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  • Shubhi Srivastava

“REFUGEE LAW: NEED OF THE HOUR”

Shubhi Srivastava,

Jamia Millia Islamia

INTRODUCTION

More than 46,000 refugees and asylum seekers, mostly from Afghanistan and Myanmar, were registered with UNHCR India as of January 31, 2022.[i] There are currently 2.5 lakh refugees living in India; they are primarily from Myanmar and Afghanistan, but there are also significant numbers of refugees from Tibet and Sri Lanka.[ii] India hosts different types of refugees, yet the nation lacks clear legislation or a unified refugee policy. Neither the 1951 Refugee Convention nor the 1967 Protocol on the Status of Refugees are ratified by India.

Therefore, deciding a refugee's status in India is the responsibility of the Indian government. The protection of refugees is limited to the Government of India's ad hoc actions. The government takes into account various issues, including its foreign policies and bilateral partnerships, when addressing the refugee issue. Depending on India's bilateral relations with them, refugees from neighboring countries are handled on a case-by-case basis. As a result, the government has started classifying refugees into several categories using different methods.

OBJECTIVE

India does not have a specific refugee law in place, despite this fact refugees are constantly crossing its borders from neighboring nations. It will guarantee consistency and legal sanctity for guaranteeing the protection of fundamental human rights if there is special legislation governing refugees and asylum seekers.

STATUS QUO

Refugees in India are considered to be on par with “aliens.” The Indian Constitution extends to refugees the fundamental rights listed in Part III of the constitution. These rights include equality before the law (Article 14), protection from discrimination (Article 15) and above all—the right to life and personal liberty (Article 21).

Genuine refugees and other categories of foreigners are treated equally by these enactments:

(ii)        Section 83 of the CPC.

(iii)      A few more statutes and Section 3(2)(6) of the Indian Citizenship Act of 1955.

(iv)      The Central Government is able to control the entry of foreign nationals into India through the Foreigners Act, 1946. Anyone who is not an Indian citizen is classified as a “foreigner” under this definition. 

(v)        Foreigner registration and departure are covered under the Registration Act of 1939. 

(vi)      Passport Acts of 1920 and 1967 addresses the authority of the government to place restrictions on a passport holder's ability to enter India.

(vii)    The 1962 Extraditions Act.                                     

(viii)   The Protection of Human Rights Act of 1993.

ROLE OF JUDICIARY IN PROTECTING REFUGEE RIGHTS

India's refugee policy is inconsistent, prioritizing groups based on geopolitical considerations. Sri Lankans and Tibetans receive support, while Rohingya Muslims are viewed as a security threat. India's judiciary often embraces a more inclusive approach, granting refuge even to those who enter illegally.

In the case of ND Pancholi v. State of Punjab[iii], the Supreme Court stayed the deportation order issued against a Burmese refugee and allowed him to seek refugee status from the United Nations High Commissioner for Refugees office in New Delhi.

Expanding fundamental rights, the Supreme Court declared in Louis De Raedt v. Union of India[iv], that even non-citizens possess the inviolable rights to life, liberty, and dignity.

In Malavika Karelkar v. Union of India[v], the Supreme Court stated that 21 Burmese refugees of the Andaman Islands who were in India cannot be deported considering that their claim for refugee status was still pending.

The Supreme Court held in the Chakma refugee case, NHRC v. State of Arunachal Pradesh[vi], that no one can be deprived of their life or liberty without following the proper legal procedures.

The requirement of voluntary repatriation was highlighted in P. Nedumaran v. Union of India. The court decided that the UNHCR, as a global organization, was responsible for determining the refugees' voluntariness and that it was not the court's duty to determine if the consent was voluntary.

While the Indian Constitution guarantees citizens the right to reside anywhere within the country, the Supreme Court ruled in the case of Muhammad Salimullah and others v. Union of India and Ors.[vii], that this right does not directly extend to preventing deportation of non-citizens.

LEGAL OBLIGATIONS 

The 1951 Convention and the 1967 Protocol precisely outline the main international commitments to safeguard refugees' rights against discrimination, refoulement, and other abuses. Since India is not a member, it is not directly obligated to uphold the rights of the country's refugees. However, India's simple reluctance to ratify the 1951 Refugee Convention does not release it from its basic humanitarian obligation to protect refugees. If non-signatories are party to the Human Rights Conventions, they are very much under an indirect legal obligation to uphold the refugees' fundamental rights.

For instance, under other international conventions like the International Covenant on Civil and Political Rights (Article 7), the Fourth Geneva Convention of 1949 (Article 45), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, even non-signatories are indirectly required to uphold the fundamental right against the refoulement of refugees. India is so indirectly obligated as a participant in these conventions. Furthermore, as stated in the Universal Declaration of Human Rights, every state is required to ensure that everyone has access to a particular set of fundamental rights, including the ability of refugees to apply for asylum.

Therefore, even though India is not a party to the convention on refugees and its protocol, a number of other international laws monitor government actions and protect the fundamental rights of refugees living in India.

NEED OF NATIONAL LEGISLATION 

1.     Owing to the absence of a clear definition of a refugee under Indian law, the government frequently lumps these groups together under the category of foreigners, failing to distinguish between migrants, refugees, and asylum seekers.

2.     Lack of a valid passport or entry visa into India is the primary requirement for deporting a foreign national. Given that the refugees are being forcibly removed from their homes due to dangerous situations, it is possible that they will violate these requirements, for which they will be prosecuted and may face deportation back to a location where their life or freedom is in danger. Because it jeopardizes the rights and safety of the refugees, such behaviour violates the principle of nonrefoulement outlined in the 1951 treaty.

3.     The absence of a particular statute defining the fundamental laws pertaining to refugees also allows the government to create regulations that discriminate against them and enact them under the guise of illegal immigration. various refugee communities may receive various levels of protection as a result of this prejudice.

4.     In the 1996 case of National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court limited the use of force to drive out Chakma refugees from the state and demanded that the state uphold the rights of the refugee group to life and personal freedom. The right to life and the right against refoulment have been upheld by the courts in a number of these situations, giving the refugees a minimal level of security in their new nation.

INCORPORATION

While India hasn't formally adopted the main refugee convention, it has signed other human rights agreements promising refugee protection. This means India, by law, must safeguard refugee rights through national policies and laws, as empowered by its constitution. Notably, a Supreme Court case established that India can draw upon international law for guidance. However, it's important to remember that simply signing agreements doesn't automatically guarantee asylum, and some exceptions within those agreements could potentially undermine their effectiveness.

The Vishakha v. State of Rajasthan[viii] case established that India can draw on international legal principles, such as those in the 1951 Refugee Convention, even without formal ratification. However, the court also acknowledged that simply signing this agreement doesn't guarantee automatic asylum. Additionally, a loophole in the Convention (Article 42) allows countries to limit refugee rights, potentially weakening its protections. 

CONCLUSION

It shows that there is room for human rights violations against refugees because the Indian legislation pertaining to refugee law is not specific and unambiguous. Despite the fact that the courts have recognized some of the rights of refugees, it is still unclear which rights of refugees are protected because there is no appropriate policy in place. Therefore, a thorough statute outlining the rights of the refugees and responsibilities of the state, as well as the steps to be taken when dealing with refugees in India, is urgently needed.

REFERENCES

[i] https://www.unhcr.org/countries/india (last visited Jan. 19, 2024).

[iii] [WP (civil) No. 1294 of 1987, unreported)].

[iv] AIR 1991 SC 1886.

[v] Crl. WP No.243 of 1988.

[vi] WMP Nos. 17372, 17424, 18085 and 18086 of 1992 in Writ Petition Nos. 12298 and 12343 of 1992.

[vii] AIR 2021 SC 1789.

[viii] AIR 1997 SC 3011.

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