By Aarohi Bhalla
Abstract
India as a country has been an active participant in the obligations ascertained by the International Human Rights law. Especially, the spirit of Universal Declaration of Human Rights has been seen to be a fundamental aspect in the Indian Constitution. The essence of the Indian Constitution is largely to promote and protect the interest of people and prioritize the needs of the citizen of a country as well as foreigners. The refugee crisis has been one of the oldest crises since the time of Independence of India. However, till date a substantial effect to that problem has not been reached yet. Refugees or internally displaced persons or migrants have all been delegated to be governed by allied existing legislations but a separate acknowledgement of their legal needs have not been avowed yet. Even though current legislation and the judicial intervention have, to some extent, addressed the issue but there are major setbacks still visible in resolving the larger question at hand.
This study encompasses a detailed discussion of the current legislative enactments that apply to the refugees and further expand the study on India’s need for a separate refugee law that would protect the human rights grounds of the refugees of a war-ridden country.
The refugee crisis has been one of the oldest crises since the time of independence of India. However, till date a substantial effect to that problem has not been reached yet. Refugees or internally displaced persons or migrants have all been delegated to be governed by allied existing legislations but a separate acknowledgement of their legal needs have not been avowed yet. Even though current legislation and the judicial intervention have, to some extent, addressed the issue but there are major setbacks still visible in resolving the larger question at hand.
This study encompasses a detailed discussion of the current legislative enactments that apply to the refugees and further expand the study on India’s need for a separate refugee law that would protect the human rights grounds of the refugees of a war-ridden country.
Since the days of independence and partition, India has witnessed an inflow of refugees from the neighboring countries and this incident is not pertinent to the partition of India.
Indian independence had witnessed a magnanimous rate of displacement and influx of people, among which a significant number of people were illegal migrants. These migrants have essentially been seen to be from the neighboring countries of India.
The question that arose time and again was the economic burden that was borne by India and the impact of such an influx affected the demographics of the country massively. Apart from the economic and demographic issues, the issue of refugees also puts the security of India at risk.
The issue of refugees falls under the human rights paradigm as addressed by the United Nations and despite that India is yet to enact an appropriate legal spectrum to understand and adjudicate the problems of refugees.
India is not a party to the 1951 Refugee Convention or the 1967 protocol of such convention as arranged by the United Nations in the form of a multilateral treaty. While India had many valid reasons for not signing the treaty, there had been some legal enactment that provides the refugees in India an edge. Essentially, to look for resolution one may rely on the Foreigners Act, 1946, which addresses and tackles the issue of refugees. However, the lack of a structural mechanism to provide relief to refugees and acknowledge the class as distressed on many grounds are unavailable, to say the least. India exercises the right to deport any foreign citizen at any point in time according to their discretion.
The Foreigners Act, 1946 essentially addresses and tackles the issues of refugees in India; however, it also fails to provide proper guidance or relief or address refugees as a class and under this enactment, India essentially keeps all the rights to deport any foreign citizen at any time to their home country at its discretion. With the recent enactment of the Citizenship Amendment Act, 2019 (CAA), India further fails to address the real issue of refugees and exclusively addressed the issues of illegal immigrants which is not the same as refugees. Again, the Constitution of India states that foreigners shall have the right to equality and the right to life under articles 14 and 21 respectively.
Thus, it is pertinent to mention that India has laws and enactments that provide the Indian administration the edge to do the needful with a foreigner and yet India fails to address refugees from a geopolitical and economical point of view which is evident from the recent event of the Rohingyas. Hence, it is needless to say India’s need for a better refugee law is paramount.
The paper aims to understand the scope of the existing refugee law in India and examine carefully whether India needs a newly reformed refugee law for better administration of the refugees as a class and how it shall affect the Indian citizens as a whole.
To establish the aim and objectives of a research question, it is pertinent to strategize and secure a foundation through a solid form of methodology. There are two major forms of research methodology: empirical or non-doctrinal study and doctrinal method of study.
For the effect of this paper, the researcher has resorted to a doctrinal form of study that suits the nature of the quest in analyzing the present law and the legislative structure that embodies refugees in India. To provide a better structure to this paper and understand the scope of the refugee and asylum law in India for Indian citizens, the methodology of secondary data shall be utilized. Secondary data sources are the type of data that is gathered from research where primary data has been used. Secondary data include books, various research papers, journals, newspapers, and online websites.
As this research paper's focus is on understanding the existing refugee laws of India, thus secondary data methodology would help in deriving more information about the scope of refugee law in India. The selection criteria for these studies is that they should reflect on the refugee issue as a class from the Indian perspective and how the recent events have provided the Indian administration with various reasons to enact better refugee law in India. This paper takes into account issues of refugees throwing special light on Rohingya from the period of 2012-2017. However, the recent Afghan refugee issue has not been explored in this paper.
Further, the studies should reflect on the legal aspect of refugee law in India and what are the problems faced by India for the lack of better refugee law. Studies should also reflect how India’s need for better refugee law shall strengthen India’s human rights spectrum in terms of law and order as well.
With this, the examination of derived information is solely based on having a critical understanding of the topic scope. Thus, using the critical analysis method, a detailed examination of refugee laws would be done. As the study credits the existing research using bibliographic referencing, the information derived in this study is valid, reliable, and ethical.
The plight of refugees in India has not only affected the quality of life of the migrants but also has created sufficient impact on the political, social, cultural, and economic sphere of the country. The position of asylum seekers or internally displaced persons has not been effectively acknowledged. This section of the paper discusses the legislative gaps that direct towards the emergent need for a sustainable law through the perspective of the judicial stances, administrative law, the Constitution of India, and the need to emphasize the international obligation.
The topic of refugee law is essentially neglected in India. Indian lawmakers and administration often confuse refugees with illegal immigrants and it leads to legislative gaps in Indian refugee law as a whole.
India is not a party to the 1951 UN refugee convention and is, therefore, not bound by the 1967 protocol as well. India only grants the Foreigners Act, 1946, Passport Act of 1967, Extradition Act of 1962, and Illegal Migrant (Determination by Tribunals) Act of 1983 which can be roughly called to be a refugee law. Under all these refugee laws, refugees are treated as foreigners who shall enter India voluntarily, without any external force such as war. The recent amendment to the Citizenship Act, 2019 provides a broader aspect to the issue but deals with it based on religion only.
The Indian Constitution provides for several safeguarding provisions for foreigners where foreigners along with Indian Citizens are guaranteed the right to life under article 21 of the Constitution of India. The Supreme Court of India has passed several historical judgments concerning the deportation of refugees such as the case of Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab and ND Pancholi vs. State of Punjab & Others.
Apart from the feeble legal framework and the Supreme Court’s humanitarian consideration about refugees, India does not have any special legal framework that deals with refugees as a class and view the issues of refugees as a human rights issue that needs special geopolitical, civil and economical attention.
Further, the lack of distinction between the term ‘foreigner’ and ‘refugee’ under the Indian legal framework essentially points out how refugees are not viewed as a part of human rights violations where the acts of the refugees are involuntary. Therefore, substantial clarity on the plight of refugees must be sought by the legislators and the judiciary. The need to have a system that acknowledges refugees individually and collectively is of utmost importance.
Indian laws do not distinguish between a foreigner who is voluntarily entering the borders of India and refugees who are forced to take shelter within India due to external reasons such as war. The Indian legal framework does not shed any light on the topic of asylum and it does not consider refugees as a class but a single individual. It can be seen from the current applicable laws of refugees, Indian legal framework essentially considers illegal immigrants and refugees under the same category, and as such refugees are not provided with any special political or legal shed.
The recent event of Rohingyas in India shows how India lacks in providing better legal enactment to refugees. Further, if the existing legal framework is critically reviewed, it can be seen that Indian law does not consider the human rights paradigm of refugees and no such provisions have been mentioned under the existing laws that guarantee the security of lives of the refugees. Hence, it can be assumed that the current existing laws of India are mere skeletons.
The conundrum of human rights and sovereignty of a country is surrounded by the topic of refugees and with the help of critical reviews of existing studies, the situation of Indian refuge law shall be reflected upon.
Constitutional rights of the Indian Citizen
The fundamental constitutional rights of the Indian Citizens as guaranteed under Part III of the Constitution is partly valid for the foreigners or refugees of India as well. The research paper of G Tiwari and A Dhotrekar reflects on the subject of Constitutional rights that are available to the refugees and how the Supreme Court of India has been adjudicating refugee cases based on Constitutional law. Further, the critical study of P Raj sheds light on the subject as well.
International Commitments
India has not joined the 1951 UN refugee convention or part of 1967 refugee protocols, given the complicated geopolitical and economical situation of India, surrounded by China, Pakistan, and Bangladesh. However, after the critical review of various studies by T Ananthachari, it can be ascertained that despite India not having international commitment to the UN refugee convention, it has declared to adopt the Universal Declaration of Human Rights (UDHR) into the spirit of Constitutional law.
Judicial expansion of rights
Indian judiciary on many occasions has been seen to encompass the rights of refugees and uphold them in the case of Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab and ND Pancholi vs. State of Punjab & Others.
The Apex court has time and again observed the position of deported refugees and acknowledged their plight. The Supreme Court’s decisions have also reiterated that no refugees shall be treated in a manner that deprives them of their right to life or liberty without due process of law has been reflected in various cases such as Malavika Karlekar vs. Union of India, Luis De Raedt vs. Union of India , and also in the case of State of Arunachal Pradesh vs. Khudiram Chakma.
Administrative practice
India’s administrative practice on the subject of refugees is something that does not provide for relaxation for the refugees but in collaboration with the judicial expansion of refugee rights, India has provided several refugee policies that have striven to help any kind of refugee in distress.
From the critical work of R Samaddar, it can be seen that India has taken several refugee policies to help and understand the right to life and liberty of refugees, and the strict deportation policy has been relaxed given the several Supreme Court’s judgments.
The legislative gap in Indian refugee law is something that cannot be ignored, given the current world that strives to preserve human rights. India, being a part of UDHR, should attempt to better understand the scope and nature of refugees from the neighboring country and it is of paramount importance that the Indian legal framework essentially distinguishes between the subject of a foreigner, illegal immigrants, and refugees.
The discourse surrounding refugee crisis is not new and the claim to have a dedicated legal framework to combat this struggle is also not new. However, today’s geo-polictical conditions have seen a vast change and through the introduction of the Citizenship Amendment Act, 2019, a massive shift is visible. Therefore, relying on the Foreigners Act or the CAA should not render justice to the refugees and would only go onto constantly deprive them of an adequate quality of life, especially for the victims of war or genocide in their home country.
As observed, the opinion of the judiciary on the circumstances of each case has allowed the problem to sustain without creating havoc but a constructive and holistic redressal mechanism will secure the refugees.
Along with that, a comprehensive structure recognizing the social and economic needs of refugees shall be met. The immediate need to ratify the Refugee Convention, 1967 shall only be foundational security in assessing the National Register of Citizens as well, on the grounds of identifying citizens. This step would not only create a sense of fraternity and security amongst the refugees but identifying them will naturally allow them to avail benefits which would reinstate their faith in the system.
Hence, the legal framework of India needs to be upgraded under the human rights law, at par with the international obligations, and provide a sound and secure legal framework where Indian citizenship concur with the human rights paradigm and the spirit of the Constitution of India is protected.
The author is an advocate based out of Delhi. Views expressed are personal and do not necessarily reflect the views of Bar & Bench.
Alexander, Atul. "Evaluating the Citizenship Amendment Act, 2019 in India: Perspectives From International Refugee Law." Available at SSRN 3751593 (2020).
Ananthachari, T. "Refugees in India: Legal framework, law enforcement, and security." ISIL YB Int'l Human. & Refugee L. 1 (2001): 118
Dhavan, Rajeev. "Refugee law and policy in India." Refugee Survey Quarterly 24, no. 4 (2005).
Hyndman, Patricia. “The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants.” Human Rights Quarterly 9, no. 1 (1987): 49–73. https://doi.org/10.2307/761946.
Raj, Prachi. "Understanding citizenship and refugees’ status in India." The Virtue of Maithri 55, no. 23 (2020): 31.
Sarker, P. Shuvro. Refugee Law in India. Palgrave Macmillan, 2017, p.65
Singh, Abhay. "A Critique of the Foreigners Act, 1946: A Legislation de Jure or de Facto?." Available at SSRN 1989060 (2012).
Sahoo, Niranjan. "India’s Rohingya realpolitik." Carnegie Endowment for International Peace (2017).
Sen, Sreya. "Understanding India’s refusal to accede to the 1951 refugee convention: Context and critique." Refugee Review: Re-conceptualising and Forced Migration in the 21st Century 2, no. 1 (2015): 1-7.
Singh, Pushpit. "Critical Analysis of Laws Relating to Refugees in India." Supremo Amicus 17 (2020): 373.
Tiwari, Garima, and Ankit Dhotrekar. "Refugee Protection in India: The Conundrum of Human Rights and State Sovereignty." Indian JL & Pub. Pol'y 5 (2018): 1.
Samaddar, Ranabir. Refugees and the State: Practices of Asylum and Care in India, 1947-2000. SAGE Publications India, 2003.
“Rathin Bandyopadhyay, Human Rights of Noncitizens: Law and Reality, DEEP AND DEEP PUBLICATIONS, 31-32 (2007)”.
“Pritam Ghosh, The " Illegal Migrant " and " Refugee " Status Dilemma: A critical analysis with special reference to the Rohingya Muslims in India, ACADEMIA < https://www.academia.edu/35968762/The_Illegal_ Migrant_and_Refugee_Status_Dilemma_A_critical _analysis_with_special_reference_to_the_Rohingy a_Muslims_in_India
T. Ananthachari, Refugees in India: Legal Framework, Law Enforcement and Security, isil year book of international humanitarian and refugee law
Chimni B.S, status of refugees in india: strategic ambiguity 444-445 (2nd ed. 2008).
Acharya Amitav and Dewitt .B. David, legal condition of refugees in india (7th ed. 2008)”.
Sreya Sen, Understanding the Importance of a National Legislation for Refugee Protection in India, rights in exile refugees legal aid (2017)”
Saurabh Bhattacharjee, India Needs a Refugee Law, 43 economic and political weekly 71, 71-75 (2008)