This article is written by Ms. Nikara Liesha Fernandez from the School of Law, Christ University, Bangalore. This article deals with the various international norms which deal with the principle of non-refoulement and the need for India to formulate domestic laws which apply Article 21 when dealing with the refugee and migrant crisis.
Table of Contents
Introduction
On taking a look at India’s history with refugees, both the accepting and the creation of the same, it has been observed that India has been more of a ‘refugee receiving’ country than a ‘refugee producing’ one. Though this is indeed a positive practice that conforms to all the international conventions and treaties to which India is a party to as well as the international refugee norms in general, there appears to be a conspicuous absence with regard to any legitimate law to govern the protection and rights of refugees in India.
Through this article, we see that India has access to a brilliant framework of refugee provisions and international laws which have been formulated through global conventions and implemented by various foreign countries as well. What our country lacks, however, is the proper integration of these international standards into our domestic legislation without which there is no solid backing for the courts to properly implement such measures to protect something as sensitive as refugee rights.
The international framework for the protection of refugee rights
The role of the Refugee Convention
Refugees have been prevalent in the world ever since the existence of war and its disastrous effects. Right from the after-effects of the First World War, way back in 1918, nations all over the world recognized that certain individuals, who were suffering the most from the reparations of the war and being so displaced from their home countries, required their protection. The United Nations was the first organization to take real action to combat this tragedy after the Second World War by identifying the need for international cooperation and burden-sharing among countries all over the world. This was the foundation stone that led to the birth of The Refugee Convention (officially titled the 1951 Convention relating to the status of refugees).
Initially, the Convention mainly aimed at targeting the European refugees. The Convention had a deadline for taking in the application of refugees who, according to Article 1 of the Convention were defined as, ‘a person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.’
Later, however, on noticing that the refugee problem was not just confined to the after-effects of the Second World War and that they were prevalent in various other parts of the world as well, the 1951 Convention was supplemented by the 1967 Protocol which extended the applicability of the Refugee Convention to a universal international level and did away with the deadline for applications to the same. Currently, 149 nations are parties to this Protocol.
The most important feature of this Convention is the recognition given to the basic and most fundamental aspects of a refugee’s life. Refugees, after all, do not cease to be human on being removed from their home country and hence need to continue to be entrusted with their basic human rights such as the freedom of religion and movement, the right to work, education and accessibility to travel documents. The most important provision of the convention is the principle of non-refoulement which will be elaborated upon later on in this article.
The Convention also, in order to prevent certain undeserving groups from taking advantage of the refugee status, specifies which groups of people can/cannot be considered as refugees. For example, migrants (people who seek new lives in foreign nations specifically with an economic intention to improve their living conditions) are not covered by this Convention as they cannot be considered to be on par with refugees who seek asylum in foreign nations as a means to flee life-threatening persecution in their home countries.
The United Nations High Commissioner of Refugees (UNHCR) is the official statutory body that acts as the enforcer of the Convention and monitors the actions of member nations towards the upliftment of refugees.
UN Convention Against Torture
The United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment and Punishment (commonly known as the UNCAT), came into force on the 26th of June, 1987. As evident from the name, the main aim of this Convention is to secure an international and global effort to prohibit all forms of torture against human beings which are a gross violation of their basic human rights. The Convention also has a binding effect on governments to follow the provisions of the treaty and monitor their efforts made towards carrying out the provisions of the same. As of May 2017, the UNCAT consisted of over 160 nations. India, however, signed the Convention way back in 1997 but is yet to ratify the same.
The UNCAT defines ‘torture’ at the very start of the Convention under Article 1 as, ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’
The UNCAT mandates that member governments integrate its provisions and apply measures that criminalize torture in their domestic laws. The Convention has universal jurisdiction which empowers states to take up cases regarding the torture of victims that occur not only within their territorial jurisdiction, but also those committed outside its territory by people who are not its nationals.
The Committee Against Torture (CAT) is the authority that exercises the oversight powers of this Convention to ensure that member nations implement the provisions of the treaty to its full extent and conduct a thorough investigation of all cases of torture including allegations. The CAT also examines the periodic reports sent to it by the member nations and makes recommendations to them for the better implementation of the UNCAT provisions.
International Covenant on Civil and Political Rights
The United Nations International Covenant of Civil and Political Rights (ICCPR) forms one of the three important components of the International Bill of Human Rights, the other two components being the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights respectively. The ICCPR was adopted by the United Nations General Assembly in December 1966 with its main aim being to protect and preserve the inherent dignity of all individuals as dignity forms one of the cornerstones of the basic rights that an individual inherits by virtue of being born a human.
One of the principal means of ensuring the protection of the dignity of an individual is highlighted under Articles 2 and 3 of the Covenant which stresses the prohibition of discrimination such that the rights of all individuals belonging to the member states of the ICCPR are protected by the same irrespective of their gender.
As of July 2017, there were 169 State Parties to the ICCPR. These State Parties are obligated to respect, protect and fulfil an individual’s civil and political rights. Save for the event of a public emergency, where some of the rights can be derogated by the State Parties, they are otherwise to protect the following rights-
- Article 6 – Right to life.
- Article 7 – Freedom from torture.
- Article 8 – Right to not be enslaved.
- Article 9 – Right to liberty and security of the person.
- Article 10 – Rights of detainees.
- Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a contractual obligation.
- Article 12 – Freedom of movement and choice of residence for lawful residents.
- Article 13 – Rights of aliens.
- Article 14 – Equality before the courts and tribunals. Right to a fair trial.
- Article 15 – No one can be guilty of an act of a criminal offence that did not constitute a criminal offence.
- Article 16 – Right to recognition as a person before the law.
- Article 17 – Freedom from arbitrary or unlawful interference.
- Article 18 – Right to freedom of thought, conscience and religion.
- Article 19 – Right to hold opinions without interference.
- Article 20 – Propaganda for war shall be prohibited by law.
- Article 21 – Right of peaceful assembly.
- Article 22 – Right to freedom of association with others.
- Article 23 – Right to marry.
- Article 24 – Children’s rights
- Article 25 – Right to political participation.
- Article 26 – Equality before the law.
- Article 27 – Minority protection.
In addition to the above, the ICCPR also contains two optional protocols to further protect the human rights of individuals. The First Optional Protocol deals with the right for the victims of human rights violations to be heard by the Human Rights Committee and the Second Optional Protocol abolishes the death penalty.
The monitoring powers of the State Parties rests with a committee known as the Human Rights Committee (HRC) which ensures the implementation of the provisions of the Covenant. The HRC also reviews the reports submitted to it by the member states to assess their progress and recommend means by which they can better protect the rights enshrined under the Convention.
Scope of the principle of non-refoulement
Merriam Webster defines non-refoulement as, ‘a principle of international law providing a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or territory where he or she faces threats to life or freedom because of race, religion, nationality, membership in a particular social group, or political opinion’.
The principle of non-refoulement finds a place in all the three Conventions and Covenants mentioned above. Thus, the principle of non-refoulement has taken on international applicability. For example, with respect to the Refugee Convention, the non-refoulement principle now is implicitly understood to be a part of the customary international law which is required to be followed by all states regardless of whether they have acceded to or are signatories of any treaty regarding the same.
Similarly, Article 3 of the UNCAT explicitly prohibits State Parties from returning or extraditing an individual to ‘another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.’
Further, the Human Rights Committee, in its interpretation of Article 7 of the ICCPR through its General Comment No.20, included the protection against refoulement under the ‘right to be free from torture or other cruel, inhuman or degrading treatment or punishment.’
Unlike the Refugee Convention which is only applicable to those individuals who fall under the definition of a ‘refugee’, the principle of non-refoulement extends to all migrants at all times, irrespective of their migration status in order to prevent them from facing torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.
The scope of the principle of non-refoulement is characterised by its absolute nature which makes it more broadly applicable than international refugee law as it negates all possibilities of exceptions. It is non-discriminatory in nature and transgresses all territorial borders and barriers. The principle of non-refoulement also applies to children, especially keeping in mind their necessities of adequate food and health services.
Throwing light upon the facts of the case
In the case of Nandita Haksar v. State of Manipur and Ors. (2021), the petitioner’s prayer was that the seven Myanmarese citizens that she was sheltering be given safe passage to Delhi to approach the UNHCR for their protection. The Myanmarese individuals entered India illegally in order to escape their unlawful arrest and detention by the military junta in Myanmar. The latter had carried out a military coup in Myanmar in February 2021, overthrowing the Myanmarese government and further banned and established Myanmarese news and media service known as Mizzima which three of the seven illegal migrants, in this case, were employees of. The remaining four individuals were the wife and three children of one of the journalists of Mizzima. In fear of the widespread violence that broke out following the coup, these individuals feared their persecution and physical danger and thus sought refuge at Moreh in the Tengnoupal district of Manipur. Here too, they lived in the fear of being sent back to Myanmar by the Assam Rifles, a branch of the Indian Armed Force as they had illegally entered the country without the required documents. They thus sought the help of the petitioner in this case.
The Ministry of Home Affairs, Government of India, had, through a notification dated 10.03.2021 instructed the Assam Rifles as well as the authorities of the bordering states North-East India to check the flow of illegal immigrants coming into India out of Myanmar.
The state and central governments sought an adjournment of the proceedings on the 20th of April 2021, as they were unable to complete the instructions in time and thus the Court granted the petitioner’s prayer for interim relief of safe passage of the immigrants to Imphal, to the residence of the petitioner in order to avoid the threat of deportation.
Issues raised
The petitioner pointed out that the notification issued on 10.03.2021 did not differentiate between a ‘refugee’ and a ‘migrant’. The petitioner also further brought the Court’s notice to the letter dated 29.3.2021 which was issued by the Government of Manipur stating that ‘it would come to the aid of Myanmarese nationals who had illegally entered the State’. Thus, the main issue, in this case, was whether the Myanmarese citizens who illegally entered India could be considered as ‘migrants’ or not.
Including the principle of non-refoulement within the ambit of Article 21 of the Indian Constitution
Through paragraphs 9 to 11 of its judgment, the Court, relying on its precedent in the case of Louis De Raedt v. Union of India and others (1991) and State of Arunachal Pradesh v. Khudiram Chakma (1994) highlighted the nexus between Article 21 of the Constitution and the principle of non-refoulement. Non-refoulement comes into play when an individual is granted freedom from being expelled from a country where he/she seeks refuge, other than their country of origin. This is done in light of particularly a threat to their life. Article 21 explicitly deals with the protection of life and liberty of an individual and thus it is only fair that the principle of non-refoulement is included within the ambit of Article 21 of the Constitution.
The right to life and liberty being inalienable and inherent in all human beings naturally, cannot be limited only to citizens belonging to the Indian country. It is a fundamental aspect of every individual’s life that requires protection regardless of the territorial jurisdiction of the country in which the individual resides or seeks refuge.
The only condition of the principle of non-refoulement which the states can use to their defence is if the individual seeking refuge within their borders poses a certain threat or is prejudicial to the security of the country. The Court explicitly stated that even though India might not be a signatory to the Refugee Convention in particular, reading Article 21 of the Constitution along with the other conventions India is a party to, ‘enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere’.
The Court’s observation
The Court, on scrutinising the definitions of the terms ‘migrant’ and ‘refugee’ came to the conclusion that since the Myanmarese citizens in this case clearly only escaped their home country in order to escape persecution and not to find better living conditions (as is the case for migrants), they are clearly refugees.
The Court further held that as India is a party to the Universal Declaration of Human Rights, it has to follow the same, namely Article 14 in this case which declares that every individual has the ‘right to seek and to enjoy in other countries asylum from persecution.’
Citing the ICCPR to which India is also a party, the Court held that, following the same, the State Parties need to ensure that the inherent dignity of all individuals is protected and preserved.
The Court also observed that India recently became a party to the Global Compact on Refugees on the 17th of December, 2018, whose main aim was to formulate ‘a framework for more predictable and equitable responsibility-sharing and provides a blueprint for Governments, International Organizations and other stakeholders to ensure that host communities get the support they need so that refugees can lead productive lives.’ To support the same, the Court laid emphasis on Article 51 of the Constitution which urges the State to foster respect for all international laws and treaty obligations to promote international peace and security among individuals and countries.
The Court also refuted the arguments advanced by the counsel of the respondents who stated that the fundamental freedoms guaranteed to the citizens of India by Articles 19(1)(d) and 19(1)(e) of the Constitution of India could not be availed off by the Myanmarese individuals as they had entered India illegally and hence should first face the consequences for their illegal actions before the Court grants them protection. To back these arguments, they relied heavily upon the Foreigners Act, 1946, the Foreigners Order, 1948 and the Registration of Foreigners Act, 1939. The Court, however, stated that both these arguments posed ‘a rather narrow and parochial consideration of the larger issues that arise in this case.’
According to the Court, the seven Myanmarese individuals were not ‘migrants’ but were rather ‘asylum seekers’ and as such agreeing with the counsel for the respondent’s arguments would be inhuman in nature.
Further, it could not be stated that these individuals were asserting any rights and freedoms under Article 19 of the Constitution as they were simply solely seeking safe passage to New Delhi and nothing more. Referring to the case of Chairman, Railway Board, and others v. Chandrima Das (Mrs.) and others (2000), the Court re-emphasized on its judgment that people who are nationals of a foreign country, on entry to India, whether legally or illegally, should not be cannot be treated in any way below their dignity nor be subject to physical violence or any outrage to their modesty.
There was no material evidence to prove that the Myanmarese individuals posed any threat to the security of the country and thus the grounds for denying them asylum on the same were negated. A majority of the individuals, in this case, had already been granted ‘refugee status’ by the UNHCR and one of them was even sanctioned a ‘Visa Gratis’ status by the Government of India.
After a thorough analysis of its previous precedents concerning refugees and migrants, the Court finally came to the conclusion that it would indeed be just to extend the protection of Article 21 of the Constitution to the seven Myanmarese citizens and grant them safe passage to Delhi to avail suitable protection from the UNHCR.
The Rohingya Muslim crisis
The Rohingya Muslims of Myanmar, named by the United Nations as the ‘most persecuted minority’ have been fleeing from Myanmar due to atrocities against them including genocide and seeking refuge within Indian borders.
A bone of contention came up when the Ministry of Home Affairs of India issued an advisory to the authorities to initiate, monitor and identify deportation proceedings against the Rohingya Muslims. Although this matter is currently being challenged in the Supreme Court of India, countless Rohingya Muslims have been arrested and detained especially in the State of Jammu and Kashmir.
The need for a stronger refugee policy
To date, three separate bills have been passed in the Houses of Parliament relating to the Indian Asylum Policy but none of them has been given any attention and still remain pending. Although India still hosts a number of refugees as evident from the case discussed above as well as countries such as Bangladesh, Sri Lanka, Pakistan and Afghanistan, these refugees still continue to live in the fear of being deported even after entering the Indian borders due to the absence of any central asylum regime guaranteeing them of such safe harbour and any robust monitoring authority of the same. India has a number of countries it can borrow ideas from in order to develop a fruitful refugee policy. For example, Germany’s efforts to accommodate Syrian refugees in 2015 is a realistic example of the steps India needs to be taking in order to consolidate a strong refugee policy.
India has always struggled with its border control mechanism, especially via the coasts. A strong refugee policy can only be successful once India is able to exercise proper control over all its borders.
Another policy that is desirable for India to adopt as a supplement to the refugee policy is a policy regarding the resettlement of the refugees once the life and liberty-threatening conditions in their home country subside. This is especially important in a third-world country like India which is still developing, in addition to its resources already being strained and unequally distributed among its citizens themselves. By sending refugees to countries that are better off with superior physical and economic infrastructure, less affluent countries need not endure the permanent strain on their resources by housing the refugees for an eternity.
Although the Central and State governments of India seem to be taking steps in the right direction for the protection of refugees and their rights in particular, there exist certain other groups of foreigners as well who are in need of similar protection which is yet unavailable to them. An example of such a group is temporary residents, tourists and travelers. These individuals need to be offered the same protection as refugees if, during their stay in India, the prevailing situation in their country of origin resembles that of the countries of refugees in the sense of posing a threat to the individual’s life and liberty should they return to their home country.
Another reason India should extend its protection to all individuals facing human rights violations in their home countries is that India has voted affirmatively to adopt the Universal Declaration of Human Rights which guarantees the rights of all individuals regardless of whether they are citizens or non-citizens of a specific country.
Although the current case is a huge step forward towards India officially recognizing the rights of refugees by giving them constitutional recognition, at the end of the day it is still merely an opinion and decision made by a High Court. Refugee protection is not uniformly recognized in India as in the absence of any specific and well-established guidelines, it is upto the individual states to form legislations and measures to protect their refugees. There needs to be a balance struck in all parts of the country between the security of the nation and the rights of refugees in order to find a long-term solution to their problems.
Conclusion
The recent COVID-19 pandemic has shown us that the internal migrants are no better off than the international refugees. Due to continuous governmental neglect and lack of infrastructure to tend to their needs, the cracks of the Indian government’s oversight were widely exposed as the entire nation went into the world’s largest lockdown affecting 1.3 billion people.
Thus, the need of the hour is for policymakers and practitioners to ensure that the most vulnerable sections of both internal and international society seeking refuge within its borders have accessibility to a strong safety net in the form of a well-planned refugee and migrant policy.
The need for a humanitarian approach when dealing with the refugee crisis is the need of the hour for a country like India where the marginalised continue to be pushed further into poverty. It is the duty of the state to ensure that all individuals and especially the latter are uplifted to achieve at least their basic human rights.
References
- https://www.unhcr.org/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html
- https://www.kaldorcentre.unsw.edu.au/publication/refugee-convention
- https://economictimes.indiatimes.com/news/politics-and-nation/india-behind-161-nations-in-ratifying-treaty-on-torture/articleshow/58558837.cms?from=mdr
- https://legal.un.org/avl/ha/catcidtp/catcidtp.html
- https://www.amnestyusa.org/top-10-things-you-wanted-to-know-about-uncat-but-were-afraid-to-ask/
- https://ccla.org/summary-international-covenant-on-civil-and-political-rights-iccpr/
- https://eachother.org.uk/international-covenant-civil-political-rights/
- https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf
- https://www.jstor.org/stable/4415288?seq=1
- https://www.indianbarassociation.org/indias-refugee-policy/
- https://www.migrationpolicy.org/article/gaps-india-refugees-vulnerable-internal-migrants-pandemic
- https://takshashila.org.in/india-needs-a-new-refugee-policy/
- https://thewire.in/government/refoulement-rohingya-and-a-refugee-policy-for-india
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