Illegal Migrants, Article 21 and Indian Citizenship: What Madras HC held [Read Judgment]

Illegal Migrants, Article 21 and Indian Citizenship: What Madras HC held [Read Judgment]

Meera Emmanuel

A case involving a plea for the grant of Indian citizenship by 65 Indian-origin refugees who had escaped from Sri Lanka decades ago recently led Justice GR Swaminathan of the Madras High Court to make pertinent observations regarding the rigours of the Indian Citizenship Act, 1955 as well as an illegal migrant’s right to life under Article 21 of the Constitution.


The 65 refugees had moved a writ petition before the Madurai Bench of the Court. The writ petitioners’ Tamil-origin ancestors had been taken to Sri Lanka as indentured labourers during the colonial rule. Eventually, their descendants, including the petitioners, were said to have suffered immense discrimination in Sri Lanka, particularly after the country obtained its independence in 1948. They were eventually prompted to flee Sri Lanka and return to India between 1983 and 1985, around a time when the country was witnessing genocidal and brutal ethnic strife.

Following their escape from Sri Lanka, the petitioners were lodged in Refugee camps in Tamil Nadu, predominantly in Trichy apart from camps in Madurai, Perambalur, Karur, Mandapam etc.

After their entry into India, they also moved the Madras High Court to guard against possible deportation back to Sri Lanka. In response, the Government also gave an undertaking before the High Court that these refugees would not be forcibly sent back to Sri Lanka.

The petitioners eventually sought Indian citizenship. However, when the Government failed to respond to their plea, they were constrained to move the High Court again to intervene in the matter.

Submissions made

Before the High Court, the petitioners pleaded that they were geological Indians who were native to Tamil Nadu. Taking a sympathetic view of their plight, Justice Swaminathan observed,

Only because their forefathers had gone to Sri Lanka to work as labour in tea estates of Sri Lanka, they had to suffer this condition of statelessness. “

However, the Tamil Nadu Government and the Central Government contended that the petitioners could not claim citizenship as a right, as it fell within the domain of State policy. The Central Government pointed out that it has the discretion to grant or refuse an application for grant of Indian citizenship.

Pertinently, it was contended that the petitioners were illegal migrants since they did not possess any valid travel documents at the time of entry into India. As such, it was argued that they were not statutorily eligible for registration as citizens under Section 5 or for naturalisation under Section 6 of the Indian Citizenship Act.

State has implied power to relax provisions for grant of citizenship

The High Court acknowledged that the petitioners were indeed illegal migrants. However, it opined that the State has the implied power to relax the technical rigours of Section 5 of the Indian Citizenship Act, 1955 which prescribes the eligibility for obtaining Indian Citizenship. To this end Justice Swaminathan noted,

The Central Government need not feel helpless or take shelter behind Section 5 of the Citizenship Act, 1955. Notwithstanding the absence of an express power to relax the rigour set out in the opening clause of Section 5(1) of the Act, this Court must hold that the sovereign authority does have an implied power to do so. In fact, the existence of the implied power to grant relaxation in cases arising under the Indian Citizenship Act, 1955 was recognised by the Hon’ble Delhi High Court in Felix Stefan Kaye vs Foreigners Regional Registration Office…”

However, whether or not such relaxation would be appropriate depends on the facts and circumstances as well. As observed elsewhere in the judgment,

An illegal migrant cannot claim such a relaxation if he had merged with society surreptitiously. That is not the case here. The writ petitioners have been housed in camps set up by the Government.”

Illegal migrants, refugees, asylum seekers also entitled to Right to Life under Article 21

Further, Justice Swaminathan also highlighted that even illegal migrants were entitled to the fundamental right to life under Article 21.

“Applying the aforesaid statutory definition, the petitioners are obviously illegal migrants. Once that is declared to be their status, they are not eligible for citizenship by registration under Section 5 of the Act… 

But then, the petitioners can invoke Article 21 of the Constitution of India. It applies to all persons, citizens and non citizens alike. It would apply to refugees and asylum seekers. And most certainly to the petitioners who are genealogically rooted to this soil and who speak our language and who belong to our culture.

Intention to make India the permanent home in the present case

The Court also pointed out that actions by both the petitioner-refugees as well as the Government made for a strong case to allot the petitioners citizenship status in India.

In this regard, the Court highlighted that the petitioners have amply demonstrated that they have formed the intention of making India their permanent home. Further, the Court took note of the undertaking given by the Government of India that these refugees would not be deported back to Sri Lanka.

In this backdrop, the Court also expressed concern over the pathetic state of affairs that would continue if the petitioners are made to indefinitely stay on as refugees. As noted in the judgment,

… the case on hand presents a rather a unique situation. In mythology there is a region called “Thirisangu Sorgam”. The petitioners are in a similar situation. They have come away from Sri Lanka but they have not been absorbed here.

But, the camps in which they have been housed are far from being a Sorgam. The camp conditions are hellish. One must read Pathinathan who is associated with the literary magazine Kalachuvadu in this regard. Even if one’s heart is made of stone, it would still melt under the searing heat of reality.

When IPS officers are made in charge of Mandapam Camp, it is called as punishment posting. It is only a temporary phase for them. They manage their way and somehow slither towards rehabilitation. But for the inmates, there is no hope whatsoever. It is endlessly bleak.

The petitioners have been in camps for close to 35 years. Keeping them under surveillance and severely restricted conditions and in a state of statelessness for such a long period certainly offends their right under Article 21 of the Constitution of India.

Government urged to adopt Humanitarian approach

In view of the above observations, the High Court called on the Government to take an empathic view of the petitioners’ plight and relax the rigours of the Citizenship Act while considering their applications for citizenship status.

The Government of India must take note of the fact that the petitioners came to India when faced with a grave threat to their lives and limbs. They had to seek asylum in India. A person who is running for his life cannot obviously be expected to wait for a visa. Therefore, viewing the petitioners’ case through the prism of the technical requirements of law, does not appear to be a humanitarian approach.

The Court, therefore, directed that the petitioners be allowed to apply for citizenship. Further, it also directed that these claims be considered within 16 weeks of the order.

However, Justice Swaminathan refrained from mandating that the petitioners be necessarily granted citizenship as a measure of judicial discipline. He said,

I consciously refrain from issuing any positive mandamus directing the Central Government to provide citizenship to the writ petitioners herein. This is because citizenship falls within the exclusive executive domain of the Central Government.

My heart  may bleed for the petitioners but I have to be mindful of the Lakshman Rekha that limits the bounds of judicial power. Going beyond will be encroachment. Any form of encroachment is bad. Encroachment by judiciary into the executive realm can be no exception. Some may say it is exceptionally bad.

[Read Judgment]

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