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law Articles The Law, Policy And Practice Of Refugee Protection In India

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 Isha Bothra - Symbiosis Society's Law College

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Introduction
India's diversity, stability and relatively well established rule of law have made it a natural destination for people fleeing persecution and instability in their own countries. Within the South Asian region, India stands out as an exception of tolerant, democratic and secular government in a neighborhood of unstable and volatile states. India has historically faced numerous influxes over many millennia and the ability of these peoples to integrate into a multi-ethnic society and contribute peacefully to local cultures and economies has reinforced the perception of India being a country traditionally hospitable to refugees. India shares seven land borders and one sea border with countries in varied states of strife and war; and, over the years, has hosted large refugee populations from neighboring countries. 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 was estimated that India hosted approximately 3,30,000 such people in 2004(1) According to the Convention Relating to the Status of Refugees, 1951 [Refugee Convention], a refugee is a person who flees across an international border because of a well-founded fear of being persecuted in his country of origin on account of race, religion, nationality, membership of a particular social group, or political opinion(2). Therefore, refugees and asylum seekers are externally displaced people

Legal Framework For Refugee Protection:
After the Second World War and the shared European experience of massive displacement, the Refugee Convention was adopted with restricted geographical and temporal conditions to apply to post-War Europe. In 1967, in an effort to give the Convention universal application, a Protocol relating to the Status of Refugees [1967 Protocol] that removed the restrictions of the Convention was added. Together, these two key legal documents provide the basic framework for refugee protection across the world. As of February 2006, 146 countries were States Parties to either the Convention or its Protocol or both. However, India has repeatedly declined to join either the Refugee Convention or its 1967 Protocol. In addition, India has resisted demands for a national legislation to govern the protection of refugee.

(1) Florina Benoit, India: A National Refugee Law Would Equalize Protection, Refugees International, 2004. Also, Country Operations Plan for India, United Nations High Commissioner for Refugees, 2006.

(2) Article 1A(2) of the Refugee Convention defines a 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, is unwilling to avail himself of the protection of that country

(A) The Foreigners Act and its Application to Refugees
In the absence of a specialized statutory framework, India relies on the Foreigners Act, 1946 to govern the entry, stay and exit of foreigners in India. However, the Foreigners Act is an archaic legislation that was enacted by a colonial government in response to the needs of the Second World War(3) Section 2(a) of the Act defines a foreigner as a person who is not a citizen of India, thus covering all refugees within its ambit as well. Without a specialized governance regime for country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The unrestricted power of the executive to remove foreigners was first confirmed by the Supreme Court in1955 (4), where it held that:

The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.

The untrammeled right of the executive to remove foreigners from India has been upheld by the Supreme Court in a number of subsequent decisions(5).

(B) Limited Constitutional Protection
However, foreigners are entitled to some degree of constitutional protection while in India. These include the protection of the equality clause [Article 14] and the life, liberty and due process provisions [Article 21] of the Indian Constitution. While Article 14 guarantees equality before the law and the equal treatment of the law, classifications of persons into separate and distinct classes based on intelligible differentia with a nexus to the object of the classification are allowed. Article 21 protects any person from the deprivation of his life or personal liberty except according to procedure established by law. From a rather staid interpretation of this provision, the Supreme Court has radically reinterpreted Article 21 to include a substantive due process of law to be followed for any state action impinging on life and personal liberty. Foreigners enjoy the protection of Article 21 in two ways:

(a) they are equally entitled to the right against deprivation of life or bodily integrity and dignity(6),
(b) to a certain extent, the right against executive action sans procedural due process accrues to them(7).

(3) The Statement of Objects and Reasons of the Foreigners Act, 1946.
(4) Hans Muller of Nuremberg AIR 1955 SC 367 at pr. 36.
(5)Louis De Raedt (1991) 3 SCC 554 at pr. 13 and Sarbananda Sonowal (2005) 5 SCC 665 at prs. 74-79.
(6) Louis De Raedt (1991) 3 SCC 554 at pr. 13; Chandrima Das (2000) 2 SCC 465 at prs. 28, 32 and 34; Anwar (1971) 3 SCC 104 at pr. 4; and, National Human Rights Commission (1996) 1 SCC 742 at pr. 20.
(7) P. Mohammad Khan (1978) II APWR 408.

However, cases, which suggest a due process for deportation, have to be confined to their own facts. Indian courts have generally upheld deportation orders passed in contravention of the audi alteram partem principle (8) In addition, foreigners are also entitled to the protection of some of the rights recognized in Article 20 [the right against prosecution under retrospective penal law; the right against double jeopardy; and, the right against self-incrimination]; Article 22 [rights upon arrest or detention]; Articles 25 28 [the right to freedom of conscience and the free practice and propagation of religion]; and, Article 32.

Indian Practice Regarding Refugee Protection:
The practice of the Indian Government has been to deal with refugees in three main ways:

(a) Refugees in mass influx situations are received in camps and accorded temporary protection by the Indian Government including, sometimes, a certain measure of socio-economic protection (9)

(b) Asylum seekers from South Asian countries, or any other country with which the government has a sensitive relationship, apply to the government for political asylum which is usually granted without an extensive refugee status determination subject, of course, to political exigencies (10);

(c) Citizens of other countries apply to the Office of the United Nations High Commissioner for Refugees (UNHCR) for individual refugee status determination in accordance with the terms of the UNHCR Statute and the Refugee Convention (11).

The ambivalence of India's refugee policy is sharply brought out in relation to its treatment of the UNHCR. While no formal arrangement exists between the Indian government and the UNHCR, India continues to sit on the UNHCR's Executive Committee in Geneva. Furthermore, India has not signed or ratified the Refugee Convention. This creates a paradoxical and rather baffling situation regarding the UNHCR where India sits on its Executive Committee and allows the UNHCR to operate on its territory, but refuses to sign the legal instrument that brought the organization into existence.

(8)Supra note 10.

(9) India has received and accommodated mass influx refugees from Tibet and Sri Lanka in special camps with varying facilities for health, education and employment.

(10) Asylum seekers who enter India individually after a mass influx has taken place are granted asylum after a preliminary screening mechanism. This process continues in the case of Tibetans and Sri Lankans who enter India in small numbers and must fulfil certain criteria before they are registered by the Indian Government.

(11) In 2003, the UNHCR handled, inter alia, 10,283 refugees from Afghanistan and 940 refugees from Myanmar. The UNHCR also handles refugees from Iran, Somalia, Sudan and other countries. See, the UNHCR Statistical Yearbook India, 2003, UNHCR Geneva.

Judicial Treatment Of Refugees:
Indian courts, while generally strictly interpreting the stringent legislation on foreigners by refusing to interfere with the powers of the executive, have, on occasion, evolved a wider and more humane approach to protect the rights of refugees in India. In 1996, the Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh (12) 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 pr. 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 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.

India's International Commitments To Refugee Protection
India refuses to join the Refugee Convention, which it first found too ?Eurocentric? and then saw as a Cold War tool to criticize communist countries by accepting refugees from the eastern bloc into what was declared to be the ?free world?. However, India has signed a number of international conventions that impinge upon its obligations towards refugees. These include the Universal Declaration of Human Rights, 1948 [UDHR](13); the International Convention on Civil and Political Rights, 1966 [ICCPR](14); the International Convention on Economic, Social and Cultural Rights, 1966 [ICESCR]; the International Convention on the Elimination of all Forms of Racial Discrimination, 1966 CERD; the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, 1984 CAT (15); and, the Convention for the Elimination of all Forms of Discrimination Against Women, 1979 CEDAW. Significant pressure to accede to the Refugee Convention and enact refugee protection legislation for the country is exerted on the Indian Government by the National Human Rights Commission (NHRC).

The NHRC is a statutory body established under the Protection of Human Rights Act, 1993, and is mandated by Section 12(f) of that Act to study treaties and other international instruments on human rights and make recommendations for their effective implementation. The NHRC was instrumental in ensuring that the Indian Government signed the
CAT on 14th October 1997.

(12) (1996) 1 SCC 742.
(13) Article 14(1) of the UDHR states that, everyone has the right to seek and to enjoy in other countries asylum from persecution.
(14) Article 13 of the ICCPR states that, an alien lawfully in the territory of a state-party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
(15) Article 3(1) of the CAT states that, ?no state-party shall expel, return (refuter)

Future Protection:
The need for a stable and secure guarantee of refugee protection in India led to the establishment of an Eminent Persons Group (EPG), chaired by former Chief Justice P. N. Bhagwati, to suggest a model law for refugee protection. However, the process of drafting appropriate refugee protection legislation began earlier at the Third South Asian Informal Regional Consultation on Refugee Migratory Movements, where a five-member working group was constituted to draft a model refugee protection law for the South Asian region. The first draft of this proposed law was presented at the 1997 SAARC LAW Seminar in New Delhi, modified and then adopted by the Fourth Annual Meeting of the Regional Consultation at Dhaka in 1997. The India-specific model law was born out of this regional consultative process to provide statutory protection to refugees in the diverse South Asian region. Despite technical or specific misgivings about the model law, there has been unanimity about its necessity and widespread acceptance of its use as a framework for future protection.
_____________
Bibliography
1. Benoit Florina, India: A National Refugee Law Would Equalize Protection, Refugees International, 2004.
2. Chimni, B. S., The Legal Condition of Refugees in India, Journal of Refugee Studies, Vol. 7, No. 4, 1994, pp. 394-398.
3. Chimni, B. S., From Resettlement To Repatriation: Towards a Critical History of Durable Solutions To Refugee Problems, UNHCR, 1999.
4. Country Operations Plan For India United Nations High Commission for Refugees, 2006.
5. Dhavan, Rajeev, Refugee Law and Policy in India, 2004.
6. Dhavan , Rajeev, Treaties and People: Indian Reflections, 44 JILI 1996, pp.362-376.
7. Hathaway, James, The Emerging Politics of Non Entr'e Refugees, Vol. 91, December, pp. 40-44.
8. The Eight Annual Report of the National Human Rights Commission, 2002-2003 at pp. 5.20-5.21.

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