Constitutional Provision Regarding Refugee Law in India

  • Harshit Rai and Vaibhav Dwivedi
  • Show Author Details
  • Harshit Rai

    Student at Amity Law School, Amity University Uttar Pradesh, Lucknow, India

  • Vaibhav Dwivedi

    Student at Amity Law School, Amity University Uttar Pradesh, Lucknow, India

  • img Save PDF

Abstract

India is home to many refugees. Whenever India is faced with humanitarian crisis of dealing with refugees it has done as any mature democratic republic would do. It has tried to balance the national security issue with that of the need of asylum seekers. However, the lack of domestic laws makes the administrative action subject to suspicion and high handedness. The threat of terrorist attacks as seen in recent past makes the Government cautious of drafting laws which may limit its power to protect its own people. Not becoming party to the Convention on Status of Refugees, 1951 and its 1967 Protocol is not the solution to the problem. India needs to revisit its policy on refugees and have municipal laws.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 261 - 272

DOI: https://doij.org/10.10000/IJLMH.11446

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

Human Rights of Refugees are one of the major problems of the world. According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.” India has one of the largest refugee population in the world. Regardless of the fact that India serves to the diverse group of refugees, example: – Syrians, Afghans, Palestinians, Persians, Ethiopians and Christians, etc., the country does not have specific domestic laws and policies for the refugees. Although India is not the party to the 1951 Refugee Convention or its 1967 protocol, even do not have a national refugee protection framework, but still, it continues to give asylums to refugees of the neighbouring countries. Asylum seekers can get the refugee status from UNHCR if the status is not protected by the Indian Government. According to the Universal Declaration of Human Rights (UDHR) States have a duty to protect the inherent dignity and worth and dignity of every human being thereby including those of refugees and asylum seekers. The principle of non-refoulement also ensures that lives of asylum seekers are not put in danger by pushing them back into countries where they face persecution. Even States which are not signatory to the conventions are not outside the purview of the mandate to fulfil the basic rights of refugees as these rights have acquired customary nature. There has been development of refugee jurisprudence wherein not only the rights of political refugees are to be protected of refugees covered under Convention of 1951 but even those who are forced to leave on other grounds like economic deprivation. This is due to the development of protection of economic social and cultural rights as part of human rights first under Universal Declaration of Human Rights 1948 (UDHR) followed by enforceable conventions under International Covenant on Economic Social and Cultural Rights (ICESC). Originally ICESC was not considered binding and it was according to the capacity of the States that the provision required to be enforced. However, Human Rights interpretation tends to include Economic Social and Cultural rights along with civil and political rights. States today cannot refuse equal rights to all groups based on economic or social limitation of States. India has followed a liberal policy of humanitarian protection of refugees and asylum seekers. It is home to several groups of people who have come here and made it their home. However, the absence of a refugee specific legislation can be attributed to India’s volatile situation in South Asian politics and the threat of terrorism faced by it. Even in such absence of a specific law, India has addressed the needs of refugees who have fled from their home country into its territory.

II. Refugees

The term ‘Refugee’ has a particular meaning in international law and its legal definition is laid down in the United Nations 1951 Convention relating to the Status of Refugees (to be referred to as “1951Convention”) and its 1967 Protocol. Article 1 para. 2 of the 1951 Convention defines the ‘refugee’ as “A person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.” It should be appreciated that a person becomes a refugee because of circumstances which are beyond that person’s control, often poignant. He/she is left with no other option but to flee from human rights violations, socio-economic and political insecurity, generalised violence, civil war or ethnic strife all these leading to fear of persecution. Thus, it may be noted that there are well-defined and specific grounds, which have to be satisfied before a person can qualify to be a ‘refugee’. These grounds are well- founded on fear of persecution and considerations of a number of factors which may operate individually or collectively.

Refugees are considered under the term ‘alien’ in India. The term appears in Constitution of India (Article 22), Section 83 of the Indian Civil Procedure Code, Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes.

III. History of Refugees

Asylum seekers are existing from many years, the early man used to migrate for finding food, shelter and other resources. Around AD 600, the right to seek asylum in a holy place or a church was codified in law by King Ethelbert of Kent. Many such laws were rising around Europe during the Medieval Period which was the start of such provisions. But it was the 18th century when it was required for people to show id verification to cross borders in many countries. The biggest Refugee crises occurred during the World Wars. The first world war lasted almost 4 years. One million refugees of Belgium went to the Netherlands and there on transferred to the UK and other countries. France, Germany was also the worst affected. When Russia attacked Prussia, 870000 fled. World War 2 was one such war which never happened in the history of the world. By 1959 some 900,000 European refugees were taken by European countries. And 461,000 had been accepted by the USA, and 523,000 by other countries. World War 2 caused around 60,000,000 refugees in Europe itself.

(A) History of Refugees in India

Pre-Independence

India is one of the few countries to experience the refugee situation in the last half century. Indian history is evident by large-scale migration of people from different countries. These migrations had taken place in 2 ways: “Hindukush Mountains in the West and the Patkoi range in the East”.

Post-Independence

the first twenty-five years of India was spent on accepting the responsibility of 20 million refugees. This was due to the partition of India and Pakistan. As a result, India had to confront a task by providing relief to the displaced persons from West Pakistan. “At the initial stage, 160 relief camps were organized and the total expenditure incurred was Rs. 60 crores approximately.” There were many steps taken by the government of India to overcome with the refugee problem. The most important step that had been passed by the government was the Rehabilitation Financial Administration Act, 1948.  A Huge number were displaced from India to Pakistan and vice versa and the problem was much similar to Refugees. Another instance was in 1959 when Dalai Lama and his followers approached India as refugees and India provided them a Political Asylum. The year of 1971 saw many refugees travelling from East Pakistan to India. In 1983 and 1986 India had refugees coming in from Sri Lanka and Bangladesh respectively. At the end of 1992, India has hosted 2,000,000 migrants and 237,000 displaced persons. India always has some or the other Refugees coming in throughout its history.

IV. Status of refugees in india

A brief look at the refugee scenario in India will help appreciate in the proper perspective, the complexities of law enforcement in a variety of situations impinging upon the refugees. India has been home to refugees for centuries. From the time when almost the entire Zoroastrian community took refuge in India fleeing from the persecution they were then subjected to on religious grounds in Iran, India has, from time to time continued to receive a large number of refugees from different countries, not necessarily from the neighbouring countries alone. The most significant thing which deserves to be taken note of is that, there has not been a single occasion of any refugee originating from the Indian soil except the transboundary movement of the people during the partition of the country in 1947. On the other hand, it has invariably been a receiving country and in the process, enlarging its multi-cultural and multi-ethnic fabric. In keeping with its secular policies, India has been the home to refugees belonging to all religions and sects. It is relevant to point out that since its independence India has received refugees not only from some of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.

V. India status on religious refugees

Afghanistan

Currently, there are around 8,000 to 11,684 Afghan refugees in India, most of whom are Hindus and Sikhs. The Indian government has allowed the United Nations High Commissioner for Refugees (UNHCR) in India to operate a programme for them. In 2015, the Indian government granted citizenship to 4,300 Hindu and Sikh refugees. Most were from Afghanistan, and some were from Pakistan.

Bangladesh

Many people from East Bengal, mainly Hindus, migrated to West Bengal during the partition of India in 1947. The native population of West Bengal sometimes referred to these refugees as “Bengal’s”. From 1947 to 1961, the percentage of the population of East Bengal that was Hindu decreased from 30% to 19%. In 1991, it was down to 10.5% The percentage further decreased from 2001, where the census recorded it to be 9.2%, to 2008, when it was estimated to be 8%.

Chakmas are a Bangladeshi Buddhist community. Chakma immigrants from Bangladesh have settled in the southern part of Mizoram because they were displaced by the construction of the Kaptai Dam on the Karnaphuli River in 1962. Because there was no rehabilitation or compensation, they fled from Bangladesh to India.

In 2001, the BBC reported that many Bangladeshi Hindu families had entered India to escape repression in Bangladesh because they were members of minority religious groups.

Pakistan

Partition of India

Following the partition of India, massive population exchanges occurred between the two newly formed nations, spanning several months. Once the borders between India and Pakistan were established, a total of about 14.5 million people migrated from one country to the other, seeking safety from being an adherent to the religion of the majority in their new country. Based on the 1951 census, immediately after the partition 7.226 million Muslims migrated from India to Pakistan, while 7.249 million Hindus and Sikhs moved from Pakistan to India. About 11.2 million migrants crossed the western border, making up 78% of the total migrant population. Most of them travelled through Punjab. 5.3 million Muslims moved from India to West Punjab in Pakistan, and 3.4 million Hindus and Sikhs moved from Pakistan to East Punjab in India. Elsewhere in the west, 1.2 million moved in each direction to and from Sind. The initial population transfer on the east involved 3.5 million Hindus moving from East Bengal to India and only 0.7 million Muslims moving the other way.

Recent arrivals

Non-Muslims face constitutional and legal discrimination in Pakistan. Consequently, Hindus and Sikhs from Pakistan have sought asylum in India; many have arrived in the 21st century. There are almost 400 Pakistani Hindu refugees in Indian cities.

Tibet

Many religious refugees come from Tibet. The 14th Dalai Lama, a leader of the Tibetan migration movement, left Tibet for India after the 1959 Tibetan uprising. He was followed by about 80,000 Tibetan refugees. Prime Minister Jawaharlal Nehru agreed to allow Tibetan refugees to settle in India until their eventual return to Tibet. The Tibetan diaspora maintains the Central Tibetan Administration, a government-in-exile, in McLeod Ganj, a suburb of Dharamshala, Kangra district, Himachal Pradesh. The organisation coordinates political activities for Tibetans in India.

In 1960, the government of Mysore State (now Karnataka) allotted nearly 3,000 acres (12 km2) of land at Bylakuppe in Mysore district. In 1961, Lugsung Samdupling, the first Tibetan exile settlement in India, was formed. A few years later, another settlement, Tibetan Dickey Larsoe (TDL), was established. Three more settlements were built in Karnataka: Rabgayling in Gurupura village near Hunsur, Dhondenling at Oderapalya near Kollegal, and Doeguling at Mundgod in Uttara Kannada. With the settlements, the state acquired the largest Tibetan refugee population out of every Indian state. As of 2020, Karnataka has 12 schools run by and for the Tibetan community.

Other states have provided land for Tibetans. Bir Tibetan Colony is a settlement in Bir, Himachal Pradesh. Jeerango in Gajapati district, Odisha, has a large Tibetan community and South Asia’s largest Buddhist monastery.

The government of India has built special schools for Tibetans, providing free education, healthcare, and scholarships for students who excel in school. A few medical and civil engineering seats at universities are reserved for Tibetans.

A document called the Registration Certificate (RC) is a permit for Tibetans to stay in India, renewed every year or half-year depending on the area. Every Tibetan refugee above the age of 16 must register for it, and RCs are not issued to refugees who have newly arrived. Another official document, the Indian Identity Certificate, nicknamed “Yellow Books”, allows Tibetans to travel abroad. It is issued one year after an RC is given.

Rohingya

Rohingya people are also known as Arakanese Indians who are stateless people from Myanmar. They are declared by UN as the most persecuted minorities in the world. The Rohingya population was denied citizenship according to the 1982 Myanmar Nationality Law. They had to flee due to the ongoing military crackdown by the Myanmar Army. More than 6700 Rohingya’s were killed in August 2017. They are in heavy numbers in different cities in India, but the government of India does not recognize them as refugees. Most of those refugees have migrated to Bangladesh. There was a mass displacement of refugees and forced relocations. Rohingya refugees face multiple protection risks as of December 2017. Though India refused to let Rohingya refugees enter the country as it posed security threats, 40,000 refugees have taken shelter in Assam and West Bengal. Though Bangladesh has stood up to help those refugees, it falling short of resources. In the case of Dongh Lian Khan v. Union of India the Delhi High Court held that the principle of non-refoulment is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality. In the case of NHRC vs Arunachal Pradesh, the Supreme Court held that the state is bound to protect the life and liberty of every human being, citizen or otherwise. Even then India is not ready to take Rohingya refugees and help them.

VI. Constitutional provision to refugees in india

Constitution of India are applicable to the refugees when they are in India. The most important Article is Article 21 which deals with Right to Life and personal liberty, it applies to everyone irrespective of whether they are a citizen of India. Many judgements have been given based on Article 21 on refugees.  Article 14 guarantees the person right to equality before the law.  Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 also available for non-citizens of India including Refugees.

Treatment given to the Asylum people were divided into three heads-

  • National Treatment
  • Treatment that is accorded to foreigners
  • Special Treatment
  1. National Treatment:The national treatment to the asylum people is same as the citizens of India. There are certain Articles in the Constitution of India, which takes care of the Fundamental Rights of all people in India. The rights such as equal protection to law under article 14, religious freedom under article 25, the right to life and personal liberty under article 21, right to social security and educational rights are guaranteed in Part III of the Indian Constitution.
  2. Treatment that is accorded to foreigners:– Under this head, there are rights which are related to the housing problems, movements, etc. the rights which are provided under this treatment are: right to employment or profession under article 17, freedom of residence and movement under article 26, right to housing under article 21, right to form association under article 15 and right to property under article 13 of the 1951 Refugee Convention.
  3. Special treatment: – This treatment includes the identity and travel document under article 28, exemption from penalties under article 3(1) of the 1951 Refugee Convention.

In the case of Louis De Raedt vs. Union of India[3], the court held that the fundamental rights to life, liberty, dignity are available to non-citizens of India. In the case of Visakha vs. State of Rajasthan[4], the court has held that “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”.

VII. Laws for refugees in india

India does not have specific laws regarding to the Refugees. However, India does have the Refugee and Asylum (Protection) Bill of 2009. But the main legislation that supports Refugees and Asylum is the Foreigners Act of 1946.

The laws related to refugees are:

  • Citizenship Act, 1955 (No.57 of 1955)
  • Extradition Act, 1962 (No. 34 of 1962)
  • Foreigners Act, 1946 (No.31 of 1946)
  • Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
  • India Penal Code Act, 1860 (No.45 of 1860)
  • Passport (Entry into India) Act, 1920 (No.34 of 1920)
  • Passport Act, 1967 (No.15 of 1967)
  • Protection of Human Rights Act, 1993 (No.10 of 1994)
  • Registration of Foreigners Act, 1939 (No.16 of 1939)
  • Immigrants (Expulsion from Assam) Act, 1950
  • Administration of Evacuee Property Act, 1950

VIII. Role of judiciary for the protection of refugees

Judiciary plays a vital role in protecting refugees, many cases gave landmark judgements regarding refugees. The judiciary has made it easy with the concepts of Social Action Litigation and Public Interest Litigation. When any of the refugees are detained or arrested by the Indian authorities, there would always be a danger of refoulment, repatriate or deportation. Those refugees who are arrested for the illegal stay can be detained illegally under administrative order without charges. The Foreigners Act vests an absolute and unfettered discretion in the Central Government to expel foreigners from India. The Supreme Court of India in Hans Muller of Nuremburg vs. Superintendent[5], Presidency gave “absolute and unfettered” power to the Government to throw out foreigners. The said judgment was again upheld by the Supreme Court in Louis De Raedt & Ors. vs. Union of India. In the same judgment, Supreme Court also held that foreigners have the right to be heard.

In the judgment of Ktaer Abbas Habib Al Qutaifi vs. Union of India[6] the High Court of Gujarat held that the principle of non-refoulment avoids ejection of a displaced person where his life or freedom would be undermined by virtue of his race, religion, nationality, enrolment of a specific social gathering or political conclusion. Its application ensures life and freedom of a person irrespectively of his nationality.

Non-Refoulment and Right to refugee Status: In Malavika Karelkar vs. Union of India[7], the deportation order issued against 21 Burmese refugees were stayed by the SC and allowed them to seek refugee status under UNHCR.

IX. Problems faced by refugees in india

Various countries protect their refugees by enacting refugee legislation based on international recognized principle. The countries that have signed the convention have a procedure for identifying the refugees and addressing them protection issue.

Although India has not signed the convention but are providing protection to the refugees. “However, consistency in the procedure for determining refugees is still lacking.” Since India has no uniform code for determining refugee status, there is no central body that deals with the refugees. After so many years also, there are various gaps that exist in the mechanism for dealing with refugees’ policy. This is because the government has not enacted a law for refugees.

Due to the several problems faced by the refugees and no proper legislation has not been passed the legal status of the refugees is miserable.

Problems Rohingyas are Facing in India

  • There are reported complaints open drains, unsanitary surroundings and slum-like conditions in the Rohingya camps across India.
  • Few children have been dead due to pneumonia, during the winter winds.
  • Snakes make a regular appearance during rains, as so do outbreak of dengue, diarrhoea and other diseases.
  • Some women refugees have reported instances of harassment.
  • The deporting announcements by Union government also made the community anxious.

X. Supreme court on refugees

The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation to regulate and justify the stay of refugees in India. In NHRC vs. State of Arunachal Pradesh[8], the Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life, health and well-being of Chakmas residing in the State and that their application for citizenship should be forwarded to the authorities concerned and not withheld. In various other cases, it was held that refugees should not be subjected to detention or deportation and that they are entitled to approach the U.N High Commissioner for grant of refugee status. In P. Nedumaran vs. Union of India[9] the need for voluntary nature of repatriation was emphasized upon and the Court held that the UNHCR, being a world agency, was to ascertain the voluntariness of the refugees and, hence, it was not upon the Court to consider whether consent was voluntary. Similarly, according to B. S. Chimni, the Supreme Court has erred in concluding in Louis de Raedt v Union of India that there is no provision in the Constitution fettering the absolute and unlimited power of the government to expel foreigners under the Foreigners Act of 1946. With regard to adopting international conventions in domestic laws, in Vishakha vs. State of Rajasthan, the Court observed that reliance can be placed in international laws. Therefore, the question that arises is whether India can refer to the 1951 Convention in interpreting the domestic legislation and whether it is really necessary to ratify these conventions. It is to be noted that merely ratifying the 1951 Convention does not ensure that the asylum seekers will not be kept out and also Article 42 of the same Convention permits reservations with respect to the rights of refugees which will defeat the purpose of ratifying the Convention. In the recent case where around 40,000 Refugees have come to India from Myanmar the Government on the basis of National security and treat of terrorist elements entering through this rout refused to give refugee status. The Supreme Court in Mohammad Salimullah and others vs. Union of India and Ors[10] while deciding whether the Government could deport the Rohingya refugees, as minority.

XI. UNHCR and NHRC in india

UNHCR in India is participating very actively as the number of cases regarding refugees is increasing day by day. If some refugee goes back to his country after being a refugee in India, UNHCR watches if the person is going back voluntarily. It performs the function of determination of refugee along with providing resources to them. UNHCR got involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The Delhi office of the UNHCR works to help refugees become self-sufficient with assistance and income-generating activates with the help of NGO’s. The main role of UNHCR in India is to make sure that the refugees are not forced to go back to their country from which they have fled until the issue rests in their country.

NHRC i.e., National Human Rights Commission in 1994, gave directions to Tamil Nadu Government to provide medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government regarding the government not supporting Chakmas, and got the decision of the court ordering the government to provide necessary help to the group. It gets involved in all the refugee issues in India and provides some or the other help required.

XII. Conclusion

In the whole world, though there are a number of conventions and laws governing refugees, the refugees still keep facing problems. When a country as big as India doesn’t have a Refugee Law, we can understand that many countries have the same face and are on the same boat. If UNHCR and NHRC work together, there will be much more development in the field of Refugee Law. There is definitely a need for India to set up a Law regarding Refugees, as in the future there may be many more issues due to various reasons. Whenever UNHCR tries to do something regarding refugees NGO’s should actively help them. Though protection to refugees is given under various articles of the Constitution, there needs to be a uniform Law that give equal rights to all the refugees. India continues to take the humanitarian view of the problem of the refugees. Considering the security issues due to which India is not a signatory to the 1951 Convention, it should give due consideration to the same. It should also take care that the refugee law is not mistreated and mis-utilized by persons who come to seek opportunities. Many judgements in India support the refugees. India has done a very good work regarding refugees, but needs to do much more. Many Rohingya refugees living in India are receiving support, but India is planning to deport them to their territory. In the past NHRC submitted a report for the ned for a Refuge law but didn’t receive a reply. If UNHCR and NHRC together do the same, there may be an answer. The Refugee Convention and its Protocol of 1951 and 1967 are the Conventions that received global response with many countries signing the convention. They consider most of the reasons of refugees and tell us the rights and other provisions that they should be given. India on the whole, needs a refugee law for governing refugees entering India.

The absence of a specific domestic law and ad hoc asylum status management might take away its soft power robbing it of the credibility in International arena in spite of accommodating so many groups of refugees even before the International rules for refugees were developed. Lack of a strong political will is also among the chief concerns. The issue of illegal migrations becomes important during elections when political parties can take advantage of these groups. India being one of developing countries and a deserving candidate for a permanent member of the UN needs to make its laws in compliance with the International regime. This is because even without the municipal laws India is inundated with refugee influx from different countries and it has more than often dealt with the refugee issues very humanely Tibetan and Sri Lankan refugees being good examples. Migration is continuing to grow and the reasons are varied it is time India adopted laws to deal with the issues so that there is transparency in administrative action. The process of deciding who is a refugee is also unclear. While the Indian government deals with asylum-seekers from Tibet and Sri Lanka, the office of UNHCR in New Delhi deals with asylum-seekers from other countries. There is need for greater coordination between Indian Government and UNHCR.

*****

[3] Louis de Raedt vs. Union of India 1991 AIR 1886, 1991 SCR (3) 149.

[4] Visakha vs. State of Rajasthan (1997) 6 SCC 241.

[5] Hans Muller of Nuremburg vs. Superintendent 1955 AIR 367, 1955 SCR (1)1284.

[6] Ktaer Abbas Habib Al Qutaifi vs. Union of India 1999 CriLJ 919.

[7] Malavika Karelkar vs. Union of India Writ Petition (Criminal No) 583 of 1992.

[8] NHRC vs. State of Arunachal Pradesh 1996 AIR 1234, 1996 SCC (1) 742.

[9] P. Nedumaran vs. Union of India 1993 (2) ALT 291, 1993 (2) ALT Cri 188.

[10] Mohammad Salimullah and others vs. Union of India and Ors. Writ Petition (Civil) No. 793/2017.

*****