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"No Fundamental Right To Stay In India": Madras HC Dismisses Plea Challenging Govt's Decision To Deport Sri Lankan National Back

Sparsh Upadhyay
27 Jun 2021 8:55 AM GMT
No Fundamental Right To Stay In India: Madras HC Dismisses Plea Challenging Govts Decision To Deport Sri Lankan National Back
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The Madras High Court has dismissed a Habeas Corpus and a Writ plea (heard together) challenging the decision taken by the State government to deport a Sri Lankan national, who is presently facing human trafficking charge in India.The petitioner claimed that State Government's order to deport Bhaskaran (Sri-Lankan national) from India with immediate effect was illegal, as the deportation...

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The Madras High Court has dismissed a Habeas Corpus and a Writ plea (heard together) challenging the decision taken by the State government to deport a Sri Lankan national, who is presently facing human trafficking charge in India.

The petitioner claimed that State Government's order to deport Bhaskaran (Sri-Lankan national) from India with immediate effect was illegal, as the deportation of Bhaskaran, would lead to his murder in Sri Lanka. 

The Bench of Justice P. N. Prakash and Justice R. Pongiappan dismissed the pleas by observing:

"He does not have a fundamental right to stay in India and get Indian citizenship. He knows that his stay in India cannot be eternal. He has to leave India one day or the other."

Petitioner's pleas

The petitioner initially filed a habeas corpus plea and at the time of admission, the Court had, in August 2020, ordered that the deportation order be kept in abeyance until further orders.

Thereafter, the petitioner filed a Writ plea for a mandamus directing the respondents to consider his representation seeking permission for the detenu to appear for an interview before the Switzerland Embassy of New Delhi to get a Humanitarian Visa to land as a refugee in Switzerland. 

The Counsel for the petitioner, placed reliance on the photocopy of a letter purported to have been issued by one Sakthivel Sivakumar, Justice of the Peace (Whole Island), Vavuniya, Sri Lanka, wherein, it was stated that he knows Bhaskaran's family.

Allegedly, the letter also averred that Bhaskaran lost his  family members including father & elder brother during the final phase of Sri Lankan-LTTE war and now, the Intelligence Officers and Terrorists Prevention Unit Officers of the Sri Lankan police are looking out for Bhaskaran.

Lastly, it was submitted that if he returns to Sri Lanka, he may face danger to his life and thus it was urged that he should either be allowed to reside in a refugee camp in India or allowed to take asylum in Switzerland.

However, the Court observed that the said letter cannot be the basis for passing any orders, because, there is no way by which its authenticity and genuineness can be verified.

Court's comments about the petitioner

At the outset, relying on the Government's document, the Court observed that Bhaskaran does not enjoy the status of a refugee from Sri Lanka and that he was indulging in human trafficking offences in India.

To this, the Court remarked:

"That is why, perhaps, Bhaskaran himself has not filed any petition challenging his order of deportation, because, had he filed any petition, he would have been forced to speak the truth that he is not a Sri Lankan refugee and that he was involved in criminal cases, in which event, he would not have got the relief."

The Court further noted that the petitioner had not filed the instant habeas corpus petition and writ petition as the next friend of Bhaskaran and he had not even averred in the affidavits that he has been instructed by Bhaskaran to file these two cases.

"It is not even known to this Court as to whether these two petitions have been filed by the petitioner with the knowledge of Bhaskaran. Therefore, on this short ground alone, these two petitions deserve to be dismissed," added the Court.

Regarding the role of the petitioner, the Court remarked:

"The petitioner herein has sworn to an affidavit without disclosing any detail about the cases against Bhaskaran and has merely stated that Bhaskaran is a Sri Lankan refugee. No action can be taken against the petitioner for filing a false affidavit, because, he would simply wriggle out by saying that he acted on the information collected by him and that he did not know the true facts about Bhaskaran. Thus, we feel that the petitioner is playing truant with the legal system to gain an unfair advantage by concealing facts."

In this case, the Court further said that Bhaskaran was not an Indian national and it was alleged that he was involved in human trafficking. Whether he was acquitted or convicted is immaterial. He does not have a fundamental right to stay in India and get Indian citizenship.

"He knows that his stay in India cannot be eternal. He has to leave India one day or the other," added the Court.

Therefore, finding no infirmity in the order dated 20.11.2019 that has been passed by the authorities for the deportation of Bhaskaran warranting interference, the Court dismissed the pleas.

Case title - Thamarai Petitioner v. The Union of India and others

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