Introduction

In August, the Supreme Court will hear petitions on whether “illegal immigrants” in India are entitled to recognition as refugees. These proceedings are intrinsically linked to the Centre’s broader efforts to remove stateless Rohingya Muslims from India, amidst vitriolic hate speech. Of the 40,000 Rohingya estimated to reside in India, around 16,500 are recognised by the UN High Commissioner for Refugees (UNHCR) as refugees. During his tenure as a junior minister in the Interior Ministry, Kiren Rijiju declared the Centre’s intention to deport all Rohingya ‘illegal immigrants’, even those recognised as refugees by the UNHCR, from India.

The courts’ frequent rhetorical protestations that article 21 protects refugees, or even that the guarantee of life and liberty under that clause extends to protect refugees against reofulement (that is, removal to other states where they would have a well-founded fear of persecution), have not been matched with substantive or consistent relief for asylum seekers and refugees. Sometimes, refugees’ removal has merely bee stayed until their cases can be reconsidered by the Centre, with little guidance as to what that recognition would entail.[1] Sometimes, even recognition as a refugee has not sufficed to protect petitioners against removal, with the courts seeking only to ensure that such removals occur in accordance with (nebulous and thinly defined) ‘due process’.[2] A purely procedural approach to questions of non-refoulement amounts merely to painting a happy face on a state apparatus that can nonetheless proceed to deport refugees to danger.

In this legal and political climate, Ulaganathan v Ministry of External Affairs WP(MD) No 5253 of 2009 [2019] (Ulaganathan) is potentially significant. GR Swaminathan J of the Madras High Court (Madurai Bench) has delivered what is superficially a ringing paean to the rights of refugees under the Constitution. But the reasoning followed by the Court in reaching this conclusion is dubious and dangerous. It offers the prospect of a blinkered, chauvinistic future for refugee jurisprudence in India.

The Case

The 65 petitioners in Ulaganathan are stateless. They are descendants of Indian Tamils transported to Sri Lanka under colonial rule as indentured labourers. After 1983, the petitioners escaped Sri Lanka and were detained in Kottapottu Transit Camp in Trichy; while most of the petitioners remain there, others reside in other caps within Tamil Nadu. After arriving in India, they commenced proceedings seeking to prevent their removal to Sri Lanka; those proceedings were resolved in or around 1994 by an undertaking from the Government that they would not be compulsorily removed to Sri Lanka (at [1]). GR Swaminathan J did not consider the prospective treatment of the petitioners if removed to Sri Lanka (or even if that removal would be possible, given their statelessness) beyond observing that ‘[i]t is not as if Sri Lanka is ready to welcome the petitioners back’ (at [2]).

The petitioners commenced the Ulaganathan proceedings to seek ‘conferment of citizenship’ (although the judgment is vague as to what precise relief was sought in this regard). The response of the Centre and Tamil Nadu governments was that ‘an illegal migrant is not eligible for grant of Indian citizenship’ under the Indian Citizenship Act 1955 and associated rules, and that citizenship is in any event subject to the discretion of the Central Government (at [4]-[5]).

GR Swaminathan J rejected the utility of international instruments relied upon the petitioners – including ‘the Universal Declaration of Human Rights and Conventions relating to the status of stateless persons’ – in the interpretation or application of Indian citizenship law, finding instead that ‘when a comprehensive law governing citizenship has been put in place, it is futile to look to international law, more so, when India is not a party to those conventions’ (at [7]-[8]). His Lordship also cited Sarbananda Sonowal v Union of India (2005) 5 SCC 665 to the effect that the duty of the State ‘is to protect the nation from “external aggression and internal disturbance” on account of large scale illegal migration from neighboring countries which is also a form of aggression’ (at [8]). And his Lordship had regard to the explicit definition of “illegal migrant” in the Citizenship Act and the prohibition on the registration of “illegal migrants” as citizens under s 5 of the Citizenship Act (at [12]).

In answer to this explicit prohibition, the petitioners relied upon article 21 of the Constitution – whose reach in the present case was summarised by GR Swaminathan J as follows (at [12]):

[Article 21] applies to all persons, citizens and non citizens alike. It would apply to refugees and asylum seekers. And most certainly to the petitioners who are genealogically rooted to this soil and who speak our language and who belong to our culture.

As discussed further below, this is an extraordinary and damaging proposition.

GR Swaminathan J proceeded to find that the petitioners occupied a ‘unique situation’: housed in ‘hellish’ camp conditions, subject to an undertaking that they will not be removed to Sri Lanka, and faced with ‘endlessly bleak’ prospects of indefinite detention under ‘surveillance and severely restricted conditions’, in breach of article 21 (at [13]). Given such, in the absence of an express power to ‘relax the rigour’ of s 5(1) of the Indian Citizenship Act (and its prohibition on granting citizenship to illegal migrants), the Court found that ‘the sovereign authority does have an implied power to do so’ – having regard to the circumstances in which the petitioners came to India, ‘faced with a grave threat to their lives and limbs’ (at [14]-[15]).

The Court refrained from granting any ‘positive mandamus directing the Central Government to provide citizenship to the writ petitioners’, a function ‘within the exclusive executive domain of the Central Government’ (at [18]). But GR Swaminathan J nonetheless ordered, relevantly, that the petitioners be permitted to submit fresh applications seeking citizenship and that the Central Government shall:

• ‘pass appropriate orders thereon within a period of sixteen weeks thereafter’;
• ‘bear in mind that it has the power to consider the applications favourably notwithstanding the technical status of the applications as that of illegal migrants’;
• ‘take note of the unique situation in which the petitioners are placed’;
• take account of ‘[t]he undertaking given before the Madras High Court that the applicants will not be sent back’.

Consideration

The rhetoric in Ulaganathan is boisterous but its findings are surprisingly timid. Rather than reading section 5 down to accommodate article 21, or addressing the question of whether the international instruments to which reference was made by the petitioners give rise to customary international law norms of non-refoulement – admittedly a difficult question – the Court instead proceeds on the basis that section 5 is a non-exhaustive source of the State’s power to confer citizenship. This reading is difficult to square with the text of the clause and the broader scheme of the Act, especially in a context where that same Act had already been found to be comprehensive earlier in the same judgment (in the context of excluding an effort to read that statute in a manner consistent with international law!)

The residual executive discretion to award citizenship raises serious questions as to its source, extent and limitations with which the judgment does not grapple, beyond citation of a recent Delhi High Court decision (Felix Stefan Kaye v Foreigners Regional Registration Office) in support. In Felix Stefan Kaye, there was similarly no asserted basis for the government’s power to ‘relax’ the application of the Indian Citizenship Act beyond mere assertion.

Furthermore, the role of international law (including whether non-refoulement obligations under other international instruments ratified by India, like the International Covenant on Civil and Political Rights, could affect the interpretation of this part of the Citizenship Act) cannot be waved away merely by reference to the ‘comprehensive’ character of the legislation in question if, in other contexts, that legislation is found to be ambiguous or open to other interpretations.

The Court was, of course, required to decide the petition that it was given on the basis of the arguments and authorities put before it, not to resolve hypothetical questions or potential other challenges that could have been mounted. Broader questions of section 5’s prohibition on citizenship for “illegal migrants” passes constitutional muster do not appear to have been argued and would have hence been inappropriate to determine. But nonetheless, in circumstances where constitutional or international principles could have potentially assisted the Court in affording the Act a meaning other than its literal meaning, its reasoning in doing so is sparse and unpersuasive.

To the extent that constitutional principles have been deployed in this judgment, they are subject, as noted above, by the troubling notion that the petitioners’ entitlement to protection under article 21 is in some way, shape or form affected by their character as persons ‘genealogically rooted to this soil and who speak our language and who belong to our culture’. At best, this is a meaningless rhetorical flourish with no substantive bearing on the result which ought to be treated as thoughtless obiter. At worst, the idea that one’s rights under article 21 are subject to one’s cultural or national identity, one’s ‘rootedness to the soil’, has no support in the text, runs completely counter to the broader constitutional scheme and is antithetical to a secular, pluralist democracy. As an Australian would say, the idea is completely rooted.

As noted above, the constitutional rights of refugees and asylum seekers have received inconsistent and hesitant protection from the Indian courts. The obvious rhetorical passion in GR Swaminathan J’s denunciation of the present denial of rights to the petitioners is to be welcomed as a corrective to public and political indifference to the rights of refugees, both in India and abroad. But passion is not a substitute for reasoned analysis in statutory construction, and it does not serve to justify troubling and partial application of constitutional rights.

[1] See e.g. Ktaer Abbas Habib Al Qutaifi v Union of India 1999 CriLJ 91; Dongh Lian Kham v Union of India (2016) 226 DLT 208.

[2] Mohammad Sediq v Union of India (1998) 47 DRJ 74; Mohammad Salimullah v Union of India WP (Civ) No 793 of 2017.