INTERNATIONAL REFUGEE LAWS GOVERNING INDIA BY - RESHMA RT
INTERNATIONAL REFUGEE LAWS
GOVERNING INDIA
AUTHORED BY - RESHMA RT
ABSTRACT:
India is considered to be the safest
home for many refugees. Whenever the humanitarian issue arises related to
stateless refugees, India has done more than any other state can do. It also
handled the national security issue more than that of the asylum seekers.
However, India lacks domestic laws and administrative laws due to the threat of
terrorism in the recent past makes the drafters more cautious while drafting,
which led to the limitation of its powers to protect its own people. Not
becoming a signatory party to the 1951 conventions, and the 1967 protocols,
will not bring the solution to the problem. Thus, India needs to revisit its
policy deals with refugee’s draft laws against torture and seek asylum, amendment,
or inclusion of the UDHR, and ICCPR under the domestic laws and municipal laws.
KEYWORDS: asylum
seekers, refugees, terrorism, citizenship, non-refoulment, displaced persons.
INTRODUCTION:
Article 1 of the United Nations
Conventions related to the status of refugees defines a refugee as “a person
who is outside their country of nationality or habitual residence due to the
fear of persecution under this convention”. More than its own people or
migrated people, as per the UNHCR report, 69% of the state is filled with
refugees and asylum-seekers, most of these refugees are from the neighbouring
countries. Even though India has adverse diverse groups: Iranians, Syrians, Sri
Lankan Tamils, Tibetans, Chakma’s, and many more refugees who were forced to
flee from their host country to another country. Therefore, there are rights
that refugees same as Indian citizens do have:
? family reunification
? principle of non-discrimination, non
- refoulment, and
? against torture and slavery
? Non-expulsion
? Non- extradition
? To earn their livelihood
Although India, without a national
refugee protection policy framework, still accepts the refugees of their neighbouring
countries. To ensure their safety and peace, there are solutions to resolve
these problems such as their identity, settlement, and repatriation: Asylum
seekers can get refugee status from UNHCR if the Indian Government does not
protect their status, durable solutions, and is a signatory party to the ICCPR
and 1967 protocols. This paper discusses the international instrument that
gives the status of refugees, and it also discusses how Indian laws such as the
administrative norms will be implemented for the protection and safety of
refugee life. Based on this discussion, it seeks to present an argument to
adopt a separate legal framework for refugee protection in India.
Research methodology:
This research paper is purely based
on doctrinal research using secondary sources such as websites, books,
journals, precedents, treaties, and conventions, news for a deep understanding
of international instruments and to raise awareness on this topic.
Review of literature:
The UDHR states that countries must
uphold and protect human rights as concluded in the declaration. As stated
earlier, the definition also comes from the Protocol deals with the status of
refugees. The advantage of being a signatory party to the 1967 protocols, the
geographical limitations have been removed so like the UDHR it will be
applicable universally. The constitution of India has interpreted Article 21 in
a broader sense including the status of the principle of non-refoulment[1], though
India is not a signatory party it provides asylum to refugees who flee from neighbouring
countries such as Myanmar, Bangladesh, Pakistan, and Afghanistan, Tibet,
Uzbekistan, and Lankan Tamils.
Role of Judiciary:
The role of Indian judiciary has
played a significant role in shaping refugee law and policy by giving various
judgments in high courts and supreme courts. The judiciary also played a
crucial role in protecting the rights of the refugees, hence, if a refugee has
been detained or arrested illegally without any charges then the threat to
national security and violates the principles of non-refoulment, repatriation,
or deportation.[2] India
still treats the refugees under the Foreigners Act, of 1946 and the Citizenship
Act determines the nationality of refugees. The Supreme Court also held that
foreigners have the right to be heard in the case of Louis De Raedt & Ors. Vs. Union of India. The High Court of
Gujarat states the conditions under which the displaced person cannot be
expelled[3] in the
case of Ktaer Abbas Habib Al Qutaif
Challenges and issues:
Deportees in India face a plethora of
challenges and issues, including legal, social, profitable, and political
challenges.
Legal Challenges: India does not have
specific domestic laws and programs for deportees. The 1951 Convention relating
to the Status of Refugees defines an exile as a person who, “owing to a
well-innovated fear of being bedevilled for reasons of race, religion,
nationality, class or a particular social group or political opinion, is
outside the country of his nation and is unfit or, owing to similar fear, is
unintentional to mileage himself of the protection of that country”. Asylum seekers
can get exile status from UNHCR if the Indian government does not defend the
status. The principle of non-refoulment is easily affirmed under transnational
law as the Indian constitution provides space for exile or asylum seekers with
the right to freedom from expatriation from a home in which he or she seeks
retreat or from forcible return to a country or a home where he or she faces
trouble to life or freedom because of race, religion, nation. The Indian
Constitution also recognizes the principle of non-refoulment as encompassed in
Article 21 which guarantees the right to life Social Challenges: Refugees in
India face social challenges like demarcation and rejection. They are
frequently viewed as outlander and are subordinated to importunity and
violence. They also face language barriers and artistic differences that make
it difficult for them to integrate into society.
Economic Challenges: Refugees in
India face profitable challenges, like a lack of access to education and
employment openings. They frequently work in low-paying jobs with poor working
conditions. They also face difficulties in penetrating introductory services
similar to healthcare and housing.
Political Challenges: Refugees in
India face political challenges, similar to a lack of representation and
participation in decision-making processes. They are frequently barred from
political processes and do not have access to introductory rights similar to
voting, Indigenous provisions
Constitutional provisions:
History:
The history of refugees begins from
the history of partition that took place in 1947, even though most of the
refugees - by choice or forcibly - were moved to India with the same
nationality. States like Delhi provide a host state for refugees to live their
lives. The Indian constitution provides some absolute rights to all those who
acquire citizenship or who live in the country on a temporary basis. Hence,
those who flee from their original country to India can seek shelter under part
3 of the Indian constitution. Due to the acts of terrorism, the constitution
also lends a hand to foreigners as well as internally displaced persons by
interpreting the scope of fundamental rights.
Fundamental rights:
The principle of non-refoulment and
non-discrimination has been included in Part 3 of our Indian constitution -
which talks about fundamental rights. There are some of the indigenous
provisions that are explained below Article 21- right to life and particular
liberty, 14- right to equality, 5, 6, 7, 8, 9, 20, 22, 25- 28, 32, 226.
Treatment given to Asylum people can be divided into three heads-
a) National
Treatment
b) Treatment
that is accorded to foreigners
c) Special
Treatment
a) National
Treatment The public treatment of the shelter people is the same as the citizens
of India. There are certain Articles in the Constitution of India, which takes protect
the Fundamental Rights of all people in India. The rights similar to equal
protection of the law under Article 14; Article 25 - the right to freedom of
religion, Article 21- the right to life and personal liberty, and the right to
social security and the right to education, are guaranteed in Part III of the
Indian Constitution.
b) Treatment that
is accorded to nonnatives - Under this head, there are rights related to
housing problems, movements, etc. the rights which are delivered under this
treatment are the right to employment or profession under article 17, freedom
of Hearthstone, and movement under article 26, right to housing under article
21, right to form an association under article 15 and right to property under
article 13 of the 1951 Refugee Convention.
c) Special
treatment - This treatment includes the identity and trip document under
article 28, impunity from penalties under article 3(1) of the 1951 Refugee
Convention.
International instruments:
The international obligations to
protect refugees, including family reunification, employment, repatriation,
resettlement, non-refoulment, non-expulsion, or non-extradition, and the
minimum standard of treatment are traced in customary international law as well
as in international treaties. The international treaties related to the
protection of refugees and asylum seekers such as the 1951 conventions, 1967
protocols, UDHR, ICCPR, ICESCR, and IRO. Despite, the fact that India is not a
signatory party due to the Cold War, it has been accepting refugees from
neighbouring countries. So, they adopt laws such as the UDHR, ICCPR, and 1967
protocols, the Convention on the Elimination of all Forms of Racial
Discrimination CERD-1965, and the Convention Against Torture-1984.
Article 14A of the UDHR states: the right
to seek asylum. Article 13 of the ICCPR of 1966 states: "An alien lawfully
in the territory of a state party to the present. The Covenant may be expelled
therefrom only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise require,
submit the reasons against his expulsion and to have his case reviewed by, and
be represented for the purpose before, the competent authority or a person or
persons especially designated by the competent authority. In the Indian context, the UDHR is
the principal document for part 3 of the Indian constitution, especially for refugees
and asylum seekers. It was chaired by Eleanor Roosevelt & comprised
representatives from various nations. It consists of 30 articles: right to seek
asylum, right to form a family, right to education, right to the principle of
non-discrimination, freedom from torture, freedom from slavery, equality before
the law, and right to nationality, right to own property. Under ICCPR, Article
7 - rights against torture, Article 9 - right to liberty and security of
person.
It includes the rights of the non-refoulment.
Non-refoulment refers to the restriction of entry in the host country. It is a
customary norm that upholds all the states to oblige by this principle.
Refugees also have the right to seek asylum where the states seek to provide
access to the fair and effective asylum procedure. The principle of
non-discrimination is the key principle to international refugee law, ensuring
equal treatment to the refugees. The rights given to refugees are the right to
education, the right to employment, and the right to health care. When it comes
to the Indian population concept, there must be an implementation of these
provisions. So, the UN organizations have innovated an agent named UNHCR -
headquarters in Geneva, Switzerland, and have branches across the world to
supervise and monitor them. The work of NGOs, UNHCR, and other organizations
comes into play when there is an act of terrorism that takes place inside the
country e.g., Manipur is the best scenario to explain it. At that time, the
refugees should not be tortured, discriminated against, or should not be forced
to flee to their origin country also, they should not be attacked and mentally
abused or any other criminal offenses.
UNHCR:
The United Nations of High
Commissioner of Refugees is the UN mandate agent for refugees. UNHCR ensures
and regulates the protection of refugees such as resettlement, and local
integration. The states are bound to cooperate with UNHCR and other nations of
the states. UNHCR protects both the displaced and internally displaced persons.
The UNHCR got involved in India in the crisis of Bangladesh in 1971 and the
Tibetan refugees. With the help of governmental organizations, NGOs, and
refugee camps, the UNHCR helps refugees from forcibly being sent back to their
own countries. UNHCR acts as a principal international organ for refugee
protection from statelessness and supervises and monitors all over the states
to ensure security, and safety, against slavery, torture, and peace. If India does
not give the status of refugee to the asylum, they can get registered with
UNHRC.
In India, the NHRC in Tamil Nadu
provides healthcare facilities to Sri Lankans. A PIL was filed against the
Arunachal Pradesh government in 1995 for not supporting the Chakma’s. The court
directed the government to provide necessary help to the group. In all forms,
they helped and tried to resolve the issues of refugees in India.
Laws related to refugees:
·
Citizenship Act, 1955 (No.57 of 1955).
·
Extradition Act, 1962 (No. 34 of 1962).
·
Foreigners Act, 1946 (No.31 of 1946).
·
Illegal Migrant (Determination by Tribunals) Act, 1983
(No.39 of 1983).
·
India Penal Code Act, 1860 (No.45 of 1860)"
Passport (Entry into India) Act, 1920 (No.34 of 1920) "Passport Act, 1967
(No.15 of 1967).
·
Protection of Human Rights Act, 1993 (No.10 of 1994).
·
Registration of Foreigners Act, 1939 (No.16 of 1939).
·
Immigrants (Expulsion from Assam) Act, 1950.
·
Administration of Evacuee Property Act, 1950
Case laws of refugees in India:
Malavika Karelkar vs. Union of India [4]Here,
the deportation order issued against 21 Burmese refugees was stayed by the SC
and permitted them to seek refugee status under UNHCR.
P. Nedumaran vs. UOI [5]Here,
it was held that refugees should not be subjected to detention or deportation
and that they are entitled to approach the U.N High Commissioner for a grant of
refugee status.
Vishakha vs. the State of Rajasthan, the
Court observed that reliance can be placed on international laws.
Mohammad Salimullah and others vs.
Union of India and Ors[6] The court
held that whether the Government could deport the Rohingya refugees, as a
minority
Suggestions:
There is a need for greater clarity
and specificity in India's domestic legislation concerning refugees, aligning
it with international standards to ensure robust protection. Efforts should be
made to improve access to education, healthcare, and livelihood opportunities
for refugees to help them integrate into Indian society. The establishment of a
standardized and fair refugee status determination process would ensure
equitable treatment of asylum-seekers and refugees. Special attention must be
given to the protection of vulnerable groups such as women, children, and the
elderly among refugee populations. Training programs should be conducted for
government officials, law enforcement agencies, and judicial bodies to enhance
their understanding of refugee law and rights. India should actively engage in
regional discussions and cooperation frameworks to address refugee challenges
collectively with neighbouring countries. Continued research and data
collection on the experiences and needs of refugees in India will provide
valuable insights for policy development and implementation. Collaboration with
civil society organizations and NGOs can facilitate the effective delivery of
services and support to refugees. Public awareness campaigns can help foster
empathy and understanding of refugee issues among the general population,
reducing discrimination and stigma. A
periodic review of refugee policies and practices considering changing global
and regional dynamics is essential to ensure they remain effective and humane.
In conclusion, addressing the complex
challenges associated with refugee law in India requires a multifaceted
approach involving legal reforms, policy enhancements, international
cooperation, and public awareness. By prioritizing the protection of the rights
and dignity of refugees, India can play a pivotal role in upholding the
principles of human rights and humanitarianism on the global stage.
Conclusion:
In summary, the literature review has
given a comprehensive understanding of refugee law and its multifaceted impact
in India. This review has illuminated the literal environment, legal framing,
challenges, and counter-accusations girding the treatment of refugees within
India's borders. India, as a signatory
to various transnational conventions, including the 1951 Refugee Convention and
the Universal Declaration of Human Rights (UDHR), is bound by principles that
emphasize the protection of refugees and their mortal rights. Still, the
perpetration of these principles has been complex and has led to various
challenges, as stressed in the literature. The government's policies and
practices have evolved over time, impacting the lives of refugees from
different countries, including Bangladesh, Sri Lanka, Tibet, and others. The
Indian judiciary has played a vital part in shaping refugee law and policy,
establishing significant legal precedents. Moral rights associations and
advocacy groups have also been necessary in advocating for the rights of
refugees in India. Despite progress, the literature has shown that refugees in
India continue to face a range of challenges, including legal inscrutability,
limited access to education and employment, and issues related to detention and
expatriation. There are also geopolitical considerations and regional dynamics
that impact India's approach to refugees.
References:
https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-saga-from-1947-to-2017.html
CONSTITUTION OF INDIA, 1962
Writ Petition (Civil) No. 793/2017
Writ Petition (Criminal No) 583 of
1992
1993 (2) ALT 291, 1993 (2) ALT Cri
188
[1] Maneka Gandhi v. UOI
[2] Muller of Nuremberg vs. Superintendent
[3] Ktaer Abbas Habib Al Qutaifi vs. Union of India 1999
CriLJ 1919
[4] Malavika Karelkar vs. Union of India Writ Petition
(Criminal No) 583 of 1992.
[5] P. Nedumaran vs. UOI, 1993(2) ALT 291, 1993 (2) ALT
Cri 188.
[6] Mohammad Salimullah and others vs. Union of India and
Ors. Writ Petition (Civil) No. 793/2017.