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Magistrate: how can court become party to persecution of refugee?
September, 21st 2011

Handing over a refugee to Sri Lanka where he fears persecution will make us nothing short of abettors, a magistrate court here said on Tuesday. It turned down the Centre's plea to deport a Tamil refugee, who has been in India for the past 20 years.

In his order, Arul Varma, Metropolitan Magistrate, Court-II, Dwaraka courts, said: It is unfortunate that in spite of [our] having an impressive record of welcoming refugees, we do not have a national law in place to cater for the specific needs of this class.

The court said: An important distinction needs to be made between persons who, on their own volition and in order to earn a livelihood or to explore the world, reach the shores of another country, and a refugee who, under compulsion and duress, has no option but to take shelter in another country. They are a victim of circumstances. They do not throng the shores of another country for pleasure or for any kind of economic gain. They take chances as they do not have choices.

The judge said the need for enacting comprehensive legislation to deal exclusively with the problems of refugees had arisen from time immemorial, and finally, pursuant to extensive deliberations on a Model National Law: The Refugee and Asylum Seekers (Protection) Bill, 2006 was drafted. But it is unfortunate that despite its having been drafted after due deliberations and after various rounds of consultations by eminent jurists including the former Chief Justice of India, P.N. Bhagwati, this Bill has not seen the light of the day.

The court said:

Presently, the refugees are dealt with under the Foreigners Act, 1946 and the rules framed thereunder. Refugees are treated as foreigners under the extant laws of our country. However, it will be extremely important to understand that a refugee cannot be placed on the same platform on which illegal migrants, tourists and other foreigners' are placed.

There have been a plethora of instances wherein Indian courts tried to evolve a humane and compassionate approach to redress individual problems; however, in the absence of a long-term, consistent and uniform solution by the way of enactment of national legislation, their treatment would be subject to, and would depend upon the individual outlook, social inclinations and other idiosyncrasies which would make it difficult for the subordinate courts to follow. India needs to live up to its humanitarian goals.

In the instant case, Chandra Kumar has been staying at a refugee camp at Tiruvallur in Tamil Nadu from 1990. He wanted to eke out a better living in Italy but while leaving India, he was apprehended by immigration authorities as he did not possess valid travel documents. Thereafter, he was charged with cheating, impersonation and forgery and other offences under of the Foreigners Act, 1946. He moved an application for plea bargaining. An order on sentence ought to have been passed forthwith. However, the Additional Public Prosecutor, on instructions from the government, contended that an order of deportation should form part of the order on sentence.

Rejecting the plea for deportation, the court, relying on several Supreme Court judgments, said Indians and non-citizens are to be treated equally as far as Article 21 of the Constitution (right to life and liberty) is concerned. The very idea of deporting the convict herein to his country of origin, where he has a well-founded fear of persecution, would not be in consonance with the principles of natural justice. How can the court become a party to the persecution of an individual? The court cannot retrograde itself to the position of a mute spectator.

Since the convict had already been incarcerated for about six months, the court said the sentence already undergone was sufficient punishment and that he should forthwith report back to the tahsildar, Sri Lankan Refugee Camp, Gummidipoondi Taluk.

 

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