A Critical Analysis of International Law on Refugees and Its Interface with

Citizenship Amendment Act, 2019 Of India.

Abstract- The refugee crises first got their highlight after the World Wars. In 1951 a
response to that was the Convention on the Status of Refugees with only 145 countries to be
signatory. Human rights are one of the core issues of international law. Thus, when it comes
to rights of refugees many other international and regional conventions partake in identifying
them. India due to political reasons, geographical reasons and as the matter of certain
principles did not sign 1951 convention on status of refugee but has signed with reservation
Bangkok Principles adopted in 2001. India has seen major influx of refugees since its
conception in 1947. Today India houses maximum refugees than any other South Asian
country. The government of India deems that the current legislations are enough to deal with
the legal complications refugee crises possess. India passed Citizenship Amendment Act in
2019, which is a controversial piece of legislation. The question lies if this piece violates any
international obligations the state has being signatory to these conventions and declarations.

1. Introduction

International law since the middle of the last century has been developing in various
directions, and its scope is immense. The raison d’etre of international law and determining
factor in its composition remains the needs and characteristics of the international political
system.1 Thus, from the regulation of space expeditions to maritime laws governing seas to
the protection of human and animal rights, international law has gone great lengths to
conserve peace and survive as a global village. It is the well-established theory that, along
with States, individuals, non-state entities, and international organizations, are all subjects of
international law.

International law since 1945 has focused primarily on the protection of individual human
rights, as can be seen from the Universal Declaration of Human Rights (UDHR). This focus
has been due to World War II and the humanitarian crises faced therein. Based on article 14
of UDHR, which recognizes the right of persons to seek asylum from persecution in other
countries, the United Nations Convention relating to the Status of Refugees, adopted in 1951,

1
Malcolm N. Shaw, International Law, 32, (8th ed. 2019).
2
U.N General Assembly, Res. 429(V), (14/12/1995), (Feb 15,2020 06:06 PM),
http://www.unhcr.org/refworld /docid/3b00f08a27.html, last seen on 21/10/2019.
is the center-piece of international refugee protection.2 This Convention entered into force on
22 April 1954. This convention defines a refugee as 'who has fear of persecution in the
country of his nationality or where he habitually resides on the grounds of race, religion,
nationality, membership of a particular social group or political opinion. However, there is no
concrete definition for 'immigrant'; thus, let alone there would be for the term 'illegal
immigrant.'

While there is no formal legal definition of an immigrant, most experts agree that an
international migrant is someone who changes his or her country of usual residence,
irrespective of the reason for migration or legal status. 3 Apart from the overwhelming
requirement of protection from physical attack upon individuals for their very existence as a
group, groups need protection from discriminatory treatment as well. 4The UDHR provides in
its article 2 that "Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind on the ground of religion, national or social
origin." Even International Covenant on Civil and Political Rights (ICCPR), adopted in 1976
in its article 2 reiterates the same, along with urging countries to adopt such laws per their
constitution, which will further the covenant. All these treaties are deemed as universal
treaties, as the principles embodied are followed by every country in their political discourse.
Thus, we can say that the principles of protection and non-discrimination based on religion
are customary international law. In the 21st century, every branch of the international and
national sphere, be it trade, development, health, space recognize human rights and
provisions accommodate them.

Considering India, it is not a signatory or party to the 1951, Convention on Refugees. It is not
binding on India to enact any law to facilitate the convention. Thus, there is no definition or
law for dealing with refugees under any Indian legislature. But it is party to UDHR and
ICCPR. India has made efforts to further the meaning and provisions of these conventions
within the framework of the Constitution of India.

In international law to exercise such given rights ‘nationality’ of the individuals of

paramountcy. Nationality is of cardinal importance because it is mainly through nationality
that the individual comes within the scope of international law and has access to the political
and economic rights and privileges conferred by modern states on their nationals. 5 Although
2

3
Definition, Refugees and Migrants, (Feb 14,2020, 05:08 AM) https://refugeesmigrants.un.org/definitions.
4
Id at 221
5
Nationality, Encyclopedia Britannica, (Feb 2,2020 8:09PM), https://www.britannica.com/topic/nationality-
international-law.
the terms nationality and citizenship technically have two distinct meanings, international
human rights courts and advocates at times use the two terms interchangeably. 6 Shifting the
focus on India, however, the courts are inclined towards pegging citizenship as an extended
arm of domiciliation. The Supreme Court of India, in Star Trading Corporation v
Commercial Tax Officer (1963),7 has stated, in no uncertain terms, that nationality and
citizenship are not interchangeable terms. Also, the constitution of India or any legislature
doesn’t define what is citizenship. It is inclined towards procedure of acquiring it.

The recent Citizenship Amendment Act of 2019 (the Act); as well doesn’t attempt to define
who is a migrant and refugee. The purpose and intention of the Bill, as stated by the Home
Minister, is to provide shelter to vulnerable, religiously persecuted people whose
fundamental human rights are at risk. The Home Minister and various stake holders of the
government stated in parliament on record that this act is for the approx. 55000 people
belonging to Hindu, Sikh, Buddhism, Jain, Parsi and Christians who are “Sharnagatis” which
translated in English means refugees. Thus, clearly be it the justification of ‘persecuted
immigrants’ or clearly stating verbally in parliament, they intend to regulate refugees. 8 But
the Act terms such individuals as ‘illegal migrants.’ Furthermore, the discrimination done on
the basis of religion is in violation of UDHR and ICCPR which India has signed and ratified.
The reason of persecution of religious minorities doesn’t hold when the excluded individuals
are belonging to Muslim or Jew religion. Muslims are heavily persecuted in China (Uighur
Muslims), Myanmar (Rohingya Muslims). 9The Act is admitting the people belonging to
religious minorities from Pakistan, Afghanistan and Bangladesh. The Act will stamp these
countries as institutions of religious oppression and worsen bilateral ties in an already
skewed regional socio-political atmosphere.

2. International law on refugees

Seeking refuge in other state has been carried out since time immemorial, however the
current refuge law is the by-product of the destruction and violations of human rights
following throughout and the end of two World Wars. There are two branches that deal with

6
Citizenship and Nationality, International Justice Resource Center, (Feb 2,2020 8:44 PM),
https://ijrcenter.org /thematic-research-guides/nationality-citizenship/,
6
7
AIR 1963 SC 1811
8
See Press Information Bureau, Government of India, Parliament passes the Citizenship (Amendment) Bill
2019, (Feb 16,2020 09:27 PM), https://mha.gov.in/sites/default/files/PressRelease_CABRS_12122019.pdf.
9
Legal fallacies of the proposed law, If India Wants to Remain Secular, The New Citizenship Bill Isn't the
Way to Go, (Feb, 02,2020 05:02 PM), https://thewire.in/communalism/citizenship-amendment-bill-2016.
human rights per se in international law. The first branch is the international law on human
rights which have various covenants and declarations, which emphasize the importance of
human right and recognize them exhaustively. The second branch is the international
humanitarian law, also called as laws of war deals with the situations arising out of the armed
conflicts or occupation. Under international humanitarian law, they try to protect the
civilians, medical professionals, and other people who do not take any part in the fighting.
The problems of refugees could be classified under both branches. However, here the focus is
more on human rights than the humanitarian law.
The primary declaration on human rights, which could be seen now as part of jus cogens in
international law, is the Universal Declaration of Human Rights (UDHR), adopted in 1948.
Article 14(1) guarantees the right to seek and enjoy asylum in other countries. This article is
subsequently adopted and reiterated in various regional human rights instruments, namely the
American Convention on Human Rights10 and The African [Banjul] Charter on Human and
Peoples’ Rights11. They guarantee the “right to seek and be granted asylum in a foreign
territory, in accordance with the legislation of the state and international conventions.”
The international convention on refugee law is the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Optional Protocol relating to the Status of
Refugees (1967 Optional Protocol) are the conventions which specifically discuss refugees
and the lays down various provisions regarding their rights and the duties of the state. This
1951 Convention defines the term refugee, as well as provides for the principle of
nonrefoulement and the rights of the persons who have refugee status. The definition from
the 1951 Convention does not discuss the refuges created due to displacement crises.
However, the regional human rights treaties have modified their definition to accommodate
displacement crises refugees as well.

The sovereignty of the nation is of paramount importance. Thus, it would not be the place of
international law to determine how states should determine who is a refugee and who is not
and even provide for specific rigid criteria to determine someone as a refugee. The 1951
Convention, instead of ascertaining if an individual meets the definition of a refugee, tries to
establish asylum proceedings. Therefore, the state has to decide who is a refugee depending
on its state policy and its evolving jurisprudence. Nevertheless, this has resulted in
asymmetrical asylum laws based on their different resources, national security concerns, and
10
Organization of American States, American Convention on Human Rights, art. 22(7), (Feb, 16,2020 09:33
PM), https://www.oas.org/dil/treaties_B-32_American_ Convention_ on_ Human_Rights.pdf
11
University of Minnesota, African [Banjul] Charter on Human and Peoples’ Rights, art. 12(3).( Feb, 16,2020
09:33 PM), http://hrlibrary.umn.edu/instree/z1afchar.html.
histories with forced migration movements like partition, and the bitter saga continued due to
the communal rift. Irrespective of such disparities, the main goal of these laws is to provide
for safe haven and basic need to refuges where their own country is unwilling or unable to
provide.

1951 Convention is not the only thing that govern the rights of refugees. As stated, there are
various other international and regional conventions that provide for the protection of
refugees. The complete list of laws and their specific articles could be seen as follows-

a. 1951 Convention relating to the Status of Refugees

b. 1967 Optional Protocol relating to the Status of Refugees
c. Universal Declaration of Human Rights (art. 14)
d. American Declaration on the Rights and Duties of Man (art. 27)
e. American Convention on Human Rights (art. 22)
f. Cartagena Declaration on Refugees, Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama (Cartagena Declaration)
g. African [Banjul] Charter on Human and Peoples’ Rights (art. 12)
h. OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa
i. Arab Charter on Human Rights (art. 28)
j. Cairo Declaration on Human Rights in Islam (art. 12)
k. European Convention on Human Rights (arts. 2, 3, and 5)
l. Council Regulation EC No 343/2003 of 18 February 2003 establishing the criteria
and mechanisms for determining the Member State responsible for examining an
asylum application lodged in one of the Member States by a third country national
m. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as refugees or
as persons who otherwise need international protection and the content of the
protection granted
n. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (art. 3)
o. African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa
p. Convention on the Rights of the Child (art. 22)
There are a number of States who host large refugee populations but who are either not a
party to the 1951 Convention and 1967 Optional Protocol or who do not have laws or policies
in place to address asylum claims. These States include a large number of countries in the
Middle East and Asia with significant refugee populations, including Egypt, Jordan, India,
Malaysia, Lebanon, and Pakistan.12 In such cases, refugee status determinations are carried
out by field offices of the United Nations High Commissioner for Refugees (UNHCR).
The refugee status determination (RSD) conducted by the UNHCR is similar to asylum
adjudications conducted by States. After registering with the local UNHCR office, asylum
seekers meet with an Eligibility Officer who examines their application and supporting
documentation. All asylum seekers have the right to an individual in-person interview and
13
may be accompanied by a legal representative. Asylum seekers are permitted to bring
witnesses, but UNHCR policy states that the testimony of witnesses should not be given in
the presence of the applicant and should never be given in the presence of other witnesses or
third parties.14. All applicants are informed in writing of the Eligibility Officer’s decision. 15.
Where the eligibility officer has decided not to award refugee status, the applicant is entitled
to an explanation of the negative determination. 16
All individuals granted refugee status, as well as derivative relatives, are issued a UNHCR
Refugee Certificate, which stipulates that the holder is a refugee and is therefore entitled to
protection, including protection from refoulement. 17 Unfortunately, in practice, the issuance
of a Refugee Certificate does not always guarantee an individual's ability to work or protect
18
them from being detained in their host country. UNHCR normally determines refugee
status on an individual basis; however, the agency will afford prima facie refugee status to
groups in cases where a large group of individuals has been displaced, and the need for
protection is especially urgent19 . A recent example of this was the UNHCR’s 2007 decision
to give prima facie refugee status to asylum seekers from southern and central Iraq. 20

3. India and International Humanitarian Law/ Law on human rights.

“Sarva Dharma Samabhava”

12
See UNHCR, States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.(
Feb 16,2020 9:38 PM), https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf.
13
UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate 4.3.1-3 (2003),
(Feb 16,2020 9:40 PM), https://www.unhcr.org/4317223c9.pdf.
14
Id. at 4.3.9
15
Id. at 6.1
16
Id.. at 7.1.1.
17
Id. at 8.1
18
See UNHCR, Global Focus: Malaysia 2016 Operational Context. (Feb 16,2020 9:41 PM),
http://reporting.unhcr.org/node/2532
19
UNHCR, Resettlement Handbook, chapter. 3, at 77 (2011)
20
Id.
The above line means that all religions are equal in the eyes of the law, and the state shall not
propagate or endorse one particular religion. The same philosophy is enshrined in the
Constitution of India and in various international covenants like Refugee covenant,
International Covenant on Civil and Political Rights, International Covenant on Economic
Social and Cultural Rights, and also UDHR. When the 1951 Convention was adopted, India,
for critical reasons, did not become a signatory party. Thus, there is no need for India to pass
special national legislation for dealing with refugees. However, India has signed the 1967
Declaration on Territorial Asylum 21and 1948 Declaration of Human rights.22 Also acceded in
March 1979 to the two Covenants being International Covenant on Civil and Political Rights
and International Covenant on Economic, Social, and Cultural Rights. However, while
ratifying them, India has reserved its right to apply its own municipal law in relation to
foreigners.23 India has also acceded to the Convention on the Rights of Child on 11 th
December 1992. 24While in here as well, India kept certain reservations regarding article 22,
which deals with refugee children. 25India has also ratified in 1968 the Convention on the
Elimination of All Forms of Racial Discrimination. India has also endorsed the Elimination
of all forms of intolerance and discrimination based on religion and belief in 1981. 26Further,
India has also endorsed the 1992 Declaration on the Rights of Persons Belonging to National
or Ethnic Religious and Linguistic Minorities. 27

However, that does not relieve India of its international obligations under the covenants.
Judiciary of India by judicial activism has always protected and ensured the rights of the
aliens. They have achieved this by upholding natural law jurisprudence and giving wider
interpretation under the existing legal framework corresponding to the covenants. India’s
sovereignty would always be held of utmost importance, still a harmonization and middle
ground is to be always sought to maintain the peace and not violate anyone’s rights. The
Indian Supreme Court, the apex court of India as in one case regarding preventive detention
has said as follows:

21
Audiovisual Library of International Law, (Feb 16,2020, 10:04), https://legal.un.org/avl/ha/dta/dta.html.
22
Spotlight, Human Rights (Feb 16,2020, 10:06 PM), https://archive.india.gov.in/spotlight/spotlight_archive.ph
p?id =73
23
Id.
24
United Nations Treaty Collection, Convention on the Rights of Children, (Feb 16,2020 9:59 PM), https://trea
ties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&c ang=_en#End Dec
25
Id.
26
, 16th Lok Sabha,Report of Joint Committee on Citizenship (Amendment) Bill, 2016, (Feb.14,2020,11:46 PM)
https://www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship
%20%28A%29%20bill.pdf.
27
Supra.
 ‘Preventive detention of a foreign national who is not resident of the country involves
an element of international law and human rights and the appropriate authorities ought
not to be seen to have been oblivious of its international obligations in this regard.
The universal declaration of human rights includes the right to life, liberty and
security of the person, freedom from arbitrary arrest and detention; the right to a fair
trial by the independent and impartial tribunal; and the right to be presumed to be
innocent till proven guilty. When an act of preventive detention involves a foreign
national, though from the national point of view the municipal law alone counts in its
application and interpretation, it is generally a recognized principle in the national
legal system that in the event of doubt the national rule is to be interpreted in
accordance with the states national obligations….There is a need for harmonization
whenever possible, bearing in mind the spirit of the covenants.’28
The union legislature i.e., the Parliament alone, is given the right to deal with the subject of
citizenship, naturalization, and aliens. The word alien has nowhere been defined, albeit it is
mentioned in the Indian Constitution, Indian civil Procedural Code, and in the Indian
Citizenship Act, 1995. The Foreigners act, 1946, defines a foreigner ‘as a person who is not a
citizen of India.’ 29As the words, aliens, and foreigners are used interchangeably in the Indian
legislations, they should be construed to mean the same. 30 The Registration Act, 1939, deals
with the registration for foreigners entering being present and departing, while The Passport
(Entry into India) Act 1920 and Passport act 1967 deal with issuing relevant documents, issue
of passport, conditions to enter into India and much more.

4. The Act and Refugee or migrant?

The current proposed Act was intended to extend the protection to particular religious
minorities in the country who are 'migrants' who are persecuted in nations like Afghanistan,
Pakistan, and Bangladesh. Thus, before we delve further into the provision, the definition of
the migrant is to be looked at.

There is no universal, legal definition of a 'migrant'. In accordance with the mandate of the
High Commissioner to promote and protect the human rights of all persons, the Office of the
United Nations High Commissioner for Human Rights (OHCHR) has described an
international migrant as "any person who is outside a State of which they are a citizen or
national, or, in the case of a stateless person, their State of birth or habitual residence 31 The
word migration refers to the voluntary movement of people, primarily for better economic

28
Kubic Dariusz V. Union of India AIR 1990 SC 605,614,615
29
The Foreigners act, 1946 (FEB 16,2020 09:50 PM), https://indiacode. nic.in/bitstream/123456789/6803/1/
foreigners_act_1946.pdf.
30
B.S Chimni, International Refugee Law Reader 486 (1st ed. 2000)
31
." Differentiation between migrant and refugee, United Nations Human Rights Office of The High
Commissioner
(Nov.20,2019,12AM)https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/MigrantsA
ndRefugees.pdf.
prospects. 32'Migrant' is thereby used as a neutral term to describe a group of people who have
in common a lack of citizenship attachment to their host country. It is without prejudice to the
protection regimes that exist under international law for specific legal categories of people,
such as refugees, stateless persons, trafficked persons, and migrant workers. The migrants can
be vulnerable as well, but the scope of their vulnerability is limited. The concept of migrants
in vulnerable situations has emerged to address the human rights situation of those migrants
who do not qualify as refugees but who are nevertheless in need of specific protection
interventions. Migrants are not inherently vulnerable, but they can find themselves in
vulnerable situations arising from the reasons for leaving their country of origin, the
circumstances in which they travel or the conditions they face on arrival, or because of
personal circumstances such as their age, disability or health status.33Migrants in vulnerable
situations are thus persons who are unable to enjoy their human rights effectively and are at
increased risk of violations and abuse and who, accordingly, is entitled to call on a duty
bearer's heightened duty of care.

Thus, the definition of migrant nowhere points out to a person who is persecuted in its
country, especially for being a minority. Nevertheless, that does not mean that there is no
other section of people who exactly fit the given description of the proposed amendment act.
However, the term used for them is ‘refugee’ The mandate of the refugee convention, 1951
extends to any person who as a result of the events occurring before the 1 January 1951 and
‘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 the protection of
that country of his former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.’ In contrast to the definition of 'migrant' seen above, the
refugees have been forced to act and perform an involuntary movement, more concerned with
the violation of their human rights and not for economic advantage or better standard of
living. There is no definition further in the convention or in the UNHCR Handbook on the
words ' well-found fear' and 'persecution.' Thus, there is discretion given to the countries so
as to interpret it as per the evolving jurisprudence.

The convention further mandates that such protection is to be given to the people whose civil
and political rights are being violated and not the people whose socio-economic rights are at

32
Supra
33
Id.
risk.34 However, the migrants, as seen above, do not travel due to severe violations of their
human rights and fear for life. A combined reading of the classification scheme that runs
through the above-mentioned relevant pieces of legislation shows that while the Act seeks to
establish two distinct classes of ' migrants, ' but it actually creates two distinct classes of '
refugees. ' It is useful to emphasize here that there exists a discernible distinction between
'migrants' and 'refugees' in international legal literature.35 While the former is largely
distinguished by the voluntary nature of their cross-border travel, the latter are forced to leave
their country of origin in order to avoid persecution. Ironically, the terminology adopted by
the Passport (Entry into India) Amendment Rules 2015 and the Foreigners (Amendment)
Order 2015 leaves no room for doubt that the excluded categories of persons are, in fact,
'refugees' as differentiated from mere 'asylum seekers' or 'migrants. The classic example of
this are the Tibetan and Srilankan Tamil refugees. They faced persecution on the basis of
religion and race; further, their political rights were hampered. Hence, when they travelled to
India seeking shelter, that was a refuge seeking population at the door. Then similarly could
be seen regarding Tamils fleeing Sri Lanka during the political unrest years. They were too
accepted and allowed to seek shelter in India. Both of these are refuge seeking people, with a
condition to leave the country when the situation shows to be better back their home.
Therefore, no action or a legislation passed to assimilate this population as citizens, being
clear that they are refugees.

5. India and the Refugee Convention.

Taking a closer look at India’s refugee policy is that we are neither signatory to the UN 1951
Refugee convention not its 1967 protocol. The reasons given as to why India is not a party
were based on a genuine understanding that the state of the affairs then - the 1951 convention
defined refugees as Europeans who had to be re-settled and suggested that the ‘refugees’
were those who fled the ‘non-Free world’ for the ‘Free World.’36

It was in the December 1950, at the UN’s third committee, that Vijaylaxmi Pandit (India’s
first woman representative at UN) objected to the ‘eurocentricism’ of the definition of

34
Supra
35
‘Refugee’ or ‘migrant’ – Which is right? UNHCR viewpoint, (Feb 14,2020, 12:06 AM)
http://www.unhcr.org/n ews/latest/2016/7/55df0e556/unhcr-viewpoint-refugee-migrant-right.html. See also
Remarks made by Secretary (West) at Symposium on World Humanitarian Summit on May 4, 2016, (Feb 14,
2020, 12:08 AM) http://www.mea .gov.in/SpeechesStatements.htm?dtl/26756/Remarksby_Secretary_West_at
_Symposium_on_World_Humanita rian _Summit _ (stating that the blurring of the distinction between migrants
and refuge-es was a “worrisome trend”).
36
Supra
refugee. ‘Suffering knows no racial or political boundaries; it is the sense of all,’ she said “as
international tension increases, vast masses of humanity are uprooted and displaced”. The
refugee crises, across the world even today are so severe, that they aid as well are cause of
war and economic distress.

Three years later, the foreign secretary, R.K. Nehru, told UNHCR representative that the UN
agency helped refugees from “the so-called non free world into the free world. We do not
recognize such division.”37 Consequently even there is reluctance to sign the refugee
convention India is signatory to the declaration of territorial asylum and UDHR. India is on
the executive committee of UNHCR which supervises the agency’s material assistance to
programme.

Nevertheless, India is part of Asian -African Legal Consultative Organisation, viz Bangkok
Principles on Status and Treatment of Refugees, adopted in 2001. 38 The definition of refugee
adopted under Bangkok Principles is much wider than the 1951 Convention. They have
accepted non refoulment as a customary principle of international law and stress on the
respect of the human rights of the refugees. The best part is that the article IV has specially
mentioned that "the states shall adopt effective measures for improving the protection of
refugee women and as appropriate ensure that the needs and resources of refugee women are
fully understood and integrated to the extent possible into their activities and programmes."
Similarly, special provisions for children and elderly refugees have been included in these
principles. But India as asserted certain reservations regarding giving wider interpretation to
the term refugee. India stated that the well-founded persecution should be the core of any
refugee seeking policy or law. India expressed its reservation on including a separate article
VIII on “International co-operation and comprehensive solutions”. 39 It wants the emphasis to
remain on ‘voluntary repatriation’. The other solutions like ‘local settlement’ or ‘third
country resettlement’, according to it, would have to be considered carefully in each case,
given their political, economic or security implications, particularly in situations of mass-
influx. In this connection, a distinction needs to be maintained between the ‘individual
refugees’ and ‘situations of mass-influx’ as well as between ‘convention refugees’ and
‘economic migrants.40 Further, the implementation of these solutions and treatment of

37
Supra
38
Asian -African Legal Consultative Organisation. Final Text of the ALCO’S 1966” Bangkok Principles on
Status and Treatment of Refugees as adopted on 24 June 2001, (Feb 16,2020 11:19),
https://www.refworld.org/pd fid/3de5f2d52.pdf.
39
Id. At 10
40
Id. At 10
refugees is linked to the available resources and capacity of each State.” 41 India considers that
the inclusion of the expression “in accordance with its international obligations and national
legislation” restricts the sovereign rights of states to grant or refuse asylum to a refugee.42

It was not long after Operation Pushback of the 1900’s43 the former CJI P.N. Bhagwati
chaired a panel to create model law for India on refugee rights; who also chaired as regional
advisor for Asia and Pacific for UN High commission for Human Rights, suggested that “an
appropriate legal structure or framework” would give Indian states “a measure of certainty in
their policy making and it would give greater protection for the refugees”. 44 Bhagwati’s
model of law defined refuges as people outside the country of their origin who could not
return there because of a “well-founded fear of persecution on account of race, religion, sex,
ethnic identity, member of a particular social group or political opinion.”45

6. International law and its incorporation in Indian legal system.

Since the Constitution was passed, the original position was that the Constitution did not
make the treaties to which India was a party the law of the land, 46the corresponding treaty
obligations could not be enforced by the Courts in the absence of express legislative
sanction.47Thus, the Indian judiciary has historically upheld the dualist nature of India's
international legal obligations by insisting upon the necessity for clear inclusion of
international law provisions in municipal law.48

However, as early as 1969,49 The Supreme Court of India had shown its inclination to
interpret laws in accordance with existing principles of international law, as far as their
language permits. This approach is based on the assumption that Parliament is not claiming
or seeking power that goes beyond the limits set by the common consent of nations.
However, it was also pointed out in the same case that “if statutory enactments are clear in
meaning, they must be construed according to their meaning even though they are contrary to
50
the comity of nations or International Law”. In the later cases, The Apex Court appears to

41
Id. At 10
42
Id at 4
43
Id, at 99
44
Id
45
Id,
46
State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, AIR 1964 SC 1043.
47
State of West Bengal v. Jugal Kishore More (1969) 1 SCC 440.
48
Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783; see also Jolly George Varghese v. Bank of
Cochin, AIR 1980 SC 470; State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201.
49
9 V.O. Tractor Export, Moscow v. Tarapore & Company (1969) 3 SCC 562
50
Id.
have fully embraced the concept of monism, particularly in the context of rights-enhancing
treaties subject to the restrictions imposed by Parliament's inconsistent actions. 51 In
52
Chairman, Railway Board v. Chandrima Das, the Court clarified that articles 3 (protection
of life, liberty and security), 7 (equality before law and equal protection of law and freedom
from discrimination) and 9 (protection against arbitrary arrest, detention and exile) of the
UDHR were in consonance with articles 20, 21 and 22 of the Constitution of India and
further emphasized the need to read UDHR and the principles thereof into the domestic
jurisprudence. It is relevant to mention here that this development is quite heartening
especially in the context of article 21 given that the constitutional jurisprudence on article 21
has undergone sea change post the constitutional catharsis attributable to the decision in
Maneka Gandhi v. Union of India ,53 whereby the scope of article 21 was expanded in a
significant way as it was now held to include the guarantee of ‘substantive due process’ along
with fairness, justness and reasonableness of the procedure providing for deprivation of
personal liberty. It is argued that the Court's new and broad understanding of the substance of
Article 21 provides substantial room for testing the legitimacy of the impugned State action
on the touchstone of the limits laid down in that matter by the norms of customary
international law or treaty law. The following legislation should therefore be read in order to
comply with international norms and policy.

7. Citizenship Amendment Act, 2019 and International Law.

Understood in the light of the above, the Acts real purpose seems to be to provide an
opportunity for regional incorporation by expedited naturalization to a designated group of
refugees. However, then, from the point of view of international law, the focus of the Act is
invidious. Since the Act intends to impose rights on one group of refugees over another on
the basis of their religions and nationalities, it can be said that it violates the non-
discrimination rule of international refugee law, which prescribes discrimination between and
among refugees based on religion and nationality.54

51
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534; see also Nilabati Behera v.
State of Orissa (1993) 2 SCC 746; Vishaka v. State of Rajasthan (1997) 6 SCC 241; People’s Union for Civil
Liberties v. Union of India (1997) 3 SCC 433; People’s Union for Civil Liberties v. Union of India (1997) 1
SCC 301; Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; Githa Hariharan v. Reserve
Bank of India (1999) 2 SCC 228; Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465; Aban Loyd
Chiles Offshore v. Union of India (2008) 11 SCC 439; T.N. Godavarman Thirumulpad v. Union of India (2012)
4 SCC 362; NALSA v. Union of India (2014) 5 SCC 438; Justice K.S. Puttaswamy (Retd.) v. Union of India,
Writ Petition (Civil) No. 494 of 2012.
52
(2002) 2 SCC 465
53
(1978) 1 SCC 248
54
Convention Relating to the Status of Refugees, 1951, art. III. See also OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa, 1969, art. IV
Although India is not a party to the 1951 Convention on the Status of Refugees or its 1967
Protocol, by implementing the 1966 Bangkok Principles on the Status and Treatment of
Refugees, it nevertheless acknowledged the obligation of non-discrimination in respect of
different sub-classes of refugees.55 Further, the principle of non-discrimination is
acknowledged in various human rights instruments to which India is a party or at least a
signatory as a rule of international human rights law. Therefore, the concept of non-
discrimination may have acquired the status of customary international law so that it remains
meaningless from the point of view of international law whether India has ratified or not the
applicable conventions in this respect.56 As far as binding international commitments go, of
particular relevance is article 26 of the ICCPR that is couched in language almost identical to
article 14 of the Constitution of India.57 According to the General Comment issued by the
Human Rights Committee on the right to non-discrimination under article 26 of the ICCPR in
1989:58 Article 26 concerns the duties placed on States Parties with respect to and
implementation of their legislation. It must also comply with the condition of Article 26 that
its content should not be discriminatory if legislation is adopted by a State Party. In other
words, the enforcement of Article 26's rule of non-discrimination is not limited to the rights
provided for in the Covenant.

Moreover, a leading expert on international refugee law noted that ' Article 26 of the ICCPR
has considerable value as a complementary prohibition of discrimination between groups of
refugees in the distribution of a wide range of rights and on the basis of any form of actual or
imputed group identity. '29 It may be recalled here that at the time of ratification of the
ICCPR, India had made a reservation to article 13 that expressly dealt with the right of aliens.
However, to the degree that the scope of Article 13 is limited in procedural safeguards against

55
AALCO’s 1966 Bangkok Principles on Status and Treatment of Refugees (‘Bangkok Principles’), art. IV.5
(Feb 16,2020, 10:14), https://www.refworld.org/pdfid/3de5f2d52.pdf.
56
David Keane, “Discrimination”, (Feb 16,2020, 10:43 PM),
http://www.oxfordbibliographies.com/view/document/obo9780199796953/obo-9780199796953-0103.xml.
57
ICCPR, art. 26 reads: All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. See art 25 as an exception
(applicable only to ‘citizens’)
58
UN Human Rights Committee (CCPR), ‘‘General Comment No. 18: Non-discrimination’’ (1989), UN Doc.
HRI/GEN/1/Rev.7, May 12, 2004, at 146, para. 12. 9 (The term “discrimination” as used in the Covenant be
understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as
race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by
all persons, on an equal footing, of all rights and freedoms). See also CCPR, “General Comment No. 15: The
Position of Aliens Under the Covenant” (1986), available at: http://www.refworld.org/docid/45139acfc.html
(last visited on Jan. 13, 2018). 29 James C. Hathaway, The Rights of Refugees Under International Law 160
(Cambridge University Press, New York, 2005)
the deportation of aliens lawfully present in the territory of the State Party, it cannot be used
as a legitimate basis for derogating from the more general requirement laid down in Article
26. Therefore, according to the applicable norms of international law, the subject-matter of
the category provided for in the Act may be criticized as discriminatory. Also, at a minimum,
the content of the protection to any refugee or illegal migrant may be said to comprise the
fundamental norm of non-refoulment59 under the refugee law for without it the guarantee of
21 would be meaningless in respect of refugees. Hence, the impugned classification read with
the related provisions on deportation clearly lie in the hands of India’s national and
international commitments. Hence, the impugned classification read with the related
provisions on deportation60 clearly lie in the hands of India’s national and international
commitments.

8. CONCLUSION
Human Rights are now jus cogens of the international law. India has its standing in various
protocols relating to the human rights mentioned above. Thus, it has a responsibility to all its
asylum seekers and migrants to treat them equally. To do anything in contravention to that
would be India joining the anti-immigration hysteria wave recently going on in the Europe or
United States of America so far as into a state policy in Israel. Worse than that it would be
India bending its long-standing tradition of inclusive international foreign policy.

Also, India will create an international tension between its neighboring countries
unnecessarily. Passing this amendment act shall assert that the countries like Pakistan,
Afghanistan, Bangladesh who assert themselves as democracies on the international platform
are in reality minority oppressing and persecuting countries. The relations of India with
Pakistan are always on the brink and volatile, and the good relation it has with Afghanistan
and Bangladesh will malign for no good reason. The government has had a huge mix-up
while substantiating their claim for the specific 6 religious minorities from the other countries
to be persecuted 'migrants'. They are not migrants if they are persecuted for their religion.

59
See UDHR, art. 14; Convention Relating to the Status of Refugees, 1951, art. 33.2; Bangkok Principles 1966,
art. III.1, UN Declaration on Territorial Asylum, 1967, art. 3.1; CERD, art. 5 read with “General
Recommendation 22: Refugees and displaced persons (1996), U.N. Doc. A/51/18; ICCPR, art. 7; CAT, art. 3;
CED, art. 16; NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742; Dongh Lian Kham v. Union of India,
226 (2016) DLT 208; Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India, 1999 CriLJ 919. See also New
York Declaration for Refugees and Migrants (2016), A/RES/71/1 Sep. 19, 2016, para. 67; and Statement by Mr.
Anil Kumar Rai, (Counsellor Humanitarian Affairs) on 1st Thematic Discussion towards a Global Compact on
Refugees delivered on 10 July 2017, available at: http://pmindiaun.org/pages.php?id=1509 ,visited on
11/10/2019.
60
Passport (Entry into India) Act, 1920 (Act 34 of 1920), s. 5 and The Foreigners Act, 1946 (Act 31 of 1946), s.
3(2)(c).
They are thus refugees. The government might have stalled the use of word refugee, as it is
not signatory to the 1951 convention. However, such guise of migrant is not going to hold
either. India not being a signatory to 1951 convention today hold maximum number of
refugees in the South Asia. It is thus high time for India to come out of this garb of 'migrant'
and address such people properly as refugees; and to enact a proper national legislation on
refugees.

The government through such policy making is including politics in legislative body. It is
hard to keep governance and the politics apart. However, it is all the more reason to look and
carefully introduce and implement policies. The government is treading into arbitrariness. It
is destroying the commitment of the constitution of India made regarding equal treatment of
all, religion neutrality. There is need for states to come together and over haul the refugee
convention with a binding effect and compulsion to be a party to it if any nation wishes to
accept refugees herein forward. Because is it not the high time due to globalization that
International Law becomes hard law in aspect of human rights in every perceivable way it
can?