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2019 Supreme(Mad) 1564
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
P. Ulaganathan and Ors. - Appellant
Versus
The Government of India and Ors. - Respondents
WP (MD) No. 5253 of 2009
Decided On : 17-06-2019
Advocate Appeared:
For the Appellant : A. John Vincent
For the Respondents: V. Kathirvelu, Assistant Solicitor General of India assisted by C. Nandagopal and Aayiram K. Selvakumar
Headnote:
Citizenship Act, 1955 - Section 5 - Constitution of India - Article 21 - seeking conferment of Indian citizenship - claim that they can be treated as repatriates - Central Government need not feel helpless or take shelter behind Section 5 of the Citizenship Act, 1955. Notwithstanding the absence of an express power to relax the rigour set out in the opening clause of Section 5(1) of the Act, this Court must hold that the sovereign authority does have an implied power to do so. In fact, the existence of the implied power to grant relaxation in cases arising under the Indian Citizenship Act, 1955 was recognised by the Honble Delhi High Court in Felix Stefan Kaye – Held, Once the Central Government receives the petitioners applications, it shall pass appropriate orders thereon within a period of sixteen weeks thereafter. The Central Government shall bear in mind that it has the power to consider the applications favorably notwithstanding the technical status of the applications as that of illegal migrants. The Central Government shall take note of the unique situation in which the petitioners are placed. The undertaking given before the Madras High Court that the applicants will not be sent back will also be factored in the process of consideration - I consciously refrain from issuing any positive mandamus directing the Central Government to provide citizenship to the writ petitioners herein. This is because citizenship falls within the exclusive executive domain of the Central Government. My heart may bleed for the petitioners but I have to be mindful of the Lakshman Rekha that limits the bounds of judicial power. Going beyond will be encroachment. Any form of encroachment is bad. Encroachment by judiciary into the executive realm can be no exception. Some may say it is exceptionally bad - Government of India must take note of the fact that the petitioners came to India when faced with a grave threat to their lives and limbs. They had to seek asylum in India. A person who is running for his life cannot obviously be expected to wait for a visa. Therefore, viewing the petitioners case through the prism of the technical requirements of law, does not appear to be a humanitarian approach - But for the inmates, there is no hope whatsoever. It is endlessly bleak. The petitioners have been in camps for close to 35 years. Keeping them under surveillance and severely restricted conditions and in a state of statelessness for such a long period certainly offends their right under Article 21 of the Constitution of India - petition is disposed of
ORDER :
G.R. Swaminathan, J.
1. The case of the writ petitioners is that they are descendants of indentured labour who settled down in the tea estates of Sri Lanka during the colonial times. There is no doubt that they are tamil speaking people. Their forefathers hailed from what is the present day State of Tamil Nadu. They faced severe discrimination at the hands of the Sri Lankan Government after it gained independence in the year 1948. The writ petitioners contend that they should not be considered as part of those tamilians from northern and eastern Srilanka who though Tamil-speaking are yet natives of Sri Lanka in every sense of the term. Sri Lanka witnessed a genocidal and brutal ethnic strife. 1983 was one of the worst moments in history. There was a virtual exodus of the tamil people from Sri Lanka to India. They reached India by whatever mode that was available. The petitioners would claim that while those from northern and eastern Sri Lanka would have to be treated as refugees, persons like the petitioners will have to be treated more as Indians repatriates. After their entry into India, most of them were kept in Kottapottu camp in Trichy. Since they apprehended forcible deportation back to Sri Lanka, writ petitions were filed before the Madras High Court. Interim injunction was granted and the case was finally disposed of by recording the undertaking given by the Government that the writ petitioners will not be compulsorily sent back to Sri Lanka (vide order dated 21.03.1994 made in WP Nos. 1448 to 1450, 1802, 5643, 15507 of 1988, 7533 and 16892 of 1991 and 6804, 6820, 7613, 8206, 12298 and 12343 of 1992). The writ petitioners had been periodically submitting representations seeking conferment of Indian citizenship. There was exchange of correspondence among the various authorities.
2. But then, there was no fruitful result forthcoming all these years. The writ petitioners plead that they are genealogical Indians. Their native places are in Tamilnadu. They have blood relatives only here. Only because their forefathers had gone to Sri Lanka to work as labour in tea estates of Sri Lanka, they had to suffer this condition of statelessness. They had to escape from Sri Lanka to save their lives and limbs. They cannot go back to Sri Lanka. They have nothing there. It is not as if Sri Lanka is ready to welcome the petitioners' back. Since the authorities have not been positive in their approach, the petitioners have moved this Court seeking conferment of citizenship.
3. The Government of Tamilnadu had filed a counter affidavit. It is admitted therein 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., It is further admitted that they arrived in India during 1983 to 1985. The writ petitioners are given monthly cash doles, ration essential commodities, accommodation, dress materials, utensils and free education etc., But, citizenship cannot be conferred on them as it is a policy matter to be decided by the Government of India. The Government of Tamilnadu contests the petitioners' claim that they can be treated as repatriates. The Government of Tamilnadu recognizes them only as refugees.
4. The specific stand of the Government of Tamilnadu is that an illegal migrant is not eligible for grant of Indian citizenship under the provisions of Indian Citizenship Act, Act 1955 and the rules framed thereunder. The writ petitioners are not having valid and upto date residential permit/long term VISA. They did not arrive in India through an appropriate passport. They came here through an illegal route. Therefore, they are illegal migrants and hence, the request of the petitioners cannot be complied with. The Government of Tamil Nadu therefore prays for dismissal of the writ petition.
5. The stand of the Government of India is no different. The policy of the Government of India i
