India's diversity, stability and relatively well established rule
have made it a natural destination for people fleeing persecution
instability in their own countries. Within the South Asian region,
stands out as an exception of tolerant, democratic and secular
government in a neighborhood of unstable and volatile states.
historically faced numerous influxes over many millennia and the
of these peoples to integrate into a multi-ethnic society and
peacefully to local cultures and economies has reinforced the
of India being a country traditionally hospitable to refugees.
shares seven land borders and one sea border with countries in
states of strife and war; and, over the years, has hosted large
populations from neighboring countries. There are no authoritative
statistics on the number of people who have fled persecution or
in their countries of origin to seek safety in India. However,
of India's porous borders and accommodative policies, it was
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
in his country of origin on account of race, religion,
membership of a particular social group, or political opinion(2).
Therefore, refugees and asylum seekers are externally displaced
Framework For Refugee Protection:
After the Second World War and the shared European experience of
displacement, the Refugee Convention was adopted with restricted
geographical and temporal conditions to apply to post-War Europe.
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,
two key legal documents provide the basic framework for refugee
protection across the world. As of February 2006, 146 countries
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
for a national legislation to govern the protection of refugee.
(1) Florina Benoit, India: A National Refugee Law Would Equalize
International, 2004. Also, Country Operations Plan for India,
Commissioner for Refugees, 2006.
(2) Article 1A(2) of the Refugee Convention defines a refugee as a
who, owing to well-founded fear of being persecuted for reasons
race, religion, nationality, membership of a particular social
political opinion, is outside the country of
his nationality and is unable, or owing to such fear, is unwilling
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
Foreigners Act, 1946 to govern the entry, stay and exit of
India. However, the Foreigners Act is an archaic legislation that
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
who is not a citizen of India, thus covering all refugees within
ambit as well. Without a specialized governance regime for country
his former habitual residence as a result of such events, is
owing to such fear, is unwilling to return to it. The unrestricted
of the executive to remove foreigners was first confirmed by the
Court in1955 (4), where it held that:
The Foreigners Act confers the power to expel foreigners from
vests the Central Government with absolute and unfettered
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
has been upheld by the Supreme Court in a number of subsequent
(B) Limited Constitutional Protection
However, foreigners are entitled to some degree of constitutional
protection while in India. These include the protection of the
clause [Article 14] and the life, liberty and due process
[Article 21] of the Indian Constitution. While Article 14
equality before the law and the equal treatment of the law,
classifications of persons into separate and distinct classes
intelligible differentia with a nexus to the object of the
classification are allowed. Article 21 protects any person from
deprivation of his life or personal liberty except according to
procedure established by law. From a rather staid interpretation
provision, the Supreme Court has radically reinterpreted Article
include a substantive due process of law to be followed for any
action impinging on life and personal liberty. Foreigners enjoy
protection of Article 21 in two ways:
(a) they are equally entitled to the right against deprivation of
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,
(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
(2005) 5 SCC 665 at prs. 74-79.
(6) Louis De Raedt (1991) 3 SCC 554 at pr. 13; Chandrima Das
SCC 465 at prs. 28, 32 and 34; Anwar (1971) 3 SCC 104 at pr. 4;
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
confined to their own facts. Indian courts have generally upheld
deportation orders passed in contravention of the audi alteram
principle (8) In addition, foreigners are also entitled to the
protection of some of the rights recognized in Article 20 [the
against prosecution under retrospective penal law; the right
double jeopardy; and, the right against self-incrimination];
[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
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
which the government has a sensitive relationship, apply to the
government for political asylum which is usually granted without
extensive refugee status determination subject, of course, to
(c) Citizens of other countries apply to the Office of the United
Nations High Commissioner for Refugees (UNHCR) for individual
status determination in accordance with the terms of the UNHCR
and the Refugee Convention (11).
The ambivalence of India's refugee policy is sharply brought out
relation to its treatment of the UNHCR. While no formal
exists between the Indian government and the UNHCR, India
sit on the UNHCR's Executive Committee in Geneva. Furthermore,
not signed or ratified the Refugee Convention. This creates a
paradoxical and rather baffling situation regarding the UNHCR
India sits on its Executive Committee and allows the UNHCR to
its territory, but refuses to sign the legal instrument that
organization into existence.
(8)Supra note 10.
(9) India has received and accommodated mass influx refugees from
and Sri Lanka in special camps with varying facilities for health,
education and employment.
(10) Asylum seekers who enter India individually after a mass
taken place are granted asylum after a preliminary screening
This process continues in the case of Tibetans and Sri Lankans who
India in small numbers and must fulfil certain criteria before
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
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
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
suggest that refugees are a class apart from foreigners deserving
protection of Article 21 of the Constitution. The Court held at
We are a country governed by the Rule of Law. Our Constitution
certain rights on every human being and certain other rights on
citizens. Every person is entitled to equality before the law and
protection of the laws. So also, no person can be deprived of his
or personal liberty except according to procedure established by
Thus the State is bound to protect the life and liberty of every
being, be he a citizen or otherwise, and it cannot permit anybody
group of persons, e.g., the AAPSU, to threaten the Chakmas to
State, failing which they would be forced to do so.
India's International Commitments To
India refuses to join the Refugee Convention, which it first found
?Eurocentric? and then saw as a Cold War tool to criticize
countries by accepting refugees from the eastern bloc into what
declared to be the ?free world?. However, India has signed a
international conventions that impinge upon its obligations
refugees. These include the Universal Declaration of Human Rights,
[UDHR](13); the International Convention on Civil and Political
1966 [ICCPR](14); the International Convention on Economic, Social
Cultural Rights, 1966 [ICESCR]; the International Convention on
the Elimination of all Forms of Racial Discrimination, 1966
Convention Against Torture and Cruel, Inhuman or Degrading
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
Government by the National Human Rights Commission (NHRC).
The NHRC is a
statutory body established under the Protection of Human Rights
1993, and is mandated by Section 12(f) of that Act to
study treaties and other
instruments on human rights and make recommendations for their
implementation. The NHRC was instrumental in ensuring that the
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
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
law and shall, except where compelling reasons of national
otherwise require, be allowed to submit the reasons against his
expulsion and to have his case reviewed by, and be represented for
purpose before, the competent
authority or a person or persons especially designated by the
(15) Article 3(1) of the CAT states that, ?no state-party shall
expel, return (refuter)
The need for a stable and secure guarantee of refugee protection
India led to the establishment of an Eminent Persons Group (EPG),
chaired by former Chief Justice P. N. Bhagwati, to suggest a model
for refugee protection. However, the process of drafting
refugee protection legislation began earlier at the Third South
Informal Regional Consultation on Refugee Migratory Movements,
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
modified and then adopted by the Fourth Annual Meeting of the
Consultation at Dhaka in 1997. The India-specific model law was
of this regional consultative process to provide statutory
refugees in the diverse South Asian region. Despite technical or
specific misgivings about the model law, there has been unanimity
its necessity and widespread acceptance of its use as a framework
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,
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
5. Dhavan, Rajeev, Refugee Law and Policy in India, 2004.
6. Dhavan , Rajeev, Treaties and People: Indian Reflections, 44 JILI
7. Hathaway, James, The Emerging Politics of Non Entr'e
91, December, pp. 40-44.
8. The Eight Annual Report of the National Human Rights
2002-2003 at pp. 5.20-5.21.