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Refugee Law: The Constitution Perspective

India has had an aged opinion of granting humanitarian protection to refugees and asylum seekers. It has developed a very progressive refugee policy. Nevertheless, the inadequacy of a refugee specific legislation can be connected to India’s explosive situation in South Asian politics and the threat of terrorism faced by it.  Even in such lack of a specific law, India has approached the needs of refugees who have fled from their home country into its territory.

India hosted around 420,400 refugees, including some 110,000 from Tibet who fled since China’s 1951 annexation. Another 102,300, mostly Tamil Sri Lankans, escaped fighting between the Liberation Tigers of Tamil Eelam and the Sri Lankan armed forces. There were about 36,000 Buddhist ethnic Chakmas and Hajongs from present-day Bangladesh who left to Arunachal Pradesh after Muslim annexation of their land in 1964.

India has given differential treatment to refugees belonging to different countries. There were two major refugee flows from Bangladesh. The Chakmas were presented with incomplete facilities as approved by the National Human Rights Commission (NHRC) and repatriated in 1988. Tibetan refugees received a far better approach in relation to other refugee groups. With regard to Sri Lankan Tamil refugees, an official refugee decision method has been practised and the principle of non-refoulment has been complied with.

The International convention with the issue of refugees is the 1951 Convention on Status of Refugees and the 1967 Protocol attached to it.

The term refugee is defined as:
“…a person 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 or, owing to such fear, is unwilling to avail himself of that protection of that country; or who, not having a nationality and being outside a country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.”

India is not a party to the 1951 Convention or the 1967 Protocol. A single refugee is preserved primarily under the Constitution of India since there has been no national legislation passed on the subject of refugees. But the provisions of these international treaties have now obtained the status of customary international law and may be regarded as included into the domestic law to the extent of their agreement with the existing municipal laws and also when there is a void in the municipal laws. Also, Article 51(c) of the Constitution of India advocates fostering respect for international law.

Constitutional Framework for Protection of Refugees

The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to address Supreme Court for enforcement of Fundamental Rights (Article 32), are as much possible to non-citizens, including refugees, as they are to citizens.

The constitutional rights protect the human rights of the refugee to live with pride. The liberal interpretation that Article 21 has taken now includes right against solitary confinement [11], right against custodial violence, right to medical assistance  and shelter.

The Supreme Court has taken refuge to Article 21 of the Constitution in the absence of legislation to regulate and justify the stay of refugees in India. In NHRC v. State of Arunachal Pradesh, the Government of Arunachal Pradesh was required to complete the duty of safeguarding the life, health and well-being of Chakmas residing in the State and that their application for citizenship should be delivered to the officials concerned and not reserved. In various other cases it was held that refugees should not be constrained to detention or deportation and that they are entitled to approach the U.N High Commissioner for grant of refugee status.

In P. Nedumaran v. Union of India, the need for deliberate nature of repatriation was emphasized upon and the Court held that the UNHCR, being a world power, was to determine the voluntariness of the refugees and, hence, it was not upon the Court to reconsider 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.

In actuality Article 21 of the Indian Constitution does require certain constraints: any action of the State which denies an alien of his or her life and personal liberty without a method established by law would fall foul of it, and such action would absolutely include the refoulement of refugees. Therefore, the author opined that the Court should have continued to test the validity of the Foreigners Act as against Article 21.

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