Laws with Respect to Refugees: Time to Rethink

The Citizenship Amendment Bill, as proposed by the government, has a deep-rooted humanitarian concern, as it provides shelter to the religiously persecuted minorities. But, this umbrella is restricted to the people belonging to certain communities i.e. Hindu, Parsis, Sikh, Buddhist, Jains and Christians and that too from selected countries, i.e. Afghanistan, Pakistan and Bangladesh. The Muslim minorities like Ahmadis and Shias and the Rohingya Refugees from Myanmar, despite being religiously persecuted, are not given protection under this bill. India is nations that host around 4,20,400 refugees. This enormous figure incorporates refugees from diverse countries like Tibet, Sri Lanka, and Bangladesh.

These people have always posed a threat to the sovereignty of the nation. There can be indeterminate reasons for the Refugee Crisis, most common being war (Bangladesh), natural disasters, domestic conflicts (Tibet and Sri Lanka), environmental displacement, etc[1]. Numerous international conventions are formulated to provide a protective shelter to these persecuted groups, but, despite holding a prominent position and acting as a shield, safeguarding the rights of these people, India is a signatory to none of these conventions. It’s only upon the humanitarian grounds that India abets these groups and there is no proper legislation that governs the refugees. Absence of law has always posed the probability of terrorist attacks, thus, leading to external as well as internal disturbances in the nation. This article culminates the international conventions as well as the constitutional framework for the protection of refugees.

International Conventions for Refugees

The oldest convention that governs the legal framework in respect of refugees is the 1951 Refugee Convention. This document lights upon the rights of the displaced people and puts obligation over the state parties to safeguard their rights. Over the years, it has acquired the status of customary international law, with 145 state parties being a signatory to it. This convention originates from Article 14 of the Universal Declaration of Human Rights, 1948, which elucidates upon the right of the person to seek asylum. Article 1 of the Convention broadly defines refugees, it says “refugee is any individual, who is outside of his home country due to the fear of being persecuted, or due to minority in terms of the case, race, religion and nationality and is unable to avail himself the protection of that country. Hence, unwilling to return to that country.[2]” Article 2 puts an obligation upon the contracting states, to grant asylum without any discrimination based upon religion or the country of origin.

The legal framework or the administrative process under which the UNHCR determines, whether a person seeking asylum is a refugee under regional, national or international law is known as Refugee Status Determination. This conventions also elucidates that the refugees are to be treated as the nationals of the country, and they have right to preach their religion, right to have access to elementary education, right to have social security, etc.

The states too have certain rights to formulate certain measures, to safeguard the rights of its citizen and to keep a check, whether any anti-national activities are not performed by these groups. As aforementioned, India is neither a signatory to this convention nor its 1967 protocol. Yet, India stood upon every occasion and left no stone unturned to make provisions for the betterment and the interest of these religiously persecuted groups, which makes India an umbrella sheltering the maximum refugees in South East Asia. There are several security-related reasons which made India decide to not to sign this Convention. Some of which can be:

Keeping the present scenario in mind, there is no legal foundation to grant shelter to these socially outcasted groups, but the signing of the convention puts a legal obligation upon the state. It is not possible for a country with 1.3 billion population, to provide shelter to everyone. Torture Convention Article 3 states that “the state has no right to extradite a person when there are sufficient grounds to believe, that his life is in danger of being subject to torture.”

 The porous nature of south Asian borders may result in internal disturbance, which breaches the sovereignty of the nation.

Thirdly, what is the need of signing a piece of paper, when a nation is fulfilling the duty imposed upon it? Moreover, India does not seek UN money to shelter the refugees.

The Constitutional Framework for The Protection of Refugees

Does the pertinent question arise that which framework is governing refugee law in India now? The refugees in India are treated under various administrative and political laws. The law applicable to aliens is the same law, which governs the refugees, until or unless any specific legislation has been passed, as in the case of Ugandan Refugees. Refugees in India are covered under the definition of “alien” as enshrined under Article 22 para 3 of the Indian Constitution. Section 83 of CPC, which talks about alien enemies, entails certain provisions concerning refugees.

Section 3 (2) (b) of Citizenship act 1955, discourses “any person, at the time of his birth, his mother or father was an alien enemy and the birth occurs at a place, which is governed by the enemy, then he/she shall not be considered to be as citizens of India”. Other enactments include the Foreigners Act, 1946. This act grants power to the central government to control, monitor and regulate the movement of the foreigners in India. This act defined the word foreigner in a narrow sense and states that “any person other than an Indian citizen is a foreigner”.

Hence, the refugees can also be incorporated under this law. The act supplementing the previous act is the Registration Act, 1946. This act states that all the foreigners, who enter inside or leaves the border of India, must be registered inside the domestic territory. Moreover, the Passport Act, 1920 and Passport Act, 1967 elucidate the need of entering into a host country with valid passport and travel documents, and the absence of which, no person shall be entertained. In 2005, the Illegal Migrants Act, 1883 was struck down by Justice R.C. Lahoti. It was held that this act acted as a constant barrier in the identification as well as the deportation of the illegal immigrants. In the year, 1999-2000, an eminent person group (EPG) from Asian Countries, led by Justice Bhagwati, proposed a model Refugee Law, but unfortunately, that law did not see the light of the day[3].

In 1998, an amendment proposal was also sent to both the Law Commission as well as Parliamentary Select Committee. The Law Commission in its 175th law report stated the provisions related to “illegal migrants”, and talked about providing a “status” to them. This bill later went to Rajya Sabha in 2003. Fali S. Nariman and Eduardo Faleiro proposed for wider refugee policy, and also stated the due process for the adoption of the Model bill. Eventually, an amendment was made under Section 6 of the proposed action, but it did not make a specific mention of “refugees”.

Besides this, there are certain constitutional safeguards to protect the interest of these groups. The Indian Constitution grants certain fundamental rights to refugees. Namely Right to treated equally under Article 14; Right to life and personal liberty enshrined under Article 21; Right to seek protection Against Arbitrary Arrest under Article 22; Freedom to preach one’s religion under Article 25; Right to seek protection concerning convention of certain offences under Article 20; and the biggest of all the rights, Right to Constitutional Remedies under Article 32, under which a person can approach directly to the Apex Court if his/her legal right has been infringed. The Supreme Court has pronounced several judgements, covering refugees within the ambit of Article 21.

In NHRC v. State of Arunachal Pradesh[4], the Andhra Pradesh Government was instructed to perform its due course of duty to safeguard the interest, health, and life of the Chakma refugees, residing within the territorial boundaries of the state. While giving a concluding statement in the case of Louis de Raedt v Union of India[5], the Supreme Court of India said that there is no provision enshrined under the constitution of India, which gives absolute powers to the central government to debar the foreigners under the Foreigners Act of 1946.

How Does India Monitor Them?

The Standard operating procedures (SOP) have formulated to regulate the movement of these groups. Certain refugee groups have been provided with aadhar, ration card, PAN cards, which facilitates them to open their bank accounts and allow them to procure the necessities to earn the basic livelihood. In 2015, six different minority communities, belonging from Afghanistan and Pakistan, were allowed to stay in the territorial boundaries of India, and given access to visas, driving license, basic elementary education and healthcare facilities.

In Kashmir, the West Pakistani refugees were granted Identity certificates. These groups were also promised a package of Rs. 200 crores, which would be spent on their growth, welfare and development[6]. The Bhartiya Janta Party has also assured voting rights to certain minorities. Hence, through all these measures the Government of India regulate the movement of the refugees.

Conclusion

Despite of all the rights and provisions bestowed upon these persecuted minorities, India still lacks a concrete framework to govern the refugees. Although the existing structure helps fulfil the structure imposed by the international community, yet there is a need for reformation. In India, there is a law for everything, then how we, as citizens, expect to have no law for the advancing concern of human mankind. India is not a signatory to UNHCR, but India has ratified the UNHRC, which provides that states should adopt certain laws concerning refugees and contribute to the welfare of the international community.

Without a specific law, there is no governing body to regulate the crime committed by these refugees. India has a provision to adopt international conventions in domestic law. In the case of Vishaka v. State of Rajasthan[7], the Supreme Court of India laid down that in the absence of law, guidelines can be borrowed from the International Law. From the time immemorial we have continuously neglected this issue, but now it’s time to rethink.


[1] Dipankar De Sarkar, Why India won’t sign Refugee Treaty, 11 Sept 2015, available at file:///C:/Users/HP/Downloads/Why-India-wont-sign-Refugee-Treaty.html (last accessed on 28 May 2020).

[2] Jack Steadman, What is a refugee? The definition of ‘refugee’ explained, 12 July 2019, available at https://helprefugees.org/news/what-is-a-refugee-the-definition-of-refugee-explained/?gclid=CjwKCAjwq832BRA5EiwACvCWscMT4oXzDeiw2fl1U4W1TJBD5h8HjmwOeEH6HXyuIR2XUooEUFW4ERoCAHgQAvD_BwE (last accessed on 27 May 2020).

[3] India Needs a Proper Refugee Law, Not a CAA Suffused with Discriminatory Intent, available at https://thewire.in/law/india-needs-a-proper-refugee-law-not-a-caa-suffused-with-discriminatory-intent (last accessed on 26 May 2020).

[4] 1996 AIR 1234, 1996 SCC (1) 742.

[5] Writ Petition (Civil) No. 1372, 1410 of 1987, W.P. (Crl) No. 528 of 1987.

[6] Ipsita Chakravarthy and Vijyata Lalwan, No law for refugees in India – and the Citizenship Bill does not fill the gap, Dec 9, 2020, available at https://scroll.in/article/946220/no-law-for-refugees-in-india-and-the-citizenship-bill-does-not-fill-the-gap (last accessed on 25 May 2020).

[7] 1997 (6) SCC 241.

Akshat Jaithlia from Rajiv Gandhi National University of Law, Punjab

Akshat has good communication and debating abilities. His critical and analytical skills to research upon legal matters, differentiates him from others.


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