- Feb 23, 2019
International Law on the Status of Refugees in India: Judicial Perspectives
Dr. Ravanan *
I - Introduction
As Swami Vivekananda observed, “I am proud to belong to a Nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth" (First word of Swami Vivekananda Speech in the World Religious Conference held in Chicago USA. Available at “The Complete Works of Swami Vivekananda” Vol. 1, P.63. Sakithya Academy Library, New Delhi ). India has experienced a periodic influx of refugees mostly from its neighboring countries. Geographical, political, social and economic factors are responsible for this influx. Geographically India’s long open border with Pakistan, China-Tibet, Bhutan, Nepal, Bangladesh, Burma and Sri Lanka allows refugees come to India. Politically, dictatorship or undemocratic forms of government formed in the region have forced their citizens to search for refuge. The people in the neighboring countries often share a common social and cultural world with Indian people. This encourages many amongst the persecuted in these neighboring countries to seek asylum in India. At present, almost 300,000 refugees are being given shelter in India. (United Nations High Commissioner for Refugees, (UNHCR)).
The refugees can be classified as mandate and non-mandate refugees. Mandate refugees are Afghans, Iranian, Sudanese, Somalia, Iraqi, and refugees from Myanmar. They are under the protection of UNHCR. But most of the refugees in India are non-mandate refugees. These are refugee from Tibet, Bangladeshi refugees, Sindhi refugees from Pakistan, Bhutanese refugees, Ugandan refugees, and Sri Lankan Tamil refugees. These refugees are under the direct protection of the Indian government. Some refugee groups are deled by both UNHCR and the Indian government. For example, Sri Lankan Tamil refugees are recognized as refugee by the Government of India and it takes care of them. Since 1983 Sri Lankan Tamil refugees have been granted refugee status in and around Tamil Nadu. Many of these refugees are given identity documents and a small amount of financial assistance, along with subsidized food grain. They are generally permitted free movement, although there is mandatory physical attendance a few times a month. The government also provides basic health and education facilities. In case a refugee is considered a threat to national security, the administration can detain the person. There have been such instances despite the issuance of refugee identity documents by the administration. The UNHCR assists Sri Lankan Tamil refugees for repatriation. It interviews those who wish to return and verifies the voluntary nature of their repatriation from India.
India does not have specific legislation that is applicable to refugees in the country. Due to the lack of such a statute, the judicial system is constrained, when dealing with refugees. They have to apply laws that are applicable to foreigners in general, such as the Foreigners Act, 1946. The established principle of the rule of law in India as set under Article 21 of the Constitution is that no person, whether citizen or an alien, shall be deprived of her life or personal liberty except in accordance with a procedure established by law that must be fair. The Supreme Court has gone further and elevated it to the status of one of the basic structures of the Constitution, thus making this precept unamendable. ( Indira Gandhi v. Raj Narain, 1975 (SC) AIR 2299 ).
The Supreme Court has consistently upheld the principle of non-refoulment, though without specifically mentioning it, an important principle in international refugee law. But as the former Chief Justice of India J S Verma has pointed out, “the attempt to fill the void by judicial creativity can only be a temporary phase. Legislation alone will provide a permanent solution”. It clearly shows that India must have a domestic legal and legislative framework to help guide its response to the refugee issue. Recently, on September 20, 2011, a trial Court in Dwarka, NCT of Delhi pointed out that “the need for enacting comprehensive legislation to deal exclusively with the problems of refugees had arisen from time immemorial, and finally, pursuant 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 jurist including the former Chief Justice of India, P.N. Bhagwati, this bill has not seen the light of the day”. The judge also mentioned “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. Indian needs to live up to its humanitarian goals.” It is therefore high time to enact a domestic legislative framework to help guide its response to the refugee issue.
II - International Refugee Law
International refugee law is an outgrowth of general principles of international law, human rights, and humanitarian law. The general principles of international law lay down the norms of sovereign equality of states as well as territorial supremacy over the subjects within their territories as well as respect for human rights. International human rights law obliges states to protect the fundamental rights of all human beings, particularly the right to life and liberty, without discrimination on the grounds of race, religion, language, political opinion or nationality. Like conventional obligations, international standards on the protection of refugees have universal respectability and acceptance and are applicable in all refugee situations. The states are obliged to protect and accord a minimum standard of treatment to refugees. However, India is not a party to any international instruments deals with refugees but India practicing customary international norms and principles on refugees better than international refugee instruments.
(a) Definition of the Term Refugees
Defining the term ‘Refugee’ is the first requirement for its prosecution. Lack of Legislation for refugees in India we need to look out several international and regional legal instruments to define the term refugees, However, the definition contained in the 1951 Convention is the most widely accepted definition ( The 1951 Convention refugee definition is of singular importance because it has been subscribed to by more than one hundred nations in the only refugee accords of global scope. Many nations have also chosen to import this standard into their domestic immigration legislation as the basis upon which asylum and other protection decisions are made. (Hathaway 1991: 5)) as it is retained and expanded in the Statutes of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (hereafter the OAU Convention), ( Article 1 (2) of the OAU Convention expands and includes reasons such as, The term ‘refugee’ shall also apply to every person who, owing to (i) External aggression, (ii) Occupation, (iii) Foreign domination or Events seriously disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.) and in the Cartagena Declaration on Refugees, 1984 (hereafter the Cartagena Declaration) (Section III.3 of the Cartagena Declaration for refugees in Latin America 1984 which provides that the term ‘refugee’ shall also apply to Central America area as the reasons like, Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety of freedom have been threatened by (i) Generalized violence, (ii) Internal conflicts, (iii) Foreign aggression, (iv) Massive violation of human rights or other circumstances which have seriously disturbed public order). Article 1 (2) of the 1951 Convention definition of the term refugee is considered as the universally accepted term. ( Article 1(a) (2) of the 1951 Convention reads: “Refugee as a person who owing to (a) well-founded fear of being persecuted for reasons of (i) race, (ii) religion, (iii) nationality, (iv) membership of a particular social group or political opinion, (b) is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or (c) who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, (d) Owing to such fear, is unwilling to return to it”). The Asian African Legal Consultative Committee (hereafter AALCC) defines the term ‘refugee’ as the same as the 1951 Convention. At the same, it takes criteria from OAU Convention, the Cartagena Declaration and additionally includes reasons like color, ethnic origin, gender and also external aggression, foreign domination, and events seriously disturbing public order. So it offers a broad definition of the term refugees. “At the regional level though, unlike the OAU Convention, the Cartagena Deceleration is not a formally binding legal instrument, its broader definition has gradually become the established norm throughout Central America.” ( Arboleda Eduardo (1991), Refugee Definition in Africa and Latin America: The lessons of Pragmatism, International Journal of Refugee Law, 3(2): 186-205). However the above said legal instruments uniformly mention four key features for fulfilling the refugee definitions, first, the person must be outside the country of the region. Second, that person must have a well-founded fear. ( For example, in INS vs. Cardoza Fouseca (1987 (46) USSC 407) US Supreme Court states: the moderate interpretation of the ‘well-founded fear’ standard would indicate that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility. And the Judgment of the \house of Lords in R vs. Secretary of the Home Department Ex Parte Sivakumaran (1988) (1) AII E.R.193 (H.L.), suggests that the test should consider whether there is evidence of a “real and substantial danger of persecution.” The Canadian Federal Court of Appeal considered the above and disapproved of the House of Lords formulation in Joseph Adjei vs. Ministry of Employment & Immigration (1989) (7:2d) Imm.L.R 169) the Court adopted the “reasonable chance” standard). Third, there must be a well-founded fear of being persecuted for reasons like race (For example, in Patel et al Vs. The United Kingdom, Application No. 4403/700 of Oct 1970 The International Court of Justice states that the discrimination likely to be faced by a Kenyan citizen of Asian origin did not amount to persecution. Discrimination on such grounds can, in certain circumstances, constitute degrading treatment within the meaning of Article 3 of the European Convention on Human Rights.), religion (For example, in Kojjnakis Vs. Greece, 3/1992/348/421, European Court of Human Rights, 25 May 1993, the Court pointed out that the Article 18 of ICCPR and Article 18 of UDHR prescribe that everyone shall have the right to freedom of thought, conscience, and religion, which shall include the freedom to have or adopt a religion or belief of choice and the freedom to manifest such a religion or belief. Articles 9 of the European Convention on Human Rights also expressly recognizes the freedom to change once religion or belief. However, a distinction may be drawn between the freedom to practice a religious belief and the right to proselytize.). Nationality, Political Opinion, Membership of A Social Group, etc., Fourth, that person’s home country is unwilling to protect his/her life or freedom.
(b) Principle of Non Refoulement
“The term non-refoulement or no return, it derives from the French refouler, which means to drive back or to repel, as of an enemy who fails to breach one’s defense" (Goodwin-Gill. Guy S (1985), The Refugee in International Law, New York: Oxford University Press, p. 69.).
The principle of non-refoulment states, broadly, that no refugee should be returned to any country where he or she is likely to face persecution or danger to life or freedom. Article 33 (1) of the 1951 Convention states that: No State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. It is considered as the heart of the 1951 Convention and it also considered as a principle norm of customary International law. It is now also incorporated into international human rights law. Article (3) of the Convention Against Torture 1984 (CAT) states that no persons can be sent back to a country where there is reasonable fear of torture.
In 1951 Convention Article 33 (2) is exception for Article 33 (1). It states that provision may not apply to a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. The evidence relating to the meaning and scope of non-refoulement in its Conventional sense also amply supports the conclusion that today the principle forms part of general international law. At the same time, CAT convention has no exclusion clause, it strengthens the Non Refoulment principle respectively.
In Kirkwood case, European Commission on Human Rights states, “if conditions in a country are such that the risk of serious treatment and the severity of that treatment falls within the scope of Article 3, a decision to deport, extradite or expel an individual to face such conditions incurs the responsibility, of the contracting state which so decides." In Chahal Case, “The expulsion may engage the responsibility is a state under Article 3 of the European Convention on Human Rights where substantial grounds were shown for believing there would be a real risk to the deportee of torture or inhuman or degrading treatment or punishment in the country. The European Court went even further in its decision in case Ahmed vs. Austria. Thus, as long as there was a risk of the applicant being tortured on his return to Somalia, any attempt to deport him made by the Austrian authorities would be in breach of Austria’s obligation under Article 3 of the European Convention on Human Rights. It should, however, be noted in that the United States Supreme Court case, has violated the principle of non-refoulment. In this case, an executive order passed by the US government authorizing the US Coast Guard to intercept vessels transporting Haitians to the US and to repatriate them was upheld by the Supreme Court as not falling foul of Article 33 of the 1951 Convention. In Refugee Casethe Federal Administrative Court of Germany held that a refugee found to be unlawfully in the country should be expelled, provides she was not returned to the country in which her life or freedom would be threatened. An almost identical conclusion was reached in the US in the Chim Case. In the expulsion of the alien case, the Austrian Supreme Court, upholding an expulsion order, observed that it merely required a person to leave the state; it did not render her liable to be returned to a specific foreign country.
(c) The Concept of Asylum Seekers and Refugee Status
Article 14 (1) Universal Declaration of Human rights clearly states that ‘every person has the right to seek and to enjoy in other countries asylum from persecution’. But it doesn’t say every person has the right to be granted asylum. Whether to grant asylum or not is a right that rests with sovereign states. They make the final determination. Moore, in 1908, noted that the right to grant asylum ‘is to be exercised by the government in the light of its own interests, and of its obligations as a representative of social order.
Granting asylum to a refugee within a territory has been the sovereign right of every state. In Cruz-Varas case the European Court of Human Rights held that the expulsion of an asylum seeker may engage the responsibility of the expelling state under Article 3, “where substantial grounds have been shown for believing that the person concerned faced real risk of being subjected to torture or inhuman or degrading treatment or punishment in the country to which he was returned.” However, the court also stressed that the ill-treatment must attain a minimum level of severity in its application of Article 3 of the European Convention on Human Rights, the court has constantly maintained a high standard of proof while simultaneously conceding considerable substantive and procedural room to national authorities. In the asylum, case court states that the States remain remains under no obligation to grant asylum, while protection within a state “Implies only the normal exercise of territorial sovereignty." Save is so far as it does not trespass upon the state’s other obligations under international law, the sovereign act comprising the beneficial exercise of territorial jurisdiction is entitled to respect by all the other states, including the country of origin of the refugee. The exclusion clause of the 1951 Convention states the Convention is not applicable to those who have acted contrary to the purpose and principles of the United Nations. Significant trafficking in a dangerous illicit drug constitutes an act that is contrary to UN purposes and principles and would thus form the basis of exclusion from the refugee category.
Article 1 (f) of the 1951 Convention contains the exclusion clauses. Under it three categories of persons will not be granted refugee status. These persons are excluded from the benefits of refugee status. These are any person who has committed crime against peace, war crime or crime against humanity as defined in the International humanitarian law. The second group of persons excluded from the definition are any person who has committed serious nonpolitical crimes like murder, rape, etc., and prior to seeking refugee status. Third is general category a person who has been had guilty of acts contrary to the purposes and principles of the U.N Charter like aggressive war etc. These exclusion clauses need to be interpreted very restrictively, because if a broad interpretation of this exclusion clause is made, it may end up denying protection to some person who deserves refugee status. It may lead to the deportation of the person back to the countries where his person’s life or freedom is in danger.
Salient Features of the 1951 Convention
(a) Rights of Refugees
The 1951 Convention grants a number of rights to the refugees. These are civil and political rights as well as social, cultural and economic rights. These rights are spelt out in the Convention. For example, the rights of employment, right of welfare, like rationing, housing, education, etc. And right to freedom of movement, access to court, and right to intellectual property and right of association are also mentioned as a rights of refugees. Under the Convention, there is a reservation clause contained in Article - 42. At the same time, there are some rights to which no reservation is permissible. These rights include Article - 1 Definition of the term refugees. Article - 3 right of nondiscrimination, its includes race, religion or country of origin. Article - 4 Religion, Article - 16 (1), and Article - 33 non refoulement.
(b) Safeguard measures
First, article 9 of the 1951 Convention states that detention can be done but only on exceptional situations where either the person is committing fraud like presenting or submitting fraudulent papers, or there is a threat to the national security of that country, etc.
Second, article 31 of the 1951 Convention speaks about refugees present unlawfully in the country of refuge. According to this article if a person enters a country without proper papers or documents and claims to be a refugee he will not punish or penalize the person for not carrying proper papers. For example, if a person is without passport, visa or is smuggled into a country, he may have violated that country’s laws at the same time he is seeking refugee status, but the state shall not impose any penalties. A condition for the applicability of this article is that the person’s life or freedom is in danger in his home country.
Third safeguard clauses deal with expulsion; refugee can be expelled only if that person is a threat to the national security or public order and only after the due process of law. Article 32 (1) reads states shall not expel a refugee lawfully in their territory save on grounds of national security or public order. These are the procedural safeguards which are in the 1951 Convention in order to ensure that a person's life or freedom is in danger.
(c) Duties of Refugee and Cessation clause
According to article 2 of the 1951 Convention speaks about the duty or obligations of refugees. The refugee has the duty to obey the laws of the host country. Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.
The cessation clause is contained in the article 1 (c) of the 1951 Convention. The idea of the clause is to specify the situation in which he ceases to exist have refugee status. Thus the refugee status is not a permanent status. That status gets over once the conditions under which the refugee status was granted transformed. It should be applied restrictively. It should not lead to the violation of the principle of non refoulement. Article 1 (c) states six conditions for cessation of refugee status. One that person has voluntarily re-availed himself of the protection of the country of his nationality. Second, having lost his nationality, he has voluntarily re-acquired it. Third he has acquired a new nationality and enjoys the protection of the country of his new nationality. Fourth he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution. Fifth he can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality. Sixth being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence.
(d) The Principle of Burden Sharing and Burden Shifting
The principle of burden-sharing requires states to cooperate in dealing with the global refugee problem. It is not merely a moral but a legal principle. It is arguably a principle of customary international law
The Preamble to the 1951 Convention it states that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution of a problem cannot be achieved without international cooperation. At the regional level article 2 (4) of the OAU Convention states that where a member state finds difficulty in continuing to grant asylum to refugees, such member state may appeal directly to other member states to, in the spirit of African solidarity and international cooperation, take appropriate measures to lighten the burden of the Member State granting asylum. The preamble paragraphs of the Cartagena Declaration mentions about burden-sharing like requesting immediate assistance from the international community for Central American refugees, to be provided either directly, or through bilateral or multilateral agreements, or through UNHCR and other organizations and agencies. The report of the AALCC also speaks about burden-sharing. The conclusion could be drawn that the principle of international solidarity in dealing with the refugee situations and the concept of burden-sharing in that context appear by now to be firmly established in the practice of States.
However, the legal principle of burden-sharing simply speaks about financial assistance for the poor world who is hosting most of the world refugees. There must however be burden sharing even at the level of asylum. This principle is strengthened by the developing countries through the refugee law instruments in their own regional level. But unfortunately, the developed states are practicing burden.
(e) Durable Solutions
Basically there are three traditional durable solutions to the refugee problem. According to Goodwin-Gill, ‘a durable solution entails a process of integration into society; it will be successful and lasting only if it allows the refugee to attain a degree of self-sufficiency, to participate in the social and economic life of the community and to retain what might be described, too summarily, as a degree of personal identity and integrity.
The solutions are first local integration, it means that where the refugee group has to remain in another country for the long period of time individual or group it integrates with the local people or host community. It is accepted by the host states for example, Chakma refugees are applying for citizenships in India that leads to local integration.
Second, resettlement in the third country it means where a country that accepted refugees gives them temporary asylum but then are resettled in another country. For example, Afghan refugees come to India and get some residence status in India. They apply to the UNHCR for resettlement to another country and are resettled in third countries. The third solution is voluntary repatriation it is the most significant solution or preferred solution. It means that people simply go back to their country when the situation becomes normal. Local integration and resettlement in third country is a subsidiary solution but voluntarily repatriation is the principal solution
India and International Refugee Law
If we compare Indian position to the 1951 Convention on the issue of refugees, India is practicing important customary international law principles like non refoulement at the policy level. India welcomes refugees from Asian and African continents and provides good treatment to them. On the issue of refugees India’s record is good. The asylums seekers are granting refugee status by the Indian government or it cooperates with the UNHCR for granting refugee status. The rights and duties of refugees are also respected by Indian government like free access to the court, providing basic facilities like ration, medicine, education and making camps for refugees. The safeguard measures which are mentioned in the 1951 convention are practiced by Indian government restrictively. Illegal entry refugees are not penalized by the government. Overall India is implementing the norms mentioned in the 1951 Convention.
However, India is not ready to become party to this Convention. It gives important eight reasons for it. First, the definition of refugee is a Eurocentric definition it only consents with the violation of civil and political rights it does not mention about violation of economic cultural and social rights. Second is the 1951 Convention was adopted in the time of cold war period after the world war so it is not concerned about the third world countries. For example, the partition in 1947 in India did not concern the developed nations. The third reason is the 1951 Convention simply contains too many rights for refugees which as a third world country India is not in a position to fulfill even for its own citizens. Fourth India is providing protection to refugees. So there is no need to become party. Fifth if India became party it would be obliged to the under article 35 of the Convention to cooperate with the office of the UNHCR. The UNHCR is perceived as a western donor organization that may act intrusively. Sixth India is arguing that most of the countries in Asia are not party to this Convention. Only Six Asian countries are party to the Convention. This is called Asian exceptionalism. Seventh is India’s presence of porous borders makes it very difficult to regulate the entry and to implement the International Convention. Finally, there is a burden-shifting, not a burden-sharing if India ratifies the Convention. There must be assurance that global burden-sharing at the level of finance and asylum will take place. However, India does not want to make any commitments with international instruments on refugees. But it commitments are governed by other instruments.
“India does not want to be tied down by an international legal obligation that impinges upon its discretion to regulate the entry of foreigners into its territory. This concern must be understood in the context of South Asia’s unstable geopolitics, not to mention its volatile ethnicities. Indian and other commentators from developing countries also call attention to the current state of flux in international refugee law. (Chimni B.S (1999), “From Resettlement to Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems”, available at UNHCR.org).
III - Legal Status of Refugees in India
The Indian subcontinent has been witness to some of the largest forced population flows in contemporary history. Pia Oberoi has made an attempt to examine the problem in the Indian subcontinent There are no authoritative statistics on the number of people who have fled persecution or violence in their countries of origin to seek safety in India. However, because of India’s porous borders and accommodative policies, it is estimated that India hosted approximately 4, 35,900 refugees and asylum seekers according to the World Refugee Survey 2007. In addition, “India’s documented refugees are allegedly outnumbered by lakhs of unregistered persons who have entered the country from Nepal and Bhutan to escape violence and persecution in their countries. It is estimated that over 20 lakh Nepalese fleeing from civil conflict have entered India undetected over the open border. There are also an unknown but large number of people displaced from Bhutan because of their ethnic-Nepali origins". “There are also 17, 380 refugees, 3,710 asylum seekers, registered under UNHCR office and some from the Democratic Republic of Congo, Eritrea, Iran Iraq, Somalia and Sudan”.
Indian Laws, Policy and Practice on Refugees
In general, there is no law in India for refugees applicable to all groups. But Ragini Trakroo list out some laws related to refugees in India. She further states that.
“A number of legislative measures dealing with refugees were passed and issued under the seventh schedule of the Constitution of India. Many of them have lost their importance in the current context; they provide a useful legislative precedent. Given below is the legislation that was enacted the partition of India and before the Indian Constitution came in to effect these are East Punjab Evacuees (Administration of property) Act, 1947, UP Land Acquisition (Rehabilitation of Refugees) Act, 1948, East Punjab Refugees (Registration of Land Claims) Act, 1948, Mysore Administration of Evacuee Property (second Emergency)."
“Once the Constitution of India came into operation, the following acts were passed by Center State authorities. These rules are related to refugees, evacuees and displaced persons these are."
1. Citizenship Act, 1955 (No.57 of 1955)
2. Extradition Act, 1962 (No. 34 of 1962)
3. Foreigners (Tribunals) Order, 1964
4. Foreigners Act, 1946 (No.31 of 1946)
5. Foreigners from Uganda Order, 1972
6. Foreigners Order, 1948
7. Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
8. Illegal Migrant (Determination by Tribunals) Rules, 1984
(a) Indian Constitutional Law
In general there is no law in India for refugees applicable to all groups. So Judicial System prevail granting rights for refugees by Indian laws. In the case of Luis de Readt v. Union of India, and Khudiram Chakma v. Union of India, the supreme court of India pointed out The right to life under Article 21 has been given an expansive meaning by the courts to cover the due process of law, i.e., the right not merely to an animal existence but a right to live with human dignity. The Indian Constitution law provides related provisions to refugees they are found in Articles 5 to 11, 14, 20, 21, 22, 25(1), 27, 28(3), 51(c) and 253; List I, entries 14, 18 and 19; and List III, entry 27. These provisions deals with citizenship; naturalization; aliens (excluding enemy aliens); extradition; displaced persons; fundamental rights of all people within the territory of India (including refugees); the rights of persons in criminal proceedings; and the power of parliament to recognize international treaties. Different levels of assistance and facilities. Educational opportunities, camp conditions, employment opportunities, voluntary repatriation-have been extended to special groups of refugees like Tibetans, Chakmas, Sri Lankans, and Afghans.
Article 51 is a directive principle of state policy, states that state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. In Vishaka vs State of Rajasthan the Supreme Court emphasized that international conventions which are not inconsistent with fundamental rights and harmony with their sprit must be read into these provisions to enlarge their meaning and content thereof so as to promote the constitutional guarantee. In Nilabati case a provision in ICCPR was referred to in support of the view taken that an enforceable right to compensation is not alien to the concept of guaranteed right as a public law remedy under Article 32, which is distinct from private law remedy in torts. The clearest discussion on the issue is found in, Maganbhai vs. Union of India, “Making of law is necessary when (international treaty or agreement operates to restrict their rights of the citizens or others or modifies the laws of the state. If the rights of the citizens or others which are justifiable are not affected. No legislation measures are needed to give effect to the agreement or treaty.” In Gramophone company case the Supreme Court held “there can be no question that nations must march with the international community and the municipal law must respect rules of international law just as nations respect international conventions. The comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do no run into conflicts with acts of parliament." In Apparel Export case the Supreme Court also reiterated the same principle and held that in case involving violations of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field." However, the court's positions are clear if an international instruments runs counter to Indian law, it cannot be relied upon. If the convention does not clash with any Indian statue, then it must be accommodated and absorbed into that latter. In peoples Union for civil liberties case the supreme court held the provisions of the covenant which elucidate and go to effectuate the fundamental rights guaranteed by our constitution can certainly be relied upon by the courts as facets of those fundamental rights and hence enforceable as such, therefore s clear enunciation of the principle that since fundamental rights are capable of an ever-expanding definition, international instruments may be incorporated into fundamental rights and enforced in this manner.
In Chakma case, the Supreme Court approvingly referred to the UDHR in the context of the refugee, “Article 14 of the UDHR, which speaks of the right to enjoy asylum, has to be interpreted in the light of the instrument as a whole, and must be taken to mean something. It implies that although an asylum seeker has no right to be granted admissions to a foreign State, equally a state, which has granted him asylum must not later return him to the country whence he came. Moreover, the Article carries considerable moral authority and embodies the legal perquisite of regional declarations and instruments". In Malavila Karlekar vs. Union of India the Supreme Court directed the authorities to check whether refugee status ought to be granted bail and that until the question is pending decision, the petitioner may not be deported. Similar orders, dated 11.09.1990, where passed by the Guwahati high court in Ms. Zonthansangpuii vs. State of Manipur. Similarly, various high courts also granted relief to refugees. In exercise of the powers granted under Article 226 of the Constitution, read with Article 21, the Guwahati high court in U. Myat Kayew and other vs. State of Manipur and other
allowed the petitioners who had entered India without valid travel documents and who were lodged in Manipur Central jail to be released on interim bail after furnishing personal bonds in order to enable them to approach UNHCR, Delhi, to seek refugee status.
However, India is not party to the 1951 Convention and its 1967 Protocol, the principles of international law relating to refugees must be taken as incorporated directly into Indian Constitutional law via Article 21. This is so particularly in the view of the fact that India has acceded to the 1966 International Covenant on Civil and Political Rights, the 1989 Convention on the rights of the child, and the 1979 Convention on the elimination of All Forms of Discrimination against Women. None of the provisions of the Foreigners Act, 1946, the Registration of Foreigners Act, 1939, the Passport Act 1920, or the Passport Act, 1967, deals in any manner with refugee law. There is, therefore, no current domestic law in conflict with international conventions, treaties, and resolutions relating to refugees. Indian courts have thus achieved via judge-made law what successive governments were unable or unwilling to do. Today international refugee law stands somewhat integrated into Indian law via Article 21 of the Constitution, irrespective of the government’s decision whether or not to accede to the 1951 Convention and the 1967 Protocol.
(b) Human Rights, IPC and Foreigners Acts
The Protection of Human Rights Act, 1993 establishes the National Human Rights Commission, State Human Rights Commission and Human Rights Courts for protecting human rights of the country. The NHRC protecting refugees in human rights relating issues in India in one occasion, The National Human Rights Commission received a petition from Chakma refugees residing in the state of Arunachal Pradesh they are threatened by the All Arunachal Pradesh Student Union (AAPSU) to leave the country the issue moved the Supreme Court, indicating “that there was prima facie evidence to support the claim of the refugees. The court after considering the evidence directed that the Chakmas protected by the state government and that all those eligible and interested in applying for Indian citizenship should be dealt with according to the relevant laws.”
The Indian Penal Code (IPC), 1860, applies equally to nationals, refugees and other foreigners. A refugee may be charged under sections 418, 419, 420, 468 and 471 of IPC when, for example, he has attempted to mislead Indian authorities by using fraudulent travel documents. A refugee may travel on a completely counterfeit document; he may use a genuine document where he changes the relevant information, or he may obtain a genuine document by false means. Unfortunately, the concerned state authorities often do not consider the compelling factors that may have brought the refugee to India. In many instances, the gravity of the circumstances coerces the refugee to obtain a false passport or a forged visa for entry into India. Alternatively, his country may not have been willing to provide him with genuine documents or he may not have had the time to obtain them.
However, Refugees are commonly detained for violating the following provisions of IPC: cheating by personating (section 416); cheating and dishonestly including delivery of property (section 420); forgery (section 463); and making and using forged documents (section 464).
These offenses are interrelated. A refugee may be charged with all of these offenses if he has forged a passport, visa or residential permit. Refugees detained for illegal entry into India who also possess travel documents that may be forged, false or fabricated would attract the provisions of the above sections of the Indian Penal Code and may be prosecuted for the same.
Under the Foreigners Act, all foreigners in India are required to register themselves with Foreigners Regional Registration Office (FRRO) in their area of residence. The office registers the name of the foreigner in its records and issue the person a residential permit. The lack of national legislation or specific refugee policy so the authorities followed the ad hoc policy. Some groups of refugees are issued residential permits. Afghan and Burmese refugees are issued permits allowing them to stay in India. However, refugees groups like the Iranians, Iraqis, and Sudanese have not granted such documents. However, “there are instances where refugees recognized by the Indian government, and who have been issued valid refugee identity documents, are latter prosecuted for illegal entry or overstay.”
(c) Policy, Practice, and Authorities on Refugee Issue
The administration dealing with refugees includes the Ministry of Home Affairs, the Ministry of External Affairs and other related departments of the central state governments. Under section 3 of the Foreigners Act, 1946, the administration practiced different policies for various groups of refugees. There is no central agency dealing with refugees in India. It is, therefore, possible that different administrative bodies deal with the same problem in various ways. However, in routine matters, the center communicates its policies to the home ministry in the states. At the same time, it communicates the same decision to the concerned departments, resulting in delayed decisions, with refugees taken into detention.
In some instances, “the central government may issue clear directives to the states and delegate its power under section 3 of the Foreigners Act 1946 for example, in the case of Sudanese refugees, the policy regarding Sudanese nationals who had been students in India was expressly recorded by the central government and directives to the state of Maharashtra.”
In other instances, the state and central governments are different practices in their policy in the issue of refugees in the concerned state. In NHRC v. State of Arunachal Pradesh (1996 SC AIR 1234), the central government was willing to entertain applications for citizenship from approximately 4, 012 Chakmas who were settled in Arunachal Pradesh. However, the state government refused to forward their applications and in fact stood by as repressive measures were taken against the refugees in an attempt to evict them.
Refugees normally have the freedom to move around the country with the restrictions applicable to any other foreigner. They are also allowed to practice their religion and follow their culture. In the case of refugees whose entry into India is legal or illegal subsequently legalized, there is limited interference by the administration regarding these basic freedoms. Refugees have access to the health and education facilities in India, and no discrimination is practiced against them on the basis of their refugee status. However, refugees enter India illegally or overstay the permitted period have strict restrictions on their movement in accordance with the legislation relating to foreigners, like Foreigners act, 1946, the Foreigners Order, 1948, and the Passport Act, 1967. Provisions of the Foreigners Act apply to all distinction is made in law between asylum seekers and other foreigners.
However, courts sometimes accept the special situation of refugees. But sometimes many refugees are deported because they do not have valid travel documents. This act of omission is because of the lack of a refugee status. Courts at all the time have mostly stayed deportation orders in several cases, pending a decision on refugee status and citizenship application.
.“In the case of State v. Mehmud Ghazaleh, the refugee is found of invalid or fake travel documents and violation of the law of the Indian country, the border authorities detain the refugee. After the initial investigation, the matter referred to the area police for further investigation, detention of the refugee and the registration of a first information report (FIR). The police put the accused refugee in the area prison and produce him in the local district court for trial."
In case a refugee is detected or exiting the country in established seaports and airports without travel documents, he is immediately detained by the immigration or authorized custom officers and an investigation is conducted. In case of illegal entry, the immigration authorities immediately deport the refugee to the country where he last came from. This is in violation of the principle of non-refoulment. In the pending deportation, the refugee is put in a detention cell in the immigration section of the airport or seaport the basic conditions of living are usually unsatisfactory. He has to buy his own meals also. Suppose if he deported, the cost of the transport ticket is bought by the refugee. For example, Majid Ahmed, Abdul Majid Mohd v. Union of India Case. Eva Masar Musa Ahmad case refugees who not comply with the mandatory requirement to obtain and renew residential permits so he was arrested and produced before the local sessions court. The court orders them to be detained in the local prison pending trial.
The police normally do not consider any claims of refugee status by the refugee. According to under section 3 of the foreigner Act, 1946, the administrative authorities may leave India notices to those refugees who failed to extend their travel permits or who ordered to deport by the court. In this kind of case, the refugee forcibly deported if he fails to comply with the notice.
However, a writ petition can be filed at the concerned court. Indian courts, generally strictly interpret the legislation on foreigners by refusing to interfere with the powers of the executive. But in the refugees issue the court practice a more humane approach to protect the rights of refugees in India. However, some times this approach is unsystematic and dependent upon the situation. It is an exception to the normal rule.
In 1996, the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh intervened with a liberal interpretation of the law to suggest that refugees are a class apart from foreigners deserving of the protection of Article 21 of the Constitution. The Court held at Para. 20,
“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to the procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so."
There is no real and specific recognition of the right against nonrefoulement. But courts have, on rare occasions, accorded to individual refugees the right against forced repatriation. Courts have also provided a certain measure of socio-economic protection in special circumstances. The role of the UNHCR in India has also been given a limited recognition by the judiciary. Courts have stopped deportation proceedings and ordered the release of individual refugees in order to provide them with an opportunity to approach the UNHCR for refugee status determination or to allow resettlement to take place.