitioners sought to apply for refugee status from the United Nations High Commissioner for Refugees (UNHCR) and thus sought the help of the Court to facilitate the grant of the same.
Holding: The Gauhati High Court held that the petitioners’ right to seek refugee status from the UNHCR could not be denied, and the State was thus instructed to facilitate their applications for the same.
The Court stated that the petitioners “have already served out the sentence and as such, there is no element of criminality attached to them except for the fact that being foreigners, they are liable to be deported to the country of their origin” (paragraph 5). The Court held that the right of the petitioners to seek refugee status from the UNHCR could not be denied on the grounds of the impending repatriation. Thus, it directed both the Central and State authorities to facilitate the applications for refugee status, which were to be made by the petitioners detained at the Transit Camp. It further instructed the authorities to provide video conferencing facilities if so required, and additionally, provide regular and competent legal assistance. It also instructed the authorities to facilitate interaction between the legal team and the petitioners for the aforesaid purpose.
Significance: This decision reiterates India’s responsibilities towards asylum-seekers despite India not being a signatory to the 1951 Refugee Convention. A person is a refugee within the meaning of the Convention as soon as they fulfil the criteria contained in the definition. Being a refugee flows not from the grant of status but the experience of the individual that is central to their claim. Thus, the formal recognition as a refugee does not make one a refugee, it only declares them to be one. This recognition as a refugee is a prerequisite to availing the benefits which the Convention grants. In order to obtain such recognition, a claim for protection needs to be made to the concerned country. It is this request which is known as an asylum claim, and a person who makes such a claim, on which the final decision is pending, is known as an asylum-seeker.
The regulation of refugees and asylum-seekers in India is conducted on an ad-hoc basis. Largely, it is the UNHCR that undertakes Refugee Status Determination (RSD) in India for conferring refugee status, as per its mandate under the 1951 Refugee Convention. Though not a signatory to the Convention, India respects the RSD status accorded by the UNHCR. Once determined by UNHCR as refugees, the individuals receive refugee cards which allow them access to education in government schools and free medical treatment in government hospitals. It also acts as a guarantee against forced deportation. However, the recognition granted by the UNHCR is not universally accepted on the ground by some government authorities and many declared refugees still face problems accessing basic facilities such as education and healthcare.
Cases of this nature are not a stranger to Indian courts. In the past, both the Supreme Court and High Courts in India, have provided relief in cases where individuals had intentions of seeking asylum or were facing deportation to a state where they feared serious human rights violations and persecution. The Supreme Court in N.D. Pancholi v. State of Punjab stayed the deportation order issued against a refugee from Iran and allowed time for them to seek protection from the UNHCR office in New Delhi. Similarly, in Malavika Karlekar v. Union of India, the Court stayed the deportation of 21 Mayanmarese nationals, pending their refugee status determination by UNHCR. In a recent decision, the Calcutta High Court upheld the right of a foreigner to seek refugee status from the UNHCR, in a case wherein the only conviction of the Petitioner was under the Foreigners Act, and the sentence imposed had been duly served. The Gauhati High Court too in previous decisions (here, here, here and here) has upheld the right of a refugee to seek protection from the UNHCR.
The enactment of the Citizenship (Amendment) Act, 2019 has provided another route to refugees from neighbouring nations to seek refuge in India, by virtue of which citizenship would be fast-tracked for those Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who entered India from Afghanistan, Bangladesh or Pakistan prior to 2015. The Courts in India have already begun to grant refuge under this Act. However, the petitioners in the present case were prevented from seeking relief via this legislation on account of not meeting the criterias of nationality and religion specified under the Act.
Recently, the Manipur High Court in its decision in Nandita Haksar (our analysis here), granted Myanmarese nationals safe passage to New Delhi in order for them to avail protection from the UNHCR. The Court held that even though India is not a signatory to the Refugee Convention, “its obligations under other international declarations/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere” (paragraph 10). Thus, the State is duty-bound to allow asylum-seekers the right to seek protection in the form of refugee status from the UNHCR. The Court therein stayed the deportation of the petitioners, who faced an imminent threat to their lives in Myanmar, on the ground of non-refoulement. However, in a challenge to this decision, the Supreme Court has currently stayed the operation of this decision. In contrast to the Manipur High Court, the Gauhati High Court allowed the petitioners to seek refugee status but stopped short of actually putting a stay on their deportation to Myanmar until the completion of the RSD process. Therefore, as per the present order, it is open to the State to deport the petitioners as soon as the verification process with the Myanmarese authorities reaches its conclusion, irrespective of whether the RSD process has concluded or not.
The Supreme Court in Prof. Bhim Singh v. Union of India had observed that the foreign nationals who had completed their sentence should be formally released from jail and kept in detention centres with basic facilities of electricity, water and hygiene, pending their deportation. In observing so, the Court held that the protection provided by Article 21 of the Constitution of India requires that such foreign nationals be deported to their respective country without any delay.
Furthermore, in a petition filed challenging the long term detention of foreigners, the Supreme Court had held that detenues who had been detained for more than two years were required to be released, subject to fulfilment of an extensive list of conditions, including execution of a bond of Rs. 5000/- with two sureties, and weekly reporting at specified police stations. In light of this order, the Gauhati HC had issued a general direction for compliance to Superintendents of Police in all districts of Assam, directing that all detenues who had been detained for more than 2 years be released on bail immediately. Despite such orders, there are still cases of foreigners being held in detention camps for extended periods of time, which the Gauhati HC has been remedying in individual cases. The Court in this case, failed to take into account the aforementioned decisions, and accordingly order the release of the petitioners herein, since they had already been languishing in jail for seven years prior to their present detention at a transit camp. The petitioners met the criteria for being released on bail, as laid down by the Supreme Court, and were thus entitled to be released from the transit camp, pending their deportation.
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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 P Ritika Rao.