The Manipur High Court has ruled that the protections under Article 21 (right to life and personal liberty) of the Indian Constitution would also include the right of non-refoulement for asylum seekers (Nandita Haksar v. State of Manipur and ors).
A Bench of Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir, therefore ordered that seven Myanmarese nationals, who fled Myanmar after the military coup in February, be granted safe passage to the office of United Nations High Commissioner for Refugees (UNHCR) at New Delhi.
“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, albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or adverse to the security of this country,” the Court said.
The Court acknowledged that India is not a signatory to the Refugee Convention of 1951 or the New York Protocol of 1967. However, it was pointed out that:
- India is still a party to the Universal Declaration of Human Rights, 1948. Article 14 thereof declares that everyone has a right to seek and to enjoy in other countries asylum from persecution.
- India is also party to the International Covenant on Civil and Political Rights, 1966, which recognises certain inalienable rights for all people.
- India is one amongst the 193 member countries of the UN General Assembly that endorsed the ‘Global Compact on Refugees’ in 2018.
- Article 51 of our Constitution casts a non-enforceable duty upon the ‘State’ to promote international peace and security, apart from fostering respect for international law and treaty obligations.
- 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.
- Even a ‘foreigner’ is entitled to protection of life and personal liberty under Article 21 of our Constitution.
The Court said that even though India’s policy on ‘refugees’ remains rather opaque and asylum seekers are straightaway branded as ‘foreigners’, certain protections are guaranteed under Articles 14 and 21 of our Constitution even to those who are not Indian citizens.
“It is in the context of Article 21 that the principle of ‘non-refoulement’ assumes great significance. ‘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 [Courtesy: Merriam-Webster Dictionary],” the order stated.
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 imminent threat to their lives and liberty if they return, the Court said.
The Court, therefore, allowed the writ petition moved on behalf of the seven Myanmarese nationals by activist and lawyer Nandita Haksar, seeking safe passage from Manipur to New Delhi where they may apply for protection from the United Nations High Commissioner for Refugees (UNHCR).
The nationals seeking protection included journalists and others who fled Myanmar fearing persecution and physical danger after the February 2021 coup. Earlier, in view of deportation risks, the Court had granted interim relief in the case, by directing that the seven nationals be allowed to travel from Moreh (where they had taken temporary shelter after entering India) to Imphal.
Both the Central and State governments had opposed the petition, asserting that the seven asylum seekers should first face the consequences of unlawfully entering India. Inter alia, it was argued that the right to free movement etc. under Article 19 was not available to foreigners and that it would set an unhealthy precedent or open a floodgate if the Court were to allow the petition.
The Court, however, dismissed these contentions as being rather narrow and parochial, going on to opine that it would be inhumane to persecute them at this stage.
“The aforestated arguments of the learned counsel for the State and the Central Governments proceed on a rather narrow and parochial consideration of the larger issues that arise in this case. The seven Myanmarese individuals in question are not ‘migrants’, as normally understood, but are ‘asylum seekers’. They did not enter our country with the clear-cut and deliberate intention of breaking and violating our domestic laws. They 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“, the judgment stated.
Additional submissions made over the possible threat that these persons would pose to the security of India were also found to be without basis, purely speculative and born of a fertile imagination.
“They are only seeking safe passage to approach the UNHCR at New Delhi for protection and are not asserting any rights or freedoms under Article 19 of the Constitution. Their claim would be traceable to Article 21 and not to Article 19 of the Constitution,” the Court added.
The Court opined that it is essential for the seven Mynmarese persons to first approach the UNHCR, New Delhi. 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, the Court said. Alternatively, the UNHCR would be at liberty to rehabilitate these people in host countries under the 1951 Refugee Convention, it was noted.
“In either event, these persons cannot be made to face persecution, if not a threat to their very lives and liberty, by being deported to their home country,” the Court concluded.
The Bench, therefore, issued directions for their safe passage to New Delhi.
“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 … The State and Central Governments shall facilitate their travel to New Delhi and shall not cause any obstruction.”, the judgment stated.
Nandita Haksar appeared party-in-person. Government Advocate RK Umakanta appeared for the State of Manipur, whereas ASG S Suresh appeared for the Central Government.