By Prof. V. Suryanarayan 2 March 2020
India has not ratified the 1951 UN Convention on the Status of Refugees nor the 1967 Protocol. Nor has India enacted so far a national refugee law. With the passing of the Amendment to the Citizenship Act different yardsticks are being applied to the refugees in different parts of the country. While the refugees from Pakistan, Bangladesh and Afghanistan have become entitled to Indian citizenship, the Sri Lankan refugees in Tamil Nadu continue to be treated as illegal immigrants.
The absence of a legal regime does not mean that India is treating the refugees in an inhuman manner. As far as Sri Lankan refugees are concerned, they have been accorded a hearty welcome. They are provided with shelter, free education, and medical care and are permitted to work outside the camps to supplement their income. Many refugee children have excelled in the field of education, but unfortunately since they are not citizens of India they are unable to get jobs commensurate to their qualifications. The refugees are thus dependent on the benevolence of the Central and State Governments. Even the UNHCR has been permitted to work in Chennai with the limited mandate of certifying the voluntariness of repatriation to Sri Lanka. The UNHCR does not have even access to the refugee camps.
In the absence of a national refugee law, the judiciary is playing an important role in safeguarding the rights of the refugees. In the famous case, NHRC V State of Arunachal Pradesh and Union of India, the Supreme Court observed: ”We are a country governed by the Rule of Law. The Constitution confers certain rights to every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the law. So also no person can be deprived of his life or personal liberty except according to procedure established by law”.
At the same time, it must be mentioned that the refugees are not entitled to certain other rights enjoyed by citizens like right to move freely throughout India, reside and settle in any part of India, practice any profession in India, which are available only to Citizens. The judiciary, as mentioned earlier, is playing a constructive role in the protection of the rights of the refugees. The National Human Rights Commission also acts as a watchdog as far as refugee rights are concerned.
Special mention should be made of Madurai Bench of Madras High Court. In recent months there had been two judgments, where the honourable judges have shown commendable vision in upholding the rights of the refugees against arbitrary and inhumane attitude of the Central and State Governments. The first judgment was delivered on June 17, 2019 by honourable G R Swaminathan who instructed the Government of India to consider the applications for conferment of Indian citizenship on 63 applicants from the Kottappattu camp in Trichy district. The applicants are Indian Tamil refugees from Sri Lanka. I have analysed the significance of the judgment in an essay entitled “Sri Lanka: Refugees of Indian Origin from Sri Lanka: A Landmark Judgment”, published in the website of South Asia Analysis Group, paper number 6559 dated 5 July 2019.
The second judgment was delivered on February 11, 2020 by Honourable Justice S S Sundar. The petitioner Veeran Manonmani is a citizen of Sri Lanka who came to Tamil Nadu as a refugee. She got married to Kurumbiah Karuppiah who is a citizen of India from 2003. The marriage was solemnized and registered by the Registrar of marriages, Thirupathur on 8 September 2003. Manonmani is living with her husband in a matrimonial home. She has registered with the District Superintendant of Police, Sivaganga. Her visa is extended periodically. Manonmani applied for Indian citizenship under Section 5 (1) © of the Indian Citizenship Act 1955 through on line portal maintained by the Foreigners Division, Ministry of Home Affairs, Government of India. The application was kept pending and her stay visa was to expire on 11 October 2018. Manonmani filed a writ petition in the Madurai Bench of the Madras High Court on 7 June 2018. She prayed for the issuance of a Writ of Mandamus to direct the petitioners, namely Joint Secretary (Foreigners Division) Ministry of Home Affairs, New Delhi; Additional Chief Secretary to the Government of Tamil Nadu; the Principal Secretary (Public Department) Government of Tamil Nadu; the District Magistrate cum District Collector, Sivaganga and the Foreigners Registration Officer, Sivaganga,
The writ petition was filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus to direct the respondents to consider the citizenship application of the petitioner. The petitioner also requested to direct the Government of India not to deport or take any adverse action against the petitioner till the disposal of the citizenship application.
The counsel for Manonmani maintained that the District Collector of Sivaganga District did not forward Manonmani’s application for citizenship, with his recommendations, to the Department of Home Affairs, Government of India.
The Court, therefore, ordered that the District Collector should forward the application for citizenship to the Government of India, within a period of two months, with his recommendations. The Government of India should dispose of the on line application of the petitioner on merits and in accordance with law within a period of four months. Till such time the Government of India takes a decision the Government of India and the Government of Tamil Nadu “are restrained from deporting or taking concrete steps against the petitioner under the Foreigners Act”. The additional Government pleader assured the Court that there will not be any harassment of the petitioner.
In Tamil Nadu there are several cases of refugee girls marrying local boys and local girls marrying refugee boys. Sri Lankan refugee community is extremely grateful to the honourable judge S S Sundar because he has followed the dictum that those whom Gods have united man should not part
*Dr V. Suryanarayan is Founding Director and Senior Professor (Retd.), Centre for South and Southeast Asian Studies, University of Madras. His e mail id:suryageeth@gmail.com
The article appeared in South Asia Analysis Group (SAAG) on 20th February 2020