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"Protections Afforded By Article 21 Would Indubitably Encompass Right Of Non-Refoulement": Manipur HC Allows 7 Myanmarese Citizens To Approach UNHCR

Sparsh Upadhyay
3 May 2021 8:04 AM GMT
Protections Afforded By Article 21 Would Indubitably Encompass Right Of Non-Refoulement

In a significant Judgment, the Manipur High Court on Monday (May 3) ordered safe passage to New Delhi for seven Myanmarese persons to enable them to avail suitable protection from the UNHCR.

The division bench comprising of Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir was dealing with the matter concerning 7 Myanmarese citizens, who entered India illegally, and sought permission to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR).

In an important observation, the Court said that the seven Myanmarese individuals in question are not 'migrants', as normally understood, but are 'asylum seekers' and that they did not enter our country with the clear-cut and deliberate intention of breaking and violating our domestic laws.

The Court also noted that though India has no clear refugee protection policy or framework, it does grant asylum to a large number of refugees from nearby countries and that India usually respects the UNHCR's recognition of the status of such asylum seekers, mainly from Afghanistan and Myanmar.

The Facts in brief

7 Myanmarese citizens, fled their country fearing persecution and physical danger after the coup and the violence that broke out thereafter and they entered India and took shelter at Moreh in Tengnoupal district, Manipur.

They sought the help of the petitioner (Nandita Haksar) as they feared that they would be sent back to Myanmar by the Assam Rifles, an Indian armed force, as they had come without proper travel documents.

The Ministry of Home Affairs, Government of India, had directed the authorities of the Border States in the North-East of India and the Assam Rifles to check the flow of illegal migrants coming into India from Myanmar, vide letter dated 10.03.2021.

The petitioner pointed out that this communication did not draw a distinction between a 'migrant' and a 'refugee'.

However, it was submitted that the letter dated 29th 03.2021 was issued by the Government of Manipur stating that it would come to the aid of Myanmarese nationals who had illegally entered the State.

Given these circumstances and as the seven Myanmarese individuals were handicapped in approaching the Court, the petitioner/party-in-person espoused their cause and sought their safe passage to approach the UNHCR at New Delhi for protection.

Earlier, the Court had granted the interim relief for arranging safe transport and passage of 7 Myanmarese individuals to Imphal, the Manipur High Court observed that the principle of non-refoulment can prima facie be read within the ambit of Article 21 of the Constitution.

Also, the Court did observe that they fled the country of their origin under imminent threat to their lives and liberty and that they aspired for relief under International Conventions that were put in place to offer protection and rehabilitation to refugees/asylum seekers.

In this backdrop, the Court also remarked,

"In such a situation, insisting that they first answer for admitted violations of our domestic laws, as a condition precedent for seeking 'refugee' status, would be palpably inhuman."

Court's Judgment

At the outset, the Court observed that though India's policy on 'refugees' remained rather opaque, if not obscure, and asylum seekers are straightaway branded as 'foreigners', if not worse, certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens.

Noting that even a 'foreigner' is entitled to the protection of life and personal liberty under Article 21 of our Constitution, the Court remarked that,

"The far-reaching and myriad protections afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again would indubitably encompass the right of non-refoulment, albeit subject to the condition that the presence of such asylum seeker or the refugee is not prejudicial or adverse to the security of this country."

[Importantly, 'Non-refoulement' is a principle of international law that provides a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or a territory where he or she faces a threat to life or freedom because of race, religion, nationality, membership in a social group, or political opinion]

The division further observed thus:

"The media coverage that has surfaced from within Myanmar after the military coup, even if discounted to some extent, leaves this Court in no doubt that these Myanmarese persons, given their links with the banned Mizzima Media Organization, face an imminent threat to their lives and liberty if they return."

Therefore, the Court was of the view that even though India may not be a signatory to the Refugee Convention of 1951, its obligations under other international declarations/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere.

Further, noting that Refugee Status Determination (RSD) is undertaken by the UNHCR in India for conferring such status and for consequential documentation, the Court observed,

"It would be essential for these seven Myanmarese persons to first approach the UNHCR at New Delhi and only thereafter, the Union of India would be in a position to take a call as to whether they can be granted refugee status and asylum in India, as was done earlier."

Lastly, the Court directed the FRRO at Imphal airport to immediately provide them with temporary identification cards to enable them to travel to New Delhi by air, if such identity proofs are necessary.

The High Court also directed the State and Central Governments to facilitate their travel to New Delhi and not cause any obstruction.

Case Title: Nandita Haksar v. State of Manipur & Ors. [W.P.(Crl.) NO. 6 OF 2021 WITH MC[W.P.(Crl.)] NO.1 OF 2021 AND MC[W.P.(Crl.)] NO.2 OF 2021]

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