Before the Madras High Court (Madurai bench) WP (MD) No.5253 of 2009 Petitioner P. Ulaganathan Respondent The Governement of India Date of Judgement 17th June 2019 Bench The Honorable Mr. Justice G.R. Swaminathan
Facts of the Case:
The petitioner is the descendent of indentured laborer who settled in tea states of Sri Lanka in colonial times but they originally belong to the state of Tamil Nadu. There is no doubt that they are Tamil speaking people. The Sri Lankan government discriminated them from Tamilians of northern and eastern Sri Lanka and did not consider them as natives of Sri Lanka. Sri Lanka witnessed a genocidal and brutal ethnic strife. Thereafter, in 1983 there was a vital emigration of people from Sri Lanka to India. The petitioner claimed that he should be treated as Indian repatriate. He filed a writ petition under Article 226 of Constitution of India before Madras High Court for providing him and his family members Indian citizenship.
Contentions by Government of Tamil Nadu:
It has been pleaded by the writ petitioners that they are genealogical Indians and their native place is Tamil Nadu. There is no other place available for them to go so they move this Court seeking conferment of citizenship. In respect of this the Government of Tamil Nadu had filed a counter affidavit stating that most of the writ petitioners are staying in Kottapottu Transit Camp, Trichy as Sri Lankan refugees. Others are staying in various refugees’ camps which are located in Madurai, Perambalur, Karur, Mandapam Camp etc. and they are providing with all the basic necessities but providing citizenship is conferred only on Government of India. Further, the Government of Tamil Nadu takes the stand that an illegal migrant is not eligible for grant of Indian citizenship under the provisions of Indian Citizenship Act, Act 1955.
It is further contended that the writ petitioners do not have valid and up to date residential permit/ VISA and arrived India through an illegal route. Hence, they are considered as an illegal migrant. Therefore, government of Tamil Nadu prays for dismissal of the writ petition.
Contentions by Government of India:
Government of India also affirmed with the views of Government of Tamil Nadu and states that the Tamil Refugees/migrants who had entered into India after 1983 and possess a valid travel documents can apply for Indian Citizenship under Section 5(1) (c) of the Indian Citizenship Act, 1955. Other refugees/migrants who do not have valid passport /VISA /residential permit are treated as illegal migrants and therefore they are not eligible for registration under Section 5 or for naturalisation under Section 6 of the Indian Citizenship At, 1955. It is further submitted that granting Indian Citizenship is at the discretion of central government.
Contentions by the Petitioners:
The learned counsel (Mr.A.John Vincent) of petitioner in his contentions takes references from international instruments like Universal Declaration of Human Rights and conventions relating to stateless persons and with that take reference of Article 51(c) of constitution of India.
Observations made by the High Court:
On a reading of the provision of Citizenship Act, it was opined that the petitioners were evidently illegal migrants. However, owing to petitioners’ intention of making India their permanent home, the Court opined it to be a unique situation, for they had been in camps for 35 years under surveillance in severely restricted conditions and a state of statelessness for a long period which violated their right under Article 21 of the Constitution. Thus, the Central Government was directed to use its implied power as given under the opening clause of Section 5(1) of the Act and also as recognized by the Hon’ble Delhi High Court in Felix Stefan Kaye v. Foreigners Regional Registration Office, 2018 SCC Online Del 8212, keeping in mind the application of Article 21 of the Constitution of India to refugees and asylum seekers, and most certainly to the petitioners who were genealogically rooted to the Indian soil.
Taking into consideration the fact that the petitioners came to India when they faced grave threat to their lives and limbs, and had no other option but to seek asylum here, the Court allowed the petitioners to submit a fresh application seeking citizenship to the respective District Collector concerned, and directed him to forward the same without any delay to the Central Government, which when once received must pass appropriate orders subsequently within a period of sixteen weeks. The Court also reminded the Central Government of its power to consider the applications favorably notwithstanding the technical status of applications as that of illegal migrants, and also to keep in mind the unique situation in which the petitioners were placed.
Refraining from issuing any positive mandamus directing the Central Government to provide citizenship to the petitioners, the Court disposed of the writ petition accordingly.
Article 21 of Constitution of India
Article 51 (c) of Constitution of India
Section 5(1)(c) of the Indian Citizenship Act, 1955
Section 6 of the Indian Citizenship At, 1955
Edited by Sree Ramya
Approved & Published – Sakshi Raje