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Refugee Law: The Indian Penal Code Perspective

History of the Indian refugees
India is one of the few countries to feel the refugee status in the last half-century. Indian history is evident in the large-scale immigration of people from various countries. These migrations had taken place in 2 ways: “Hindukush Mountains in the West and the Patkoi range in the East”.

After Independence, the first twenty-five years of India was spent on acquiring the responsibility of 20 million refugees. This was due to the separation of India and Pakistan. As a result, India had to brave a task by granting relief to the relocated persons from West Pakistan. “At the initial stage, 160 relief camps were established and the total expenditure incurred was Rs. 60 crores approximately.” There were many steps taken by the government of India to succeed with the refugee problem.

The most significant step that had been passed by the government was the Rehabilitation Financial Administration Act, 1948. The utmost question arises in this Act when the definition of displaced person was granted that what will be the legal status of these removed persons? The term refugee was defined in the 1951 convention relating to the status of refugees. After observing the situations of displaced persons from India to Pakistan and vice versa, it was clear that the condition of displaced person was not different from that of refugees.

India had to face another refugee influx in 1959 when Dalai Lama along with his followers fled and reached India. The government of India presented Dalai Lama and his followers a political shelter. Another refugee influx which our country had to face was in 1971 when 10 million refugees fled from East Pakistan to India. For this asylum, India was bound by the humanitarian obligation to give shelter to the refugees.

After some gap, India was again affected by the influx of refugees from Sri Lanka and Bangladesh in 1983 and 1986. As per the World Refugee Report, India hosted around 400,000 refugees along with at least 2,000,000 refugees and some 237,000 internally displaced persons.

The following two cases will explain the position of law as well as the procedure that is followed in two specific circumstances. Mehmud Ghazaleh, an Iranian refugee registered with UNHCR, was arrested while illegally exiting India for Nepal via the Sonauli border in District Maharajgunj, U.P. The refugee was going on forged & fabricated travel documents. He was arrested by the border officials who prima facie found that his travel documents were produced.

They handed the refugee over to the local police station at Sonauli for investigation and registration of FIR u/s 419/420/468/471 IPC read with Sec 3/6 of the Passport Act and Sec.14 Foreigners Act. He was finally interned at the Gorakhpur district jail. In another case, two Afghan refugees, Shah Ghazai and his minor son Assadullah were arrested by the authorities at the Attari border at Amritsar, Punjab while trying to illegally exit India for Afghanistan via Pakistan. They were returned over to the local police in Gharinda, district Amritsar for examination and registration of FIR and were subsequently interned at the Amritsar Central Jail.

NGOs and Human Rights activists look for examples and often occur through legal action in courts, in cases of presumed illegal arrest of refugees, individually in cases where it is alleged that formal FIR is not written by the concerned law enforcing authorities even after such detention.

It is sometimes claimed that such a condition obtains in cases where the refugee is suspected to be a spy or a subversive opening the Indian borders with the leisurely and mala-fide intent to cause harm to the stability and honour of the country or a person presumed to be engaged in trans-border crime like stealing etc.

In such cases accusations are made that the refugee’s arrest would not be recorded until the courts are in a position to know the credentials of the individual(s) concerned. The following case is illustrative of the above, even though the details pertaining to it may be somewhat different.

An Iranian refugee, Syed Ata Mohamadi, recognised by UNHCR, was arrested at the Bombay International airport en route to Canada. He was arrested at the entrance lounge of the airport for travelling on an assumed name, on a false passport. His detention continued over a month, he was published only on the attack of the Bombay High Court.

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