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
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 RefugeesThe 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 , 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
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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