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Protection Of Right Of Refugee Through Judiciary

India continues in receiving refugee inspite of its overpopulation where millions of people are below poverty line and are debarred from basic amenities. However there is no uniform legal framework to protect refugee. The main authority on the refugee law is the 1951 Convention Relating to The Status of Refugee which is known as Refugee Convention which defines the word Refugee.

According to the Article 1 of 1951 Convention a ‘refugee’ is a person who flees across an international border because of well founded fear of being persecuted in his country of origin for the reasons of race, religion, nationality, membership of a particular social group and political opinion and is not willing to go back to his home state1 .

Despite the fact that India is a host to diverse groups of refugees, the country has no specific laws or cohesive policy for refugees. India is not a signatory to the 1951 Refugee Convention nor to its 1967 Protocol on the Status of Refugees.

Therefore, the protection of refugees is confined to ad-hoc measures taken by the Government of India, leaving refugees with little protection for their civil and political rights and virtually no legal provisions for their safety and welfare2 . There is the need for the protection of the rights of refugees and to improve their situation in India with a mission to assist asylum seekers, refugees and other displaced populations in realizing their basic human rights and accessing the justice system.

Foreigners are entitled to limited constitutional protection. These include protection of the equality under Article 14 of the Indian Constitution and protection of life and liberty under Article 21 of Indian Constitution. They are also entitled to the protection of right recognised under article 20, 22, 25, 28, 32. All these articles are applicable both for citizens and non citizens. · Article 14 guarantees equality before law and equal protection of law. The executive distinguishes foreigners according to their needs and deal with them differently based on intelligible differentia having the nexus with the object.

Article 21 deals with the protection of life and personal liberty. The Supreme Court has reinterpreted Article 21 to include a substantive due process law which is followed against the state action. · Article 20 deals with Ex post facto law, right against double jeopardy and right against self incrimination. · Article 22 deals with right against arrest and detention. · Article 25-28 deals with right to freedom of conscience and free practice and propagation of religion. · Article 32 grants the right to move to the Supreme Court for enforcement of these above fundamental rights.

Article 51(c) of the Indian Constitution provides that the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. · Article 253 of the Constitution gives the Indian Parliament the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or any decision made at any international conference, association or body.

In Visakha V. State of Rajasthan, Supreme Court has ruled in favour of harmonious construction of international law and domestic law when it is consistent with fundamental rights. As in this case there was no legislation pertaining to prevention of sexual harassment, Supreme Court relies on the objective of CEDAW and laid down a guide line for preventing sexual harassment. It shows that in case of deficiency of domestic law regarding any matter, Indian Courts are empowered to interpret any hard cases in the light of international convention or treaty.

In India judiciary has played a major role in protecting refugees. A number of judicial decisions of various High Courts and the Supreme Court provide a series of rights to millions of refugees who had fled their country of origin and have crossed the internationally recognised border and are staying in Indian Territories. The courts have invoked the constitutional provision to protect the rights of refugees.

There are many unreported cases where Supreme Court and various High Courts have taken appropriate measures in the protection of refugees and their rights. There are number of cases where court has ordered the life of refugees who are in danger to be safeguarded.

 In N.D Pancholi V. State of Punjab, the Supreme Court stayed the deportation order issued against a Burmese refugee and allowed him to seek refugee status from the UNHCR office in New Delhi. In Dr.Malvika Karelkar V. Union of India17, the Supreme Court stayed the deportation order issued against 21 Burmese refugees from the Andaman Islands and allowed them to seek refugee’s status from UNHCR

In India adopting model national legislation is the first step towards refugee protection. Judiciary and human right instruments are the only source to protect refugees which depend upon case to case but the difficulties arises when there is mass influx of refugees coming from different states. It is therefore highly essential to draft legislation on refugees so that there will be a uniform legal framework to recognise the rights of refugees. The domestic NGOs and UNHCR are complimentary to each other.

The only act of UNHCR is to recognise refugees within its mandate. In a situation where Government of India denies access to UNHCR and other foreign humanitarian agencies, domestic NGOs play the most crucial role to provide "protection" to the refugees. By enacting domestic law, refugee can be distinguished from IDPs and can acquire specific protection. India is therefore not required to sign 1951 Convention as protection is already been given by Indian Constitution and judiciary. Now it is high time to think for a specific legislation on refugees which can entertain the future upcoming refugees in India without any human right violations.

Written By:
  1. Dev Vishal Kunwar
  2. Hariom Dixit

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