JAMIA MILLIA ISLAMIA

HUMAN RIGHTS, REFUGEE LAW AND INTERNATIONAL

HUMANITARIAN LAW
TOPIC: THE LEGAL STATUS OF REFUGEES IN INDIA

SUBMITTED BY: SHAZIA SAMEEN

SUBMITTED TO: PROFESSOR NOORJAHAN MOMIN
COURSE: BA LLB (H)(SF)
SEMESTER: V
ROLL NO: 53

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INTRODUCTION

Vasudev Kutumbkam the whole world is one family_ Upanishad

India has always been a welcoming country for migrants from across the world be it Afghanistan, Pakistan,

Syria, Bangladesh, Iran, Japan or any country in distress. As a result, we have around 200,000 of refugees1

which makes India one of the largest countries in terms of refugees.

But the idea of Vasudev Kutumbkam has shifted in recent times, it has become more concentrated and self-

cantered as making refugees illegal migrant ready to get deported, now only the citizen of India would be able

to enjoy all rights enshrined in Indian constitution and the rest will be labelled as either foreigner and get

deported or they will remain in detention centers.

National Register of Citizens is one such exercise which fulfils this idea of excluding people. It’s not a new

trend but had already started decades earlier, it’s so recent that it has become a tool to gain political benefits.

On one hand we talk about accepting people from all over the world and helping migrant from across the border

to live, on the other hand we are initiating a system which is creating a chaos among millions of people. India is

signatory to many Human Right treaties like ICCPR which talks about child right and UDHR which says

“Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Universal Declaration

of Human Rights, Article 14(1)2. On contrarily government actions opposes the objectives of such International

treaties and violates the fundamentals of International Human Rights. National register of citizen is a national

1
The status of refugees in India, available at: https://www.fairobserver.com/( last modified on November 5, 2019).
2
Universal Declaration of Human Rights, available at: https://www.un.org/en/universal-declaration-human-rights/( last modified on
November 6, 2019).

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concern as it not just excludes illegal immigrants but it also excludes lakhs of genuine Indian citizens only

because they could not prove their citizenship due to some discrepancy in their documents.

INTERNATIONAL STANDARDS ON REFUGEE LAW

 1951 Convention Relating to the Status of Refugees-

The Convention Relating to the Status of Refugees is the foundation of international refugee law. The Refugee

Convention defines the term “refugee” and sets minimum standards for the treatment of persons who are found

to qualify for refugee status. Because the Convention was drafted in the wake of World War II, its definition of

a refugee focuses on persons who are outside their country of origin and are refugees as a result of events

occurring in Europe or elsewhere before 1 January 19513. As new refugee crises emerged during the late 1950s

and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee

Convention. Thus, a Protocol to the Convention was drafted and adopted.

 1967 Protocol Relating to the Status of Refugees-4

The 1967 Refugee Protocol is independent of, though integrally related to, the 1951 Convention. The Protocol

lifts the time and geographic limits found in the Convention’s refugee definition. Together, the Refugee

Convention and Protocol cover three main subjects:

1. The basic refugee definition, along with terms for cessation of, and exclusion from, refugee status.

2. The legal status of refugees in their country of asylum, their rights and obligations, including the right to

be protected against forcible return, or refoulement, to a territory where their lives or freedom would be

threatened.

3. States’ obligations, including cooperating with UNHCR in the exercise of its functions and facilitating

its duty of supervising the application of the Convention.

3
REFUGEE A QUESTION ON BASIC HUMAN RIGHTS, available at:_https://www.academia.edu/32244028/ (Visited on
November 3, 2019).
4
The 1967 protocol available at: https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol ( Visited on November 4).
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Most of the rights crucial to refugee protection are also the fundamental rights stated in the 1948 Universal

Declaration of Human Rights:

 Right to life,

 liberty and security of person

 Right to seek and enjoy asylum

 Freedom from torture, or cruel, inhuman or degrading treatment or punishment

 Freedom from slavery or servitude

 Recognition as a person before the law

 Freedom of thought, conscience, and religion

 Freedom from arbitrary arrest and detention

 Freedom from arbitrary interference in privacy, home and family

 Freedom of opinion and expression

 Right to be educated

 Right to participate in the cultural life of a community5

INDIA’s STAND ON REFUGEE

India has been home to a large number of refugee groups while not having signed the 1951 Convention for

Refugees or established a national legislation governing refugees. India has been witnessed to numerous

migratory populations that came to this country from foreign lands and who were subsequently accepted and

absorbed as one of its own. Currently India hosts over 200,000 refugees like Myanmarese, Sri Lankans, Somalis

and Afghans. Despite the curbs on international humanitarian assistance to refugees and asylum seekers, India

has been a good host country to them. For instance, the Indian government has provided basic humanitarian

5
Universal Declaration of Human Rights, available at https://www.un.org/en/universal-declaration-human-rights/ (last modified on
November 6, 2019).

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assistance, especially when it comes to the group of Tibetan and Sri Lankan refugees present in the country for

over 60 years6.

THE STATUS OF REFUGEES IN INDIA: -

Although India has been generous to any flow of refugee groups in Asia, who choose this country as a refuge

mostly for its porous borders, better economic opportunities and its soft-secular state system, the State still lacks

a proper legal framework for people seeking refuge in India. Consequently, push-backs and coercive measures

to promote repatriation in violation of basic international fundamental rights have been practiced in India over

the years.

This is not to say that the Indian government does not have a policy on refugees given that there is no legislation

on the issue, this policy has traditionally been based on a combination of ad hoc executive policies and judicial

pronouncements, and thus lacks any formal structure. In the absence of a specific law, the statute that deals

with the entry and exit of foreigners is the Foreigners Act of 1946. However, it does not recognise refugees as a

special category deserving of humanitarian protection and the process of deciding who qualifies as a refugee is

also unclear while the Indian government determines refugee status for asylum-seekers from neighbouring

regions like Tibet and Sri Lanka, asylum-seekers from other regions approach the UNHCR office in New Delhi.

This has given rise to an inconsistent approach towards different nationalities, and an asylum policy that, on the

whole, lacks uniformity.

In India refugees are considered under the ambit of the term ‘alien’. The word alien appears in the Constitution

of India Article 22, in Section 83 of the Indian Civil Procedure Code, and in Section 3(2)(b) of the Indian

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REFUGEE A QUESTION ON BASIC HUMAN RIGHTS, available at:_https://www.academia.edu/32244028/ (Visited on

November 4, 2019).

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Citizenship Act, 19557, as well as some other statutes. Enactments governing aliens in India are the Foreigners

Act, 1946 under which the Central Government is empowered to regulate the entry of aliens into India, their

presence and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen of India’. The

Registration Act, 1939 deals with the registration of foreigners entering, being present in, and departing from

India. Also, the Passport Act, 1920 and the Passport Act, 1967 deals with the powers of the government to

impose conditions of passport for entry into India and to issue passport and travel documents to regulate

departure from India of citizens of India.

India has an important role in the treatment of refugees because of its position as a leader in South Asia, setting

an example for other states in the region, and it shelters one of the largest refugee populations in the world.

India’s lack of clear standards for the treatment of refugee groups, however, is resulting in violations of the

international norms for the treatment of refugees. Its policies are discriminatory and inequitable, even to

members of the same group. Although Tibetan refugees who arrived prior to 1980 received adequate assistance

from the Indian government, assistance to the Tibetan refugees who arrived after 1980 has declined greatly,

forcing them to live in inhumane conditions. These inconsistent policies demonstrate that India should adopt

basic standards of treatment for the refugees living inside its borders. In order for India to bring its refugee law

into conformity with the international community, only improving its domestic laws is insufficient because it

will continue to reject international assistance and monitoring of refugee.

THE TIMELINE OF NRC

1948: There were no restrictions on the movements of persons from India to Pakistan or vice versa even after

Partition till July 19, 1948, when ‘Influx from West Pakistan Ordinance, 1948’ came into existence. Later, the

Constitution of India formalised this as the cut-off date that entitled the Right to citizenship of certain migrants

from Pakistan.

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Citizenship Act, 1955

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1950: Immigrants (Expulsion from Assam) Act came into force from March 1, 1950, following influx of

refugees from then East Pakistan to Assam after partition.

1951: The first-ever NRC of India was published in Assam based on Census Report of 1951 containing mass of

80 lakh citizens.

1955: The Citizenship Act came into force that codified rules for Indian citizenship by birth, descent and

registration.

1957: Immigrants (Expulsion from Assam) Act was repealed.

1960: The bill was passed in the Assam legislative assembly to make Assamese the only official language.

1964: The Centre issued the Foreigners’ Tribunal Order under the Foreigners’ Act, 1964.

1971: Fresh influx due to riot and war in East Pakistan. Bangladesh comes into existence.

1979: Anti-foreigners’ movement started in Assam in 1979.

1979-1985: Six-year-long Assam agitation, spearheaded by the All Assam Students' Union (AASU) and All

Assam Gana Sangram Parishad (AAGSP) for detection, disenfranchisement and deportation of foreigners.

1980: All Assam Students' Union (AASU) submitted the first memorandum demanding updating of NRC to

Centre on January 18, 1980.

1983: Massacre at Nellie in Central Assam which claimed the lives of over 3,000 people. Illegal Migrants

(Determination by Tribunals) Act passed.

1985: Assam Accord signed by the Centre, the state, AASU and AAGSP in the presence of then Prime Minister

Rajiv Gandhi on the midnight of August 14. It stated, among other clauses, that foreigners who came to Assam

on or after March 25, 1971 shall be expelled.

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1990: AASU submitted modalities to update NRC to Centre as well State Government in 1990.

1997: Election Commission decides to add 'D' (doubtful) against names of voters whose claim to Indian

citizenship is doubtful.

1999: Centre took the first formal decision to update the NRC as per the Assam Accord’s cut-off date to detect

illegal foreigners during a tripartite meeting between Centre, State Government and AASU on November 17,

1999.

2003: The Citizenship (Amendment) Act was introduced. Among other changes to the 1955 law, it said anyone

born in India between 1950-1987 is an Indian citizen. Anyone born between 1987-2003 is a citizen provided

one of the parents is Indian. Anyone born in India since 2004 is a citizen provided one of the parents is Indian

and other is not an ‘illegal immigrant’ at the time.

2005: Supreme Court strikes down IMDT Act as unconstitutional. Tripartite meeting among Centre, state

government and AASU decides to update 1951 NRC. But no major development takes place.

2006: Central government issued the Foreigners (Tribunal) Amendment Order, exempting Assam from the 1964

tribunal order.

2009: Assam Public Works (APW), an NGO, files case in Supreme Court praying for deletion of foreigners’

name in electoral rolls and updating of NRC.

2010: Pilot project starts in Chaygaon, Barpeta to update NRC. Project successful in Chaygaon. Four killed in

violence in Barpeta. Project shelved.

2013: Supreme Court takes up APW petition, directs Centre, state to begin the process for updating NRC. NRC

State Coordinator's office set up.

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 2015: Updating of NRC process begins.8

2016: The Bharatiya Janata Party (BJP) introduced the Citizenship (Amendment) Bill. It proposed to facilitate

citizenship for non-Muslim minorities from Pakistan, Afghanistan and Bangladesh.

2017: On December 31 midnight, Draft NRC published with names of 1.9 crore of total 3.29 crore applicants.

2018: Another Draft NRC published; 40 lakhs of 2.9 crore people excluded on July 30.

2019: Publication of Additional Draft Exclusion List of 1,02,462 was released on July 26.

2019: Final NRC released on August 31.

When the Government of India Act was promulgated in 1935, Assam was stated to be a Governor’s Province

under Section 46(1). It was in this scenario that the Foreigners Act of 1946 was enacted, under which the burden

of proving whether a person was a foreigner or not lay upon such person. Further, at the commencement of the

Constitution of India, Article 5 laid down that every person who has his domicile in the territory of India and–

1. who was either born in the territory of India; or

2. either of whose parents were born in the territory of India; or

3. who has been ordinarily resident in the territory of India for not less than five years immediately preceding such

commencement. shall be a citizen of India.

The origin of the NRC process lies in the 1985 Assam Accord entered into between the Rajeev Gandhi-led

Union Government with the leaders of Assam. A part of para 5 of the Accord was given statutory recognition by

Section 6-A of the Citizenship Act, 1955.

8
From 1947 to 2019: NRC timeline shows milestones in Assam’s history, available at https://www.asianage.com/india/all-
india/310819/history.html, (last modified August 31, 2019).

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 On the touchstone of Section 6-A, citizenship of persons was to be determined based on the criteria supplied

hereunder:

1. All those persons who came to Assam on or after January 1, 1966, but before March 25, 1971 from the specified

territory [meaning, territories included in Bangladesh immediately before the commencement of the Citizenship

Amendment Act, 1985], are residents of Assam, and shall register themselves under Section 18 of the Act.

2. A person so registered shall have the same rights and obligations as a citizen of India (including the right to

obtain a passport).

3. Further, a person so registered shall be deemed to be a citizen of India for all purposes.

Thus, it becomes evident that Section 6-A did not merely grant refugee status to those who were illegal migrants

from East Pakistan, but went on to grant them the benefit of Indian citizenship. All persons who had migrated to

Assam before 1966 and before 25.03.1971 were to become citizens of India either immediately or after a period

of ten years (once there has been a determination that they have in fact settled in India between 1966 and 1971).

What happens to those who lose cases at Foreigners Tribunals?

Neither the state nor the Centre has clarified what happens to those who lose their cases in the Foreigners’

Tribunals, whether they will be detained, deported or allowed to stay on without the rights and privileges of

citizenship. So far, the focus has been to only include or exclude people in the NRC list.

However, as a precautionary measure, the Assam Police has shared posters across all its social media platforms

against the spread of rumours and misinformation. "Every individual left out from the final NRC can appeal to

the Foreigners Tribunals (FT),"9

9
Demography, Demand, Discrimination: available at: https://www.news18.com/ (Visited on November 5,2019).

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ROLE OF JUDIACIARY

In Sarbananda Sonowal, the Supreme Court invoked Article 355 of the Constitution to strike down the IMDT

Act that would have placed the burden upon the state in a foreigner’s case. The court thus established a

constitutional requirement that the burden would always lie on the individual to rebut the allegation that he/she

was a foreigner. The court’s rationale for doing so was that it would be difficult for the state to give an exact

date of entry of a foreign national who had surreptitiously crossed the Indian border and that the court could not

remain a mute spectator to the continuing influx of illegal migrants.

The Supreme Court initiated the NRC update in earnest on December 17, 2014, through an order in the case

of Assam Sanmilita Mahasangha v Union of India. The Mahasangha had challenged section 6A of the

Citizenship Act that had been enacted to give effect to the Assam Accord by providing separate rules of

citizenship in the state

The Supreme Court initiated one of the most ambitious judiciary-led bureaucratic exercises in the history of

the country on the basis of the rules whose legal validity it is yet to determine! This par adox, which appears

to have been completely overlooked in the current discussions of NRC, raises uncomfortable questions for

the judicial process. It is not just the scale. Institutionally, the Supreme Court has managed to place itself in

a politically divisive and legally uncomfortable position. Despite perhaps its best hopes, NRC is looking less

like a respectable legal closure to decades of immigration conflict and more like an unending tunnel

threatening to spill over to the other states in a climate of increasing religious and ethnic polarisation.

IS NRC ANTI-MINORITY?

After Independence, the ‘Assamese’ saw themselves as a British project run by Bengali influence and culture.

The British declaration of Bengali as the official language of Assam in schools and law courts was significant of

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this. Such Bengali favouritism, and thereby ‘Assamese’ discrimination, built over centuries of English social

interaction and cultural socialisation, mounted an ‘Assamese’ resentment.

In effect, in the years soon after Independence, politics in Assam took this turn: Assamese was made the official

language of the state, the employment of the ‘sons of the soil’ in the state administrative services became a

policy initiative, ‘Assamese’ teachers were appointed in schools while Assamese was pressed as the language of

instruction in educational institutions.

With the creation of Bangladesh in 1971 and the illegal immigration of Bengali Muslims from the new state,

Bengali and Muslim identities came under further scrutiny as the face of illegal immigration. It is within this

historic context of identity formation, that all those whose names are not there in the draft NRC will get another

chance at appealing to the NRC authorities.

But those who do not have their names in the final NRC either will be deemed as not a citizen of the country.

They will have to fight the battle in the Foreigners Tribunals to prove themselves as Indians, as a result anxiety

over citizenship has peaked in visible forms across multiple communities. More than 30 people are reported to

have committed suicide.10

10
The NRC case, available at: https://frontline.thehindu.com/cover-story/article29498707.ece published on octuber11,2019).

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CONCLUSION

Since India doesn’t have any codified refugee law the rampant violation of human rights can be easily

witnessed, be it mass killing or simply they being discriminated on every level. Indian constitution provided

article 14 and article 21 to every person irrespective of being a citizen of the country. In spite of this when it

comes to refugees the government treats them as a mere burden on economy. Same is the case in Assam

where a false narrative was created by various interest groups that people coming from outside the country

are affecting their resources and are threat to the development of Assam, in reality only 4% people came

from outside and it is hard to believe that these 4% people are affecting and hampering the growth of this

state. Though the government always stated that NRC has been in exercise to include the genuine citizen of

the country but when it comes to practice it has been observed that NRC is itself a flawed process which

only came into existence to create chaos and exclude few sections of society. Apart from being just mental

and physical harassment to people it also affects the economy as the government has already invested around

1200 crore and the result is not so significant. The whole idea of NRC depends upon the final hearing of

foreign tribunal and the apex court which will take another 6-7 years so before getting the final list updated

the population of Assam will remain in havoc.

“This country is being torn apart. Citizens are being thrown out of their homes and being called ‘illegal

immigrants’. People who have lived in this country for 50 years are having to show a piece of paper to show

that they are Indians. In a country where ministers cannot produce degrees to prove that they graduated from

college, you expect dispossessed people to show papers, to show that they belong to this country?”11

11
How TMC MP Mahua Moitra Tore Into the Government in Her Maiden Parliamentary Speech, available at
https://thewire.in/politics/tmc-mp-mahua-moitra-criticise-government-parliamentary-speech (visited November 6,2019).

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