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
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
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
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 India
17, 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.
- Dev Vishal Kunwar
- Hariom Dixit