Can Habeas Corpus be maintained in Thamarai v. Union of India

The High Court of Madras in the case of Thamarai v Union of India declined to accept arguments that deportation of a Sri Lankan national without giving him an opportunity of hearing is illegal in view of the case Maneka Gandhi v Union of India. The Court consisted of Justice Prakash and Justice Pongiappan.The facts of the case are that petition was filed by Thamarai under Article 226 of the Constitution claiming to be a public spirited person to issue a writ of habeas corpus and mandamus. Detenu- Bhaskaran, a Sri Lankan refugee, hadbeen in the Special Camp for Sri Lankan immigrants in Trichy.

The Government of Tamil Nadu ordered his deportation to Sri Lanka which Bhaskaran claims is illegal because that deportation would lead to his murder. He seeks that mandamus prayed be issued so that he can appear for the interview before the Switzerland Embassy to get humanitarian visa to land as refugee in Switzerland.He placed reliance on the case of Gurunathan v Government of India wherein the court had acknowledged that undertaking of Government wherein it was stated that the Government will not send back Sri Lankan refugees to their homeland against their will.The court rejected this claim because it stated that the case was decided in 1994 when the situation was vastly different than it is now. At that time the Sri Lankan problem was at its peak but now the times have changed and the LTTE war has ended.

Thus the undertaking cannot be used in perpetuity to prevent deportation of Sri Lankan nationals out of India.The status of Bhaskaran as a refugee was also in question in the instant case. The respondents stated that Bhaskaran did not enjoy the refugee status since he left for Sri Lanka in 2014 and came back in 2015. Moreover, he was indulging in human trafficking in India. He had also left the refugee camp as far back as 2010.The court held that a habeas corpus petition cannot be maintained in the present case because the detention is not per se illegal. The Special Camp is not a prison and the inmates enjoy sufficient freedom.The petitioner also placed reliance on Maneka Gandhi v Union of India case to claim that the order of deportation passed by the authorities without giving an opportunity toBhaskaran is illegal.The court held that the “law laid down in Maneka Gandhi cannot be stretched beyond a point.

In this case, Bhaskaran is not an Indian national and it is alleged that he was involved in human trafficking. Whether he was acquitted or convicted is immaterial. He does not have a fundamental right to stay in India and get Indian citizenship. He knows that his stay in India cannot be eternal. He has to leave India one day or the other.”The petitions were accordingly dimissed.

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