INTRODUCTION

India has always been home to steady flow of billions of refugees the subcontinent.
Despite having over a billion of its own people with over 6 million of them living in
poverty, it continues to receive the refugees. Notwithstanding, the Indian lawful
structure has no uniform law to manage its enormous refugee population, and has not
gained any ground towards advancing one either; up to that point, it decides to treat
approaching refugees dependent on their national origin and political considerations.
The National Human Rights Commission (NHRC) has given a number of reports 1
urging the promulgation of a national law, or at least, making changes or amendments
to the outdated Foreigners Act (1946), which is the current law consulted by
authorities with regard to refugees and asylum seekers. The primary and most
significant lacuna in this law is that it does not contain the term ‘refugee’;
consequently under Indian Law, the term ‘foreigner’ is used to cover aliens
temporarily or permanently residing in the country. This places refugees, along with
immigrants, and tourists in this broad category, 2 depriving them of privileges
available under the Geneva Convention.3

It is important to note that India has never been a part of the 1951 Convention relating
to the status of refugees or the 1967 Protocol. This makes India’s international
position disputable, in terms of treatment of refugees. It is equally important to note
that India is a signatory to various other international and regional treaties and
conventions relating to universal human rights and refugees such as the UN
Deceleration on Territorial Asylum (1967), the Universal Declaration of Human
Rights, and the International Convention on Civil and Political Rights

India respects international treaties on the treatment of people residing within its
territory; but, it chooses to maintain its own administrative policies for dealing with
temporarily or permanently settled refugee communities, while the UNHCR uses little
room to assist except in emergency situations like the displacement of Chakma tribals

1
Rajeev Dhawan, ”On the model of refugee law: A response to the NHRC NHRC Annual Reports 1997-
1998, 1999-2000 (New Delhi: PILSARC, 2003)
2
Ibid
3
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, "The 1951 Geneva
Convention," UNHCR-Public Relations Section, http://www.unhcr.org/home/PUBL/3b5e90ea0.pdf .
Accessed on 8 July 2007.
from Bangladesh or rehabilitation of refugees from Afghanistan or the Autonomous
Region of Tibet.

LEGAL STATUS OF REFUGEES IN INDIA

India does not have any national legislations regarding the rights and legal status of
refugees . They are treated as aliens. Refugees fall under the supervision of the
legislative framework that addresses all foreigners in India, due to absence of clear
guidelines. Further, India's refugee policy is governed by certain administrative
regulations. There are three sets of laws that deal with foreigners in India. They are
are: the Registration of Foreigners Act, 1939, managing all the outsiders, the
Foreigners Act, 1946 engaging the condition of directs the passage, the presence and
departure of aliens in India and the foreigner's Order 1948. Under Section 2 of the
Registration of foreigners Act, the term foreigner is characterized as "an individual
who isn't a resident of India", which can allude to outsiders of any sort including
immigrants, exiles and tourists. The Foreigners Act of 1946 and the foreigner's Order
of 1948 additionally utilizes this meaning of an outsider.

The Indian government has the right to restrict movement inside India, limit
employment opportunities, and control the opportunity to associate and the right to
return refugees to the country they have fled from. Further Government has the power
to either grant or refuse entry if a person does not possess a valid passport. The
government can refoule refugees at the border.

No current Indian law alludes straightforwardly to refugees. The current position is

that they are managed under the current Indian Laws, both general and uncommon,
which are generally pertinent to all outsiders. In the absense of a legal procedure,
India's treatment of haven searchers has consistently been a political choice, an
immediate consequence of the nation's connection with the refugee's nation of origin
and consequently the legislature of India handles outcast issues authoritatively.

India's reluctance to sign the Convention because it in Eurocentric in nature, that is

why it has not responded well to mass migration. Another reason of not signing the
UN Convention protecting refugees is that the signing Convention meant to be
obligated to accept massive flows of refugees from politically unstable neighbours. As
mentioned earlier India has a huge population over a billion people with at least six
hundred million living in poverty. Thus, our own people are living like refugees with
limited access to basic necessities. Signing Convention implies taking on the
obligation to provide employment, food, housing, medical care, education etc., to
refugees. Despite not signing up, our record to giving shelter has been very good.

PROTECTION OF REFUGEES UNDER LEGAL FRAMEWORK

Refugees are treated under the law applicaple to the aliens, since there is no refugee
law in India. The Government of India alone figures out refugee status. Refugees are
registered under the 1939 Registration Act, which is applicable to all foreigners
entering the country. The 1946 Foreigner's Act is the chief legislation for the
regulation of foreigners. It empowers the Government of India to regulate the entry,
presence and departure of aliens in India, though the word 'aliens' itself is nowhere
defined. Paragraph 3(1) of the Foreigners Order of 1948 lays down the power to
refuse or grant entry to India.

“No foreigner shall enter India - (a) otherwise than at such port or other place of entry
on the borders of India as a Registration Officer having jurisdiction at the port or
place may appoint in this behalf; either for foreigners generally or any specified class
or description of foreigners, or (b) without leave of the civil authorities having
jurisdiction at the port or place.”

Model National Law on Refugee

Considering the absence of any refugee explicit structure and the consequent troubles
that along emerge, a group of prominent people under the direction of previous Chief
Justice of India P.N. Bhagwati drafted the model national law on refugees in
November 1996. Working under the umbrella of the Informal Regional Consultations
on Displaced people and Migratory movement in South Asia, the gathering centered
on the foundation of an administrative process of immigrants status assurance.

The first draft was presented at the 1997 SAARC-LAW Regional Seminar in New
Delhi which was attended by delegates from the SAARC countries. The concept of
the draft was widely appreciated by the delegates present in the meeting and various
suggestions were given on the need for a regional as well as national framework on
refugees. As a result various ideas were added to the draft and the model law was
adopted by the domestic advisers at Dhaka in 1997 in 4 th annual meeting. at the 5th
annual meeting, Kathmandu, the regional consultations decided to define the Model
Law in accordance with the legislative, judicial and other country specific
requirements and formally presented it to their respective governments through an
enlarged group of concerned personalities drawn from within each country of the
region.

Features of Model National Legislation

A round table was hosted at New Delhi titled “National Legislation on Refugees” on
30th April 1999 by the office of UNHCR, in collaboration with Indian chapter of
SAARC-Law. It was tabled for discussions and revisions, and a number of ideas
specific to India emerged. The Model law covers 18 paragraphs and covers 9
substantive areas.

The Model law defines refugees in a broader concept unlike than that of 1951
convention. Positive developments in the field of refugee law, including the
developments at various regional organisations were included. In its definition it has
reflected the human rights perspective as well as the judicial decisions.

The exclusion clause has been developed based on the existing legal framework and
as reflected in subsequent developments. The 'cessation clause' continues to find a
place in the draft as well.

The central theme of the refugee law, the customary as well as conventional principle
of non refoulement has also been reiterated by the Model law.

The Model Law provides for procedures relating to refugee status determination. It
provides for the Constitution of authorities, like the Commissioner for Refugees and a
refugee committee to hear the appeals from the Commissioner. The order of the
Committee is made final under the proposed legislation. It further proposes a series of
measures to be adopted from the date of application to seek refugee status, to the final
determination to be made by the authorities so constituted.
The rights and duties of refugees with an emphasis on nondiscrimination, ensuring
basic human entitlements, special protection for refugee women and children etc.
have been provided for in the Model Law.

The provision relating to mass-influx, refugees unlawfully present in the country of

asylum, and voluntary repatriation are also incorporated in the Model Law. There is
also a provision in the Model Law that empowers the government to frame rules and
regulations to give effect to the provisions of the laws as and when it is enacted. The
Model Law also has a provision that seeks to over-ride all other legislations, including
the Foreigners Act.

INDIA’S EXPERIENCE IN DEALING WITH REFUGEES

The nations of South Asia are, the whole gang influenced with the refugee issue.
Pakistan is confronting the issue of Afghan displaced people, Nepal, of evacuees from
Bhutan, Bangladesh, of immigrants from Myanmar; Sri Lanka has the issue of
Internally Displaced People (IDPs), and India pulls in displaced person deluges from
various countries. India right now has 1,00,000 Tibetan, 1,00,000 Sri Lankan Tamil,
and 40,000 Chakma evacuees. Toward the finish of 2001, more than 5,00,000
individuals were internally displaced in India in view of political brutality, counting
around 3,50,000 Kashmiris and an expected 1,57,000 others in Upper east India. India
perceives Tibetans and Sri Lankans in camps to be at first sight displaced people
however sees most other groups as economic traveller.

Tibetan refugees, led by their spiritual leader, the Dalai Lama, first fled to India in
1959, China annexed Tibet. India permits the Tibetans to maintain their own
administration, based in the city of Dharamshala, which effectively functions as a
Tibetan government-inexile. The Indian authorities continue to permit the Tibetans to
enter, though the government has not granted legal residence to most who have
arrived in recent years.

Sri Lankan and Tamil refugee: The enormous refuge influx, generally in waves, is
an after effect of a 20 year struggle between the Sri Lankan Sinhalese larger part and
the Tamil minority has driven in excess of 1,44,000 Sri Lankan Tamils to look for
exile in India. Nearly 64,000 live in the state run camps in Tamil Nadu. Majority of
the camps are very much kept up, with the state government providing food rations
and cash assistance, some liave been criticized for neglect, inadequate and insufficient
amenities. Special camps have been organized to detain those with suspected terrorist
links. UNHCR has been assisting voluntary repatriation.

Bangladeshi refugees fled to India to get away from strict oppression by a of Muslim
government. These shelter searchers fled to the neighbouring East Indian conditions
of Mizoram and Tripura and West Bengal. Indian government, nonetheless, didn't
remember them as exiles rather calling them "Economic migrants" or even "intruders"
furthermore, has been censured for "empowering" them to return to their country.

Urban Refugee :Around 13,600 UNHCR recognized refugees live in metropolitan

centres in India. A vast number of them were Afghan displaced people, exactly
12,000 in number. Some numbers originated from Burma, Ethiopia, Iran, Iraq,
Liberia, Somalia, and Sudan. The Indian government has allowed six month,
renewable residence permits to Afghans and Burmese perceived as refugees by
UNHCR. In spite of the fact that the administration halted giving the grants to
Afghans in 1998, it again started giving them in September 2001, yet for Afghans
who had valid documents.

THE ROLE OF INDIAN JUDICIARY

Only an independent and impartial judiciary can protect the rights of the individual
and provide equal justice without fear or favour. Every Constitution institutionalizes
the judiciary as the principle instrumentality for enforcement of human rights when
invaded by the State or by any authority under the State or by an individual 4. The
status of human rights is fairly high under the Indian Constitution which makes
provision for fundamental rights and empowers the judiciary to enforce these rights,
and the judiciary in India has done matchless service in protecting the people's human
rights.5 In the exercise of its jurisdiction and power the judiciary has devised new
strategies, forged new tools and broadly interpreted the letter of law to ensure the
protection of human rights of the people.

The judiciary in India has played a major role in safeguarding the rights of refugees
and asylum seekers. The courts have interpreted provisions of the Indian Constitution,
4
V.R. Krishan Iyer, Human Rights and Inhuman Wrongs, 15 (1999).
5
Jitender Naryan, "Judicial Activism and Protection of Human Rights in India", Journal of
Constitutional and Parliamentary Studies, Vol. xxv. No. 3-4 (July-Dec, 2001), p.ll3.
existing laws and, in the absence of municipal law, provisions of international law to
offer protection to refugees and asylum seekers. They have relied on applicable
"rights provisions" in the Indian Constitution including Article 14 (Right to Equality)
and Article 21 (Right to Life and Liberty) which have been determined to be
applicable to refugees. The judiciary has made its task easy by evolving the concept
of Social Action Litigation or Public Interest Litigation.

in the case of NHRC v. State of Arunachal Pradesh 6, Justice Ahmadi pointed out that
Article 21 protected refugees under the Constitution which included the right of non-
refoulement and where there was an imminent danger to Chakmas, the state was
directed to ensure the life and liberty of each and every Chakma refugee.

In Chairperson, Railway Board v. Chandrimadas 7judgment of the Supreme Court has

set up a right precedent in enforcement of human rights of refugees. In this case, one
Hanuffa Khatoon, a Bangladeshi national, was gang-raped in the Rail Yatri Niwas of
the Howrah Railway Station. The Calcutta High Court, on the basis of a writ petition
awarded a sum of 10 Lakh as compensation against the Railway Department. The
Supreme Court upholding this decision, held that offence of rape amounts to violation
of fundamental right guaranteed to women under Article 21 of the Constitution, and
the victim, though a national of another country, was entitled to be treated with
dignity.

In Hans Muller of Nurenberg v. Supdt. Presidency Jail 8, the court held that even if
there is a requisition and a good cause for extradition, the government is not bound to
accede to the request, because Section 3(1) of the Extradition Act gives the
government discretionary power. Tiie Extradition takes place only under a treaty and
person whose extradition is demanded under the treaty are handed over to the
requesting state for prosecution and punishment. The procedure for extradition is laid
down under the municipal law. Despite the treaty, a state may refuse extradition.

6
1996 (1) se c 742.
7
AIR 2000 SC 998.
8
AIR 1955 SC 363.
 Further, if the treaty does not enlist a particular offence or which extradition was
sought, but authorizes the Indian movement to grant extradition for some additional
offences by inserting a general clause to this effect, extradition may still be granted.9

10
In Dawood Ali v. Deputy Commissioner of police, court held that a passport by
itself is not a conclusive proof of nationality. But it is accepted as a proof of the fact,
by international agreement and the comity of nations, whatever is the probative value
of it, a person who has deliberately applied for a passport affirming him to be a
Pakistan national cannot be heard to say that he did so under false pretences.

Further, it was held that he acted with deliberation in renouncing his Indian
citizenship and accepting Pakistan nationality, and was precluded from saying that he
had no intention of making Pakistan his abode or residence. By accepting a Pakistan
passport he caused the sovereign state of Pakistan to accepting him as its citizens and
to extend protection and safety to him as a Pakistan citizen. Under section 3 of the
Foreigners Act the Central Government has got the power to order foreigner to leave
Indian Territory.

In Afjal Aki Baig vs The State11, it was held that though a citizen of India the
petitioner lost his citizenship by virtue of Article 7 of the Constitution when he went
to East Pakistan and remained for a long period. If after his return to India he wanted
to acquire Indian citizenship, it was open to him to apply to the authorities concerned,
under Section 5 of the Citizenship Act. Section 9 (ii) of that Act makes it clear that
once a citizen of India has acquired Pakistan citizenship between the 26th January
1950 and the date of commencement of the Act he ceased to be a citizen of India. He
could not, therefore, claim Indian citizenship unless the Central government after due
inquiry register him as a citizen of India under Section 5 of the Citizenship Act.

INDIA’S FAILURE TO PROTECT THE SOUTH ASIAN

REFUGEES

Universal Declaration of Human Rights proclaimed basic rights for all human beings
irrespective of their nationality or citizenship. Thus the declaration proved to be an
9
See Rambabu Saxdna v. State, AIR 1950 SC 155
10
AIR 1958 Calcutta 565.

11
AIR 1961 Orissa 174.
important first step to look into refugee protection since they face unique hardships
and are particularly vulnerable in foreign countries. It, therefore, becomes incumbent
upon the international community to protect their rights both in countries of origin
and asylum.

A myriad of specialized and regional human rights instruments has sprung from the
foundation of the International Bill of Human Rights. The non derogable rights
enshrined in the Covenants such as Article 6 of the International Covenant on Civil
and Political Rights (ICCPR) are also applicable to the refugees. The principle of non
refoulement for instance was applied where there was fear of torture or violation of
right to the life of refugees.

None of the South Asian countries are parties to the 1951 Convention relating to the
status of Refugees which currently is ratified by 134 nations. This may reflect the
unwillingness of South Asian governments to submit to international scrutiny. India is
home to one of the largest refugee populations in the world. . Even though India is not
a party to the Refugee Convention, the general principle prohibiting forced
repatriation called non-refoulement has risen to the level of customary law, such that
they bind even non-signatories.

The Union Cabinet took action only when the particular refugee influx went beyond
the control of the Border Security Force, and the matter became political. This
however clearly indicates the India takes a cohesive national policy for handling
refugee inflows. The ability of the State governments and Border Security Force to
deal with refugees instantly is hampered because of the lack of national Indian policy.
This has resulted in mass rejections at the frontier.

India has not agreed to any minimum standards for the treatment of refugees, and its
policies towards refugees are without UN supervision.

India has been able to keep its 'doors open', its reasons for not signing the Refugee
Convention is the fear of indefinite legal responsibility for the vast numbers of
persons seeking shelter.

The Indian government does not believe it successfully can handle the requirements
of the Refugee Convention, and such new pressures would damage the country's
economic and social balance. The Indian government believes that its current refugee
policy is in line with international norms.

Signing the Refugee Convention, however, would not only bind India to the
obligations in the Refugee Convention, but it also would allow for substantial
international assistance from other UN Member States for thoUSAnds of refugees in
India. India's argument that the Refugee Convention places the burden on the host
state while the international community is idle is unfounded and baseless because
signing the agreement would allow UNHCR to provide greater assistance to the
refugee population, relieving India of the burden. The current policy is not adequately
assisting the refugees within its borders, and its failure to recognize refugees will not
cause the population to decrease. The government unable to move forward and look
into this prefers to handle refugee situations on an ad hoc basis.

CONCLUSION

It has to be realized that South Asian refugees have fled to India face serious
problems in their daily lives. From forcible repatriation to starvation, refugees find
themselves on the edge, clawing for mere survival. India has provided shelter to these
refugees for centuries for both geopolitical and socio-economic reasons. Political
upheaval occurring in unstable countries bordering India often created political
upheavals, forcing citizens to seek refuge elsewhere. Additionally, ethnic and
religious persecution forced minorities to join similar peoples in India's multi-ethnic
and multilingual society. Better opportunities to start afresh and improved living
conditions also contributed to India's appeal.

India's lack of clear standards for the treatment of refugee groups, however, is
resulting in violations of the international norms for the treatment of refugees. Its
policies are discriminatory and inequitable, even to members of the same group.
Although Tibetan refugees who arrived prior to 1980 received adequate assistance
from the Indian government, assistance to the Tibetan refugees who arrived after 1980
has declined greatly forcing them to live in inhumane conditions. These inconsistent
policies demonstrate that India should adopt basic standards of treatment for the
refugees living inside its borders.
Laudable effort has to be made by the Regional Consultations on Refugee and
Migratory Movements in South Asia, along with extended advisory groups in each
South Asian country, including SAARC, which have all worked together to develop
the Model Legislation for Refugee Protection. This law was recently finalized and
presented to the Ministry of Law and Justice for consideration.

The institutionalization of the long standing Indian tradition of compassion,

hospitality and protection to refugees shall be achieved by the enactment of this
model law. This may be read as India's humanitarian leadership in the community of
nations.

BIBLIOGRAPHY

 Arjun Nair; “National refugee law for India: Benefits and Roadblocks”; IPCS
Research Paper; 11th December 2007
<http://www.ipcs.org/issue_briefs/issue_brief_pdf/51462796IPCS-
ResearchPaper11-ArjunNair.pdf>
 REFUGEE LAW IN INDIA: THE ROAD FROM AMBIGUITY TO
PROTECTION (2017). By Shuvro Prosun Sarker. Palgrave Macmillan, ILI
Law Review Vol. II; Winter Issue 2019
 “Indian Refugee Policy: From Strategic Ambiguity to Exclusion?”; The
diplomat; Banasari Kamdar; February 3 2020.
<https://thediplomat.com/2020/02/indian-refugee-policy-from-strategic-
ambiguity-to-exclusion/>