October 20, 2019
October 20, 2019



On June 17, 2019, in a significant decision, the Madurai bench of Madras High Court held that the asylum seekers have a right to apply for Indian citizenship. Justice GR Swaminathan in this case has observed that right to life under Article 21 applies to all persons, citizens and non-citizens alike. As a result Article 21 of our Constitution is also applicable upon the petitioners because they are genealogically rooted to Tamil Nadu and belong to this very culture [Paragraph 12 of the Judgment]


The case involves 65 Indian origin Tamil refugees who have filed a writ petition under Article 226 before the Madurai bench of Madras High Court.The petitioners in this case have contended that their ancestors were of Tamil origin and were taken to Sri Lanka as indentured laborers during the British rule. Eventually their descendants, including the petitioners became Sri Lankan citizens. However, in the year 1983 when ethnic attacks against Tamils intensified in Sri Lanka, they were forced to flee to India in order to save their lives. Since then they have been living in refugee camps in various parts of Tamil Nadu. Against this backdrop the petitioners have approached the Madras High Court for seeking conferment of Indian citizenship.

The petitioners in this case have further submitted that they have approached the court because both Central Government and the Tamil Nadu State Government on their part have stated that as per Section 5 (1) of the Citizenship Act, 1955 no illegal migrant has a right to seek Indian citizenship. Since the petitioners have entered India without any valid documents, they are illegal immigrants as per the Citizenship Act and are therefore denied of Indian citizenship.


After going through the submissions of both the parties the Court in this case has observed that only because the petitioners are illegal migrants as per the statutory definition, does not imply that they are ineligible for citizenship. The government needs to look upon the circumstances of their arrival. These refugees arrived when there was threat to their life. As a result they have to run for their survival and therefore they failed to procure the required documents. The court in this case has also observed that the claim of citizenship of these refugees needs to be looked upon more seriously because even after 35 years these refugees are struggling to live a dignified human life[Paragraph 15 of the judgment].

The Court in this case has further remarked that merely on the technical grounds their application should not be rejected.The court has acknowledged the fact that the petitioners are illegal migrants; however, the State has a power to relax the technical rigors of Section 5 of Indian Citizenship Act, 1955. The Court while deciding the same has relied upon the case of Felix Stefan Kaye v Foreigners Regional Registration Office wherein the Delhi High Court has recognized the existence of implied power on the part of government to grant relaxation in cases arising under the Indian Citizenship Act, 1955[Paragraph 14 of the judgment].

 As a result the Court has directed the Government to take a sensitive approach and relax the rigors of the Citizenship Act while considering their applications for citizenship status and also decide the same within 16 weeks.[Paragraph 17 of the judgment] However, the Court in this case has rightly abstained from mandating that the petitioners be necessarily granted citizenship because the matters pertaining to citizenship falls within the exclusive executive domain of the central government and not judiciary [Paragraph 18 of the judgment].


The Madras High Court vide its judgment has put up a new transformative jurisprudence of asylum and refugee rights in India.It has somewhat nullified the erroneous judgment of the Supreme Court in which they permitted the deportation of seven Rohingyas to Myanmar. The judgment of Supreme Court in that case was contradictory to the principles of international law. It was the because the Apex Court did not accept the principle of Non-Refoulement, which in fact is a part of customary international law to which every country needs to abide. However in this judgment, the Madras high court has accepted the principle of Non-Refoulement and has held that there still persists a threat to Tamil refugees in Sri Lanka. Therefore, these refuges can’t be sent back, and thus their asylum should continue.

In concluding remarks it can be said that Indian Constitution is a transformative document which works for inclusiveness as from the day of its adoption it has established a new relation between the subject and the state by providing them rights of equality liberty and fraternity.Further the Madras High Court by this judgment has made the Constitution more inclusive as the court has held that even though these petitioners are illegal migrants, but firstly they are human beings who too have a protection of Article 21 of the Constitution [Paragraph 12 of the judgment]. Here, the Court has used the Constitution to bring those illegal migrants out of the marginalized section of our society. The Court has put humanity ahead of nationalism. The Court in this case has tried to protect these illegal migrants from their day to day sufferings by allowing them the refuge under Article 21 of our Constitution because even after 35 years these refugees are struggling to live a dignified human life, which is the essence of Article 21 of our Constitution[Paragraph 13 of the judgment]. Therefore, it can now be hoped that this judgment will bring in transformation upon the rights of refugees and asylum seekers in India.





Kumar Mukul Choudhary is a fourth-year law student at Chanakya National Law University, Patna








Raj Krishna is a 5th year law student at Chanakya National Law University, Patna.



In content picture credit: Newslaundry

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