Security under Article 21 of our Constitution will encompass the freedom to avoid a forced return of persons to a country where they would face persecution or death: Manipur High Court
Article 21 of our constitution on security would provide the freedom from oppression and protection from the risk of death for refusing to return to a place where they face the danger of being killed, provided that the presence of asylum seekers is not prejudicial to the country’s security. The judgment was passed by The High Court of Manipur in the matter of Nandita Haksar v. State of Manipur and Ors.[ MC[W.P.(Crl.)] NO.1 OF 2021] by Division Bench consisting of Hon’ble Mr Sanjay Kumar &amp; Mr Lanusungkum Jamir. The facts of the case are 7 Myanmarese national fled to India, after a deadly military coup in their country. The military banned the Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. They fled their country fearing persecution and physical danger after the coup and the violence that broke out thereafter. They entered India and took shelter at Moreh in Tengnoupal district, Manipur. They sought the help of the petitioner as they feared that they would be sent back to Myanmar by the Assam Rifles, an Indian armed force, as they had come without proper travel documents. The Learned petitioner argued that Article 14 thereof declares that everyone has a right to seek and to enjoy in other countries asylum from persecution. India is also party to the International Covenant on Civil and Political Rights, 1966. This Covenant was entered into in recognition of the fact that certain inalienable rights of all members of the human family are the foundation of freedom, justice and peace in the world; and that these rights derive from the inherent dignity of the human person. Though India’s policy on ‘refugees’ remains rather opaque, if not obscure, and asylum seekers are straightaway branded as ‘foreigners’, if not worse, certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens. In the case of National Human Rights Commission vs. State of Arunachal Pradesh &amp; Anr. The SC observed that “We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to the procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise” Learned counsel for Respondent contended that these seven people, who admittedly entered the country unlawfully, should suffer the repercussions of their illegal actions first, and that this Court cannot give them immunity despite flagrant breaches of domestic laws. He will also argue that the constitutional freedoms granted under Article 19 are exclusive to residents and that these seven individuals are not entitled to those freedoms under Articles 19(1)(d) and 19(1)(e) in terms of travelling freely or residing/settling in any part of India’s territory.
IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(Crl.) NO. 6 OF 2021 MC[W.P.(Crl.)] NO.1 OF 2021 MC[W.P.(Crl.)] NO.2 OF 2021 WITH AND ..... Petitioner Nandita Haksar aged about 68 wife of Sebastian Hongray resident of 203 Gera Astoria Caranzalem Panaji Goa 403002 at present in Imphal 795001. Versus 1. State of Manipur represented by the Chief Secretary Government of Manipur Bapura Imphal 795001. 2. Deputy Commissioner Tengnoupal District 795131. 3. The Union of India through the Ministry of Home Affairs North Block Central Secretariat New Delhi110001. 4. The Union of India through the Ministry of Defence South Block New Delhi 110011. 5. The Union of India through the Ministry of External Affairs Room No.2021 ‘A’ Wing Jawaharlal Nehru Bhawan 23 D Janpath New Delhi 110011. Respondents Petitioner Party in person For Respondent Nos.1 & 2 For Respondent Nos.3 4 & 5 Date of reserving of Judgment Date of delivery of Judgment Ms. Nandita Haksar Mr. R.K.Umakanta GA Mr. S.Suresh ASG WP(Crl.)No. 21 Page 1 BEFORE HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR AND HON’BLE MR. JUSTICE LANUSUNGKUM JAMIR Judgmentas a party in person. Her prayer in this writ petition is to allow the seven named Myanmarese citizens who entered India illegally to travel to New Delhi to seek protection from the United Nations High Commissioner for RefugeesMaster Nang Khan Hauand Ms. Dim Sian Huai NuamBy order dated 17.04.2021 this Court suo motu impleaded the Ministries of Home Affairs Defence and External Affairs of the Union of India represented by the respective Secretaries and adjourned the case to enable the State and the Central Governments to put forth their stands. On 20.04.2021 an adjournment was sought by the learned counsel for the State and Central Governments as they were unable to complete instructions. However taking note of the petitioner’s prayer for interim relief this Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal. This order was passed in view of the threat of apprehension and deportation faced by them at that location. Pursuant to the above order they were brought to Imphal and are presently stationed at the local residence of the petitioner. Further as permitted by this Court their details and particulars were checked by the Senior Immigration Officer at Moreh before they were brought here. WP(Crl.)No. 21 Page 3 No affidavits in opposition were filed by either the State or the Central Governments. Notwithstanding the same arguments on merits were advanced by Ms. Nandita Haksar the petitioner party in person Mr. R.K.Umakanta learned Government Advocate for the State of Manipur and Mr. S.Suresh learned ASG appearing for the Union of India. The case is therefore amenable to final disposal. The two miscellaneous applications filed by the petitioner party in person seeking to place on record certain additional documents are allowed and the documents are taken on record subject to just exceptions. 6] At the outset the admitted position is that these seven Myanmarese citizens illegally entered India. They did not have the requisite travel documents. However the question is whether they can be categorized as ‘migrants’. The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another especially in order to find work or better living conditions. The word ‘refugee’ on the other hand refers to a person who is forced to leave his her country in order to escape war persecution or natural disaster. The category to which these seven Myanmarese persons belong is perhaps clearly demonstrable from the conditions that compelled them to flee Myanmar and illegally enter India! India is not a signatory to the Geneva Refugee Convention 1951 and the New York Protocol of 1967. It is however a party to the Universal Declaration of Human Rights 1948. Article 14 thereof declares that everyone has a right to seek and to enjoy in other countries asylum from persecution. India is also party to the International Covenant on Civil and Political Rights 1966. This Covenant was entered into in recognition of the fact that certain inalienable rights of all members of WP(Crl.)No. 21 Page 4 the human family are the foundation of freedom justice and peace in the world and that these rights derive from the inherent dignity of the human person. Notably India was one amongst the 193 member countries of the UN General Assembly that endorsed the ‘Global Compact on Refugees’ as recently as on 17.12.2018. This formulates a for more predictable and equitable responsibility sharing and provides a blueprint for Governments International Organizations and other stakeholders to ensure that host communities get the support they need so that refugees can lead productive lives. Its key objectives are: to ease the pressure on host countries enhance refugee self reliance expand access to third country solutions and support conditions in the countries of origin for return in safety and dignity. In this milieu it would be relevant to note that Article 51 of our Constitution 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. Though India’s policy on ‘refugees’ remains rather opaque if not obscure and asylum seekers are straightaway branded as ‘foreigners’ if not worse certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens. As long back as in the year 1996 in National Human Rights Commission vs. State of Arunachal Pradesh & another1 SCC 742] the Supreme Court observed thus: ‘We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also no person can be deprived of his life or personal liberty except according to the procedure established by law. Thus the State is bound to protect the life and liberty of every human being be he a citizen or WP(Crl.)No. 21 Page 5 In effect even a ‘foreigner’ is entitled to protection of life and personal liberty under Article 21 of our Constitution3 SCC 554] and State of Arunachal Pradesh vs. Khudiram ChakmaSCC 615]. It is in the context of Article 21 that the principle of ‘non refoulement’ assumes great significance. ‘Non refoulement’ is a principle of international law that provides a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or a territory where he or she faces a threat to life or freedom because of race religion nationality membership in a social group or political opinion and 19 with regard to moving freely or residing settling in any part of the territory of India. He would place reliance on the observations of the Supreme Court to this effect in Chairman Railway Board and others Vs. Chandrima Das and others 2000) 2 SCC 465]. On the same lines Mr. R.K.Umakanta learned Government Advocate would argue that domestic laws must prevail in the first instance as such illegal entry from a neighbouring country if condoned by this Court would set an unhealthy precedent and open the floodgates. He would further contend that the letter dated 29.03.2021 issued by the Government of Manipur is not reflective of any WP(Crl.)No. 21 Page 7 policy decision and was only intended for the benefit of certain identified Myanmarese nationals who were injured and required medical care and attention. 12] The aforestated arguments of the learned counsel for the State and the Central Governments proceed on a rather narrow and parochial consideration of the larger issues that arise in this case. The seven Myanmarese individuals in question are not ‘migrants’ as normally understood but are ‘asylum seekers’. 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. They aspire for relief under International Conventions that were put in place to offer protection and rehabilitation to refugees asylum seekers. In such a situation insisting that they first answer for admitted violations of our domestic laws as a condition precedent for seeking ‘refugee’ status would be palpably inhuman. That apart they are only seeking safe passage to approach the UNHCR at New Delhi for protection and are not asserting any rights or freedoms under Article 19 of the Constitution. Their claim would be traceable to Article 21 and not to Article 19 of the Constitution. As already detailed at length hereinabove their claim for such Constitutional protection cannot be denied. Even in Chairman Railway Board and others vs. Chandrima Das and others the Supreme Court ultimately held that the Bangladeshi citizen who had come to India illegally was entitled to be treated with dignity and to the protection of her person as guaranteed under Article 21 of the Constitution. The Supreme Court further observed that as a national of another country she could not be subjected to treatment which was below dignity nor could she be subjected to physical violence WP(Crl.)No. 21 Page 8 or outrage of her modesty. Her right under Article 21 was therefore held to be violated and the ‘State’ was found liable to pay her compensation. Further though an argument was advanced about the possible threat that these Myanmarese persons may pose to the security of our country no material is produced in support of the same. On the other hand the documents placed on record reflect that Mr. Pau Khan Thawn and his wife Ms. Niang Go Man were both certified as ‘refugees’ by the UNHCR earlier and they remained in India along with their sons Master Nang Sian Mung and Master Nang Khan Hau who also had such UNHCR certification. They returned to Myanmar after peace was restored there. Similarly Mr. Si Thu Aung was sanctioned a ‘Visa Gratis’ by the Indian Government as recently as in January 2020 which clearly indicates that he was not perceived to be a threat to our country. The contentions to the contrary are therefore purely speculative born of a fertile imagination. 15] The argument that the State of Manipur did not manifest a policy decision in its letter dated 29.03.2021 addressed to the Deputy Commissioners of the five districts bordering Myanmar does not merit consideration. If it had not been reflective of a policy decision it would not have been addressed to the authorities of all the bordering districts. Further the letter itself does not indicate that it was intended for the benefit of particular individuals. On the other hand the ‘Subject’ portion of the letter reads: ‘Illegal entry of Myanmarese Nationals’. It was therefore an expression of the State’s policy on the subject issue at that point of time. At this stage it may be noted that cases of this nature are neither new nor of recent origin. In 1989 Ms. Zothansangpuii a Burmese refugee who illegally WP(Crl.)No. 21 Page 9 entered this country and suffered conviction and imprisonment under our domestic laws approached the Imphal Bench of the Gauhati High Court vide Civil Rule No. 9889 seeking safe passage to Delhi to seek political asylum. By order dated 20.09.1989 a Division Bench permitted her to go to Delhi to seek protection. It is stated that she was then settled in Australia by the UNHCR. In the same year the Gauhati High Court again had occasion to deal with a similar claim in Civil Rule No.1847 of 1989 filed by one Mr.Bogyi an under trial Burmese detenu. He approached the Court fearing deportation to Burma and praying for an opportunity to obtain political asylum. By order dated 17.11.1989 a Division Bench of the Gauhati High Court directed his release upon furnishing security to enable him to go to Delhi to seek protection. It appears that he was thereafter shifted by the UNHCR to Norway. Yet again the Gauhati High Court dealt with a like issue in Civil Rule No. 515 of 1990 filed by Khy Htoon and others refugees of Burmese origin. This case was disposed of on 11.09.1990 permitting their release on interim bail to enable them to go to Delhi for the purpose of obtaining refugee status. It is stated that they were then settled in other countries by the UNHCR. The Imphal Bench of the Gauhati High Court again dealt with this issue in Civil Rule No.516 of 1991. This case was filed by one U. Myat Kyaw and one Nayzin Burmese refugees seeking protection. By order dated 26.11.1991 a Division Bench directed their release on interim bail to enable them to go to Delhi for that purpose. This Court is informed that these persons were also settled abroad by the UNHCR. Be it noted that in none of these cases these individuals had to face the full consequences of their illegal acts before seeking ‘refugee’ status. WP(Crl.)No. 21 Page 10 On similar lines in Dr.Malavika Karlekar vs. Union of India and another 583 of 1992 dated 25.09.1992] the Supreme Court directed twenty one Burmese persons who were likely to be deported from Andaman Islands to Burma not to be deported till the question of their status was determined as their applications for refugee status were pending and as they posed no danger or threat to the security of our country. 17] It may also be noted that though India has no clear refugee protection policy or framework it does grant asylum to a large number of refugees from nearby countries. India usually respects the UNHCR’s recognition of the status of such asylum seekers mainly from Afghanistan and Myanmar. Refugee Status Determinationis undertaken by the UNHCR in India for conferring such status and for consequential documentation. However the UNHCR has its office only at New Delhi and not at the Indian borders. It is only after the UNHCR completes the processes and accords ‘refugee’ status that the role of India’s Foreigners Regional Registration Offices may come into play. While so in response to the petitioner party in person’s e mail on the subject the UNHCR at New Delhi sent an e mail stating that the new arrivals from Myanmar who wished to approach it for registration may do so once they are in Delhi and provided phone mobile numbers. Therefore it would be essential for these seven Myanmarese persons to first approach the UNHCR at New Delhi and only thereafter the Union of India would be in a position to take a call as to whether they can be granted refugee status and asylum in India as was done earlier. In the alternative the UNHCR would be at liberty to rehabilitate these people in host countries under the 1951 Refugee WP(Crl.)No. 21 Page 11 Convention. In either event these persons cannot be made to face persecution if not a threat to their very lives and liberty by being deported to their home country. 18] Reliance placed by Mr. R.K.Umakanta learned Government Advocate on the recent order dated 08.04.2021 of the Supreme Court in Mohammad Salimullah and another vs. Union of India and othersNo. 7917] is of no avail. The said order was an interlocutory order and no ratio was laid down therein constituting a binding precedent under Article 141 of the Constitution. Further denial of interim relief in that case turned upon a perceived threat to the internal security of our country and the possibility of illegal ‘immigrants’ being provided safe passage due to the porosity of our borders. Neither of those aspects arises in this case. On the above analysis this Court finds it just and proper to extend protection under Article 21 of the Constitution to these seven Myanmarese persons and grant them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. Some of them seem to be in possession of their passports but in any event their details and particulars have been noted by the Immigration authorities of our country. There shall accordingly be a direction to the FRRO at Imphal airport to immediately provide them with temporary identification cards to enable them to travel to New Delhi by air if such identity proofs are necessary. The State and Central Governments shall facilitate their travel to New Delhi and shall not cause any obstruction. The petitioner party in person states that she will make the required arrangements for purchase of their air tickets and would also arrange for their stay at New Delhi pending consideration of their claims for WP(Crl.)No. 21 Page 12 ‘refugee’ status by the UNHCR. This assurance is taken on record. Further the petitioner party in person shall ensure that these seven persons approach the Officer in Charge of the Parliament Street Police Station or the jurisdictional Police Station at New Delhi to register their names local addresses and whereabouts pending consideration of their claims. 20] The writ petition is accordingly allowed with the above directions. MC[W.P.(Crl.)] No. 21 and MC[W.P.(Crl.)] No. 21 are also allowed. In the circumstances there shall be no order as to costs. CHIEF JUSTICE Opendro WP(Crl.)No. 21 Page 13 