Author: Kumar Vaibhav
V Year | Central University of South Bihar, Gaya

Introduction:

The refugee influx has been a problem for India since its independence. Currently, India hosts 2,12,413 refugees from different parts of the world.

It is a fact that India is not a signatory to international laws such as the 1951 United Nations Refugee Convention and the 1967 Protocol. Nevertheless, history showed us India’s stand for the refugees and its de facto refugee policy.

India provided shelter to the refugees whenever such conditions had arisen. Whether in the case of Tamils from Sri Lanka or Tibetans from Tibet, India demonstrated her solidarity with them[1].  There is a misconception around us that India’s stand on refugees is not clear. But this is not true. Just because this country is not having any laws regarding refugees does not mean that it is not relevant to this country.

Refugee Policy as per National and International Laws:

There is no separate provision of law for refugees in India. However, articles 14 and 21 of the Indian Constitution imply the welfare of refugees. Article 14 guarantees the person’s right to equality before the law. Article 21 deals with the right to life and personal liberty. Also, there are many judgements which were delivered on the basis of Article 21 of the Constitution.

Even though India is not a signatory to the 1951 Convention on Refugees and the 1967 Protocol, India is a signatory to a number of United Nations and World Conventions on human rights, refugee issues and related matters. India’s obligations in regard to refugees arise out of the latter.

Conventions influencing India’s Refugee Policy:

India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN which approves and supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates particular interest and greater commitment to refugee matters[2].

India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all persons, citizens and non-citizens alike. India also voted in favour of adopting the UN Declaration of Territorial Asylum in 1967. Further, India also accepted the principle of non-refoulment as envisaged in the Bangkok Principles, 1966. These were formulated for the guidance of refugee policy of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.

Refugee Problem and the Indian Judiciary:

The importance of the above-mentioned Conventions is that today, if any refugee-related matter reaches the Indian courts, then the courts give their judgments by aligning to these laws. International law does hold a significant position in the absence of national laws.

It was seen in the recent judgment of the Guwahati High Court which talks about the refugees’ rights. The said High Court allowed refugees to approach UNHCR for determination of their status while staying the deportation order issued by the administration.[3] The other high courts have also applied the concept of natural justice and concluded that refugees’ rights should be recognized.

Refugee Problems in India:

Various countries are having national legislation relating to refugee policy, which makes it easy for them to deal with refugees. In the context of India, it is difficult as India does not have any uniform law for refugees. It is true that India is following some international conventions but still it is very difficult as no law means no obligation.

Having no particular law for the refugees creates unnecessary trouble as sometimes, the government may act according to its wishes on who can be considered as a refugee, which should ideally not happen[4]. A similar situation arose in the case of Rohingyas. The facilities which a normal refugee should get like sanitary surroundings, and basic amenities for women and children were completely lacking in this case. India had to face criticism from many countries and different organisations.

Refugee Policy by Indian Judiciary:

In the case of A.C. Mohd. Siddiqui vs. Government of India and Ors.[5] and Gurunathan and Ors. vs. Government of India[6], the High Court of Madras denied to deport the Sri Lankans against their will and stated that it is right that they are not citizens of this country but currently, they are within the territory of this country and we cannot deport them against their will. 

Also, in the case of P. Nedumaran vs. Union Of India[7], Sri Lankan refugees prayed before the court for requiring voluntary consent of refugees who wanted to go back to their country of origin. Those who didn’t want to go back were allowed to live in the camps. The Court acknowledged the impartiality and competency of the representatives of the UNHCR.

Another important verdict came from the Bombay High Court in the case of Syed Ata Mohammadi vs. Union of India[8]. The court stated that there is no meaning of deportation of the Iranian refugees as these refugees are recognised by the UNHCR itself. Further, the court stated that Iranian refugees could travel to any country according to their will[9].

The Apex Court of India also stayed deportation of refugees in cases like Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab[10] and N.D. Pancholi vs. State of Punjab & Others[11].

The Apex Court also used the constitutional provision like Article 21 in the cases of Malavika Karlekar vs. Union of India[12], Luis De Raedt vs. Union of India[13], and also in the case of State of Arunachal Pradesh vs. Khudiram Chakma[14].

Observation:

The most important thing to notice here is that India has no related law for the refugees and yet the courts make references to the different international bodies like UNHCR and their Rules. The judicial creativity helps in upholding international commitments. However, matters would be easy and the refugees had not have to approach the court every time and face all these unnecessary procedures if the country is having a uniform law for refugees.

In the case of Rohingyas, we have seen India’s support for them on one hand but along with the support, India is also planning to deport them, thus inviting criticism. This is happening because India does not have a single law regarding its refugee policy. This is an important reason why we need laws for this specific purpose.

Conclusion:

Throughout the world, there are a number of conventions and laws governing refugees. But the refugees are still facing problems. There are many countries including India which still have no refugee law. India is following many international conventions and yet facing criticism from other parts of the world.

Even with the positive interference of the judiciary, visible through different cases, the lack of a refugee policy is a big issue. So, it is important to have a uniform law for the refugees which helps in managing all these things in an organised manner.

[1] https://en.wikipedia.org/wiki/Refugees_in_India

[2] WORLD LEGAL INFORMATION INSTITUTE http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html. (last visited Sep. 4 2022)

[3] Arofa And Ors. v. The Union of India And Ors. 4 June 2021.

[4] Harshit Rai and Vaibhav Dwivedi, Constitutional Provision Regarding Refugee Law in India, 4 (3) IJLMH Page 261 – 272 (2021), DOI: https://doij.org/10.10000/IJLMH.11446.

[5] 1998(47) DRJ (DB)p.74.

[6] WP No. S 6708 and 7916 of 1992

[7] (2) ALT 291, 1993 (2) ALT Cri 188.

[8] Criminal writ petition no.7504/1994 at the Bombay High Court

[9] WORLD LEGAL INFORMATION INSTITUTE http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html. (last visited Sep. 4 2022)

[10] Criminal Writ Petition No. 125 of 1986, SCC

[11] Writ Petition (Crl.) No.243 of 1988 (for Prel. Hearing)

[12] Writ Petition (Criminal No.) 583 of 1992

[13] AIR 1991 SC 1886

[14] 1994 AIR 1461

Editor: Kusumita Banerjee