Table Of Contents

Sl. No. Content Page No.

1. Abstract 1

2. Introduction 2

3. Literature Review 3-4

4. Methodology 4

5. Refugees 5-11

6. Conclusions and Suggestions 12

7. References 13

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 REFUGEES

ABSTRACT

The relationship between human rights and refugee protection is self-evident. Refugees are
individuals who flee from places where their human rights are at serious risk. They seek
protection for these rights in their country of asylum, along with other social and economic
rights that enable them to build a new life. However, the connection between human rights
and refugee protection often faces challenges in practice due to legal distinctions and
varying interpretations.International human rights monitoring bodies have played a crucial
role in refugee protection by interpreting international human rights law inclusively. This has
contributed to the acceptance by states and the United Nations High Commissioner for
Refugees (UNHCR) that protecting refugees covered by international human rights law is a
legal obligation of states under international law. The understanding of this obligation has
led to the adoption of specific complementary instruments at regional levels and the
promotion of complementary forms of protection by UNHCR.India is neither a signatory to
the 1951 Refugee Convention nor does it have a domestic legislation in order. Yet, India
boasts of abiding by the principle of non-refoulement and bringing refugee protection under
the expansive understanding of Article 21 of the Constitution. Despite this, it continues to be
a host to the largest number of refugees across South East Asia.

Keywords - Refugee Convention, UNHCR, Humanitarian Law, Article 21 of the Constitution,

Refugee Law

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 INTRODUCTION

A refugee is any person whose life is under constant threat or the living conditions are not
conducive for his healthy survival and he runs for shelter to another nation. He should be
treated differently to a stateless person as he still possesses a de jure national status. However,
the exact definition is, any person who “owing to 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 unwilling to avail protection
of that country”. The criteria to determine the refugee status of a person is based on the
person’s state of mind which is supported by objective elements. There are lacunae in this
definition because it does not include the contemporary problems related to refugee
protection. The definition fails to include people seeking refuge due to environmental
disasters, people displaced internally due to hostility,internal disturbances and civil wars or
people having different sexual orientations.

India continues and will continue to be the host country since times immemorial for a large
number of refuges not only from neighbouring countries but from other parts as well due to
its geographic location, democratic government, religious tolerant society and goodwill. India
though is not a signatory of the 1951 Refugee convention but it has ratified a number of other
human rights treaties which imposes obligations to provide protection to refugees.Some of
the conventions enlisted are UN Declaration on Territorial Asylum 1967, Universal
Declaration of Human Right 1948(Art.14), International Convention on Civil and Political
Rights (ICCPR Art.13), Convention on the Elimination of Discrimination against
Women(CEDAW), International Convention on Economic Social and Cultural Rights
(ICESCR) and Convention against Torture and Cruel Inhuman or degrading Treatment or
Punishment (CAT).These treaties impose a positive duty on India to provide protection to
refugees as long as they fear persecution at the hands of their govt. No treaty, convention or
law can becompartmentalized and excluded to respect the human rights of refugees.

The problem at hand is three fold. Firstly, being a developing country, India is unable to
provide basic amenities to its own population and on top if it there is added burden of
refugees.

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LITERATURE REVIEW

 Book on The refugee in International LawGuy S Goodwin Gill, The Refugee in

International Law, Clarendon Press, Oxford, 1996– G.S.Goodwill-Gill

This book provides a detailed, comprehensive analysis of the current state of international
refugee law, focuses on individual claims and on groups in need of protection, critically
reviews the broader policy issues,maps challenges for the future of protection for refugees
and displaced people.

The status of the refugee in international law, and of everyone entitled to protection, has ever
been precarious, not least in times of heightened and heated debate: people have always
moved in search of safety, and they always will. In this completely revised and updated
edition, the authors cast new light on the refugee definition, the meaning of persecution,
including with regard to gender and sexual orientation, and the protection due to refugees and
those affected by statelessness or disasters. Related principles of protection—non-
discrimination, due process, rescue at sea, and solutions— are analysed in light of the actual
practice of States, UNHCR, and treaty-monitoring bodies. The authors closely examine
relevant international standards, and the role of UNHCR, States, and civil society, in
providing protection, contributing to the development of international refugee law, and
promoting solutions. New chapters focus on the evolving rules on nationality, statelessness,
and displacement due to disasters and climate chang

 Book on Refugees and the Law-Ragini Trakroo Zutshi, Jayashree Satpute, Md.
Saood Tahir, HRLN, 2nd edn.

This book holistically analyses refugee law, international, foreign, and domestic, aiming to
inform practitioners concerned with humanitarian issues of the increasing need for a broader
conceptual framework. This framework needs to account not only for the impact of
Government policies and laws, but also for the complicated realities on the ground. Refugee
law has become inextricably linked with the larger question of human rights and
humanitarian law, as well as other fields of international law, such as State responsibility and
peace maintenance. This poses a dilemma for refugee lawyers. On the one hand, it is crucial
to systematically structure the emerging range of norms, recommendations and guidelines
directed at a broad class of individuals who have lost, or are in danger of losing, the

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protection of their country of origin. While this book mainly focuses on the foundations and
framework of international refugee law, it also analyses the relationship between domestic
law and refugee protection. Standards are required to grant asylum, meet protection
requirements in the country of asylum, safeguard legitimate rights, and ensure the proper
discharge of duties – and the need for such standards point to the urgent need for national
legislation for refugees..

Article

Bhairav Acharya, “The law, policy and practice of refugee protection in India”.

India's diversity and stability have attracted refugees from South Asia and beyond. Despite a
long history of sheltering refugees that pre-dates the establishment of the modern state, India
has not acceded to the 1951 Refugee Convention nor enacted national refugee protection
legislation.India employs the Foreigners Act, 1946 to regulate the manner in which foreigners
enter, stay in and leave India. The Foreigners Act is a colonial wartime law that gives the
executive vast powers to apprehend and deport foreigners without due process of law. In the
absence of specialised refugee protection legislation, the Foreigners Act and related Rules
and Orders also apply to refugees.India argues that the Refugee Convention, which is
primarily concerned with individual refugee status determination, is irrelevant in the South
Asian context of migration and mass influxes. India has hosted several mass influxes in its
independent history including around 16 million Bangladeshis in 1971, that has lent a sense
of complacency to policy makers. However, Indian refugee policy is inconsistent and
depends on New Delhi's foreign relations with the country of origin.Indian courts have
preferred to remain silent on refugee law while upholding the executive's untrammeled
powers of deporting and removing foreigners from India. The few cases where Indian courts
have intervened in favour of refugees should be confined to their facts. The need to carve out
refugee protection from the general body of immigration law is developing and should, in the
future, yield an enforceable principle of asylum.

METHODOLOGY

The methodology adopted for the purpose of this research is a doctrinal method. The
doctrinal research involves the analysis of the statutes, case laws, existing secondary
information accessed from various sources, e.g. books, articles, journals, websites etc..

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REFUGEE

THE FOREIGNERS ACT AND ITS APPLICATION ON REFUGEES:

In the absence of any statutory framework, India relies on Foreigner Act 1946 to govern the
entry, stay and exist of foreigners in India. Since the matter (entry and regulation of aliens)
falls under the union list the central government is empowered to govern the refugee3 .
Section 2(a) of this act defines a foreigner as a person who is not a citizen of India. Therefore
all refugees come under the category of foreigner. Sec 3 empowers the Central Government
to issue orders inorder to control foreigners in their activities, movement and issue of identity
proof and regular appearance before police. Section 5 prevents foreigner to change their name
while in India. Section7 obliges the hotel keepers to maintain records of the stay of
foreigners. For1eigners Act 1946 has given wide power to executive to remove foreigners
from India4 . It is in addition to the power to refuse entry of foreigners for non fulfilment of
entry conditions that invites instant deportation. But by the request of National Human Right
Commission many changes have been brought by amending the Foreigners Act 1946

which is now a current law for refugees and asylum seekers. The lacuna in this Act is that it
does not contain the term refugee and in Indian law foreigner means aliens temporarily or
permanently residing in the territory. The Registration of Foreigner’s Act 1939, Foreigner’s
Act 1946, and Foreigner’s Order 1948 are the legislations dealing with the treatment of
foreigners in India.2

CONSTITUTIONAL PROTECTION TO REFUGEES:

 Foreigners are entitled to limited constitutional protection. These include protection
of the equality under Article 14 of the Indian Constitution and protection of life and
liberty under Article 21 of Indian Constitution. They are also entitled to the protection
of right recognised under article 20, 22, 25, 28, 32. All these articles are applicable
both for citizens and non citizens.

1
Legal condition of refugee in India, Boris Pal, http://borispaul.wordpress.com/2010/09/11/legal-conditions-
ofrefugees-in-india/, read on 18.3.2011

2
Sec 3(2(c)) of Foreigners Act 1946

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  Article 14 guarantees equality before law and equal protection of law. The executive
distinguishes foreigners according to their needs and deal with them differently based
on intelligible differentia having the nexus with the object.
 Article 21 deals with the protection of life and personal liberty. The Supreme Court
has reinterpreted Article 21 to include a substantive due process law which is
followed against the state action.
 Article 20 deals with Ex post facto law, right against double jeopardy and right
against self incrimination.
 Article 22 deals with right against arrest and detention.
 Article 25-28 deals with right to freedom of conscience and free practice and
propagation of religion.
 Article 32 grants the right to move to the Supreme Court for enforcement of these
above fundamental rights.
 Article 51(c) of the Indian Constitution provides that the state shall endeavour to
foster respect for international law and treaty obligations in the dealings of organised
peoples with one another.
 Article 253 of the Constitution gives the Indian Parliament 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 other country or any decision made at any
international conference, association or body. In Visakha V. State of Rajasthan,
Supreme Court has ruled in favour of harmonious construction of international law
and domestic law when it is consistent with fundamental rights.3
4

As in this case there was no legislation pertaining to prevention of sexual harassment,

Supreme Court relies on the objective of CEDAW and laid down a guide line for
preventing sexual harassment. It shows that in case of deficiency of domestic law
regarding any matter, Indian Courts are empowered to interpret any hard cases in the
light of international convention or treaty.5

WHY INDIA IS NOT A PARTY TO 1951 CONVENTION:

3
Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’, available at on
www.ssrn.com,read on 13.3.2011
4
Refugee Protection India,http://www.hrdc.net/sahrdc/resources/refugee_protection.htm read on 28.3.2011
5

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1951 United Nations Refugee Convention relating to the status of refugee is the culmination
of an historical development. It was introduced in the wake of refugee movements in Europe
after World War II. 1951 Convention was enacted only for European countries and gave a
precise definition of refugee based on ‘well founded fear of being persecuted’. Persecution
may be defined as the sustained and systematic violation of human right due to the failure of
state protection to its citizen. As such, it applied only to persons who became refugees as a
result of events occurring prior to the Refugee convention's adoption .

This temporal limitation was removed by the Protocol Relating to the Status of Refugees on
31st January 1967, whose Preamble recognized that "new refugee situations have arisen since
the convention was adopted." The pre-Convention definition did not take into account the
reasons for the refugee's departure from his/her home nation. Gradually, however, states
became concerned, culminating in the definition of "refugee". Now 1967 protocol has
universal application while dealing with refugees.

But in latter part of 19 and 20th century the definition of Refugees has undergone a lot of
changes. Refugees are now deemed to be known as displaced persons. Due to armed
conflicts, natural disasters and development in the border areas, people enter the international
border of adjoining countries and settle their as refugees. The displaced persons as refugees
are different from internally displaced persons (IDPs) who are displaced within the country
and do not cross the international borders.

India thinks that 1951Convention is highly Eurocentric and does not deal with South Asian
Countries. Being a developing country it will be a burden for India to be abided by the
Convention. It will affect India’s security and domestic laws. This Convention is not relevant
to the contemporary problems prevailing in India. Therefore India has not signed 1951
Convention still it is applying certain Articles of the 1951 Convention which are the
following :6

 Article 7 as India provides refugees the same treatment as all aliens.

 Article 3 as India applies a policy of non discrimination.

6
Policies and Laws towards refugees, Tapan K
Bose,http://www.hrsolidarity.net/mainfile.php/2000vol10no10/745/,read on 15.3.2011

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  Article 3A as no penalty is imposed on illegal entry.

 Article 4 where religious freedom is guaranteed.

 Article 16 as free access to the courts is provided.

 Article 21 allows freedom of housing and refugees need not stay in camps.

 Article 27 and 28 provides identity and travel cards to refugees.

 Article 33 provides the principle of non refoulement.

1951 convention is an important international human rights instrument which primarily

focuses on the principle of non refoulement according to which a refugee cannot be forcibly
returned to a territory where his life is in danger. The convention also prohibits the expulsion
of a refugee otherwise than for the reasons of national security and public order7.

Indian government deal with refugees in three ways which are the following :

 Refugees who come to India in mass are given temporary protection by the Indian
government and also being provided with certain socio economic protection. The Srilankan
Tamil refugees and the Jumma people from Bangladesh.

 Asylum seekers from South Asian countries with which India has sensitive relationship
apply to the government for political asylum which is usually granted without an extensive
refugee status determination which is subject to political exigencies. E.g Afgan, Somalian,
Sudaneese, Burmeese

 Citizens of other country apply to UNHCR for individual refugee status in accordance with
the term of UNHCR statute and refugee convention. Eg. Tribal refugees, Nagas from Burma.

ROLE OF UNHCR IN THE PROTECTION OF REFUGEES IN INDIA:

The United Nations High Commissioner for Refugees (UNHCR) plays an important role in

refugee protection throughout the world. In India UNHCR is very active and assist the

7
Crl. WP No. 60 of 1997

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refugee in getting refugee status and ensures that when they go to their home state, their

repatriation is voluntary.

A refugee who does not get direct assistance from Indian government is free to apply to the

UNHCR for asylum claims and other assistance. UNHCR is mandated by its parent statute to

conduct refugee status determination tests and issue certificates to those who fulfil the criteria

of Refugee Convention. UNHCR works throughout the region of South Asian countries to

raise the awareness of refugee issue and encourage all nations to give protection to

refugees. It is instrumental in organising regional consultation on the problem of refugees.

The recent consultation was held in Dhaka in November 1997 to adopt Model National Law
on refugees in which India participated.

USING HUMAN RIGHT INSTRUMENTS AS A SOURCE OF REFUGEE

PROTECTION:

Human rights are the basic rights granted to each individual equally without any distinction.

It is considered as a universally recognised standard of behaviours. The violation of these

standards by the state gives rise to a situation that creates refugees. Refugees by definition are

the victims of human right violation.8

India is not a signatory to 1951 convention relating to the status of refugee or 1967 protocol

but India has signed a number of international human right conventions which obliges India

towards protection of refugees based on humanitarian grounds. These include UN

Declaration on Territorial Asylum 1967, Universal Declaration of Human Right

1948(Art.14)9, International Convention on Civil and Political right(Art.13of ICCPR)

8
UNHCR and protection of refugee in India,Christina Harison,
http://www.unac.org/en/get_involved/internships/protection.asp,read on 28.3.2011
9
Article 14 of UDHR states that everyone has the right to seek and to enjoy in other countries asylum from
persecution.

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Convention on the Elimination of Discrimination against Women (CEDW), International

Convention on Economic Social and Cultural Rights 1966, Convention against Torture and

Cruel Inhuman or degrading Treatment or Punishment (CAT)10.

ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF REFUGEES:

In India judiciary has played a major role in protecting refugees. A number of judicial

decisions of various High Courts and the Supreme Court provide a series of rights to millions

of refugees who had fled their country of origin and have crossed the internationally

recognised border and are staying in Indian Territories. The courts have invoked the

constitutional provision to protect the rights of refugees.

Non Refoulement and right to refugee status:

There are many unreported cases where Supreme Court and various High Courts have taken

appropriate measures in the protection of refugees and their rights. There are number of cases

where court has ordered the life of refugees who are in danger to be safeguarded. In N.D

Pancholi V. State of Punjab, the Supreme Court stayed the deportation order issued against a

Burmese refugee and allowed him to seek refugee status from the UNHCR office in

NewDelhi. In Dr. Malvika Karelkar V. Union of India11, the Supreme Court stayed the
deportation order issued against 21 Burmese refugees from the Andaman Islands and allowed
them to seek refugee’s status from UNHCR.

Right to basic amenities:

10
Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’,
11
Criminal 583 of 1992 in writ petition

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In Digbijay Mote V. Government of India12, public interest litigation was filed by an NGO

who was running a school for the Srilankan refugee students in Karnataka. A petition was

moved when the conditions became difficult to run the school. The government of Karnataka

through its Ministry of Women and Social Welfare undertook to provide financial assistance

to run the school.

In Majid Ahmad Abdul Majid Mohd Jad Al Hak V. Union of India13, court held that basic

amenities like food and medical care must be provided to the refugee while in detention.

In K.A Habib V. Union of India14, the Gujarat High Court decided that the principle of non

refoulement is encompassed in Article 21 of the Indian Constitution. It decided that two

refugees from Iraq could not be sent back to their home state if they had fear for their life and

security.

CONCLUSION AND SUGGESTINS

In India adopting model national legislation is the first step towards refugee protection.

Judiciary and human right instruments are the only source to protect refugees which depend

upon case to case but the difficulties arises when there is mass influx of refugees coming

12
Writ Appeal No. 354 of 1994
13
Crl. WP No. 60 of 1997
14
CA 3433 of 1998),

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from different states. It is therefore highly essential to draft legislation on refugees so that

there will be a uniform legal framework to recognise the rights of refugees. The domestic

NGOs and UNHCR are complimentary to each other. The only act of UNHCR is to recognise

refugees within its mandate. In a situation where Government of India denies access to

UNHCR and other foreign humanitarian agencies, domestic NGOs play the most crucial role

to provide "protection" to the refugees. By enacting domestic law, refugee can be

distinguished from IDPs and can acquire specific protection. India is therefore not required to

sign 1951 Convention as protection is already been given by Indian Constitution and

judiciary. Now it is high time to think for a specific legislation on refugees which can

entertain the future upcoming refugees in India without any human right violations.

REFERENCES

Primary Sources
1. Arjun Nair, “National Refugee Law for India: Benefits and Roadblocks”.
2. Tapan Kk Bose.Policies and Laws towards refugees

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 3. Refugee Protection
India.http://www.hrdc.net/sahrdc/resources/refugee_protection.htm

Secondary Sources

1. B N Patel, “India and International Law”, Martinus Nijhoff Publishers 2005.

2. Ragini Trakroo Zutshi, Jayashree Satpute, Md. Saood Tahir, Refugees and the
Law, HRLN, 2nd edn.

The American Psychological Association pattern of citation format is applied in this

paper.

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