In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the history of Indian refugee, protection granted to the asylum people in India,  Law for refugees and displaced people and the role of judiciary for the protection of refugee

 

India has one of the largest refugee population in the world. Regardless of the fact that India serves to the diverse group of refugees, example: – Syrians, Afghans, Palestinians, Persians, Ethiopians and Christians, etc., the country do not have specific domestic laws and policies for the refugees. “The United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention) defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”[1]  Although India is not the party to the 1951 Refugee Convention or its 1967 protocol, even do not have a national refugee protection framework, but still it continues to give asylums to refugees of the neighboring countries. Asylum seekers can get the refugee status from UNHCR if the status is not protected by the Indian Government. “Under Indian law, the term “foreigner” is the only reference to aliens of any kind; this places refugees, immigrants, and tourists in the same broad category.”[2]

History of the Indian refugees

As earlier discussed, India is one of the few countries to experience the refugee situation in the last half century.[3] Indian history is evident by large-scale migration of people from different countries. These migrations had taken place in 2 ways: “Hindukush Mountains in the West and the Patkoi range in the East”.[4]

After Independence, the first twenty-five years of India was spent on accepting the responsibility of 20 million refugees. This was due to the partition of India and Pakistan. As a result, India had to confront a task by providing relief to the displaced persons from West Pakistan. “At the initial stage, 160 relief camps were organized and the total expenditure incurred was Rs. 60 crore approximately.”[5] There were many steps taken by the government of India to overcome with the refugee problem. The most important step that had been passed by the government was the Rehabilitation Financial Administration Act, 1948. The utmost question arises in this Act when the definition of displaced person was provided that what will be the legal status of these displaced persons?  The term refugee was defined in 1951 convention relating to the status of refugees. After observing the situations of displaced persons from India to Pakistan and vice versa, it was clear that the situation of displaced person was not different from that of refugees.

India had to face another refugee influx in 1959 when Dalai Lama along with his followers fled and reached India. The government of India provided Dalai Lama and his followers a political asylum. Another refugee influx which our country had to face was in 1971 when 10 million refugees fled from East Pakistan to India. For this asylum, India was forced by the humanitarian obligation to give shelter to the refugees.

After some gap, India was again affected by the influx of refugees from Sri Lanka and Bangladesh in 1983 and 1986. As per the World Refugee Report, India hosted approximately 400,000 refugees along with at least 2,000,000 refugees and some 237,000 internally displaced persons.[6]

Protection granted to the asylum people in India

Treatment given to the asylum people were divided into three heads:

(a) National treatment

(b) Treatment that is accorded to foreigners

(c) Special treatment.

• National Treatment: The national treatment to the asylum people is same as the citizens of India. There are certain Articles in the Constitution of India, which takes care of the Fundamental Rights of all people in India. The rights such as equal protection to law under article 14, religious freedom under article 25, the right to life and personal liberty under article 21, right to social security and educational rights are guaranteed in Part III of the Indian Constitution.
• Treatment that is accorded to foreigners: – Under this head, there are rights which are related to the housing problems, movements, etc. the rights which are provided under this treatment are: right to employment or profession under article 17, freedom of residence and movement under article 26, right to housing under article 21, right to form association under article 15 and right to property under article 13 of the 1951 Refugee Convention.
• Special treatment: – This treatment includes the identity and travel document under article 28, exemption from penalties under article 3(1) of the 1951 Refugee Convention.

Law for refugees and displaced people

As discussed earlier India has been the home for several refugees. For these refugees, numerous legislative measures were passed and issued under Seventh Schedule of the Indian Constitution. But some of the measures have lost their importance in the current context. “There were certain legislation that was enacted following the partition of India and before the Indian Constitution came into effect which are given below:”[7]

• East Punjab Evacuees (Administration of Property) Act, 1947
• UP Land Acquisition (Rehabilitation of Refugees) Act, 1948
• East Punjab Refugees (Registration of Land Claims) Act, 1948
• Mysore Administration of Evacuee Property (Emergency) Act, 1949
• Mysore Administration of Evacuee Property (Second Emergency) Act, 1949

Once the Constitution of India came into operation, the following acts were passed relating to refugees, evacuees and displaced persons:

• Immigrants (Expulsion from Assam) Act, 1950
• Administration of Evacuee Property Act, 1950
• Evacuee Interest (Separation) Act, 1951
• Displaced Persons (Debts Adjustment) Act, 1951
• Influx from Pakistan (Control) Repelling Act, 1952
• Displaced Persons (Claims) Supplementary Act, 1954
• Displaced Persons (Compensation & Rehabilitation) Act, 1954
• Transfer of Evacuee Deposits Act, 1954
• Foreigners Law (Application & Amendment) Act, 1962
• Goa, Daman & Diu Administration of Evacuee Property Act, 1969
• Refugee Relief Taxes (Abolition) Act, 1973[8]

“Article 51 states that the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another.”[9] “Article 51 of the Constitution is the Directive Principles of State Policy demonstrating the spirit in which India approaches her international relations and obligations.”[10]

Article 253 of the Indian Constitution states that “Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any country or countries or any decision made at any international conference, association or other body.”[11] Further Entry 14 of the Union List of the seventh schedule states that “Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.[12] Article 253 read with Entry 14 makes it clear that the power conferred by Parliament to enter into treaties carries the right to encroach on the state list to enable the union to implement a treaty with it.[13] Therefore, any law made in accordance with this Article that gives effect to an international convention shall not be invalidated on the ground that it contains provisions relating to the state subjects.[14]

Role of judiciary for the protection of refugee

When any of the refugees are detained or arrested by the Indian authorities, there would always be a danger of refoulment, repatriate or deportation. Those refugees who are arrested for the illegal stay can be detained illegally under administrative order without charges.[15] The Foreigners Act vests an absolute and unfettered discretion in the Central Government to expel foreigners from India. The Supreme Court of India in “Hans Muller of Nurenburg vs Superintendent, Presidency”[16] gave “absolute and unfettered” power to the Government to throw out foreigners. The said judgment was again upheld by the Supreme Court in “Mr. Louis De Raedt & Ors vs Union of India.”[17] In the same judgment, Supreme Court also held that foreigners have the right to be heard.

In the judgment of “Ktaer Abbas Habib Al Qutaifi vs Union of India”[18]  the High Court of Gujarat held that the principle  of non-refoulment avoids ejection of a displaced person where his life or freedom would be undermined by virtue of his race, religion, nationality, enrollment of a specific social gathering or political conclusion. Its application ensures life and freedom of a person irrespectively of his nationality.[19]

Problems faced by refugees in India

Various countries protect their refugees by enacting refugee legislation based on international recognized principle. The countries that have signed the convention have a procedure for identifying the refugees and addressing them protection issue.

Although India has not signed the convention but are providing protection to the refugees. “However, consistency in the procedure for determining refugees is still lacking.”[20] Since India has no uniform code for determining refugee status, there is no central body that deals with the refugees. After so many years also, there are various gaps that exist in the mechanism for dealing with refugees policy. This is because the government has not enacted a law for refugees.

Due to the several problems faced by the refugees and no proper legislation has not been passed the legal status of the refugees is miserable.

 

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[1] Retrieved on https://www.wcl.american.edu/hrbrief/v7i1/india.htm

[2] Retrieved on http://www.alnap.org/pool/files/protection-of-refugess-a-humanitarian-crisis-in-india.pdf.

[3] Retrieved on http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/68492/10/10_chapter%204.pdf

[4] Ibid

[5] Ibid

[6] Ibid

[7] Retrieved on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2129225

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] Retrieved on http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(35).pdf

[13] Supra 7

[14] Supra 7

[15] Retrieved on https://sites.google.com/site/tibetanpoliticalreview/articles/refugeerightsissueofdeportationunderindianlegalsystem

[16] 1955 SCR (1)1284

[17] 1991 SCR (3) 149

[18] 1999 CriLJ 919

[19] Supra 15

[20] Supra 7