Refugee Law: Refugee law addresses the obligations of other nation-states in this context as well as the rights of individuals who have been forcibly removed from their home nations. Conflicts between nations, civil wars, ethnic conflicts, and a host of other issues can cause people to become “refugees.” It is important to remember, nevertheless, that those who relocate in quest of better employment and educational prospects do not qualify as refugees. Following the Second World War, which resulted in the displacement of millions of people, international refugee law took shape.
Refugee scene in India:
India has long been a shelter for displaced people. Since nearly the entire Zorastrian community fled to India to escape the persecution they were later subjected to in Iran due to their religious beliefs, India has occasionally continued to receive a large number of refugees from various nations, not just its neighbours. The most important point that needs to be made is that, aside from the transboundary migration of individuals during the 1947 country division, there has never been a single instance of a refugee coming from Indian territory.
However, it has always been a receiving nation, expanding its multi-ethnic and multi-cultural fabric in the process. Adhering to its secular policy, India has provided asylum to individuals of all religious backgrounds and sects. It is important to note that since gaining its independence, India has taken in refugees from far-off nations including Afghanistan, Iran, Iraq, Somalia, Sudan, and Uganda in addition to some of its neighbours.
There have been numerous instances of refugees from bordering nations crossing into India on the South Asian subcontinent. Given the delicate nature of both national and regional politics in the subcontinent, it is impossible to completely separate the issue of refugees entering India from the broader security concerns that are pertinent in the area. Far more than 2,51,400 refugees were in India at the end of 1999; this number does not include those from Somalia, Sudan, Afghanistan, Iran, Iraq, or Uganda.
Despite an increasing number of migrants entering India, the country does not have special legislation to address the situation. The 1951 Refugee Convention and its 1967 Protocol, which are the main legal instruments governing refugee protection, are not ratified by India.
Furthermore, the Foreigners Act of 1946 does not deal with the particular issues that refugees as a group experience. It also grants the Central government the authority to expel any citizen of another country.
India has an excellent track record when it comes to refugee protection, despite not being a party to the 1951 Refugee Convention and its 1967 Protocol. India has a moral history of accepting and integrating different cultures. Under several laws, including the Indian Penal Code (1860), the Passport (Entry into India) Act (1920), the Registration of Foreigners Act (1939), the Foreigners Act (1946), and the Passport Act (1967), those who are granted “refugee” status may be controlled, sanctioned, and deported. This listicle, however, will only discuss refugee protection under Indian law.
In addition, the Indian constitution upholds the rights to human life, liberty, and dignity.
In the 1996 case of National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court ruled that “individuals, including foreign citizens, are entitled to the right to equality and the right to life, among others,” even if “all rights are available to citizens.”
Furthermore, the right to non-refoulment is covered under Article 21 of the Constitution.
According to international law, a person who is escaping persecution from their own country shall not be forced to return home. This principle is known as non-refoulment.
Why no law on Refugees yet?
Refugees vs. Immigrants: In the recent past, a large number of individuals from nearby nations have migrated illegally to India, not because they are being persecuted by the government but rather because they are seeking better economic prospects there.
The two groups are often lumped together, despite the fact that illegal immigration, not refugees, is the subject of much national discourse.
Margin of Manoeuvre: The lack of legislation has given India the freedom to continue exploring its choices regarding refugees. Any group of refugees may be labelled as illegal immigrants by the authorities.
The Rohingya, an Indo-Aryan ethnic group living in Rakhine State, Myanmar, are stateless. In spite of the UNHCR’s verification, the government chose to treat them as trespassers under the Foreigners Act or the Indian Passport Act.
Abuse of legislation: Terrorists, anti-nationalists, and other criminal groups could abuse such a legislation, which would put a financial strain on the nation.
Need for Law on Refugees:
Long-term Workable Solution: There is often a significant refugee inflow into India. Therefore, by passing a national refugee law, India must change from its altruistic to a rights-based approach in order to find a long-term workable solution.
Respecting Human Rights: All refugees will have their rights under international law guaranteed by a national refugee statute, which will expedite the process of determining their status.
Handling Security Concerns: It could effectively handle India’s security concerns while also making sure that no unauthorised detention or deportation occurs under the guise of a national security emergency.
Inconsistency in Refugee Treatment: The majority of India’s refugee population is from Afghanistan, Tibet, Myanmar, and Sri Lanka.
But the government only acknowledges refugees from Sri Lanka and Tibet. The government has created regulations and procedures that offer them immediate protection and help.
Constitutional Provision for Refugees in the Indian Legal Framework:
- In the matter of Gurunathan and others vs. Government of India and others WP No. S 6708 and 7916 OF 1992, and in the matter of A.C.Mohd.Siddique vs. Government of India and others 1998 (47) DRJ (DB) p. 74., the High Court of Madras expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will.
- In the case of P.Nedumaran vs. Union Of India, before the Madras High Court,Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees who did not want to return to continue to stay in the camps in India.The Hon’ble Court was pleased to hold that” since the UNHCR was involved in ascertaining the voluntariness of the refugees’ return to Sri Lanka, hence being a World Agency, it is not for the Court to consider whether the consent is voluntary or not.”Further, the Court acknowledged the competence and impartiality of the representatives of UNHCR.
- The Bombay High Court in the matter of Syed Ata Mohammadi vs. Union of India WP No. 7504/1994, was pleased to direct that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The Hon’ble Court further permitted the refugee to travel to whichever country he desired. Such an order is in line with the internationally accepted principles of ‘non-refoulement’ of refugees to their country of origin.
- In a number of cases, including Maiwand’s Trust of Afghan Human Freedom v. State of Punjab Crl. WP No. 125 & 126 of 1986 and N.D. Pancholi vs. State of Punjab & Others WP (Civil) No. 1294/1987, the Supreme Court of India has stayed the deportation of refugees. The Supreme Court ordered a halt to the deportation of the Burmese refugees from Andaman Island in the case of Malavika Karlekar v. Union of India Crl. WP No. 243/1988 because “their claim for refugee status was pending determination and a prima facie case is made out for grant of refugee status.” In the Chakma refugee case, the Supreme Court ruled unequivocally that no one can be deprived of their life or liberty without first undergoing due process.
BY – APARNA SINGH KSHATRIYA