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REFUGEE RIGHTS UNDER THE INDIAN CONSTITUTION: PART III S PROGRESSIVE TRAJECTORY
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REFUGEE RIGHTS UNDER THE INDIAN CONSTITUTION: PART III'S PROGRESSIVE TRAJECTORY
AUTHORED BY: PRERNA MANOCHA
LLM
Candidate, Constitutional and Administrative Law,
CHRIST
UNIVERSITY, BANGALORE
When a newly born nation
stood against an almost unanimously agreed Convention in the 1950s, perhaps most United Nations
members didn’t understand the move’s significance outrightly. But India vehemently opposed the Convention Relating
to the Status of Refugees, also known as the 1951 Refugee
Convention. India called the Convention ‘euro-centric’, stating
that its principles were embedded in Cold War politics[1]. Stating similar reasons, India would soon refuse to sign the 1967 Protocol to the Convention
as well.
However, this approach
was met with criticism. India’s approach to Refugee Convention was contradictory to its Constitution, which
it had adopted a year before it refused to sign the Convention and
multiple instruments that it was a party to, including
the United Nations Declaration of Territorial Asylum, 1967[2], the Universal Declaration of Human
Rights, 1948[3], and the International Covenant
on Civil and Political Rights,
1966[4]. Despite its reluctance to the Convention, in another contradictory move, India, in 1995, became a member of the Executive Committee
of the United High Commissioner for Refugees (UNHCR).
It would be erroneous to presume that by not signing the 1951 Convention, India has washed its hands away from its international
obligations and responsibilities. As a formidable economy and a prominent sub-continent nation,
India has never shied away from accepting refugees. Its Constitution has assisted in strengthening the rights of these
refugees, evolving their protection from existing provisions. There isn’t a single piece of legislation supporting the rights of refugees in India. While that is a challenge for the 46,903
refugees and asylum-seekers who hold
UNHCR-issued documents as of June 2023[5], the Indian Judiciary and Part III
of the Constitution have created rights for these individuals. This voyage has been elucidated
ahead.
Today, the international community
understands several terminologies, such as refugees, climate change refugees,
asylum seekers, internally displaced persons
(IDPs) and stateless persons. However,
the need for defining refugees
and their rights
only existed internationally in World War I and the Russian Revolution in 1917, when 1.5 million
Kulaks from Russia, Armenia, and Assyrian nationals were displaced. Then, the League of Nations
appointed Fridtjof
Wedel-Jarlsberg Nansen as the High Commissioner for Russian Refugees in 1921. Before the setting up of such an office,
matters of ‘refugees’ were a state subject, not an international obligation. However, the World War and Civil Wars
in Europe changed the perception and brought the threat to state security
if the refugee crisis were not dealt with. This prompted urgent
dialogues and actions on the part of the entire European community.
The discussions culminated after World War II, reaffirming the urgent need for international law to guide nations during such a crisis. The 1951 Convention was signed in Geneva, Switzerland, in 1951, and as of 2010,
there are 146 signatories to this Convention[6], which successfully solidified the right of non-refoulment for refugees.
India’s Refugee Crisis: A Summary
In the background of the
United Nations members undertaking to secure the rights of refugees through the Convention to resolve the
emergency that World War II had triggered for Europe, India, a newly independent nation with a shambled economy and
brewing war, faced its refugee crisis in the form of Partition. The true extent and statistics of the atrocities and forced migration
remain unknown.
Still, the Partition of India and Pakistan was an entirely
different issue than what Europe faced in the
aftermath of the war. Firstly,
Partition was not the product of war
fought over a couple of years; it
immediately tore the countries within a few days. Secondly, the psychological trauma of the refugees was fuelled further
by the communal violence and
economic instability of both nations.
The mass exodus of the Sindhi community in Pakistan and the aftermath for those who escaped was another challenge an
ill-equipped government faced within a few weeks of achieving independence[7].
Conforming to European
ideologies, therefore, was not an option for India. Those principles would also not sustain in the light of the further refugee crisis in 1959 when Dalai Lama and the Tibetan community were seeking refuge
in India, 1971 when after the Bangladeshi War of Independence, ten million refugees crossed borders, seeking
asylum in India, and between 1983 and
1987, when 1.34 lakh Sri Lankan Tamils fled during Sri Lankan Civil War[8][9]. While these were significant incidents
from the past, India has been providing
asylum to many more refugees
from Afghanistan, Pakistan,
Chakma Refugees from Chittagong hills, and most recently,
Rohingyas from Myanmar. India has also played a proactive role in the region by signing
Principle on the Status and Treatment of Refugees, also known as the Bangkok
Principles, India’s regional initiative for refugee rights.
The United Nations High
Commissioner of Refugees’ Office, set up in Delhi and Chennai, provided limited administrative assistance
upon its establishment. However, it is now the sole body for determining refugee status for asylum seekers in India,
without any legal framework governing
it. Nevertheless, it is imperative to note here that the efforts of the UNHCR were only possible if the judiciary played a proactive role in
securing the rights of individuals during the
numerous refugee crisis that
India faced.
The Role of the Indian Judiciary
India follows
the specific adoption
theory to integrate
international instruments into its municipal
law through legislative enactments, as observed
in the case of Maganbhai
Ishwarbhai Patel v. Union of India[10]. Article 253 of the Indian Constitution, however, empowers the
legislature to implement the provision of an international treaty. The
judiciary, therefore, in the absence
of a legislative framework, relied on rights contained in the Constitution itself and associated them with the principles enshrined
in the international instruments to which India is a signatory and jus cogen principles of international law.
The judiciary’s
interpretation, especially of Part III of the Indian Constitution, which
enshrines Fundamental Rights,
is significant for developing refugee
protection in India. While the legislature wishes to maintain
a flexible policy for refugee protection, the judiciary has played
its role in finding protection in many scenarios within the Constitution,
further elucidated below
A ‘jus cogens’
rule: Gujarat High Court’s Interpretation of Article 21
It is undisputed that the
principle of non-refoulment has acquired the status of jus cogens. Therefore, it binds India as well[11]. According to this principle, as stated in the 1951 Convention,
no country shall deport, expel, or forcefully return the refugee to his
original territory against his will or if there is a reasonable threat to his life, liberty and freedom[12].
The Supreme Court of
India has not authoritatively determined whether the right to determine refugee status and the principle of
non-refoulment exists in Part III’s framework. Nevertheless, Gujarat High Court’s decision in the Ktaer
Abbas[13] case is a monumental precedent. In
this case, two Iraqi minors had
crossed the Bhuj border and were detained at Joint Interrogation Centre in Bhuj. Their petition to the
Gujarat High Court pleaded for their transfer to UNHCR Office in Delhi, based on the non-refoulment principle. The High
Court, keeping in mind that the lives
of the minors were under threat if they were returned to the Iraqi Government,
allowed them to apply for asylum
with the UNHCR Office. In addition, the judgement stated that the principle
of non-refoulment is encompassed in Article 21 for a non-citizen seeking
asylum.
The nexus of relating
Article 21’s guarantees and ‘refugee’ is in the definition of refugee itself. A refugee is “someone unable or unwilling to return to their country of origin owing
to a well- founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group, or political
opinion”[14]. There existed a severe threat to
the lives of the minors in the
present case. Article 21 has also been interpreted to assure the life and
liberty of non-citizens. In its
decision, the Court vehemently supported the need to protect the minor boys from being returned
and assured them of assistance
with the asylum-seeking process.
However, the Court did
give exceptions as to granting this principle – the asylum seeker’s presence shall not be prejudicial to India’s law, order and security. This judgement has served as a vital precedent in current times. It
has been argued that the verdict proves that the
principle of non-refoulment can exist in Part III of the Constitution.
This decision is currently serving as the basis of criticism
for deporting and denying admittance
of Rohingya refugees.
Articles 14 and 21: Joint Interpretations
While interpreting
Articles 14 and 21 and the application of the same for refugees, the Supreme Court of India, in the Chakma
Refugee[15] case, stated that the language of the
makers of the Constitution had
clarified the application of the provisions to non-citizens as well. The Court further noted that the combined effect of
the conditions had assured protection to the numerous Chakma refugees who have settled in Arunachal Pradesh. While
this decision did not analyse the scope of the non-refoulment principle
under Part III, it did play a significant role in guiding the Gujarat High Court’s interpretation of Article 21 in the Ktaer Abbas case.
Extension of Article 21 to protections under Article 22
In the case of Louis
De Raedt v. Union of India[16], the Supreme Court held that even
non-citizens have the fundamental right to life, liberty and dignity. The right
against arrest and detention follows
this right of life. This judgement is a testament to the judiciary’s liberal interpretation of detention cases of refugees.
The rationale is noble. It is crucial
for the executive arm, which deals with refugees,
to understand that the term ‘refugee’ is not to be viewed with the term ‘prisoner’, especially while detaining
them at borders.
Detention cases of the refugees have to be dealt with
sensitively and liberally to ensure that the UNHCR Office can be allowed to determine their status.
The Indian Judiciary has
been widely acclaimed for its proactive role in upholding the rights of
refugees by strengthening their protections within the Fundamental Rights. Over
the years, the judiciary's interpretation of Part III has ensured that
fundamental human rights are guaranteed to refugees, giving many organizations
a basis to advocate for their protection against ill-treatment in camps and at
borders.
Despite the efforts of
the Indian judiciary, refugees in the country are still not receiving adequate
protection under the current statutory regulations, especially in the
Foreigner's Act and Indian Passport Act. These loopholes in the legal system
signify the need for dedicated municipal laws that specifically address the
needs and challenges of refugees, guaranteeing their safety and security under
Part III of the Constitution. By creating and enforcing such laws, the Indian
government can ensure that refugees are granted the legal protections they are
entitled to and can live a dignified life free from fear and persecution. This
is crucial for the well-being and protection of refugees who have fled their
homes due to war, conflict, or persecution and have taken refuge in India. Therefore,
it is imperative that the government take the necessary actions to address
these gaps in the legal system and provide refugees with the protection and
support they need to rebuild their lives.
Significance of Protection under Part III in Light
of Statutory
Laws
India is home to many
refugees who have fled persecution and violence in their home countries.
However, several domestic legislations in the country pose a serious threat to
refugee protection. One of the main reasons for this is the lack of distinction
between a 'foreigner' and a genuine 'refugee'. This can lead to situations
where refugees are not provided with the protection and assistance they need
and are instead treated like any other foreigner.
One example of such
legislation is the Passport (Entry into India) Act of 1920. This Act does not
differentiate between a tourist, an economic migrant, and a refugee escaping
persecution from their home state. As a result, immigration authorities may
arrest and illegally deport refugees who do not have passports, even if they
are fleeing violence and persecution in their home countries. This lack of
distinction between different types of migrants puts refugees at risk of being
denied their basic human rights and protections.
Similarly, according
to the Passports Act, passports
and refugee cards can be issued only when a refugee fulfils ‘public criteria’,
which has been vaguely defined in the Act. This vagueness has led to only Tibetan
Refugees being given valid passports
under the Passports
Act.
Asylum seekers and
refugees face unique challenges and legal complexities that can sometimes leave
them vulnerable to human rights abuses. In India, there are certain laws in
place to protect the rights of these individuals, but there are still loopholes
and uncertainties that can put their safety and well-being at risk. To address
this, the judiciary has taken an active role in interpreting the law to ensure
that the rights of asylum seekers and refugees are protected. Specifically, if
a refugee is arrested, detained, or threatened with refoulment (deportation),
they are entitled to appeal to the courts in India if their rights under
Articles 14, 21, and 22 of the Constitution have been violated.
These articles of the
Constitution guarantee fundamental rights such as equality before the law,
protection of life and personal liberty, and protection against arbitrary
arrest and detention. By invoking these provisions, refugees can challenge any
violations of their basic human rights and seek redress through the legal
system.
This legal protection is
essential to safeguard the rights and dignity of asylum seekers and refugees in
India. It ensures that they are not subjected to arbitrary detention or
deportation without due process, and that they have access to justice if their
rights are violated. By upholding these fundamental rights, India can
demonstrate its commitment to human rights and providing a safe haven for those
who have fled persecution and violence in their own countries.
An ever-present challenge
for the upcoming decade is that of climate change refugees. At the same time, the Chakma refugees
have been seeking
asylum due to tensions and environmental challenges of the Chittagong hills; the aspect of ‘climate
change refugees’ remains
unresolved even in the international community. The grounds
under the 1951 Convention
definition are socio-political and do not cover the ambit of such refugees but
their struggles to seek asylum on the
grounds of inability to return to their homeland due to climate change-related disasters. The issue of
climate refugees is becoming increasingly pressing around the world, and New
Zealand has already faced this challenge with Kiribati refugees. These
individuals are fleeing their home country due to the imminent threat of the
Kiribati Islands drowning as a result of climate change.
The issue of climate
refugees has become increasingly pressing in recent times, as more and more
people are forced to flee their homes due to the effects of climate change.
Despite the urgency of the situation, some countries have been reluctant to
grant asylum to these refugees, citing the lack of an immediate physical
threat. This is the case with a group of refugees who have sought asylum in New
Zealand, due to the threat of rising sea levels in their home countries.
Although the danger they face is clear and present, the courts in New Zealand
have refused to grant them asylum because the threat has not yet materialised.
This stance raises essential questions about how countries should approach the
issue of climate refugees in the future. With the potential for more and more
people to be displaced by the effects of climate change, it is essential that
countries develop a clear and comprehensive strategy for dealing with this issue.
India, for example, may soon face a similar danger with island nations like
Maldives, Mauritius, and Seychelles, which are also vulnerable to rising sea
levels.
While there may not be an
immediate threat to the lives of these refugees, it will be critical for the
judiciary and legislature to revisit the refugee policy. One key consideration
will be whether these refugees are protected under Article 21's guarantees,
which provide for the protection of life and personal liberty. This raises
important ethical and legal questions about the responsibility of nations to
protect the rights of individuals who are facing displacement as a result of
climate change, even if they are not yet facing an immediate physical threat.
As the issue of climate change continues to worsen, policymakers need to
grapple with these complex questions and develop policies that prioritize the
safety and well-being of all people, including those who are most vulnerable to
the impacts of climate change.
REFERENCES
I.
Acts, Rules and Legislations
a) The
Constitution of India, 1950
b) Passport (Entry into India) Act of 1920
c)
Indian Passport Rules,
190
d) Passports Act, 1967
II.
Books
a) Goodwin-Gill, G.S., McAdam, J. and Dunlop,
E. (2021) The Refugee
in International Law.
Oxford: Oxford University Press.
b) Pathak, P. (2021) International Humanitarian and Refugee Law.
1st ed. Lucknow, UP: Eastern Book Company.
III.
Case
Laws
a) Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400
b) Ktaer Abbas Habib Al Qutaifi & Anr. v. Union of India, (1998) Cri LJ 919
c) NHRC
v. State of Arunachal Pradesh,
(1996) I SCC 742
d) Louis De Raedt v. Union of India, (1991) 3 SCC 554
IV.
Conventions, Declarations and Principles
a) Convention Relating to the Status of Refugees, 1951
b) The
International Covenant on Civil and Political Rights, 1976
c) United Nations Declaration of Territorial Asylum,
1967
d) Universal Declaration of Human Rights, 1948
e) The
Principles on the Status and Treatment of Refugees, 2001
V.
Journal Articles
a) Anand, S. (1996) ‘Migration and Socio-Cultural Identity Crisis - A Case Study
of Sindhis in Post-Partition India’, Proceedings
of the Indian History Congress, 57, pp. 633–640.
b)
Boutier,
I. (2021) ‘The non-ratification of the 1951 Convention on Refugees: An Indian paradoxical
approach to human rights’, Revue
québécoise de droit international, CanLIIDocs (1690),
pp. 115–135. doi:10.7202/1079425ar.
c) Das, P. (2016) Illegal migration from Bangladesh: Deportation, Border Fences and work permits, Illegal Migration
from Bangladesh: Deportation, Border Fences and Work Permits. Available at: https://idsa.in/monograph/illegal- migration-from-bangladesh_pdas (Accessed: 14 August 2023).
d) George, M. (2012) ‘Sri Lankan Tamil refugee experiences: A qualitative analysis’, International Journal of Culture and Mental Health, 6(3), pp. 170– 182. doi:10.1080/17542863.2012.681669.
VI.
Reports
a) ‘India Factsheet | Global Focus’ (2023) Global Focus [Preprint]. UNHCR. Available at: https://reporting.unhcr.org/india-factsheet-5283 (Accessed: 13 August 2023).
[1] Boutier,
I. (2021) ‘The non-ratification of the 1951 Convention on Refugees: An Indian
paradoxical approach to human
rights’, Revue québécoise de droit
international, CanLIIDocs (1690), pp. 115–135. doi:10.7202/1079425ar.
[2] United Nations
Declaration of Territorial Asylum, GA Res 2312, UNGAOR,
22nd Sess, Supp No 16, UN Doc A/6716 (1967) 81.
[3] Universal
Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13,
UN Doc A/810 (1948) 71.
[4] International
Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered
into force 19 May 1976).
[5] ‘India Factsheet
| Global Focus’ (2023) Global Focus [Preprint]. UNHCR. Available at: https://reporting.unhcr.org/india-factsheet-5283 (Accessed: 13 August 2023).
[6] Archives, U. (2010) The 1951 refugee convention, UNHCR. Available
at: https://www.unhcr.org/about- unhcr/who-we-are/1951-refugee-convention (Accessed: 14 August 2023).
[7] Anand, S. (1996) ‘Migration and Socio-Cultural Identity
Crisis - A Case Study of Sindhis
in Post-Partition India’,
Proceedings of the Indian History Congress, 57, pp. 633–640.
[8] Das, P. (2016) Illegal migration from Bangladesh: Deportation, Border Fences and work permits, Illegal Migration from Bangladesh: Deportation, Border Fences and Work Permits. Available at: https://idsa.in/monograph/illegal-migration-from-bangladesh_pdas (Accessed: 14 August 2023).
[9]George, M. (2012) ‘Sri Lankan
Tamil refugee experiences: A qualitative analysis’, International Journal of Culture
and Mental Health, 6(3), pp. 170–182.
doi:10.1080/17542863.2012.681669.
[10] (1970) 3 SCC 400
[11] Goodwin-Gill, G.S., McAdam, J. and Dunlop,
E. (2021) The Refugee in International Law. Oxford: Oxford University Press.
[12] See, Art. 33, 1951 Refugee Convention.
[13] Ktaer Abbas Habib Al Qutaifi & Anr. v. Union of India, (1998) Cri LJ 919
[14] See, Art. 1, 1951 Refugee Convention.
[15] NHRC v. State of Arunachal Pradesh, (1996) I
SCC 742, para 20
Article Information
REFUGEE RIGHTS UNDER THE INDIAN CONSTITUTION: PART III S PROGRESSIVE TRAJECTORY
Authors: PRERNA MANOCHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/08
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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