Specter of an imminent outbreak of Covid-19 in the Country forced Government of India to suspend all international flights[i] arriving and departing from India. Since then, several citizens of India who were trying to return to India are left stranded in foreign countries. Do they have a fundamental right to return to India? And if so, what are the restrictions? These are the questions attempted to be answered in this paper.
'Right to Return' under International Law:
The 'Right to Return' was long recognized by civilized nations. It is interesting to note that Clause.42 of the Magna Carta (1215) provided that - "In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision."
After World War II, the issue of right to cross border again surfaced and there was broad consensus among international community to accept 'Right to return' as a facet of personal liberty and an inalienable Human Right. This find recognition in the Universal Declaration of Human Rights, 1948 (UDHR) and its Art.13 provides: (1). Everyone has the right to freedom of movement and residence within the borders of each state. (2). Everyone has the right to leave any country, including his own, and to return to his country. Further, Art. 12(4) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) stipulates that 'No one shall be arbitrarily deprived of the right to enter his own country'.
Passports and regulation of entry:
The system of regulating entry of persons to its territory by insisting on production of passport has become a norm across the world, after the First World War. 'The Passports (Entry into India) Act, 1920' regulates the entry of persons into India and it makes such entry an offence, if made without a Passport.
In Francis Manjooran and Others Vs Government of India (1965 KLT 1076 (FB)), a young medical doctor in India who had obtained facilities for higher training and studies at USA, challenged the rejection of his request to issue Passport. Government contended that there is no law requiring possession of Passport for leaving the Country and the same would be needed as per 'The Passports (Entry into India) Act, 1920'; only when the petitioner wants to return to India. It was also contended that there is no fundamental right to leave the country. The Full Bench of the Kerala High Court however repelled the contentions and held that the Fundamental right to 'personal liberty' in Art.21 includes the right to cross the frontiers of India and to re-enter the country and the same can be curtailed only as per a procedure established by law.
In Satwant Singh Sawhney & another Vs D. Ramarathnam (1967)[ii], a Constitution bench of the Supreme Court approved the decision of Kerala High Court in Francis Manjooran and the similar view taken by High Courts of Bombay[iii] and Mysore[iv] . The majority opinion in that case rendered by the Chief Justice K. Subba Rao held that under Art.21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law. It was further held that the impunged executive order refusing to issue the passport to the petitioner, which was not supported by legislative authority, offends Art.14 of the Constitution also.
The Satwant Singh Sawhney decision led to the enactment of Passports Act, 1967; laying down the legal procedure for issuance of passport and connected matters. As per Section 3 of the said Act, 'No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document'.
The endorsement in the Passport issued to an Indian Citizen reads: "These are to request and require in the name of the President of the Republic of India, all those whom it may concern, to allow the bearer to pass freely without let or hindrance, and to afford him or her every assistance and protection of which he or she may stand in need ".
True, the Passport is essentially seen as a document permitting a person to travel to a foreign country and the request there was not meant to be made to officials of the Government of India. In fact, Indian State is duty bound to give such permission and protection to all its Citizens, even without such request. But does it mean that the above endorsement is an empty promise and void direction, when the passport holder seeking to make his entry into India?
Covid-19 and the need to return:
Indian citizens, particularly labourers accommodated in camps and dormitories in Gulf Countries and elsewhere, are particularly vulnerable to the Covid-19 pandemic and many of them have already lost their means of livelihood. Many are facing discrimination in the matter of access to food and medical treatment, as foreign countries give priority to their own nationals, when the resources and facilities become scarce. Naturally, many Indian nationals who are finding the situation abroad unbearable and unsafe, are desperately looking to return to India.
The difficulties have been compounded by the discontent expressed by foreign countries. On April 10, 2020, President of the United States has issued a Memorandum[v] authorizing Visa Sanctions on Countries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic. It is also reported that Gulf Countries like UAE, where large number of Indians are employed, is considering steps like imposing restriction on the countries that are refusing to receive their citizens who wish to go back to their home countries[vi].
States like Kerala, have also been requesting the Government of India to permit expatriates who are desirous to return to do so without further delay, after making necessary arrangements to accommodate and quarantine citizens on their arrival.
Government stand regarding evacuation of Indians citizens from abroad[vii] :
Government of India has taken the position that successive restrictions including temporary suspension of international and domestic flights were put in place as majority of countries across the world have reported cases of COVID-19. It was pointed out that some of these countries have reported a very large number of cases including deaths, putting passengers from these countries particularly at higher risk of infection and as such the travel back of such passengers to different regions of India poses a grave risk to the country of a population of over 1.3 billion. According to the Government of India, given the present situation of the corona virus outbreak in India and the available limited resources, it is not feasible to selectively evacuate Indian citizens from abroad when a large number of them from a number of countries want to return back due to various reasons. The approach of the Government has, therefore, been to advise the Indian nationals to stay put where they are in line with Government's approach to contain the further spread of the virus within India and allowing health machinery to focus on domestic containment effectively.
Restricting Fundamental Right to Return to India:
The expatriate population looking to return to India during a period of crisis has suddenly become unwelcome and they find that their homeland has shut all its doors for their entry.
Personal Liberty to enter India, guaranteed under Art.21 of the Constitution of India could be restricted only through a fair, just and reasonable law. It is held by the Constitution bench of the Supreme Court (9 judges) in K.S. Puttuswami Vs Union of India (2017)[viii] that "an invasion of life or personal liberty must meet the three fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim and (iii) proportionality, which ensures a rational nexus between the object and the means to achieve them".
There is no law passed by the Parliament prohibiting an Indian Citizen having a valid passport from entering the territory of India. The virtual sealing of borders, preventing entry of citizens into the territory of India, has been done through executive orders issued purportedly in exercise of powers under the Disaster Management Act 2005 . While such steps may be necessary as a temporary measure to control the transmission of COVID-19, the rigour and continuation of these restrictions cannot escape the tests of reasonableness and proportionality under Articles 14, 19 and 21 of the Constitutions.
It is also trite that international obligations under UDHR and ICCPR has to be respected by Municipal Courts in India (see: National Legal Services Authority Vs Union of India (2014) 5 SCC 438). As such, 'Right to Return' recognized under UDHR and ICCPR are to be honoured in India.
'Life and personal liberty are inalienable to human existence' and they are primordial rights (See Puttuswami supra, para 136.). A decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed as held in Anuradha Bhasin Vs. Union of India.
The blanket restriction of 'Right to Entry' is conceived as a temporary measure. However it is now more than a month since such restriction on entry to the territory of India has been imposed. Even if it is assumed to be invoked legally, its continuation must be allowed only for a reasonable period, proportionate to its stated object. In the States where domestic health situation has now been managed effectively, expatriates desirous to return can be permitted to do so, after making necessary arrangements to accommodate and quarantine them on their arrival. Country need to put in place a structured action plan without further delay, to bring back its citizens from abroad in a phased manner, protecting their 'Right of Return', while dealing effectively with the health emergency.
(Advocate Joseph P Alex is an advocate practising at the High Court of Kerala. The author may be reached at [email protected]. Views are personal)
[i] The suspension of international air travel imposed in March, 2020 now stands extended till July, 2020.
[ii] . AIR 1967 SC 1836: Satwant Singh Sawhney & another Vs D. Ramarathnam
[iii] AIR 1967 Bom 235: G. Kazi v. C. V. Jethwani
[iv] 1965 (2) Mys LJ 605: Dr. S. S. Sadashiva Rao v. Union of India
[vii] Excerpt from Inputs of MEA in the case of Madhurima Mridul v. Union of India & Anr. W.P (C) Diary No.10842/2020 --- https://www.livelaw.in/top-stories/not-feasible-to-evacuate-indians-from-abroad-due-to-covid-19-risk-centre-tells-sc-155194
[viii] K.S. Puttuswami Vs Union of India: (2017) 10 SCC 1, para 325