Delhi District Court
Of Nurenburg vs . Superintendent, Presidency Jail, ... on 20 September, 2011
IN THE COURT OF SH. ARUL VARMA :
LD. METROPOLITAN MAGISTRATE (SPECIAL COURT - 2) :
DWARKA COURTS : NEW DELHI
In the matter of:
FIR No. : 78/10.
PS : IGI Airport.
U/s : 419/420/468/471/120B IPC & 14 Foreigner's Act.
State
V/s
Chandra Kumar & Others.
:: ORDER ON SENTENCE AND DEPORTATION ::
FACTS
1. Before an order on sentence is passed in the present matter, it
would be apposite to succinctly recapitulate the facts of this peculiar
case:
The convict Chandra Kumar is a Sri Lankan Tamil refugee who has
been staying at a refugee camp in India from the year 1990. He
sought to eke out a better life in Italy but while leaving India, he was
apprehended by the immigration authorities as he did not possess
valid travel documents. Thereafter, he was charged for committing
the offences of cheating, impersonation and forgery r/w/s 14 of the
FIR No.: 78/10. Page No. 1 of 49
Foreigners Act, 1946. He claimed that he was duped by a travel
agent. He moved an application for plea bargaining. Pursuant to
moving of an application under the benevolent provisions of plea
bargaining recently incorporated in the Code of Criminal Procedure,
1973, Chandra Kumar was convicted of the aforesaid offences upon
his admission of guilt. Had he been an Indian citizen, he would in
all probability have been set free at this stage, having been already
incarcerated in judicial custody for a period of almost 6 months. An
order on sentence would have been passed forthwith. However, the
Ld. Additional Public Prosecutor, on instructions from the
State, contended that an order of deportation should form a
part of the order on sentence. It is in light of these circumstances
that a detailed order is required to be passed while handing out
sentence to the accused. The issue of deportation needs some
expatiation.
SUBMISSIONS
2. The Court had a query regarding whence this Court derives
authority to deport the convict herein. Ld. APP had contended that
the Court has powers u/s 3 (2) of the Foreigners Act, 1946 to order
deportation. However, a bare reading of the provision indicated that
it is the prerogative of the Central Government to order deportation
and the Courts do not possess any authority to do so. This
understanding was fortified by the below mentioned observation of a
Constitutional Bench of the Hon'ble Supreme Court in Hans Muller
FIR No.: 78/10. Page No. 2 of 49
of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta &
Others, 1955 AIR SC 367:
"20. ... ... ... The right to expel is conferred by Section
3(2)(C) of the Foreigners Act, 1946 on the Central
Government and the right to enforce an order of
expulsion and also to prevent any breach of it, and the
right to use such force as may be reasonably necessary
"for the effective exercise of such power" is conferred by
Section 11 (1), also on the Central Government.
22. The Foreigners Act, 1946 confers the right of
expulsion on the Central Government. Therefore, a
State Government has no right either to make an order
on expulsion or expel."
3. Thus it is clear that the order to deport cannot be passed by this
Court. But, the question remains that is there any bar which
prohibits this Court in passing an order whereby the convict herein
shall not
be deported
? This order seeks to shed some light on this
aspect.
4. The Ld. APP had stated that relevant documents containing the
modalities of deportation would be in the possession of the
Foreigner's Regional Registration Office (FRRO), New Delhi. Court
notice was issued to the FRRO, and consequently Incharge,
Immigration Cell from the FRRO entered appearance and produced
Government Order F.No. 25019/3/97F.III dated 2.7.1998 of
the Foreigners Division, Ministry of Home Affairs, Government
issued by Under Secretary to the Government of India to Home
Secretaries of all States/UTs. The Courts attention was invited to
FIR No.: 78/10. Page No. 3 of 49
para no. 2 of the aforesaid Government Order. The same is
reproduced as hereunder:
"2. However, there have been cases where foreigners
either overstay illegally, go underground or engage
themselves in undesirable/illegal activities. In minor
offences, action is taken to deport the foreigners by
serving them with Leave India Notices u/s 3 of the
Foreigners Act. For serious offences like long
overstayal, commission of offences under various other
Acts like IPC, NDPS, Customs etc., cases are instituted
in the court of laws and the foreigners may undergo
long periods of imprisonment awarded by court.
Finally, in both these cases, the foreigners have to be
deported out of India."
5. The FRRO also filed a copy of Notification No. F.22(29)/91PPF4058
dated 22.8.1991 issued by the Delhi Administration and
Government of India's Notification No. 4/3/56(II)F.I dated 30.9.1992
whereby the power to deport under the Foreigners Act, 1946 was
delegated by the Central Government to the FRRO. It was also
submitted that all the foreign nationals who are received from jail
after conviction/acquittal are handed over to the FRRO by the local
police for their further deportation to their country of origin.
6. A query was raised regarding the existence of any
notification/order/regulation etc. specifically dealing with the
modalities of deportation of Sri Lankan refugees. Counsel for
convict also sought information regarding grant of citizenship to the
convict herein in order to avert his deportation. However, the official
from FRRO submitted that the Foreigners Division, Ministry of Home
FIR No.: 78/10. Page No. 4 of 49
Affairs would be in a better position to clarify the intricacies
regarding deportation, and accordingly, court notice was sent to the
Ministry whereupon Dy. Secretary, Ministry of Home Affairs
(Foreigners Division) entered appearance to furnish the necessary
clarification which would enable the Court in the determination of
the following queries:
"1.(A) In general, what are the documents which
contain the rules/regulations/notifications/orders
governing the deportation of a Sri Lankan refugee.
(B) In particular, the
rules/regulations/notifications/orders which makes
deportation of a Sri Lankan refugee mandatory upon
being convicted of an offence under the laws of the
land.
2. A copy of 1996 order of the Centre (G.O.
370). The reference to this order has been made in
page no. 132 of the written submissions filed on behalf
of the convict.
3. Can a refugee, who has been convicted
under the IPC, apply for citizenship in India? If so, the
procedure thereof.
4. Does the Government make any distinction
between the nature of offences committed while
ordering deportation of a refugee? In other words does
the commission of a less serious crime result in the
grant of some exemption from deportation?
5. Whether the State of Tamil Nadu has a
specific policy whereby Sri Lankan refugees are not
deported?
6. What are the modalities involved in
FIR No.: 78/10. Page No. 5 of 49
procuring citizenship of India by a refugee? Does the
sojourn by a refugee for the last 20 years in India
entitle him to avail the benefits extended to a citizen?"
7. On 20.8.2011, the Dy. Secretary filed a detailed reply to the
aforesaid queries. The reply of the Ministry was to the effect that the
convict herein was liable to be repatriated as he was liability of Sri
Lanka.
8. On the other hand, counsel for convict filed his written submissions
and placed reliance on the following judgments:
(i) Hasan Ali Raihany Vs. Union of India, (2006) 3 SCC 705.
(ii) Dr. Malavika Karlekar Vs. Union of India & Another, Writ Pet.
(Crl. No.) 583 1992.
(iii) National Human Rights Commission Vs. State of Arunachal
Pradesh & Another, AIR 1996 SC 1234.
(iv) Louis De Raedt & Others Vs. Union of India & Others, 1991
AIR 1886, 1991 SCR (3) 149.
(v) State of Arunachal Pradesh Vs. Khudiram Chakma, AIR 1994
SC 1461.
(vi) U. Myat Kyaw & Others Vs. State of Manipur & Others, Civil
Rule No. 516 of 1991.
FIR No.: 78/10. Page No. 6 of 49
(vii) Seyed Ata Mohamamdi Vs. Union of India & Others, AD 1458
of 1994.
(viii) Zothansangpuii Vs. State of Manipur, Civil rule No. 981 of
1989.
(ix) Khy Htoon & Others Vs. State of Manipur, Civil Rule No. 515
of 1990.
(x) Raju Vs. State of Tamil Nadu & Others, Writ Pet. No. 24063 of
2005 and WPMP No. 26235 of 2005.
(xi) Ktaer Abbas Habib Al Qutaifi & Others Vs. Union of India &
Others, 1999 Cri LJ 919.
(xii) Vishaka & Others. Vs. State of Rajasthan & Others, 1997 (6)
SCC 241.
(xiii) David Patrick Ward & Another Vs. Union of India & Others,
(1992) 4 SCC 154.
(xiv) Premavathy @ Rajathi presently interned at Special Camp for
Srilankan Refugees Chengalpattu Vs. State of Tamil Nadu &
Others, HCP No. 1038 of 2003 and HCP Nos. 11.1, 1118,
1119, 1120, 1121, 1122, 1123, 1085, 1170 and 1226 of 2003.
FIR No.: 78/10. Page No. 7 of 49
(xv) Ram Singh Vs. State of Rajasthan, 1978 WLN UC 90.
(xvi) J. Vasantha Gladis Daisy Vs. The Superintendent of Police,
WP (MD) No. 10423 of 2005.
(xvii) Suo Moto Vs. State of Rajasthan, RLW 2005 (2) Raj 1385,
2005 (4) WLC 163.
9. Counsel for convict further stated that the convict has valid
documents to stay in India and that he is in possession of a Refugee
Certificate. Counsel for convict further submitted that the
Government Order F.No. 25019/3/97F.III dated 2.7.1998 is
applicable only to foreigners who overstay illegally, go underground
etc. and that the order is not applicable to the convict herein as he
possesses valid documents. It was further contended that
deportation can be ordered only when there are compelling reasons
which threaten to jeopardize national security. Traveling on a forged
passport is not that heinous an offence to pose a danger to the
security of the country, and cannot be equated with grave offences
like sedition, murder, rape, dacoity etc.
10. The arguments of counsel of the convict can be summed up as
under:
• The convict has a well founded fear of persecution in case
he is deported to Sri Lanka.
FIR No.: 78/10. Page No. 8 of 49
• India is bound by the Customary International Law and
consequently the principle of nonrefoulement forbids
deportation of the convict herein as he has a well founded fear
of persecution.
• Article 21 of the Constitution of India which protects life and
liberty of allcitizens and noncitizens alike, is applicable in
the present case and the convict refugee's life ought to be
protected as per the mandate of Article 21.
• If an individual poses no danger or threat to the security of
the country, he ought not to be deported.
• Various High Courts have stayed the deportation proceedings
invoking humanitarian grounds.
• Our nation must march with the international community and
the municipal law must respect rules of international law just
as nations respect international conventions. The comity of
nations requires that rules of international law may be
accommodated in the municipal law even without express
legislative sanction.
• Article 51 (c) of the Constitution of India mandates that the
State shall endeavour to foster respect for international law
and treaty obligations in the dealings of organised people with
one another.
FIR No.: 78/10. Page No. 9 of 49
• The provisions of a convention which elucidate and go to
effectuate the fundamental rights guaranteed by our
Constitution can be relied upon by the Courts as facets of
those fundamental rights, and thus can be enforced.
• An international convention consistent with the fundamental
rights, and in harmony with its spirit, must be read into those
provisions to enlarge the contents thereof.
• An opportunity should be granted to the convict to approach
the UNHCR, Delhi to avert deportation.
11. During the course of arguments, counsel for convict filed additional
written submissions in response to the reply dated 20.8.2011 filed
by the Dy. Secretary, Ministry of Home Affairs, the gist of which is as
hereunder:
• Para 2 of annexure VI is explicit in as much as it states that
there is no policy or plan to deport any of the Sri Lankan
Tamil refugees living in Indian camps, to Sri Lanka.
• Para 2 of annexure VI also reads "if a refugee in a camp is
involved in any illegal activity punishable under the Indian
Penal Code, he is dealt with in accordance with the provisions
in criminal law". According to this para the refugee should be
dealt in accordance with criminal law. However, the criminal
FIR No.: 78/10. Page No. 10 of 49
laws do not provide for deportation.
• The Ministry of Home Affairs had replied that the convict
himself has to establish fear of persecution. It is submitted
that only a well founded fear of persecution is required to be
established and not a fear of persecution beyond reasonable
doubt.
• Para no. (iii) of the Government Order No. 370 dated
10.9.1996, which is reproduced as hereunder, is not
applicable:
"(iii) Srilankans who have arrived in India from
January 1993 onwards may be dealt with in
accordance with the existing legal provisions as
applicable to any other foreigner."
At this juncture, it would be pertinent to note that the convict
herein came to India prior to 1993 and as such the
Government Order ought not to be applicable to the convict
herein.
12. After hearing submissions of both the parties, and at the request of
the counsel for convict, intervention of the UNHCR was also sought
vide order dated 5.8.2011. However, the court notice issued to
UNHCR was returned unserved as the Chief of Missions, UNHCR
claimed immunity from due legal process and requested the Court to
obtain information from the UNHCR only through the Ministry of
External Affairs, Government of India. Court notice was issued
FIR No.: 78/10. Page No. 11 of 49
afresh apprising the UNHCR that no action had been taken or was
ever contemplated to be taken against the UNHCR and that the
Court had merely sought its intervention in order to arrive at an
informed decision. At the same time, the order dated 5.8.2011 was
routed to the UNHCR through the Ministry of External Affairs.
Despite being personally apprised of the proceedings in the Court by
the DCP (F), Ministry of External Affairs and after receipt of
assurance of consideration by the UNHCR, none appeared on behalf
of the Agency. A positive response from the Agency would have
thrown more light on the matter. Be that as it may, it is imperative
to deal with the contentions of both parties.
INTRODUCTION
13. The annals of history are replete with instances where prolonged
suppression and tyranny gives rise to rebellion and ultimately to a
revolution that might lead to dethroning the unjust regime. After
the enaction of the 'Sinhala only' law which made 'Sinhala' as the
national language of Sri Lanka and which curtailed job opportunities
for the minority Tamilians, led to peaceful protests in the island. A
time came when peaceful agitations did not yield any result that
some fundamentalists took to arms and formed organisations that
propagated violence and terror as a means of achieving one's goal.
14. It is when the ongoing conflict between the government and the rebel
forces were taking place, refugees from Sri Lanka came in four
waves. The convict herein had also to leave his country of birth in
FIR No.: 78/10. Page No. 12 of 49
order to save himself and his family from being massacred.
15. The following poignant theme is evocative of the ordeal that a
refugee has to suffer:
"One refugee without hope is too many."
This is also the Global Theme for the World Refugee Day, in 2011.
The video can be seen at the UNHCR website where Hollywood
actress Angelina Jolie, Goodwill Ambassador has appealed the world
to 'do one thing' for the cause of refugees.
16. Refugee problem is a global problem. A successive stream of
humanitarian crisis has high lightened the plight of the victims, as
well as the threat, that large scale population movements pose to
regional security, stability and prosperity. The Government of India
has seen the refugees problem from a broader prospective, derived
from its ancient cultural heritage. Reminding the Indian ethos and
the humanitarian thrust, Justice V.R. Krishna Iyer former Judge of
the Supreme Court of India had given a message as Chairman,
ICHLAR in these words:
"The Indian perception is informed by a profound
regard for personhood and a deep commitment to
prevent suffering. Ancient India's cultural vision has
recognised this veneration for the individual. The
Manusmrithi deals elaborately with Dharma even
amidst the clash of arms. The deeper springs of
humanitarian law distinguished the people of India by
the very fact that Dharma Yudha or the humanitarian
FIR No.: 78/10. Page No. 13 of 49
regulation of warfare, is in the very blood of Indian
history. Cosmic compassion and ecological empathy
flow from the abundant reservoir of Buddha's
teachings whose mission was the search for an end to
human sorrow or Dukha. 'Emperor Ashoka' renounced
war as he beheld slaughter in the battlefield. In the
Mahabharatha and Ramayana the great epics of India,
we find inviolable rules of ethics and kindness to be
observed even by warring rulers in battlefields. One
may conclude that the Indian Constitution, in enacting
fundamental duties in Article 51a has cast on every
citizen the duty to promote harmony among all the
peoples of India, to have compassion for living creatures
and to develop humanism and abjure violence. Thus,
humanitarian legality and concern for refugee
status are writ large in the Indian ethos. ... ... ..."
17. Refugee protection not only has ancient roots but the principle of
protecting the "necessitous stranger" can also be found in virtually
all religions.
18. It would be interesting to know that our neighbour Pakistan hosts
the maximum number of refugees in the world numbering to almost
2 million followed by Syria (1.5 million refugees), Iran (9,63,500
refugees), Germany (5,78,900 refugees), Jordan (5,00,300 refugees)
and Tanzania (4,35,600 refugees) (Source: Encyclopedia of Human
Rights Vol. 4, Edited by: David P. Forsythe, Oxford University Press
Publications).
PRINCIPLE OF NONREFOULEMENT
19. Refoulement refers to the expulsion, deportation, removal,
FIR No.: 78/10. Page No. 14 of 49
extradition, sending back, return or rejection of a person from a
country to the frontiers of a territory where there exists a danger of
illtreatment i.e. persecution, torture or inhuman treatment.
20. Although, India is not a signatory to the United Nations Convention
On Refugees 1951 and its Optional Protocol 1967 and has not
ratified it, yet it would be apt to peruse Article 33.1 of the
Convention which contains the principle of nonrefoulement, and
the same is reproduced as hereunder:
"No Contracting State shall expel or return ("refouler") a
refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political
opinion."
21. Article 33.1 prohibits the refoulement of any refugee who has a 'well
founded fear of persecution' and does not require any additional
demonstration that a threat is "more likely than not" to materialise
before the prohibition against returning a refugee to a place where
he fears persecution becomes operative.
22. The refugee must be outside his or her country of origin and possess
a well founded fear of persecution and this persecution must be
based on one of the following 5 factors i.e. political opinion, religion,
race, nationality or membership of a particular social group. The 4th
category i.e. nationality has been left undefined by the convention.
The UNHCR handbook attempts to fill this void:
FIR No.: 78/10. Page No. 15 of 49
"The term 'nationality' is not to be understood only as
'citizenship'. It refers also to membership of an ethnic
or linguistic group and may occasionally overlap with
the term 'race'. Persecution for reasons of nationality
may consists of adverse attitudes and measures
directed against a national (ethnic or linguistic) minority
and in certain circumstances the fact of belonging to
such a minority may in itself give rise to a well founded
fear of persecution." (Source: para 74,
http://www.unhcr.org/publ/PUBL/3d58e13b4.pdf).
23. Apart from the convention, there are other human rights
instruments to which India is a party State that proscribe
refoulement and influence the treatment of refugees, principle
among them being Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1984, the
Genocide Convention, 1948, the International Covenant on Civil and
Political Rights, 1966, Convention on the Elimination of all Forms of
Discrimination Against Women, 1979, International Covenant on
Economic Social and Cultural Rights, 1966, Convention on the
Rights of Child, 1989 and most importantly the Universal
Declaration of Human Rights, 1948.
24. It may not be out of context to reiterate India's reluctance to become
a party to the Convention and Protocol. Merely highlighting the
EuroCentric approach of these instruments is no longer sufficient
to deny to thousands of refugees in India a National Legislation in
order to protect their rights. It is difficult to understand that India,
inspite of adopting a Constitution which was entirely western
centric/EuroCentric and which was almost entirely influenced by
FIR No.: 78/10. Page No. 16 of 49
European and American traditions and concepts, would reject the
convention on refugees just a couple of years thereafter. Keeping in
mind the large influx, and presence of refugees on our soil, it is time
that India becomes a State Party to the aforesaid Convention. The
Hon'ble Supreme Court has, in a catena of verdicts held that
foreigners shall enjoy the same fundamental rights as those
available to citizens of India.
WELL FOUNDED FEAR OF PERSECUTION
25. Counsel for convict had vehemently remonstrated that the convict
herein has a 'well founded fear of persecution' in the eventuality of
his deportation to Sri Lanka. The following paras of the affidavit
filed by the convict echoes his perturbation:
"4. ... ... ... If I deported to the Sri Lanka, the Sri
Lankan Army will put me in jail without any enquiry on
the suspect of militancy/terrorism they will kill me
and it is also very important to mention herein that I
came to India for the purpose of only to save my life.
(sic)
5. ... ... ... The Hon'ble Court may consider the
present situation of Sri Lanka as per UN Panel report so
far 40,000 common people has been killed by the Sri
Lankan Army and there is no hope, no guarantee to
secure my life in Sri Lanka. (sic) ... ... ..."
26. It was asserted that the Sinhalese are in a majority in Sri Lanka and
are perpetrating atrocities against the Tamilian minority. The
convict has filed an affidavit in this regard alongwith a CD and the
FIR No.: 78/10. Page No. 17 of 49
latest report dated 31st March 2011 of the United Nations titled
"Report of the SecretaryGeneral's Panel of Experts on Accountability
in Sri Lanka". An extract thereof at page no. 116 would be of utmost
relevance:
"4. Ongoing Violations by the Government
428. Nearly Two years after the end of the fighting, the
root causes of the ethnonationalist conflict between the
Sinhalese and Tamil populations of Sri Lanka remain
largely unaddressed and human rights violations
continue. There are consistent reports of such activities,
some committed by agents of the State or state
sponsored paramilitaries; these include arbitrary
detention without trial, abductions and disappearances,
killings, attacks on the media and other threatening
conduct. ... ... ..."
27. The convict has also filed a book titled "What Is To Be Done About
This" by Penny Cuic Publication Edited by J. Prabakaran which
contains a pictorial representation of the atrocities committed on
Tamilians in Sri Lanka. The Court's attention has been invited to
the following excerpt from this book wherein Mr. Justice V.R.
Krishna Iyer, former Judge of the Supreme Court of India has
penned down his anguish and pain in the following words:
"The pictures in the book sent to me projects the
horrendous injuries noxious by inflict. The gory scene
when presented through the photos and pictures robs
my sleep. Can man even be so beastly with little
babies, raping girls, mutilating men and women and
massacre numbers?"
FIR No.: 78/10. Page No. 18 of 49
28. The book also quotes the words of the Nobel Peace Prize winner and
Nazi concentration camp survivor Professor Eile Wiesel:
"The Tamil people are being disenfranchised and
victimized by the Sri Lankan authorities. This injustice
must stop. ... ... ..."
29. There is no universally accepted definition of persecution. However,
it can be inferred that a threat to life or freedom constitutes
persecution. Although, it is common to think of persecution in
terms of human rights violations involving imprisonment or
violations of the physical integrity of the individual such as torture,
there is nothing in any definition that would restrict persecution in
this manner. Protection against refoulement should also be granted
if the person is a member of a group against whom there exists a
pattern of persecution.
30. The problem determining the nature of the evidence required to
establish a 'well founded fear of persecution' remains, i.e. what
constitutes a 'good reason' or 'well founded reason to fear
persecution', and how does such evidence differ from that required
to establish a 'clear probability' that persecution will occur.
31. One would argue that in order to enjoy complete protection and to
prevent deportation, the refugee would have to establish a 'clear
probability' of persecution upon return. However, in INS Vs.
CardozaFonseca, 480 U.S. 421 (1987) it was held as under:
FIR No.: 78/10. Page No. 19 of 49
"A moderate interpretation of the 'well founded fear'
standard would indicate that as long as an objective
situation is established by the evidence, it need not be
shown that the situation will probably result in
persecution, but it is enough that persecution is a
reasonable possibility." (emphasis mine)
32. The UNHCR has commented:
"A substantial body of jurisprudence has developed in
common law countries on what standard of proof is to
be applied is in asylum claims in order to establish well
foundedness. This jurisprudence largely supports the
view that there is no requirement to prove well
foundedness beyond reasonable doubt or even that
persecution is more probable than not. To establish
'well foundedness' persecution must be proved to
be reasonably possible." (Note on Burden and
Standard of Proof in Refugee Claims para no. 17,
December 16, 1998 available at
http://www.unhcr.org/refworld/pdfid/3ae6b3338.pdf).
33. Helene Lambert in "Protection Against Refoulement from
Europe: Human Rights Law Comes to the Rescue", Vol. 48
International & Comparative Law Quarterly page 515 has
rightly observed that the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human
rights strengthens the findings of 'substantial grounds', thus,
contributing to lowering the standard of proof.
34. A 'well founded fear of persecution' also includes within its ambit
inter alia fear of being subject to torture. India, being a signatory to
the Convention Against Torture and Other Cruel, Inhuman or
FIR No.: 78/10. Page No. 20 of 49
Degrading Treatment or Punishment, 1984, should ideally be bound
by its international commitment to follow the principle of non
refoulement. Article 3 (1) of the Convention reads as under:
"No State Party shall expel return (refouler) or extradite
a person to another State where there are substantial
grounds for believing that he would be in danger of
being subjected to torture."
35. In arriving at a conclusion that there are substantial grounds for
believing that the individual faces a danger of torture, conditions
that may be taken into account would include criteria such as the
individual's ethnic background, his or her alleged political affiliation,
his or her history of past detention or torture. In addition to the
specific situation of every case, the general circumstances of the
country of return should also be considered. Article 3 (2) of the
aforesaid Convention would be relevant in this regard which is
reproduced as hereunder:
"For the purposes of determining whether there are
such grounds, the competent authorities shall take into
account all relevant considerations including, where
applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations
of human rights."
36. A reading of the aforesaid provisions, decision and comments of the
Convention, CardozaFonseca case and of the UNHCR respectively
coupled with the evidence filed by the convict has established the
fact that he has a reasonable fear of being persecuted in the
eventuality of his deportation to Sri Lanka.
FIR No.: 78/10. Page No. 21 of 49
PERSECUTION AND ARTICLE 21 OF THE INDIAN CONSTITUTION
37. Notwithstanding the fact that India has neither signed nor ratified
the United Nations Convention on Refugees, 1951 or its Optional
Protocol relating to Status of Refugees, 1967 which contain the
principle of nonrefoulement, yet the following deliberations would
make it abundantly explicit that this basic human right is implicit in
Article 21 of the Indian Constitution.
38. Article 21 of the Constitution of India reads as under:
"Article 21. Protection of Life and Personal Liberty.
No person shall be deprived of his life or personal
liberty except according to procedure established by
law."
Thus not mere animal existence but the right to live with dignity is
envisaged by the mandate of Article 21.
39. Article 21 is the procedural magna carta protective of life and
liberty. The right to life within the meaning of Article 21 means the
right to live with human dignity and the same does not merely
connote drudgery. It takes within its fold some finer graces of
human civilization, which makes life worth living. The right to life
embraces not merely physical existence but the quality of life as
understood in its richness and fullness by the ambit of the
Constitution.
FIR No.: 78/10. Page No. 22 of 49
40. In Louis De Raedt Vs. Union of India, AIR 1991 SC 1887, the
Hon'ble Supreme Court has held that the right to life under Article
21 is available to citizens and noncitizens alike. Further in NHRC
Vs. State of Arunachal Pradesh, 1996 (1) SCC 742 it was held
that every person is entitled to equality before the law under 'equal
protection of laws' and that the State is bound to protect the life and
liberty of every human being, be he a citizen or otherwise.
41. In Francis Coralie Mullin Vs The Administrator, Union
Territory of India 1981 SCC (1) 608 it was observed that any form
of torture or cruel, inhuman or degrading treatment would be
offensive to human dignity and constitute an inroad into this right to
life and it would be prohibited by Article 21.
42. Simon M.S. Kagugube has aptly concluded his article 'Cardoza
Fonseca and the Well Founded Fear of Persecution Standard'
(ILSA International Law Journal Vol. 12 (1998) pages 85 to
115) in the following words:
"Persecution constitutes a fundamental challenge to
basic ideals of the essential dignity of the human
person. Whenever we fail to adequately respond to that
challenge, more than just the immediate well being of
the refugee is at stake. An essential part of the
humanity of the rest of our community is also
compromised.".
43. It is no longer res integra that persecution is the effective denial
FIR No.: 78/10. Page No. 23 of 49
of an opportunity to pursue a dignified existence. Right to live
with dignity is a fundamental right enshrined in the Constitution
and this principle has been upheld in a plethora of judgments of the
Hon'ble Supreme Court of India discussed herein above.
Thus, it can be inferred that persecution jettisons the right to live
with dignity and is thus, violative of Article 21 of the Constitution of
India.
CONSTITUTIONAL VALIDITY OF THE FOREIGNERS ACT, 1946 AND
GOVERNMENT ORDER F.NO.
25019/3/97F.III DATED 2.7.1998 IN
SO FAR AS IT DEALS WITH REFUGEES
44. How a judge would interpret and apply constitutional tenets would
greatly depend on which philosophy of constitutional interpretation
he believes in. This Court believes in adopting the liberal
interpretation so as to keep the faith of the common man that
Courts are indeed the last bastion when it comes to protection of
fundamental rights.
45. At the outset, it is hereby clarified that this Court, in no way intends
to transgress into the boundaries which are in the domain of the
higher Courts of the land. But circumstances have arisen, which
make it imperative for the Court to consider the matter in the light of
judgments of the Hon'ble Supreme Court of India, and to have some
deliberations on this aspect.
In Hans Muller of Nurenburg Vs. Superintendent, Presidency
FIR No.: 78/10. Page No. 24 of 49
Jail, Calcutta & Others, 1955 AIR SC 367 a 5 Judge Bench of the
Hon'ble Supreme Court discussed the constitutionality of the
Foreigners Act, 1946 and held it to be valid. However, the issue that
was raised in front of the Hon'ble Supreme Court was with respect
to expulsion and extradition of a German foreigner against whom a
warrant of arrest was issued in West Germany in connection with a
number of frauds. However, the constitutional validity regarding the
inclusion of a refugee within the term 'foreigner' in the Foreigners
Act has hitherto not been raised nor addressed.
46. The Foreigners Act defines a 'foreigner' as hereunder:
"Section 2 (a) "foreigner" means a person who is not a
citizen of India."
47. This all encompassing definition includes within its ambit 'refugees'
also. However, it is common knowledge that a refugee is a distinct
category from that of a illegal migrant or a tourist, and thus should
be treated differently. It has already been discussed that refugees
are victims of circumstances and their peculiar condition should be
understood in a humane way. In this Court's perception, there has
been no reasonable classification in including refugees within the
strata of foreigners. Subjecting refugees, illegal migrants and
tourists to a similar law does not augur well for the mandate of
Article 14 of the Constitution of India in as much as this act has not
made any reasonable classification of these categories of people and
has not applied the principle of intelligible differentia. Moreover, the
fundamental principle of right to life has been completely overlooked
FIR No.: 78/10. Page No. 25 of 49
as there is no mention of exceptional circumstances, like
persecution under which a foreigner may not be refouled. These two
aspects have hitherto not been brought to the notice of the Hon'ble
Supreme Court of India and as such, this Court felt the need to have
some deliberations on this.
48. The categorisation of refugees in the strata of 'foreigners' and not
making any distinction between them and illegal migrants and
tourists, deprives the refugees of the privileges under myriad
international instruments.
49. While expounding the concept of Article 14, the Hon'ble Supreme
Court in Harnam Singh Vs. Regional Transport Authority, AIR
1954 SC 190 held that equal protection of laws means equal
subjection of all persons to the law and amongst equals, the law
shall be equal and equally and administered. Can illegal migrants
and tourists be considered 'equal' to refugees?
50. It is no longer res integra that reasonable classification is inherent
in the very concept of equality and that:
(i) The classification must be founded on an intelligible
differentia which distinguishes persons or things that a
grouped together from others left out of the group, and;
(ii) The differentia must have a reasonable nexus to the object
sought to be achieved by the statute.
FIR No.: 78/10. Page No. 26 of 49
51. There should be equality of treatment under equal circumstances. It
is well settled that Article 14 of the Constitution will be violated not
only if equals are treated unequally, but also if unequals are treated
equally.
52. In State of Andhra Pradesh Vs. Nalla Raja Reddy, AIR 1967 SC
1458 it was held that a statutory provision may offend Article 14 of
the Constitution both, by finding differences where there is none and
by making no difference when there is one.
53. In the 11 Judge Constitutional Bench case of T.M.A. Pai
Foundations Vs. State of Karnataka, (2002) 8 SCC 481, the
Hon'ble Supreme Court observed that implicit in the concept of
equality is the concept that persons who are in fact unequally
circumstanced cannot be treated on par.
54. The leitmotif discernible from the aforesaid judgments lead to the
irresistible inference that since refugees on one hand and tourists
and migrants on the other, are distinct categories, the law which
treat them at par is prima facie
unconstitutional
.
The Constitutionality of the Act (and Government Order) can also be challenged as the right to live with dignity entrenched in Article 21 gets impinged when a person is subject to persecution, or he has a well founded fear of persecution. It is on these two counts that the constitutionality of Foreigners Act, 1946 and the Government Order FIR No.: 78/10. Page No. 27 of 49 F.No. 25019/3/97F.III dated 2.7.1998 is assailable. However, since this Court does not possess the requisite competence to adjudicate upon this aspect, it would be inappropriate to expatiate on this topic any further.
THE JUS COGENS NATURE OF NONREFOULEMENT
55. Jean Allain in his article 'The Jus Cogens Nature of Non Refoulement', 13 Int'l J. Refugee L. 533 (2001) has attempted to demonstrate that nonrefoulement is a peremptory norm of international law. That is, it is a norm of jus cogens. No derogation from it is permissible. At page 538 of the article, the author has remarked: "At present, it is clear that the norm prohibiting refoulement is part of the customary international law, thus, binding on all States, whether or not they are party to the 1951 Convention."
"... ... ... Perhaps the most important forum for identifying the value attributed to the norm of non refoulement is in the Conclusions adopted by the Executive Committee of the programme of the United Nations High Commissioner for Refugees (UNHCR). Such Conclusions reflect the consensus of States, acting in an advisory capacity where issues of protection and nonrefoulement are addressed internationally. Their pronouncements carry a disproportionate weight in the formation of custom, as they are the States most specifically affected by issues related to non refoulement. ... ... ...
The first tentative mention of the norm of FIR No.: 78/10. Page No. 28 of 49 nonrefoulement as jus cogens was broached by the Executive Committee in Conclusion No. 25 of 1982, where the States members determined that the principle of nonrefoulement 'was progressively acquiring the character of a peremptory rule of international law'. (Executive Committee Conclusion No. 25, 'General Conclusion on International Protection', 1982: '(b) Reaffirmed the importance of the basic principles of international protection and in particular the principle of nonrefoulement which was progressively acquiring the character of a peremptory rule of international law.') By the late 1980s, the Executive Committee concluded that 'all States' were bound to refrain from refoulement on the basis that such acts were 'contrary to fundamental prohibitions against these practices'. (Executive Committee Conclusion No. 55, 'General Conclusion on International Protection', 1989, '(d) Expressed deep concern that refugee protection is seriously jeopardized in some States by expulsion and refoulement of refugees or by measures which do not recognize the special situation of refugees and called on all States to refrain from taking such measures and in particular from returning or expelling refugees contrary to fundamental prohibitions against these practices.') Finally in 1996, the Executive Committee concluded that nonrefoulement had acquired the level of a norm of jus cogens when it determined that the 'principle of nonrefoulement is not subject to derogation'. (Executive Committee Conclusion 79, 'General Conclusion on International Protection,', 1996: '(i) Distressed at the widespread violations of the principle of nonrefoulement and of the rights of refugees, in some cases resulting in loss of refugees lives, and seriously disturbed at reports indicating that large numbers of refugees and asylum seekers have been refouled and expelled in highly dangerous situations; recall that the principle of non refoulement is not subject to derogation.') As such, the member States of the Executive committee those -FIR No.: 78/10. Page No. 29 of 49
States whose interests are most specifically affected by the safeguarding of international protection and prohibiting refoulement - concluded by consensus that the norm of nonrefoulement was in fact a norm of jus cogens from 'which no derogation is permitted'."
56. India became a member of the Executive Committee of the High Commissioner's Programme (EXCOM) in 1995. The EXCOM is that of the organisation of the United Nations which approves and supervises material assistance programme of the UNHCR. Membership of EXCOM indicates particular interest and greater commitment towards redressal of refugee related matters. The principle of nonrefoulement has found expression in various meetings of EXCOM where it has been unanimously reiterated that the fundamental humanitarian principle of nonrefoulement is of such fundamental importance that this principle be observed 'both at the border and within the territory of the State' with respect to 'persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognised as refugees.'
57. This creates a paradoxical situation as India sits on the EXCOM and allows the UNHCR to operate on its territory, but refuses to sign the legal instrument that brought the organisation into existence.
58. It is not in dispute that the deliberations of the meetings of EXCOM are not binding on member States, however, time and again State parties and other countries attending the meetings of EXCOM have reiterated their commitment towards upholding the rights of FIR No.: 78/10. Page No. 30 of 49 refugees and have acceded to the fact that the principle of non refoulement is an essential part of the customary international law which ought to be followed in letter as well as in spirit by all States for whom human life is of paramount importance. Thus, it cannot be gainsaid that nonrefoulement has assumed the character of a peremptory norm.
WHETHER INDIA IS BOUND BY THE CUSTOMARY INTERNATIONAL LAW OF NONREFOULEMENT
59. An interesting question arises viz. to what extent can the provisions of international covenants/conventions be read into domestic law. Article 51 (c) of the Constitution of India casts a duty on the State to endeavour to "foster respect for international law and treaty obligations in the dealing of organised people with one another."
60. In Ktaer Abbas Habib Al Qutaifi & Others Vs. Union of India & Others, 1999 Cri LJ 919, the Hon'ble High Court of Gujrat dealt in extenso this aspect and from the conspectus of facts discussed therein, laid down inter alia the following principles for enforcement of humanitarian law: "4. The international covenants and treaties which effectuate the fundamental rights guaranteed in our Constitution can be relied upon by the Courts as facets of those fundamental rights, and can be enforced as such."
"6. The principle of 'nonrefoulement' is FIR No.: 78/10. Page No. 31 of 49 encompassed Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security." and "8. Where no construction of the domestic law is possible, Courts can give affect to international conventions and treaties by a harmonious construction."
61. In this case the Hon'ble High Court stayed the deportation to Iraq of two Iraqi nationals against whom a case u/s 309 of the IPC was registered and who were let off after a days imprisonment. They had remonstrated before the Court not to return them as they feared they would be persecuted in their country of origin. The Court invoked the principle of nonrefoulement which is part of the customary international law, and stayed their deportation.
62. In Ms. Zothansangpuii Vs. State of Manipur, Civil Rule No. 981 of 1989 Order dated 20.9.1989, the petitioner was convicted on her plea of guilt under the Foreigners Act as well as the Passport Act. The convict contended before the Court that she had a reasonable apprehension that she would be persecuted as a result of terror let loose by the military authority in Burma. Although, the judgment of Hon'ble Guwahati High Court has not explicitly mentioned or elaborated upon the principle of nonrefoulement, yet it can be inferred that these principles were considered by the Judges when they ordered a stay on deportation.
63. In Malvika Karlekar Vs. Union of India, Crl. WP No. 243 of FIR No.: 78/10. Page No. 32 of 49 1988, Hon'ble Supreme Court stayed the deportation of Burmese refugees.
64. In Ktaer Abbas Habib (supra) the Hon'ble High Court of Gujrat quoted an excerpt from "The Refugees in International Law" written by S. Goodwin Gill, which is reproduced as hereunder: "The evidence relating to the meaning and scope of non refoulement in its treaty sence (sic) also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive, authority that the principle is binding on all States, independently of specific assent."
65. In Vishakha Vs. State of Rajasthan, 1997 (6) SCC 241 it was held that "(14). ... ... ... It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. ... ... ..."
66. The Hon'ble Supreme Court in this case observed that in the absence of legislative measures, there is a need to find an effective alternative mechanism to fulfill the felt and urgent need of protecting women from sexual harassment at the work place. Invoking provisions of Article 51 (c), Article 253 and perusing Entry 14 of List I of the 7th Schedule to the Constitution of India, the Court held that "(7) In the absence of domestic law occupying the field, to formulate FIR No.: 78/10. Page No. 33 of 49 effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19 (I) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. ... ... ..."
67. The Hon'ble Supreme Court had further quoted in para no. 11 from the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region wherein the objectives of Judiciary inter alia are "(a) To ensure that all person are able to live securely under the rule of law. ... ... ..." Basically, there should be no reason why international conventions and norms cannot be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of the equality in all spheres of human activity.
68. In Zambia, a similar issue was discussed by a UNHCR Senior Protection Officer, Karolina Lindholm Billing who had, while making submissions on the Revised Immigration and Deportation Bill, 2010 to the parliamentary committee on national security and foreign affairs, stated that there should be an inclusion of an effective remedy against the expulsion or deportation order which would FIR No.: 78/10. Page No. 34 of 49 allow asylum seekers and refugees to challenge deportation orders in the Court of law. (http://www.postzambia.com/post read_article/php?articleId=6943) Section 33 of the Penal Code of Zambia was discussed, which makes deportation compulsory in case of foreigners in general "upon conviction of any offence, except minor traffic offences". This provision, according to her was not in line with the spirit of the United Nation Convention of Refugees, 1951 and its Optional Protocol, 1957 which requires deportation to be ordered only when the crime is sufficiently grave in nature. The presence of the foreigner should raise a reasonable apprehension that the security of the country would be jeopardized.
69. A similar analogy is sought to be drawn in the present matter as, in this Court's perception traveling on a forged document cannot be so severe a crime that can be equated with more heinous acts like sedition, murder, rape, dacoity or other offences which may affect the integrity of our country.
70. In the matter of Gurunanthan & Others Vs. Government of India, Writ Petition No. 6708 of 1992 order dated 27.3.1994 the Hon'ble High Court of Madras expressed its unwillingness to let any Sri Lankan refugee to be forced to return to Sri Lanka against his will. In Gurunanthan's case the repatriation process was stayed as it was not voluntary. It was held that when there was an international organisation to ascertain the voluntariness of consent it is not for the Court to decide whether the consent was voluntary or not. It also directed the Government to transmit this order in Tamil to the FIR No.: 78/10. Page No. 35 of 49 camps as well as an order that the refugees will not be sent back against their will.
71. India is a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide and ratified it on 27.08.1959.This Convention bans acts committed with the intent to destroy, in whole or in part, a national ethnic, racial or religious group. It declares genocide a crime under international law whether committed during war or peacetime and binds all signatories of the convention to prevent genocide. By deporting the convict herein, there is every apprehension that he will become a victim of genocide, and thus the State of India would have failed to live up to its commitment of preventing genocide under the convention.
72. India signed the Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment on 14.10.1997. It forbids countries to return a refugee to his country if there is a reason to believe that he or she will be tortured, and requires host countries to consider the human rights record of the person's native country in making this decision. The evidence brought on record paints a poor picture of the treatment of Sri Lankan Tamils in Sri Lanka. Thus, it would be against the spirit and letter of the Convention to refoule the convict herein when his human rights are likely to be jeopardized.
73. India became a signatory to the Convention Against Torture on 14.10.1997 but has yet not ratified it. Even though the implications FIR No.: 78/10. Page No. 36 of 49 of signing and ratifying a treaty vastly differ, yet being a signatory to an instrument imposes upon the Contracting State certain obligations. It is common knowledge that a State does not express its consent to be bound by a treaty unless it ratifies it. However, the State that signs a treaty is obliged to refrain in good faith, from acts that would defeat the object and purpose of the treaty. The concomitant analogy that can be deciphered from the aforesaid philosophy is that India should refrain from refouling a hapless refugee who has a reasonable fear of being subject to torture due to his return to his country origin.
74. In view of the foregoing discussion, this Court holds that the principle of nonrefoulement is a part of customary international law, and binds India, irrespective of whether it has signed the convention on refugees or not in as much as it is a party to other Conventions which contain the principle of nonrefoulement. URGENT NEED FOR A NATIONAL LEGISLATION WHICH STRESSES UPON THE ASPECT OF NONREFOULEMENT AND LAYS DOWN PROVISIONS WITH RESPECT THERETO.
75. This part of the order of the Court draws upon a thoroughly researched article titled 'Creating Legal Space for Refugees in India: The Milestones Crossed and the Roadmap for the Future' written by a Senior IAS Officer Sh. Prabodh Saxena, Joint Secretary, Department of Economic Affairs, Ministry of Finance, Government of India published in International Journal of Refugee Law, June 18, 2007. The officer has challenged set dogmas and has FIR No.: 78/10. Page No. 37 of 49 stressed the need to have in place a legislation which would cater to the needs of thousands of victims of circumstances. Even the NHRC and Law Commission of India have, in their successive reports, stressed the need for a national legislation on refugees.
76. The need for enaction of a comprehensive legislation to deal exclusively with the problems of refugees has arisen since time immemorial, and finally, pursuant to extensive deliberations a Model National Law: The Refugee and Asylum Seekers (Protection) Bill, 2006 had been drafted. The process was initiated at the Third South Asian Informal Regional Consultation on Refugee Migratory Movements, where a 5 member working group was constituted to draft a model refugee protection law for the South Asia Region. The first draft of this proposed law was present at the 1997 SAARC Law Seminar in New Delhi, modified and then adopted by the 4th Annual Meeting of the Regional Consultation at Dhaka, Bangladesh in 1997. The Refugee and Asylum Seekers (Protection) Bill, 2006 has drawn its fundamentals from the Convention on Refugees, 1951, the Optional Protocol, 1967, the Organization of African Unity Convention Governing the Specific Aspects of Refugees Problem in Africa, 1969 (OAU Convention), the Cartagena Declaration on Refugees, 1984 and the Bangkok Principles. It has also benefited from various conclusions of the EXCOM on different aspects of refugee protection.
77. Presently, the refugees are dealt under the Foreigners Act, 1946 and the rules framed thereunder. Refugees are treated as foreigners FIR No.: 78/10. Page No. 38 of 49 under the extant laws of our country. However, it would be extremely important to understand that a refugee cannot be placed the same platform on which illegal migrants, tourists and other 'foreigners' are placed. Tourists and illegal migrants come on their own volition in search of better livelihood or pleasure related purposes whereas refugees are victims of circumstances and have been compelled to leave their country of origin. The categorisation of refugees in the strata of 'foreigners' and not making any distinction between them and illegal migrants and tourists, deprives the refugees of the privileges available to them under the Geneva Convention and other Conventions and treaties.
78. It is unfortunate that in spite of having an impressive record of welcoming refugees, we do not have a national law in place in order to cater to the specific needs of this class. An important distinction needs to be made between persons who, on their own volition and in order to earn a livelihood or to explore the world, reach the shores of another country on one hand, and between a refugee who, under compulsion and duress, has no option but to take shelter in another country. They are a victim of circumstances. They do not throng the shores of another country for any pleasure or for any kind of economic gain. They take chances as they do not have choices.
79. The drafting of the Refugee And Asylum Seekers (Protection) Bill, 2006 was a welcome step in this direction. It is unfortunate that despite it been enacted after due deliberations and after various FIR No.: 78/10. Page No. 39 of 49 rounds of consultations, by eminent jurists including the Former Chief Justice of India Sh. P.N. Bhagwati, this Bill has not seen the light of the day. A perusal of some of the provisions would make it clear that if this Bill would have been enacted, it would have gone long way in securing certain rights for the refugees. The preamble to the Bill addresses the need for protection of refugees as is explicit from the following lines: "To provide for the establishment of an effective system to protect refugees ... ... ... and, by providing necessary social and economic protection both before and after the date of asylum."
80. Further, a bare perusal of the following lines of the preamble would reveal the humane facet which is expected to be inculcated in our legislation: "WHEREAS, the Constitution requires treating all persons in a fair and just manner consistent with the guarantees of equality fairness and due process of law;
AND WHEREAS, India has a long tradition and experience of dealing with refugees in a responsible and humane way;
AND WHEREAS, India has acceded to all major international human rights instruments and respects international law and human rights norms including the principle of nonrefoulement;
AND WHEREAS, India recognises the rights of Refugees And Asylum Seekers to live a dignified life free from FIR No.: 78/10. Page No. 40 of 49 persecution." (emphasis mine).
81. It would be apposite to peruse the following provisions of this Bill in order to understand the significance and ramifications of its enactment. Chapter 2 of this Bill has defined the term 'refugee': "4. Persons who are refugees. Subject to the provisions of this Act, a refugee is a person who,
(a) is outside his country of origin and is unable or unwilling to return to, or is unable to unwilling to avail himself of the protection of, that country because of a wellfounded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion; or
(b) owing to external aggression, occupation, foreign domination, serious violations of human rights or other events seriously disrupting public order in either a part or whole of his country of origin, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin:
... ... ..."
The convict herein has established such a well founded fear of persecution.
82. Most importantly Section 7 of this Bill would make it explicit that a refugee who senses a fear of persecution ought not to be expelled/deported/removed/refouled to the country from where such fear arises. Section 7 of this Bill is reproduced as hereunder: FIR No.: 78/10. Page No. 41 of 49 "7. General prohibition against refusal of entry, expulsion, extradition, deportation, return etc. and provisions for removal from India. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, no person may be refused entry into India, expelled, extradited, deported or returned to any other country or be subject to any similar measure if, as a result of such refusal, expulsion, extradition, deportation, return or other measure, such person is compelled to return to or remain in a country where:
(a) he may be subjected to persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, or,
(b) his life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination, serious violations of human rights or other events seriously disrupting public order in either part or whole of that country.
(2) Subject to subsection (1) of this section, a refugee or asylum seeker may be removed from India only if,
(a) he has been convicted by a final judgment of a crime against peace, a war crime or a crime against humanity and constitutes a danger to the community; or ... ... ..."
The nonobstante clause in Section 7 would have overridden the provisions of the Foreigners Act, 1946 and the Government Order. Had the Bill been enacted, the convict refugee herein would not have been deported.
FIR No.: 78/10. Page No. 42 of 49
83. There have been a plethora of instances wherein the Indian Courts have tried to evolve a humane and compassionate approach to redress individual problems, however, in the absence of a long term, consistent and uniform solution by the way of enactment of a national legislation, their treatment would be subject to, and would depend upon the individual outlook, social inclinations and other idiosyncrasies which would make it difficult for the subordinates courts to follow. India needs to live up to its humanitarian goals. The need for a refugee law is immediate. The uniform treatment of refugees is a must as long as India continues to accept asylum seekers across its porous borders.
CONVICTION AND SENTENCE: AFTER TRIAL VS. AFTER PLEA BARGAINING
84. The Foreigners Act, 1946 was enacted before India attained her independence whereas the benevolent provisions of plea bargaining were incorporated in 2006 in the Code of Criminal Procedure, 1973 vide an amendment in 2006. The legislature could not have foreseen that one day our country would emulate the West and introduce plea bargaining in our laws. The very basis of ushering this concept was to reduce the tremendous backlog under which our judiciary is reeling. In case an accused pleads guilty to the commission of an offence, his sentence is reduced significantly if he opts to avail the benefit of Chapter XXIA of the CrPC. It is this ingenuity in the law that the accused willingly admit their guilt in order to avoid a long drawn out legal battle and to receive a swift FIR No.: 78/10. Page No. 43 of 49 sentence which may necessarily not result in imprisonment.
85. It has been observed that persons committing the offences for which the accused has been charged with and convicted for, suffer a sentence of imprisonment for a period already undergone in judicial custody, and imposition of some fine. The average period of detention usually varies from 15 to 20 days. It is pertinent to note that the convict herein has already been incarcerated for close to 6 months. The fact that he has already spent a long time behind bars while awaiting trial needs to be considered while sentencing him.
86. A question comes to one's mind is that: should the convict be punished twice over, for his offence? Should he be penalized by the Court and by the Government also? If that be so, the convict would not have approached the Court to plead guilty to his offence rather he would have faced the trial, which would inevitably go on for another few years. By that time, the conditions in his country would have ameliorated and his return would not have posed a risk to his life. Had the convict known that he would be deported pursuant to entering a plea of guilt, he probably would have not preferred a plea bargain.
87. It has already been laid down by the Hon'ble Supreme Court in Louis De Raedt (supra) that Indian and noncitizens are to be treated equally as far as Article 21 is concerned. Would it be fair to deport an already incarcerated individual? Doesn't it appeal to one's conscience that the convict had already spent 6 months in prison FIR No.: 78/10. Page No. 44 of 49 and that further deporting him would be nothing short of prolonging and continuing his agony? The very idea of deporting the convict herein to his country of origin where he has a well founded fear of persecution would not be in consonance with the principles of natural justice.
88. There has to be a discernible distinction between sentencing an individual after a protracted and contested trial on one hand, and sentencing him after he has entered his plea of guilt. The punishment meted out cannot be the same under both circumstances. Even the legislature had this distinction in mind whilst amending the CrPC and introducing the concept of plea bargaining. Since the convict has pleaded guilty on his own volition, an order on deportation should not form a part of the order on sentence.
FINAL ORDER:
89. When the substance of justice cannot be secured by 'legal justice', in order to achieve this solemn purpose 'natural justice' is to be called in aid of 'legal justice'. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law and helps fill the void therein. Natural justice principles are ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. The administration of justice is to be freed from the narrow and restricted considerations which FIR No.: 78/10. Page No. 45 of 49 are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is substance of justice which has to determine its from.
90. S. Augender in "Questioning the Universality of Human Rights"
published in (1 & 2) Indian Sociological Journal (2002) at page 80 has given an allencompassing definition of Human Rights: "A human right is a universal moral right, something which all men, everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human simply because he is a human."
The right against refoulement is an important facet of 'human rights'. The convict has a right against nonrefoulement as this right is owed to him simply because he is a human.
91. How can the Court become a party to the persecution of an individual? The Court can not retrograde itself to the position of a mute spectator. It is high time that this Bill (or another one drafted in similar lines) sees the light of the day and becomes a living document by being enacted. By doing so, lives of thousands of refugees in our country can be affected for their betterment, in as much as valuable rights can be conferred. Our commitment to adherence to international law can be fulfilled if we enact this law. The principle of nonrefoulement is a cornerstone of basic human rights. By handing over a person to a nation where he fears persecution, would make us nothing short of abettors in that FIR No.: 78/10. Page No. 46 of 49 persecution.
92. This Court is aware that this ex aequo et bono order seeks to fill the casus omissus left by the legislature, but it derives inspiration from the following famous words of Retd. Hon'ble Justice Sh. P.N. Bhagwati spoken at a Common Wealth Conference on "Judicial Interpretation in Constitutional Law" by which he succinctly defined the role of, and expectations from a judge: "I do not agree with the conventional view which has long held the field in common law countries that judges merely declare the law, they are simply living oracles of law; they no longer make or invent law. Law making is an inherent and inevitable part of the judicial process. Even where a judge is concerned with the interpretation of a statute, there is ample scope for him to develop and mould the law. It is he who infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society and thus by making and moulding the law, he takes part in the work of creation."
93. On concluding, this Court is reminded of the following verses from the poem 'Refugee Blues' by W.H. Auden whereby he has captured the emotions that a refugee experiences: Say this city has a million souls, Some live in mansions, some live in holes:
Yet there is no place for us, My dear, there is no place for us, FIR No.: 78/10. Page No. 47 of 49 Once we had a country and we thought it fair, Look in the atlas and you will find it there:
We cannot go there now, My dear, we cannot go there now.
94. The convict has been living in a refugee camp since the last 20 years and is dependent upon grants given by the Government. He has no independent source of income. The subsistence allowance doled out to him is just sufficient enough to make two ends meet. In these circumstances, levying of fine would be harsh upon him and thus, the convict is hereby sentenced to imprisonment already undergone.
95. The convict herein has already been incarcerated for a period of approximately 6 months. He has a family comprising of his wife and 2 young sons. If this Court accedes to the plea of the Ld. APP, then it would tantamount to irreversible fragmentation of this refugee family. Breaking a family unit forever was never in the contemplation of the laws of our land. Keeping this factor in mind coupled with the reasons hereinabove discussed in extenso, this Court orders that Chandra Kumar convict herein shall not be deported. He is directed to report back to the Tahsildar, Sri Lankan Refugee Camp, 62, Gummidipoonidi Taluk, Thiruvallur District, Tamil Nadu forthwith.
96. Copy of this order be sent to the Secretary, Legislative Department, Ministry of Law and Justice, Government of India to table a copy of the Refugee and Asylum Seekers (Protection) Bill, 2006 before the Parliament.
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97. Copy of this order be furnished to the Ld. Public Prosecutor.
98. Copy of this order be also given to the convict as prayed for.
99. Copy of this order be also provided to the DCP, FRRO.
100. Copy of this order be also sent to the Tahsildar, Sri Lankan Refugee Camp, 62, Gummidipoonidi Taluk, Thiruvallur District, Tamil Nadu 601201.
Announced in the open Court on 20.9.2011.
(ARUL VARMA) METROPOLITAN MAGISTRATE (SPECIAL COURT2), ROOM NO. 210, DWARKA COURTS, NEW DELHI.
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