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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.
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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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The Law, Policy And Practice Of Refugee Protection In India
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