Breathing Life into Article 21: The Manipur High Court’s Order on Refugee Rights and Non-Refoulement

[Update: To no one’s surprise, the Supreme Court has stayed this judgment at the time of writing. [27.4.2022.] – Ed.]


Previously on this blog, we have discussed various issues arising out of the government’s attempts to deport Myanmarese refugees back to their country of origin, as well as the Supreme Court’s refusal to engage with the legal and humanitarian questions at stake. What the Supreme Court refused to do in Salimullah’s Case, however, the Manipur High Court did, today, in Nandita Haksar vs The State of Manipur: in its final judgment and order, the High Court – through Chief Justice Sanjay Kumar and Lanusungkum Jamir J. – held that the principle of non-refoulement was a part of Article 21 of the Indian Constitution, and that in light of that fact, seven Myanmarese refugees were to be allowed to travel to Delhi and claim refugee status before the United Nations High Commission for Refugees (UNHCR).

Before discussing the High Court’s brief and illuminating thirteen-page order, it is worth noting the speed with which this case was decided. Notice to Union secretaries was issued on 17th of April, 2021; on 20th April 2021, while adjourning the case so that counsel could seek instructions, the High Court issued an interim order granting protection from deportation to the refugees, pending completion of the case. Arguments were concluded on 29th April 2021, and the High Court handed down a judgment on merits on the 3rd of May, 2021. This is exactly how it should be. Compare this, however, with the very similar writ petition pending before the Supreme Court concerning the deportation of Rohingya refugees, which was filed in 2017, and has not been decided in four years. Consider, further, the fact that during the pendency of that petition, the two benches of the Supreme Court – headed by Chief Justices Gogoi and Bobde respectively – passed interim orders allowing deportation to go ahead, even though the question regarding the constitutional rights of refugees was still open, and deportation would have rendered it infructuous for good. The Manipur High Court’s judicial conduct – both in its interim order and in its swift disposal of the case – thus stands in stark contrast to that of the Supreme Court.

There are five salient features underlying the High Court’s judgment. First, the High Court restated the basic principle that the protection of Articles 14 (equality before law) and 21 (right to life and personal liberty) is not limited to citizens, but extends to all individuals (paragraph 8).

Leading on from this, secondly, the High Court held – as had numerous other High Courts before it – that the principle of non-refoulement (i.e., “the right to freedom from expulsion from a territory in which [a refugee] 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” (paragraph 9)) is part of Article 21 of the Constitution. This is particularly important: in a previous blog post, I asked what the purpose of an expanded interpretation of Article 21 – the crown jewel of the fundamental rights chapter – was, if it couldn’t be invoked to protect even bare life. As the Manipur High Court correctly noted, “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-refoulement…” (paragraph 9) Indeed, responding to the Additional Solicitor-General’s argument that the Foreigners Act and the Foreigners Order of 1948 mandated that “illegal entrants suffer for their consequences”, the High Court observed that “these arguments proceed on a rather narrow and parochial consideration of the larger issues that arise in this case.” (paragraph 12). In particular, the refugees:

fled the country of their origin under imminent threat to their lives and liberty. They aspire for relief under International Conventions that were put in place to offer protection and rehabilitation to refugees/asylum seekers. 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. (paragraph 12)

Thirdly, the High Court gave short shrift to two arguments that had – apparently – found favour to the Supreme Court. Responding to the argument that Article 19(1)(d) of the Constitution – which guaranteed the freedom to move and reside in any part of India – was available only to citizens, the High Court correctly observed that the issues at stake flowed from Article 21, and not Article 19 (paragraph 13). And furthermore, responding to government counsel’s argument that these refugees represented a “threat to the security of the country”, the High Court simply noted that “no material is produced in support of the same.” Indeed, a few of the refugees had already been granted UNHCR certification on an earlier occasion, and one of them had been granted an Indian visa, previously, Consequently, allegations of a security threat were “therefore purely speculative, born of a fertile imagination.” (paragraph 14) Once again, this is in stark contrast to the Supreme Court order in Salimullah’s Case, where the CJI Bobde-led bench not only appeared to believe that refugees were trying to claim Article 19(1)(d) rights (they were not), but also placed on record – without any scrutiny or investigation whatsoever – government’s counsel “serious” contention that there was a security threat. As we have discussed on many occasions before, in questions involving individual rights when the State attempts to cloak itself by invoking “national security”, almost always, a Court will not need to “supplant” executive wisdom with judicial fiat. Often, simply asking the State to justify its stand will reveal that there is little more than a set of bald statements being made before the Court, with no further evidence.

Fourthly, the High Court anchored its decision to precedent, noting both decisions of the Supreme Court concerning dignified treatment (under Article 21) to foreign nationals, as well as numerous Supreme Court and High Court decisions where refugees were allowed to travel to Delhi and apply to the UNHCR for refugee status, instead of being deported, or where deportation had been stayed pending determination of refugee status (para 16). Thus, not only did the High Court root its decision in constitutional principle, but made its reasoning watertight by grounding it entirely within the scope of existing precedent.

And finally, when government Counsel attempted to cite the order in Salimullah’s Case to make the High Court stay its hand, the Court correctly noted that not only was that an interim order that laid down no binding ratio, but also that concerns about “security threats”, which were amongst the putative bases in that order, did not apply to the present case (paragraph 18). The High Court, therefore, neither ignored the Supreme Court’s order, and nor did it slavishly follow it, but carefully distinguished it on the basis of established constitutional principle. Finally, the Court held:

On the above analysis, this Court finds it just and proper to extend protection under Article 21 of the Constitution to these seven Myanmarese persons and grant them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. Some of them seem to be in possession of their passports but in any event, their details and particulars have been noted by the Immigration authorities of our country. There shall accordingly be a direction to 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 State and Central Governments shall facilitate their travel to New Delhi and shall not cause any obstruction. (paragraph 19)

For the reasons discussed above, the High Court’s judgment is entirely correct, both from the perspective of law, and from the perspective of humanity, and goes somewhat towards expressing the promise of Article 21 in all its richness. There is, perhaps, one point of critique: the High Court’s sharp distinction between “refugees” (who flee military or other kinds of persecution) and “migrants” (who leave for “economic” reasons) was not strictly necessary to its adjudication of the case, and is problematic: the refugee/migrant distinction has been extensively criticised, and there is, by now, an understanding of how economic violence is no less a form of violence than religious, political, or ethnic persecution. That said, the distinction appears to be a part of the contentions raised in the case, and is dealt with in a paragraph; one hopes, therefore, that when a court has an occasion to address these issues in greater detail, a more nuanced approach will be taken.

While in the ordinary course of things the Manipur High Court’s judgment would be seen as a re-affirmation of basic principles, the Supreme Court’s two interim orders (see above) have necessarily compelled many of us to re-examine what we considered to be “basic”, especially with respect to Article 21 of the Indian Constitution. It is from that perspective that the Manipur High Court’s judgment is remarkable, and stands out as an example of judicial courage.

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