PROJECT

COURSE: FEMINIST JURISPRUDENCE

TOPIC:

AN ANALYSIS OF MORALITY AND LEGALITY OF ABORTION IN THE

LIGHT OF MEHTA’S CASE

Introduction

The flow of refugee from one country to another had started time immemorial. In early

years, it was not restricted by neighboring countries to enter, but later, the domestic laws

were become stricter and considered the welfare to its citizen gave the prime priority. In

1948, UN has passed the Universal Declaration of Human Rights; it has been the basic

document to deals with the human rights, so it is known as Magna Carta of human rights

instruments. Even though it is only a declaration and it has no binding force over the

countries, it gave an international standard and common frame work to the concept of

human rights. It announces all human beings are equal and every one has the right to live

with human dignity. Really, it gave a strong pavement to the concept of human rights as a

matter of rights in the international arena. The UDHR ensures the children are entitled to

special care and protection. All children, whether born in or out of wedlock, shall enjoy

the same social protection1. Everyone has the right to education. Education shall be free,

at least in the elementary and fundamental stages. Elementary education shall be

compulsory. Technical and professional education shall be made generally available and

higher education shall be equally accessible to all on the basis of merit. 2 So the refugee

children shall not be differentiated in access to education due to their residential status.

Due to the various events over the period the entire world witnessed the gross violation of

human rights especially aftermath of 2nd World war, the flows of refugees were at that

time in its peek. So in order to prevent the persecution in a large scale it was necessity of

an international convention which is binding to signatory states. This was the one cause

of the birth of UN Convention relating to the status of refugees, 1951. Till now, there has

1
Article 25(2) of the Universal Declaration of Human Rights,1948
2
Article 26(1) of the Universal Declaration of Human Rights,1948
been 145 countries have been ratified to this convention. Most of the South Asian

countries have not sign to this convention. In 2005, Afghanistan has signed the 1951

Convention and its 1967 protocol. There is a very good chance if India signed to this

convention many of the South Asian countries would also follow the same.

Non-refoulement is a principle in international law, specifically refugee law that concerns

the protection of refugees from being returned to places where their lives or freedoms

could be threatened. Non-refoulement which acts as a complete prohibition against the

forcible return of people to a place where they will be subject to grave human rights

violations or where their life or personal security will be seriously endangered. Unlike

political asylum, which applies to those who can prove a well-grounded fear of

persecution based on membership in a social group or class of persons, non-refoulement

refers to the generic repatriation of people, generally refugees into war zones and other

disaster areas. Article 33 of the Convention is of primary relevance. The first paragraph

of this article states that: “No Contracting State shall expel or return (‘refouler’) a refugee

in any manner whatsoever 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”. If the contracting parties violate this provision, then it

would question the sustainability of the entire convention. Though India is not a party to

the Refugee Convention, the general principle prohibiting forced repatriation called non-

refoulement has risen to the level of customary law, such that they bind even non-

signatories.

All these matters affect the refugees in general but the other side which adversely affects

the life of the refugee children who are innocent and vulnerable to take care of
themselves. They represent the future generation of the nation so the society has the

moral obligation to mould their character to lead a worth life. Refugee children are the

downtrodden and the victims of various kinds of human rights violations. The researcher

tries to analyze the difficulties which the refugee children face in India and its solutions.

Research methodology

The researcher has adopted analytical and descriptive methodology.

Hypothesis

1. For the purposes of this thesis the researcher starts with the hypotheses that, in the

international level the Convention on the Status of Refugees, 1951 and Protocol of 1967

are binding documents to protect the rights of refugees in signatory states, many of the

South Asian countries including India, did not ratify convention or its protocol. So India

does not have international obligation based on 1951 convention or 1967 protocol, even

though India protects a large number of refugees including refugee children with all the

rights as same as a foreigner and in assistance even beyond that.

2. India does not have a separate legislation to protect the refugees in general, even

though India accept the principle of non refoulment as a customary law and protect large

number of refugees including children.

Research questions

1. Who is a refugee as per the 1951 convention? Will it applicable to refugee

children?

2. Who are the refugees residing in India and how is their life?

3. What are the difficulties faced by the refugee children in India?

 4. What are the impacts of judicial decisions to protect the rights of refugees in

India?

5. Whether India needs a separate legislation to protect the refugee’s interest

including refugee children?

6. What are the drawbacks of ad hoc actions to protect the refugees’ interest in

India?

7. Which are the NGOs working in India to protect and preserve the rights of

refugee children? And what are the barriers to achieve their goals?

8. What are the drawbacks of UNHCR in preservation of welfare of refugee children

in India?

9. Whether the activities of UNICEF and UNESCO are satisfactory in the matters of

refugee children?

Style of writing and citation

The paper follows a uniform style of footnoting and citation, the style is as

follows, Article: Name of the author, Title of the article, “Name of Journal”, Vol.

No, page no.

Method of data collection

The method of data collection has both primarily and secondary sources.

Prominence was given to various books and articles along with international and

national documents. Some research on the internet has also been carried out.

Chapterisation

This thesis has been divided into five chapters.

Chapter I is the introduction part which gives a brief idea of refugee children who

are considered as a particular vulnerable group needed more care and special

protection and also gives the detailed information about the progress of the issues

of protection in the national and international scenario and the role of United

Nations. And, this chapter mentions the definitions of children in national and

international documents and also an evaluation of the definitions of refugees

which are given in the Convention relating to the Status of Refugees, 1951 and

other regional instruments, like, the regional Convention Governing the Specific

Aspects of Refugee Problems in Africa, South Asia Declaration on Refugees,

2004 and also explains the recent legislative attempt to define the term ‘refugee’

by Government of India.

Chapter II entitles, “The refugee children’s rights and protections under

international instruments”. In this chapter the researcher tries to explain the rights

of refugee children embodied in the international instruments like UN Convention

on the rights of the child, 1989 and gives a brief explanation to the relevant

Articles in the Convention relating to the Status of Refugees, 1951 and also

evaluates the criticisms against Convention Relating to the Status of Refugees,

1951 and its 1967 Protocol in the angle of refugee children. In the latter part of

the chapter, the researcher tries to explain the reasons why India did not ratify the

Convention relating to the Status of Refugees, 1951and its protocol of 1967.

Chapter III entitles, “The rights of refugee children under the Indian constitution”,

in this chapter the researcher tries to describe the rights of refugee children

incorporated in the Indian constitution and how the judiciary response to protect
the rights of the refugees in India. And this chapter briefly explains the recent

initiative taken by India to protect refugees’ interest.

Chapter IV entitles, “Contemporary dilemmas of refugee children in India”, in

this chapter the researcher tries to give a clear picture of refugee children who are

residing in India and their difficulties especially by Jumma refugee children,

Srilankan Tamil refugee children, Tibetan refugee children, Bhutanese refugee

children, Burmese refugee children and the refugee children protected by the

UNHCR and also researched the limitations of policies and violations of duty by

the State in promotion and protect of refugee children’s welfare.

Chapter V entitles, “The role of NGOs in promotion of refugee children’s

welfare”. In this chapter the researcher explains the role of various national and

international NGOs which are working in India in promotion and protection of the

rights of refugee children. And also an enquiry what are the barriers prevents

these NGOs achieving their goals. At the end of the chapter the researcher put

forward certain fruitful suggestions.

Chapter VI entitles, “The help of UNHCR and UNESCO for better welfare of

refugee children in India”. In this chapter the researcher tries to explain the

various schemes, policies and the activities of UNHCR and UNESCO. At the end,

the researcher gives certain suggestions for better implementation of policies and

schemes.

Chapter VI is my concluding chapter and attempts to provide certain

recommendations in general for the better protection of refugee children’s welfare

in India.
BIBLIOGRAPHY

Statute

1. Convention relating to the Status of Refugees, 1951

2. Protocol Relating to the Status of Refugees, 1967

3. The constitution of India

4. The Foreigners Act, 1946

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