PROJECT WORK

ON
INTERNATIONAL REFUGEE LAW

TOPIC PROTECTION OF REFUGEES

:

IN INDIA

PROJECT PREPARED UNDER THE ABLE GUIDANCE

OF MANOJ KUMAR SINHA SIR

SUBMITTED BY:
MD KALIMULLAH KHAN
LL.M 1ST YEAR
ROLL NO: PG 21113/3
20/03/2012

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TABLE OF CONTENTS:

 INTRODUCTION

 THE FOREIGNERS ACT AND ITS APPLICATION ON REFUGEES

 PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW

 CONSTITUTIONAL PROTECTION TO REFUGEES

 WHY INDIA DID NOT SIGN THE CONVENTION RELATING

TO REFUGEES 1957

 ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF REFUGEES

 INDIA, S INTERNATIONAL COMMITMENTS

 CONCLUSION

 BIBLIOGRAPHY/REFERENCES

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INTRODUCTION

India is counted as a superpower in today’s world in terms of economic activity as well as of

political clout. It is a big country which continues to receive refugees in spite of it being
overpopulated and without any legislation in place for regulating the conduct of refugees. The
main authority on the refugee law is the 1951 United Nations Convention Relating to the Status
of Refugees which is also known as Refugee Convention and it defines refugees (in Article 1A)
as a person who "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 to or, owing to such fear, is unwilling to avail himself of the
protection of that country". The concept of a refugee was expanded by the U.N Convention's
1967 Protocol and by regional conventions in Africa and Latin America to include persons who
had fled war or other violence in their home country.

India is not a signatory to either the 1951 Convention on Refugees or to the 1967 Protocol on the
Status of Refugees. The lack of specific refugee legislation in India has led the government to
adopt an ad hoc approach to different refugee influxes. Therefore the protection of refugees is
mainly confined to the political and administrative decisions taken by the Government of India,
leaving the refugees with no legal protection for their safety and welfare1. As there is no specific
legislation on protection of refugees in India, the legal status of refugees in India is governed
mainly by the Foreigners Act 1946 and the Citizenship Act 1955 as well as Registration Act.
These Acts do not differentiate between refugees fleeing persecution from other foreigners; they
apply to all non-citizens equally. Under the Acts it is a criminal offence to be without valid travel
or residence documents. These provisions render refugees liable to deportation and detention.

THE FOREIGNERS ACT AND ITS APPLICATION ON REFUGEES

In the absence of any statutory framework, India relies on Foreigner Act 1946 to govern the
entry, stay and exist of foreigners in India. Since the matter (entry and regulation of aliens)
falls under the union list the central government is empowered to govern the refugee. Section
2(a) of this act defines a foreigner as a person who is not a citizen of India thus covering all
refugees under the category of foreigner. Sec 3 empowers the Central Government to issue
orders in order to control foreigners in their activities, movement and issue of identity proof and
regular appearance before police. Section 5 prevents foreigner to change their name while in
India. Section7 obliges the hotel keepers to maintain records of the stay of foreigners. Foreigners
Act 1946 has given wide powers to executive to remove foreigners from India. It is in addition to
the power to refuse entry of foreigners for non fulfillment of entry conditions that invites instant
deportation. But by the request of National Human Right Commission many changes have been
brought by amending the Foreigners Act 1946 which is now a current law for refugees and
asylum seekers. The drawback in this Act is that it does not contain the term refugee and in

1
Vikash,Refuge right initiatives,http://www.hrln.org/hrln/index.php?
option=com_content&view=category&layout=blog&id=81 &Itemid=202.

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Indian law foreigner means aliens (non-Indian citizen) temporarily or permanently residing the
territory of India. The Registration of Foreigner’s Act 1939, Foreigner’s Act 1946, and
Foreigner’s Order 1948 are the legislations are also some of the legislations dealing with the
treatment of foreigners in India2.

PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW

Principle of non-refoulement means that the State cannot force a refugee to return to his or her
home country where he or she has a well founded fear of being persecuted. It is often considered
as the duty of the host state than as a right of the refugee to not force upon the issue of
repatriation of refugees. As India does not have fix legislation for dealing and protecting
refugees or has even given its ascent to international documents relating to protection of
refugees, it gives an impression that India is not bound to follow this rule of non-refoulement.
But there are arguments which say that indirectly Indian system provide a mechanism to support
this principle of non-repatriation. First is the working of legal institutions like UNHCR and the
NHRC which prevent the return of valid and genuine refugees to their home Countries. Second
attempt is to read it under Art 21 of the Indian Constitution by laying down that the State shall
not expel or return a refugee in any manner what so ever to- the frontiers of territories where his
life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion for it may turn out to be unfair unjust and
unreasonable. Another view is that the Constitution under Article 51 automatically incorporates
the international rule of non refoulement into India’s domestic laws.

CONSTITUTIONAL PROTECTION TO REFUGEES

Foreigners are entitled to some degree of limited constitutional protection in India. 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 recognized under article 20, 22, 25, 28, 32. All these articles are applicable both for citizens
and non citizens.

rotection 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.

berty. The Supreme Court has

reinterpreted Article 21 and said that due process of law shall take place against state if found
guilty of violation of refugee rights.

2
Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’, available at on
www.ssrn.com.

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 ainst double jeopardy and right against self
incrimination.

ht against arrest and illegal detention.

-28 deals with right to freedom of conscience and free practice and propagation of
religion.

to the citizens as well as refugees to move to the Supreme Court for

enforcement of fundamental rights which are guaranteed by the Constitution of India.

at the state shall endeavour to foster respect

for international law and treaty obligations in the dealings of organised peoples with one another.

ament 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.

WHY INDIA DID NOT SIGN THE CONVENTION RELATING TO REFUGEES 1957

The United Nation Convention Relating to the status of Refugee 1951 came into scene and was
introduced mainly because of a historical development which occurred in Europe after World
War II. The war left many scars on European people and many people became homeless,
stateless and ultimately becoming refugees. 1951 Convention was enacted only for European
countries and gave an exact definition of refugee based on ‘well founded fear of being
persecuted’. Persecution may be defined as the sustained and systematic violation of human right
due to the failure of state protection to its citizen. As such, it applied only to persons who became
refugees as a cause of events which occurred before the Refugee convention’s adoption3.

This limitation of providing relief only to European refugees was removed by the Protocol
Relating to the Status of Refugees on 31st January 1967, whose Preamble recognized that "new
refugee situations have arisen since the convention was adopted". The pre-Convention definition
did not take into account the reasons for the refugee's departure from his/her home nation.
Gradually, however, states became concerned, culminating in the definition of "refugee". Now
1967 protocol has universal application while dealing with refugees.

But in latter part of 19 and 20th century the definition of Refugees has undergone a lot of
changes. Refugees are now deemed to be known as displaced persons. Due to armed conflicts,
natural disasters and development in the border areas, people enter the international border of
adjoining countries and settle their as refugees. The displaced persons as refugees are different
from internally displaced persons (IDPs) who are displaced within the country and do not cross
the international borders.

3
Refugee Protection India,http://www.hrdc.net/sahrdc/resources/refugee_protection.htm read on 1st march,2012

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India has regarded the 1951 Convention and the 1967 Protocol to the Convention as only a
partial regime for refugee protection drafted and catering mainly to the needs of European
people and it will be right to term the conventions and protocol as euro centric. It does not
address adequately problems and situations faced by developing countries, as it is designed
primarily to deal with individual cases and not with problems of mass influx of refugees which is
a feature in Indian refugee’s influx. It also does not deal adequately with situations of mixed
flow of refugee’s i.e.; refugees from different countries coming for shelter to one country. In
India’s view the Convention does not provide for a proper balance between rights and obligation
of receiving and source states. Being a developing country it will be a burden for India to be
abided by the Convention. It will affect India’s security and domestic laws. Therefore India has
not signed 1951 Convention nor does the 1967 Protocol but still it is apply certain Articles of the
1951 Convention which are as follows4:

entry.

camps.

y and travel cards to refugees.

principle of non refoulement.

1951 convention is an important international human rights instrument which mainly focuses on
the principle of non refoulement which says that a refugee cannot be forcibly returned to a
territory where his life is in danger. The convention provides that a refugee may be expelled
from the country only on grounds of disturbing national security and public order also prohibits.
The major categories of refugees existing in India may be explained under three heads.

 Those who receive full protection according to the standard set by the Government
of India eg. The Srilankan Tamil refugees and the Jumma people from Bangladesh.
 Whose presence in Indian territory is acknowledged by the UNHCR and protected
under the principles of non-refoulement eg. Is that of Afghan, Somalian, Sudanese, and
Burmese etc.

4
Policies and Laws towards refugees, Tapan K
Bose,http://www.hrsolidarity.net/mainfile.php/2000vol10no10/745/,read on 15.3.2012

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  Who have entered India and have assimilated into their communities. Their presence is
not acknowledged either by the Indian Government or by UNHCR. Eg. Tribal refugees,
Nagas from Burma.

ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF REFUGEES

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.
Non Refoulement and right to refugee status:
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 Dr. Malvika
Karelkar V. Union of India5, 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.
Right to basic amenities:
In Digbijay Mote V. Government of India6, public interest litigation was filed by an NGO who
was running a school for the Srilankan refugee students in Karnataka. A petition was moved
when the conditions became difficult to run the school. The government of Karnataka through its
Ministry of Women and Social Welfare undertook to provide financial assistance to run the
school.
In K.A Habib V. Union of India7, the Gujarat High Court decided that the principle of non-
refoulement is encompassed in Article 21 of the Indian Constitution. It decided that two refugees
from Iraq could not be sent back to their home state if they had fear for their life and security.

Landmark case

Indian courts, while generally strictly interpreting the stringent legislation on foreigners by
refusing to interfere with the powers of the executive, have, on occasion, evolved a wider and
more humane approach to protect the rights of refugees in India. In 1996, the Supreme Court
in National Human Rights Commission v. State of Arunachal Pradesh8 intervened with a liberal
interpretation of the law to suggest that refugees are a class apart from foreigners deserving of
the protection of Article 21 of the Constitution. The Court held at paragraph. 20,

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every
human being and certain other rights on citizens. Every person is entitled to equality before the
law and equal protection of the laws. So also, no person can be deprived of his life or personal
liberty except according to procedure established by law. Thus the State is bound to protect the
5
Criminal 583 of 1992 in writ petition.
6
Writ Appeal No. 354 of 1994.
7
CA 3433 of 1998.
8
AIR 1996 SCC 742.

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life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody
or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which
they would be forced to do so.”

INDIA, S INTERNATIONAL COMMITMENTS

India is a signatory to a number of international conventions that shows its commitment and
obligations towards refugees. It is a signatory to the Universal Declaration of Human Rights
(UDHR), Article 14 of which is the fountainhead for subsuming refugee protection in human
rights. The other treaties to which India is a party and which influence the treatment of refugees
are the Genocide Convention 1948, the International Convention on the Elimination of all Forms
of Racial Discrimination (ICERD), 1965, the International Convention on Civil and Political
Rights, 1966 [ICCPR], the International Convention on Economic, Social and Cultural Rights,
1966 [ICESCR], the Convention for the Elimination of all Forms of Discrimination Against
Women, 1979 (CEDAW), the Convention Against Torture and Cruel, Inhuman or Degrading
Treatment or Punishment, 1984 (CAT) and CRC 1989. Significant pressure to give ascent to the
Refugee Convention and enact refugee protection legislation for the country has been always
exerted on the Indian Government by the National Human Rights Commission (NHRC). The
NHRC is a statutory body established under the Protection of Human Rights Act, 1993. The
NHRC was instrumental in ensuring that the Indian Government signed the CAT on 14th
October 1997.

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CONCLUSIONS

The first step towards creating a safe and protective environment for refugees in India is to bring
a national legislation for their protection which can regulate their behaviour and conduct and can
help them in their overall development as a human being. Judiciary and human right bodies are
the only instruments 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
important to draft law on refugees so that there will be a uniform legal framework to recognise
the rights of refugees. By enacting a national model law for refugees, refugee can be
distinguished from IDPs and foreigners and can acquire protection. India is therefore not
required to sign 1951 Convention as protection is already been given by Indian Constitution and
judiciary. Therefore it is urgent demand of the situation that a specific legislation on refugees be
drafted so that the refugees in India can stay and enjoy the benefits and hospitality which we
Indians are famous for without any human right violations. As of January 2011, there are
184,821 refugees residing in India and 3746 asylum seekers. 14,823 are assisted by UNHCR9.
According to the World Refugee Survey 2009, the number of refugees and asylum seekers in
India is 4, 56,00010.

9
http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4876d6&submit=GO
10
http://www.refugees.org/resources/refugee-warehousing/archived-world-refugee-surveys/2009-wrs-country-
updates/india.html

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BIBLIOGRAPHY/REFERENCES

1. Tapan Kk Bose, Policies and Laws towards refugees.

(http://www.hrsolidarity.net/mainfile.php/2000vol10no10/745/).
2. Boris Pal, Legal condition of refugee in India.
http://borispaul.wordpress.com/2010/09/11/legal-conditions-of-refugees-in-india/.
3. Bhairav Acharya, ‘The law, policy and practice of refugee protection in
India’. Available at on www.ssrn.com.
4. Refugee Protection India. (http://www.hrdc.net/sahrdc/resources/refugee_protection.html)
5. Isha Bothra, The law policy and practice of refugee protection in India.

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