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India: Policies and Laws towards Refugees

Tapan K. Bose

The Indian government deals with refugees at both the political and administrative levels. The result is that refugees are treated under the law applicable to aliens. In the case of refugee protection, the Constitution of India guarantees certain fundamental rights, which are applicable to all non-citizens, namely, the right to equality (Article 14), the right to life and personal liberty (Article 21) and the freedom to practice and propagate their own religion (Article 25). Any violation of these rights can be remedied through recourse to the judiciary as the Indian Supreme Court has held that refugees or asylum seekers cannot be discriminated against because of their non-citizen status.

The National Human Rights Commission of India (NHRC) has functioned effectively as a watchdog for the protection of refugees. The commission has approached the Supreme Court of India under Article 32 of the Constitution and obtained protection for the Chakma refugees from the Chittagong Hills tribal areas of Bangladesh when their life and security was threatened by local politicians and youth leaders in the state of Arunachal Pradesh. Relief was granted by the Supreme Court on the basis of the rights of aliens under Articles 14 and 21.

The chief justice of the Supreme Court, Justice Ahmadi, speaking for the court in National Human Rights Commission vs. State of Arunachal Pradesh (1996 SCC 742), said that the State is bound to protect the life and liberty of every human being. He pointed out that the rights of refugees under the Constitution of India were confirmed by Article 21, which also included the right to non-refoulement. In the case of Khy Htoon and Others vs. State of Manipur, the Imphal bench of the Guahati High Court ruled that refugees have fundamental rights under Articles 10, 21 and 22 of the Indian Constitution. Justice V. R. Krishna Iyer considers Article 14, which provides equal protection of the law, as being applicable to all persons, not merely citizens.

India's refugee policy is further governed by certain administrative regulations. The standard of humane treatment set by these administrative regulations flows from the ethos that persons displaced from their homes need both protection and economic sustenance. The administrative experiences of the government depart-ment responsible for rehabilitation and the laws adjudicated at the time of partition have contributed towards a refugee policy for India. In India, refugees are registered under the 1939 Registration Act, which is applicable to all foreigners entering the country. Under the 1946 Foreigners Act, the government of India is empowered to regulate the entry, presence and departure of aliens in India, though the word alien itself is nowhere defined. Entry is also governed by the Passport Act of 1967. Entry can be restricted if a person does not have a valid passport or visa, though the government can exempt persons when it so desires. These procedures are linked at this stage to individuals who enter Indian borders without a valid visa or any other document. Though it is related to illegal migrants, the exemption provision is applicable to refugees. It should be noted that refugees in developing countries, unlike those in the West (barring those from former Yugoslavia), usually descend in large numbers. Under these circumstances, refugee determination becomes an administrative task to oversee the relief and rehabilitation process rather than to supervise who stays or does not stay.

As mentioned previously, the government of India alone determines refugee status and has no specific legislation to deal with refugees. Prof. Saxena of Jawharlal Nehru University maintains that despite this lacuna India does apply in practice certain articles of the 1951 U.N. Refugee Convention. These include:

  • Article 7 as India provides refugees the same treatment as all aliens,
  • Article 3 as India fully applies a policy of non-discrimination,
  • Article 3A as no penalty is imposed on illegal entry,
  • Article 4 as religious freedom is guaranteed,
  • Article 16 as free access to the courts is provided,
  • Articles 17 and 18 as work permits have no meaning and refugees do work, thus, complying with these articles on wage-earning rights,
  • Article 21 as freedom of housing is allowed and refugees need not stay in camps, for freedom of movement is guaranteed to all aliens, except in certain areas where special permits are required not only for aliens but also for all Indians and
  • Articles 27 and 28 as identity and travel cards are issued to refugees.

However, many activists have contested the assertion of Prof. Saxena. They point out that the majority of Sri Lankan Tamil refugees and almost all of the Jammu and Chakma refugees were forced to live inside camps. Severe restrictions were imposed on their freedom of movement. In addition, the asylum seekers from Burma were arrested and jailed; and during 1995-1997, approximately 5,000 Chin refugees from Burma were pushed back over the border. They also point out that since the government does not issue 'residence permits' to all refugees they are unable to open bank accounts, rent houses and set up a business. Moreover, Indian educational institutions do not admit refugees. As a result, young refugees are unable to pursue their academic careers.

To conclude, though India is not a party to the 1951 U.N. Refugee Convention or its Protocol, its domestic laws have not been found to be in conflict with international laws. While it can be justifiably proud of having followed a programme of humane treatment of refugees, there is still an absence of uniform treatment of different refugee groups with respect to refugee rights, resulting in discrimination in terms of assistance and opportunities. To protect refugees by means of the activists' approach has its own limitations, however. Thus, there is a need for the enactment of a national law to provide for refugees in a systematic manner.

Judicial Interpretations: Case Law in India

In India, the judiciary has played a very important role in protecting refugees. Court orders have filled legislative gaps and in many cases have provided a humanitarian solution to the problems of refugees. Moreover, Indian courts have allowed refugees and intervening non-governmental organisations (NGOs) to file cases before them. Furthermore, the courts have interpreted provisions of the Indian Constitution, existing laws and, in the absence of municipal law, provisions of international law to offer protection to refugees and asylum seekers. Presented below is a summary of the type of protection that the Indian courts have provided refugees.

Physical Security

Indian courts have decided in a number of cases that the constitutional protection of life and liberty must be provided to refugees. In the cases of Luis de Readt ([1991] 3 SCC 554) and Khudiram (Nos. 1994 Supp. [1] SCC 615), the Supreme Court held that Article 21 of the Constitution of India, which protects the life and liberty of Indian citizens, is extended to all, including aliens. Below are some of the most important decisions of the Supreme Court.

The Supreme Court of India in the case of National Human Rights Commission vs. State of Arunachal Pradesh restrained the forcible expulsion of Chakma refugees from the state (Civil WP No. 720: 1996 [1] Supreme 295). The Supreme Court in its interim order on Nov. 2, 1995, directed the state government to ensure that the Chakmas situated in its territory are not ousted by any coercive action not in accordance with the law. The court directed the state government to ensure that the life and personal liberty of each and every Chakma residing within the state should be protected. Any attempt to forcibly evict or drive them out of the state by organized groups should be repelled by using paramilitary or police force; and if additional forces are required, then the state should take the necessary steps. The court also decided that the Chakmas shall not be evicted from their homes except in accordance with the law, the quit notices and ultimatums given by other groups should be dealt with in accordance with the law, the application for their citizenship should be forwarded and processed expeditiously and, pending the decision on these applications, they shall not be evicted.

Non-Refoulement and the Right to Refugee Status

In a number of cases, Indian courts have protected the rights of refugees where there are substantial grounds to believe that their life would be in danger. There are cases where the courts have ordered the life of refugees who are in danger to be safeguarded and have allowed them to be granted refugee status by the United Nations High Commissioner for Refugees (UNHCR).

In Zothansangpuri vs. State of Manipur (Civil Rule No. 981 of 1989), the Gauhati-Imphal bench of the Guahati High Court ruled that refugees have the right not to be deported if their life was in danger.

In Dr. Malvika Karlekar vs. Union of India, (criminal) 583 of 1992 in writ petition, the Supreme Court held that authorities should consider whether refugee status should be granted; and until this decision was made, the petitioner should not be deported.

In Bogyi vs. Union of India (Civil Rule No. 981 of 1989), the Gauhati High Court not only ordered the temporary release of a Burmese man from detention but approved his stay for two months so that he could apply to UNHCR for refugee status (Civil Rule No. 1847/89 Gauhati High Court).

The case of U. Myat Kayew and Nayzan vs. State of Manipur (Civil Rule No. 516 of 1991) has contributed substantially to India's refugee policy. It involved eight Burmese people, aged 12 to 58, who were detained in the Manipur central jail in Imphal for illegal entry. These people had participated in the democracy movement, had voluntarily surrendered to the Indian authorities and were taken into custody. The cases were registered under Section 14 of the Foreigners Act for illegal entry into India. They petitioned for their release, however, to enable them to seek refugee status with UNHCR in New Delhi. The Gauhati High Court, under Article 21, ruled that asylum seekers who enter India, even if illegally, should be permitted to approach the office of the U.N. high commissioner to seek refugee status.

Right to Basic Amenities

In Digvijay Mote vs. Government of India (Writ Appeal No. 354 of 1994), the High Court of Karnataka in Bangalore, considering the rights of 150 Sri Lankan refugee children, ordered the state to make the necessary arrangements to provide basic amenities to the refugee children in the camp on humanitarian grounds.

In Majid Ahmed Abdul Majid Mohd. Jad Al- Hak vs. Union of India (Crl. WP No. 60 of 1997), the court held that basic necessities, like food and medical care, must be provided while in detention.

Forced Repatriation

In the case of Gurunathan and Others (WP Nos. 6708 of 1992), the Madras High Court on March 27, 1994, stayed the repatriation process as it was not voluntary. It held that when there is an international organisation to ascertain the voluntariness of consent it is not for the court to decide whether the consent was voluntary or not. It also directed the government to transmit this order in Tamil to the camps as well as an order that refugees will not be sent back against their will.

Deportation on Grounds of National Security and Criminal Activities

The courts have ruled that refugees can be deported on the grounds of national security. In Mohammed Sadiq vs. Government of India (Civil Rule Writ No. 405/98), the court allowed the deportation of refugees under the Foreigners Act of 1946 if they were found indulging in activities undesirable and prejudicial to the security of India.

In Khadija vs. Union of India (Crl. WP No. 658 of 1997), the High Court of Delhi in New Delhi ruled that international law and conventions cannot be applied to refugees indulging in criminal activities, and consequently, they can be repatriated or deported. However, since the petitioner had approached UNHCR for third-country settlement, he was given a time of four weeks to seek asylum in a third country.

Right to Leave (Return)

The court has upheld a refugee's right to leave the country. In Nuang Maung Mye Nyant vs. Government of India (CWP No. 5120/94) and Shar Aung vs. Government of India (Gl. WP No. 110 of 1998), the courts ruled that even those refugees against whom cases were pending for illegal entry should be provided exit permits to enable them to leave the country for third-country resettlement.

Application of International Laws for the Protection of Refugees

In Ktaer Abbas Habib Al Qutafi vs. Union of India (CA 3433 of 1998), the High Court of Gujarat in Ahmedabad summarised the principles that have emerged from Indian judicial precedents. This included conformity with international conventions and treaties. Although not enforceable, the government is obliged to respect them, but the power of the government to expel a foreigner is still absolute. Meanwhile, Article 21 guarantees the right to life for non-citizens. International covenants and treaties which effectuate these fundamental rights can be enforced. The principal of non-refoulement is encompassed in Article 21 so long as it is not prejudicial to national security. Under Articles 51(c) and 253, international law and treaty obligations are to be respected as long as they are consistent with domestic law.

Posted on 2001-08-20
Asian Human Rights Commission

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