( 1 ) BY way of this Special Civil Application under Art. 226 of the constitution of India, the petitioners (1) Mr. Ktaer Abbas Habib Al Qutaifi and (2) Taer al Mansoori, aged 16 and 17 years respectively (hereinafter referred to as the refugees) of Iraq Origin, seeks direction to release them from detention at the Joint Interrogation centre, Bhuj, Dist, Kutch, State of Gujarat and instead of deporting them to Iraq, they may be handed over to United Nations, High Commissioner for Refugees known as unhcr on the basis of principle of non-refoulement.

( 2 ) THE "humanitarian Jurisprudence" is now an International Creed in time of Peace and War. According to Jean Pictet, an authority on Humanitarian law, "it is based on two basic principles viz.- necessity and humanity". The word "humanitarian" itself directs humanitarian touch to the problem. Amnesty international report 1998 on Iraq has reported detention of hundreds of suspected Government opponents including the possible prisoners of conscience, without trial. It has also reported hundreds of execution, some of which may be extra judicial. The report has quoted Decree No. 115 dated 25th August, 1994 issued by the Government of Iraq which stipulates, cutting off one auricle of one ear of a person in event of non-performance of military service deserting from military service or shouldering or protecting anyone who has evaded or deserted from military services. The decree further stipulates that a horizontal line shall be tattooed on the forehead of person whose ear has been cut off. The petitioners who are Iraqi Refugees do not wish to join army because of their abhorrence for violence. Thus, they were left with no option but to flee from the country as there was no scope of continuing to live there in a peaceful and free style. They had a fear of being persecuted. They like many others flee to India and some other countries. On their entrance in India, they have been detained since 13th November, 1997. It is their say that they are out of contact with their family, ever since they were detained. It is also stated that they are in fragile state of mind and one of them made an attempt to commit suicide by putting his hands in electric connection. An offence under Sec. 309 IPC was registered against him and he was let off, after a days imprisonment. They have been detained under the provisions of the foreigners Act and it is threatened that they will be deported to Iraq. The petitioners do not want to return to Iraq as they have fear of being persecuted in their country. It is also stated that the petitioners have registered themselves as refugees with the UNHCR. The certificate dated 3rd March, 1998 reads as follows :-"united Nations high Commissioner for Refugees this is to certify that Ktaer Abbass Habib Al Qutaili. . . . . . . . . a national of iraq is on the basis of available information considered to be a refugee within the mandate of the Office of the United Nations High Commissioner for refugees. Any assistance provided to Ktaer Abbass Habib Al Qutaili. . . . . . . . during his stay in India would be greatly appreciated. This certificate is valid for a period of one year. Sumbul Rizui Khan associate Protection Officer for UNHCR Chief of Mission"identical certificate has been issued in case of second petitioner Taer Al Mansoori. REPLY;; 2. A counter affidavit has been filed by Miss Usha Rani, Section Officer in Foreigner division in the Ministry of Home Affairs, Government of India, at New Delhi. An objection has been taken with respect to the maintainability of the petition on the ground that the petitioners have no constitutional or fundamental rights to file the present petition as they have entered in the territory of Union of India without any valid travel documents. It is also submitted that the powers under the Foreigners Act. 1946 especially under Sec. 3 (2) (c) and (d) has been entrusted to the State Government. This power includes the power to d