Indian approach to refugee protection deserves special mentioning as it holds within her boundary

about 3,30,000 refugees without any formal obligations based on international documents.[1] But

from the human rights perspective the lack of specific refugee legislation or formal recognition of

1951 Convention on Refugees or the 1967 Protocol has led to varying treatment of different

refugee groups within the territory. The status of refugees in India is governed mainly by political

and administrative decisions rather than any codified model of conduct.[2] Still India is renowned

as a refugee-receiving country than a refugee-producing country.[3]

LEGAL FRAME WORK FOR THE PROTECTION OF REFUGEE IN INDIA

The main approach adopted in India is to treat the refugees under the laws applicable for all

foreigners. But there exist a considerable difference between a refugee and a foreigner. The 1951

Convention on Refugee defines the group as those who have fled from their home country owing to

well-founded fear of persecution on race, religion, nationality, membership of a particular social

group or political opinion and is unable or unwilling to return to his country because of that reason.

But ordinary foreigners are quite different category. They may include temporary residents,

tourists or travellers. They come to India for specific purpose with the prior permission of Indian

Government. They may turn as refugees if during their stay in India the circumstances in their

homeland turned as equal to that of 1951. There is yet another category like illegal economic

migrants who intrude into our borders solely to improve their economic prospects without any

formal authorisation from both the country of origin ad destination. Another threatening group are

that of criminals, spies, infiltrators, militants etc. They will be dealt with Indian criminal laws or

special laws even if they have a valid travel document. If all these categories of people are

handled with the same legislation there is bound to be disparities and injustices.

In the absence of a specific statute often the plight of the refugees are decided based on the

Foreigner’s Act drafted as early in 1946, the Emigration Act, 1983 and the rules framed there

under, the Passport Act 1967 and above all the Indian Constitution under Art 21. In India the major

law enforcing agencies which will deal with the refugees on the first hand are the security

personnel at the border, the immigration personnel at land check post, international airport and

the seaport, and the State Police personnel. But till date it generally confirms to the international

documents for the protection of refugees. The status of refugees in India is governed mainly by

political and administrative decisions rather than any codified model of conduct.[4] The ad hoc

nature of the Government’s approach has led to varying treatment of different refugee groups.
Nowadays there has been stringent approach in dealing with foreigners due to security concerns.

This has resulted in genuine refugees paying an unfortunate price in a country that otherwise has

an impressive history of protecting refugees.[5] Through this paper I am trying to evaluate the

implications of each Act with reference to the genuine refugee.

THE FOREIGNERS ACT AND ITS APPLICATION TO REFUGEES

The Foreigners Act is an archaic legislation that was enacted by a colonial government in response

to the needs of the Second World War.[6] The Act primarily deals with the stay and exit of

foreigners in India.[7]

Section 2(a) of the Act defines a ‘foreigner’ as “a person who is not a citizen of India”, thus

interpreted as covering all refugees within its ambit. Through this Act the Central government is

empowered to make order for prohibiting, regulating and restricting entry of foreigners into India,

their departure there from and presence/ continued presence. The types of possible restrictions

are 1) no entry or departure 2) entry only at such time only by such route only at such port/place.

3) Observance of such conditions on arrival. There are a number of such Orders in force that

restrict the movement, activity and residence of foreigners; and, require their proof of identity and

regular appearance before the police.[8] The Act invariably gives wide powers to the executive to

refuse entry if the foreigner do not fulfil the entry conditions and may resort to instant deportation.

This is often in contravention with the non-refoulement which is practiced by members who are

signatory to international documents and may seriously affect the rights of a genuine refugee. In

Hans Muller of Nuremberg[9] the Supreme Court affirmed that

“The Foreigners Act confers the power to expel foreigners from India. It vests the Central

Government with absolute and unfettered discretion and, as there is no provision fettering this

discretion in the Constitution, an unrestricted right to expel remains.”

Even after thirty five years the judiciary was reluctant to read humanitarian principles into this

approach and the situation continued in Louis de Raedt v. Union of India[10] and Sarbananda

Sonowal’s case[11]. Later some how the Court extended the Article 21 of Indian Constitution to

take hold of the non-refoulement principle which will be discussed later. The other highlights of the

Foreigners Act are 1)Section 5 prevents foreigners from changing their name while in India 2)

Section 6 requires masters of ships and pilots of aircraft to maintain records of travelling foreigners

3)Section 7 obliges hotel-keepers to maintain records of the stay of foreigners 4) Section 9 places

the burden of proving that a person is not a foreigner on that person 5) Section 12 provides for the
delegation of these powers; and 6) Sections 14, 14A and 14B penalise foreigners and abettors

found in contravention of the Act or any Order made there under.

The 175th Law commission report on the Foreigner’s Amendment Bill 2000 put forth suggestions to

harmonise the punishment provisions in Foreigners Act and Passport Act. It suggested for the

immediate deportation of the foreigner and establishment of a grass root level mechanism to

monitor the entry of foreigners.

PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW

Refugee rights under the Convention and Protocol consist of two primary components. First, the

principle of non–refoulement, which prevents the states from returning a refugee to his or her

home country where he has a well-founded fear of persecution. It is often considered as the duty

of the host state than as a right of the refugee. Second relates to those rights available for the

refugee which affects his day to day life in the host country. These like the right to education, the

right to hold property, etc. The later rights arise only when the first principle is exercised. The lack

of a specific statute for dealing with refugees or formal obligation under international documents

gives an impression that India is not under a formal duty to follow the principle of non-

refoulement. But there are three arguments which say that indirectly Indian system provide a

mechanism to retain the refugee on his arrival in the Indian territory. One is the working of legal

institutions like UNHCR and the NHRC which prevent the return of valid refugees to their home

Countries.[12] Another attempt is to read it under Art 21 by laying down that the State shall not

expel or return a refugee in any manner what so ever to- the frontiers of territories where his life or

freedom would be threatened on account of his race, religion, nationality, membership of a

particular social group or political opinion for it may turn out to be unfair unjust and unreasonable.

Another view is that the Constitution under Article 51 automatically incorporates the international

rule of non-refoulement into India’s domestic laws.[13]

CONSTITUTIONAL PROTECTION TO FOREIGNER’S

Foreigners are entitled to some degree of constitutional protection while in India. These include the

protection of the equality clause [Article 14] and the life, liberty and due process provisions [Article

21] of the Indian Constitution. By the permissible classification criteria the executive can very well

classify among the different categories of foreigners. Thus refugees are supposed to get

preferential treatment from the law enforcing agencies. The plight of a foreigner/refugee after he

is given a shelter is well taken care of by the various statutes applicable to aliens and they very
well confirm to the international standards. But the major concern is his entry to the country on

arrival at the border. In 1996, the Supreme Court in National Human Rights Commission v. State of

Arunachal Pradesh[14] intervened with a liberal interpretation of the law to suggest that refugees

are a class apart from foreigners deserving of the protection of Article 21 of the Constitution.[15] To

quote from the judgment,

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every

human being and certain other rights on citizens. Every person is entitled to equality before the

law and equal protection of the laws. So also, no person can be deprived of his life or personal

liberty except according to procedure established by law. Thus the State is bound to protect the life

and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or

group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they

would be forced to do so.”[16]

In the above case Court was rather concerned about the substantive and procedural aspect of

Article 21 rather than the imperative right of the refugee for a non-refoulement. In spite of this

judgment it is a fact that in the absence of an institutional framework one cannot fruitfully argue

that State is obliged to follow the principle of non-refoulement in its dealings with refugees unless

it is raised to the level of customary international law as alleged by some academicians.[17]. The

argument is based on the fact that the principle is extensively practiced by the 137 countries who

are parties to the international convention for the protection of refugees and is often advised to be

followed by other countries too. So by the time it has raised to the level of customary international

law as recognised by the majority international community.

EVIDENCE REQUIRED TO ESTABLISH A REFUGEE CLAIM

Since Indian law considers all non-citizen’s as aliens it is rather difficult to prove the status of

refugee if at all he is to get a better protection. He should carry sufficient document to prove

grounds for the fear of persecution may be in the form of ID card of employment with some

governmental agency/ ID card indicating membership in a group. The claimant must be able to

establish all his statements to interviewing authorities in a consistent manner without

discrepancies. There will be corroboration and confirmation of facts pertaining to persecution by

the authorities. The authorities will gather background details from the government authorities or

through the NGO’s.

INDIA’S INTERNATIONAL COMMITMENTS

Even though India lacks a specific legislation pertaining to refugee protection it is a member to the

Executive Committee of High Commissioner’s Programme, 1995. EXCOM is the organization of UN

which approves and supervises the material assistance programme of UNHCR. Membership in it

indicates particular interest and greater commitment to refugee matters. India is a signatory to

the UN Declaration on Territorial Asylum, 1967. There are contentions that India has accepted the

principle of non-refoulement as envisaged in the Bangkok Principle 1966 which were formulated for

guidance of member states with respect to matters concerning status and treatment of refugees.

MAJOR REFUGEE CATEGORIES IN INDIA

The major categories of refugees existing in India may be explained under three heads.

1) Those who receive full protection according to the standard set by the Government of India eg.

The Srilankan Tamil refugees and the Jumma people from Bangladesh.

2) Whose presence in Indian territory is acknowledged by the UNHCR and protected under the

principles of non-refoulement eg. Is that of Afgan, Somalian, Sudaneese, Burmeese etc.

3) Who have entered India and have assimilated into their communities. Their presence is not

acknowledged either by the Indian Government or by UNHCR. Eg. Tribal refugees, Nagas from

Burma.

Conclusion

India often raises her concern of indefinite legal responsibility for not signing the International

Convention or the Protocol as the number of persons seeking shelter has increased over a period of

time. The members are obliged to provide food clothing shelter and other basic life amenities

which involve the spending of a considerable portion of country’s economy. This might be other

reason for abstaining from the international community in the matters of refugee protection. But it

is an immediate necessity to review the possibility of according the principle of non-refoulement

under the present legal system or a new procedural legislation to meet the situation. Once India

signs the International document she has every chances of getting financial aid from the

international community. An international consensus on the policy is the only way towards greater

human rights approach.

[1] India is neither party to the 1951 Convention on Refugees nor the 1967 Protocol

[2] Human Rights Law Network, Report Refugee Populations in India 2007, available

at http://www.ssrn.com

[3] Tapan K. Bose, Protection of Refugees in South Asia: The Need for a Legal Frame Work (2000) as

quoted in Omar n. Chaudhary, Turning Back: An assessment of Non-Refoulement under Indian

law,http://www.ssrn.com

[4] Human Rights Law Network, Report Refugee Populations in India 2007, available

at http://www.ssrn.com

[5] Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’, available

at www.ssrn.com

[6] See the Statement of Objects and Reasons of the Foreigners Act, 1946.

[7] The preamble of the Act describes it as an Act to confer upon Central Government certain

powers in respect of foreigners’ Whereas it is expedient to provide for the exercise by the central

government of certain powers in respect of the entry of foreigners to India, their presence therein

and their departure therefrom.

[8] See, for instance, the Foreigners (Restriction on Movements) Order, 1960; Foreigners

(Restriction on Activities) Order, 1962; Foreigners (Restrictions on Residence) Order,

1968; Foreigners (Proof on Identity) Order, 1986; and, Foreigners (Report to Police)

Order, 1971.

[9] Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367 at p. 36.

[10] (1991) 3 SCC 554 at pr. 13

[11] (2005) 5SCC 665 at prs. 74-79.

[12] Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International

Journal of Refugee Law 238 (2000)

[13] Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International

Journal of Refugee Law 238 (2000)

[14] (1996) 1 SCC 742

 [15] The case involved a dispute between Chakma refugees residing in Arunachal Pradesh and a

group of hostile locals(AAPSU). The Chakma people had been displaced in 1964 from erstwhile East

Pakistan (now Bangladesh) and moved from Assam to the current state of Arunachal Pradesh, a

sparsely populated area of India. Although many applied for citizenship, local officials prevented

their applications from reaching the federal government; despite living in India for over 30 years,

some of the Chakmas remained, officially speaking, non-citizens. As the Chakma population

skyrocketed, the AAPSU issued .quit orders,. demanding that the Chakma leave or suffer severe

harm. Arunachal Pradesh formulated plans to move the Chakmas to another state, even though

some neighboring states threatened to kill the Chakmas upon entry. Meanwhile the Ministry of

Home Affairs was attempting to confer blanket citizenship (but was continually foiled by the state,

which refused to forward the naturalization applications) and demanded that the state provide

security at their present location. Finally, the NHRC filed a petition in court demanding that

Arunachal Pradesh halt the Chakmas. forced migration and protect them from harm. Fortunately for

the Chakmas, the Supreme Court ruled that they could not be moved until the federal government

had ruled on their citizenship, and that, in the meanwhile, the state had an obligation to protect

them from violence.

[16] (1996) 1 SCC 742 at para 20

[17] H. Knox Thames, India’s Failure to Adequately Protect Refugees

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Comments
1. lavanya says:
October 26, 2010 at 7:09 pm

2
 Rate This

the article related to refugee is very informative and it helpd me to understand the condition of india

regarding the issues related to refugees..it will be help to do my moot..

Reply

2. adv.Santhy Rakesh says:

October 28, 2010 at 12:36 pm

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Thanks for the comment lavanya…Human rights issues invariably involve questions on existing value

system, so… only a comparative analysis will help you take ‘sides’….especially during moot court

competitions. i think the endnotes in this article will help u for the same . good luck lavanya.

Reply

3. JISSY.K says:
January 11, 2011 at 3:10 pm

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This article is very informative and helpful.

Reply

4. mickey says:
February 7, 2011 at 2:19 pm

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Hi Mr. Boris Paul,

I have a friend who fled Tibet into India she is now in the UK. She is very scared of returning to India as

she say Indian police is corrupt and would kill her. Is there any evidence of this? and also do you know

whether Tibetans (buddhists) are treated particularly badly by Indian police. Thanks if you have time to

respond. Kind regards mickey schroder

Reply

5. praveen says:
September 1, 2013 at 10:51 pm

Rate This

Hi,

This blog is very much informative. I could like to know, is that possible to bring out any refugee from

camp and giving some work to them. I mean they can live freely within india. To do this, Is there is any

procedure? Advance thanks.. waiting for your reply

Reply

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