Protection of Rights of Refugees in India: A Dissertation On

A
Dissertation
On
PROTECTION OF RIGHTS OF REFUGEES IN

INDIA
Submitted for
X Semester
BBA LLB
By
SURBHI
13417703515
Supervisor
SARVESH SHARMA
(ASSISTANT PROFESSOR)
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

GGSIP University
MONTH YEAR
2015-2020
DECLARATION
I, hereby declare that the dissertation entitled “Protection of rights of refugees in India” is
based on original research undertaken by me and it has not been submitted in any University
for any degree or diploma.
Place Signature of the student
Date: 20.05.2020 SURBHI
Enrolment No.13417703515
CERTIFICATE
This is to certify that the dissertation entitled “Protection of rights of refugees in India” has
been prepared by Ms. Surbhi, a student of Vivekananda School of Law and Legal Studies,
Vivekananda Institute of Professional Studies under my supervision and guidance. I
recommend it for evaluation.
Place
Date: 20.05.2020 SARVESH SHARMA
(Assistant Professor)
ACKNOWLEDGEMENT
On the completion of present work, I feel happy to express my deep gratitude to all those who
have inspired, encouraged, guided and blessed me in preparing and presenting this
dissertation.
I record my thanks to esteemed …………………, for inculcating the concept of preparing

this dissertation and allowing me to present my view point in liberal manner.
I like the opportunity and honour to express my deep sense of gratitude to my guide Mr.
Sarvesh Sharma, I am indebted to his for his invaluable guidance and help. He not only gave
me his able, experienced, and scholarly advice but also allowed me a free hand in the
treatment of this subject.
I record my thanks to my family for their help and encouragement in my work.
_________________________
SURBHI
LIST OF CASES
1. Gurunathan and others vs. Government of India
2. A.C. Mohd.Siddique vs. Government of India and others
3. P. Nedumaran vs. Union of India
4. Syed Ata Mohammadi vs. Union of India
5. Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab
6. N.D.Pancholi vs. State of Punjab & Others
7. Malavika Karlekar vs. Union of India
8. Luis De Raedt vs. Union of India
9. State of Arunachal Pradesh vs. Khudiram Chakma
10.Digbijay Mote v. Union of India
11.Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India

ABBRIVATIONS
1951 Convention : Convention Relating to the Status of Refugees, 1951
Art. : Article
AIR : All India Report
ASEAN : Association of Southeast Asian Nations
CEDAW : Convention on the Elimination of Discrimination Against
Women
e.g. : exempli gratia
FR : Fundamental Rights
H.C. : High Court
HR : Human Rights
Ibid : In the Same Place
Infra : Below
ICC : International Criminal Court
ICCPR : International Convention on Civil and Political Rights
ICESCR : International Convention on Economic Social and
Cultural Rights
ICJ : International Court of Justice
IDP : Internally Displaced Persons
NGO : Non-Governmental Organisation
OAU : Organization of African Unity
OAU Convention : OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa, 1969
OHCHR : Office of the United Nations High Commissioner for Human
Rights
p. : Page
pp. : Pages
SAARC : South Asian Association for Regional Cooperation
SC : Supreme Court
SCC : Supreme Court Cases
Sec. : Section
Supra : Abovementioned
UDHR : Universal Declaration of Human Rights
UN : United Nations
UNCRC : United Nations Convention on the Rights of the Child
UNHCR : United Nations High Commissioner for Refugees
UNSC : United Nations Security Council
Vol. : Volume
WHO : World Health Organization
TABLE OF CONTENTS
Chapter 1: Introduction ………………………………………………………...……...1-12

1.1 Overview …………………………………………………………………..…….
1.2 Research objective……………………………………………………….………
1.3 Research question………………………………………………………………..
1.4 Research methodology ………………………………………………..…...........
1.5 Literature review………………………………………………………………...
1.6 Hypothesis…………………………………………………………………….…
1.7 Presentation of Study……………………………….……….…………………...
1.8 History of refugees….…………………………………………………..............
1.9 Major Refugee groups ……………………………………………….………....
Chapter 2: Refugee and their rights ……………………………………………...…. 13-31

2.1 Overview …………………………………………………………..…………...
2.2 Definition of Refugees …………………………………………….……….......
2.3 Rights of Refugees under International Laws….………………………….........
2.4 Right crucial to refugee protection……………………………………………...
2.5 Other international legal standards that protect refugees and asylum seeker…..
2.6 Other sources of law and guidance……………………………………………..
2.7 Refugee Status in India…………………………………………………………
2.8 The contemporary refugee dilemma……………………………………………
Chapter 3: India’s Refugee saga from 1947 to 2019……………………………….…32-40

3.1 Overview …………………………………………………………..………..…
3.2 The Refugee of Partition…………………………………………….……..…..
3.3 Seeking Political Asylum in India………………………………………...........
3.4 Why fewer Asylum seeker apply in India………………………………..….....
3.5 Recent Development…………………………………………………….…..…
3.6 Problem faced by the Refugees………………………………………………..
3.7 Steps taken for the Refugees……………………………………………….….
Chapter 4: Indian practice regarding Refugee protection…………………………….…….41-53

4.1 Overview ……………………………………………………………..…..…...
4.2 Resorting to ‘Human Rights’ to Enhance the Protection of Refugees ..…........
4.3 Constitutional protection……...………………………………………….…....
4.4 Laws governing Refugees in India……………….……………………..……..
4.5 Analysis of the role of UNHCR in India………………………..…..…….…...
4.6 Analysis of the role of NHCR in India…………………………………….…..
Chapter 5: Judicial Responses towards the Protection of Refugees………………..54-63

5.1 Overview …………………………………………………………………...….
5.2 The Border, Immigration Authorities and the Police…………………....….....
5.3 Administrative Policies and Directions ………………………….………........
5.4 The Courts……………………………………………………………………..
5.5 Legal Framework for Refugee Protection in India…………………………….
Chapter 6: Suggestion and Conclusion……………………………………………….64-67

6.1 Conclusion…………………………………………………………….…….....
6.2 Suggestion……………………..……………………………………………….
BIBLIOGRAPHY ………………………………………………………………….......68-71
CHAPTER 1
INTRODUCTION
1.1 OVERVIEW
The rights of refugees are one of the world's major problems. According to the United
Nations Article 1 on the Status of Refugees, refugees are “well-known for fear that they will
be persecuted for reasons such as race, religion, nationality, membership of a particular social
group, or political opinion. Outside the country of his nationality, and because of such fear,
he does not want to get himself out of the security of that country.1 "
They travel to other countries when their life is in constant threat for various reasons and
when their health is not perfect. Many countries in the world have a formal rule governing
refugees living in their own countries and have the protection they need to be provided, but in
India, there is no uniform legal framework.
Modern refugee issues have caused serious political and economic problems for the
temporary receptionist countries, as well as the problems of carrying on the administrative
and financial resources of private companies and national governments. The refugee issue has
violated national jurisdiction and institutions. In South Asia, micro-borders have moved
thousands of people into neighbouring states and amplified the movement of refugees and
migrants across the border. In these post-colonial national states, people travel to
neighbouring states to escape violence or are denied basic human rights, including food,
water and shelter.
India is a country with many refugee groups from different countries, mainly its neighbours.
There are no applicable refugee rules, which can be found in the 1951 UN Convention.
Neither the Convention nor the 1967 Protocol on the Status of Refugees was signed. Many
countries regulate regional instruments for the protection of refugees, but there is no tool to
protect the refugees of the Asian region. Since independence, India has been adhering to
temporary policies on refugee migration. India has a large number of refugees due to its
geographical location, religious community and wider culture.
1
United Nations High Commission for Refugees https://www.unhcr.org/3b66c2aa10
1
There are 51,000 Chakmakas in India and 56,000 Sri Lankan refugees. In Nepal, 75,000
Southern Bhutanese of Nepal descent have escaped ethnic cleansing. One million people of
Bangladeshi descent are lost in the paths of Karachi, and 2,38,000 unwanted Biharis are
"unstable" in Bangladesh. 47,000 Rohingya-Burmese refugees in Bangladesh are awaiting the
return of the country imposed, and many are leaving Burma. One million or more people
have been internally displaced2 in Sri Lanka. Currently, Rohingya refugees are a major
concern for India. India, as a country and refugees, especially in the context of law
enforcement, has many aspects of refugee relatedness.
UNHRC and HNRC are human rights organizations of the UN and India respectively. Major
Refugee Issue in India by the 1947 Indo-Pakistan Partition, there were millions of
transactions between these newly created countries. Some of the major refugee groups in
India are from Iran, Tibet, Bangladesh, Pakistan, Afghanistan, Sri Lanka and Myanmar.
Refugee protection has been a major concern for the international community since the
United Nations was formed, but the issue has yet to be resolved. Migration has been an issue
since ancient times. Aboriginal people migrated in search of food, water and resources, and
now refugees settle for security and other reasons. There are 15.2 million refugees
worldwide, and 1 million are awaiting approval for asylum. Refugees face many problems in
India and around the world.
The issues of utmost significance and which need to be probed in are who exactly is a
economic migrant or migrant, voluntary migrant or involuntary migrant or refugee. It is a
distinction not easy to make in a region where migration is complicated by the fact that
governments or majority groups do systematically deny relief and violate the human rights of
these affected communities.
The influx of 40,000 Chin- Burmese into Mizoram is rooted in the traditional migratory
routes of trans- border communities in the Tri-junction of Bangladesh-Burma-India. But
equally, ethnic Chins in Burma are victims of persecution by majoritarian Burmese state. It is
an army of illegals beyond the reach of law and thus protection, which has been criminalized
due to want of a legal right to stay. Even those who fall within the internationally accepted
definition of refugees — who flee owing to well-founded fear of being persecuted — find
2
The State of World Refugees, Report 2000, UNHCR, Geneva, Switzerland
2
protection is less an issue of law and policy than political judgment. It is a matter of great
concern that no south Asian state signed the UN Convention on Status of Refugees3.
Some nation states like Africa and America have been the trailblazers in creating
regional instruments for addressing the situation and problems of refugees and migrants in
their States. But in Asia and especially South Asia, few social scientists or policy makers
have cared to tackle the problem of trans-border influx of illegals. This complete juristic
apathy has resulted in non-availability of any substantial literature on the subject.
In response to this challenge the international community has developed a complex

mechanism of world-wide cooperation involving a tripartite partnership of national
governments, private agencies, and international organisations; no longer confined by strict
definition of the “refugee”, it is prepared to approach the problem in all its various aspects-
political, social, economic and humanitarian. Thus, the role of UNHCR4 has assumed an
added significance.
The Office of the United Nations High Commissioner for Refugees (UNHCR) has been
charged with the functions of providing international protection to refugees, under the
auspices of the United Nations, and of seeking solutions to refugees, and of seeking solutions
to refugee problems.
These functions include ensuring, with and through governments, the legal and practical
protection of refugees, mobilizing and coordinating the deployment of the resources required
to ensure their survival and well-being, and promoting conditions in countries of origin that
will be conducive to the ideal solution of voluntary repatriation and help in preventing further
refugee problems.
However, the response of Indian Government on such an important issue has been far from
satisfactory.
3
1951 Refugee Convention
4
United Nations High Commission for Refugees
3
1.2 RESEARCH OBJECTIVE
The main objective of this research paper is to present the laws and rights available to
refugees in India. It presents many aspects related to refugees starting from the history of
refugees and the current situation of them. United Nations High Commissioner for Refugees
(UNHCR) is the main organization to provide international protection to refugees and assist
them in other manners.
In India, National Human Rights Commission (NHRC) is the body which was given
statutory basis by Protection of Human Rights Act, 1993 which is responsible to protect the
refugees and promote human rights. The paper also has the information about Laws and
conventions regarding refugees.
1.3 RESEARCH QUESTION
There are many refugees in India but there are no specific laws regarding their rights. The
question is why he was not a signatory to India's 1951 Refugee Convention. Is there any
South Asian Convention on Refugees or Domestic Law?
The world's biggest refugee crisis is also an issue for the UN. This article will inform
research scholars and refugees on the laws, history, traditions and rights of refugees in India
and around the world.
1.4 RESEARCH METHODOLOGY
There is no research effort to understand the methods and its application objectives. Several
research methods were used to identify the above information. Theoretical methodology for
research is concerned.
The traditional method of research is used by research scholars. Information on traditions and
other materials related to UNHCR and NHRC are used. Books, web articles, newspapers,
research articles on human rights for refugees have been used. The analysis of the rights of
refugees in India is brought from laws, case laws, books, articles, journals, web pages.
4
1.5 LITERATURE REVIEW
For the purpose of present study, the following books and articles which more or less deal
with the subject matter have been looked into and they are:
BOOK REVIEW
BS. Chimney (Ed.), “International Refugee Law: A Reader”, New Delhi, Sage Publications,
2000. P.S. Chimney is an international law professor at Jawaharlal Nehru University's School
of International Studies in New Delhi and is a leading scholar in both international law and
international refugee law. His book is a welcome literature and an essential tool for all those
interested in international law. The book is divided into eight chapters dealing with various
aspects of international refugee protection, including refugee definition, asylum, refugee
rights and duties, and the UNHCR. Professor Chimney explores asylum, historical
background, reparations, and temporary protection, but Professor Chimney fails to examine
the country's dilemma without discussing the existence of the law of burden sharing. One is
its transnational commitment, and the other is the internationally accepted restructuring
provision, which is the basis of the current research.
JC Hathaway, "Refugees' Rights Under International Law", Cambridge University Press,

2005. Very little has been written about the rights in other articles of the conference. This
includes the non-restructuring policy in section 33. The author tries to highlight the different
types of rights granted to refugees by convention, but fails to find somewhere to leave their
country for fear of harassment and seek refuge in another country. The non-refundable
international rule thus comes into force, instead disrupting the extradition process.
Rathin Bandopadhyay, "Human Rights of Non-Citizens: Law and Truth", Deep and Deep
Publications Pvt. In his book, he sought to outline the human rights of non-citizens and the
laws that apply to these people who are citizens of any country. In this context, Dr. Rathin
Bandopadhyay has pointed out that the principle of non-repayment is an international norm
and has established itself in advance. The evolution of policy has been dealt with and its
relation to other international instruments is discussed.
Guy S. Goodwin-Gill, "Refugees in International Law", Oxford, Clarendon Press, 1983.

Author of this valuable book is the Office of the United Nations High Commissioner for
5
Refugees (UNHCR). His earlier work on international law and the inter-state movement of
individuals (Oxford, 1978) led to the present work, based on his PhD thesis. The combination
of his material and practical familiarity with his rigorous academic judgment make this book
an effective resource for those who are already working for the safety of refugees. The book
begins right by defining the concept of refugees. Two important chapters follow the notion of
repayment and asylum. The author firmly argues that there is now an international legal
obligation that has not been restored. He also acknowledges that there is no such duty to grant
asylum. A person may have the human right to seek asylum but cannot obtain it. The author
argues, however, that while states are not obligated to provide asylum, they require states to
treat refugees in accordance with standards that permit appropriate remedies for voluntary
repatriation, local integration or resettlement in another country. However, the author fails to
point out the peculiar situation that arises during the extradition of the fugitive, rather than
working on a suitable solution. It is not yet clear whether a state is obligated to return or give
him shelter.
Kees Wouters, “International Legal Standards for the Protection from Refoulement”,
Intersentia, Mortsel, 2009. Kees Wouters worked as a legal officer at the refugee department
of the Dutch section of Amnesty International and in the legal aid department of the national
office of the Dutch Council for Refugees. He became a staff member and lecturer at the
Office of Human Rights Studies and Social Development of Mahidol University in Thailand
Wouters’ book provides an analysis of other instruments that support and better define the
concept and nature of non-refoulement. In particular, the author starts from the point of view
that the international protection underlying refugee status is based on the prevention of
human rights violations.
The structure of the book is based on the author’s analysis of the main international legal
instruments constituting the legal background to non-refoulement. But, for the purpose of
understanding the concept of human rights in international refugee laws the author has not
explained as to what would be the position of a state which grants asylum to the person
fearing persecution. The work rather offers the basis for further exploration of this
challenging principle under general international law, and in particular for the protection of
the fundamental rights of those seeking refuge from persecution abroad.
6
ARTICLES
Apart from text-books, various articles, published by different journals have been reviewed
for the purpose of finding out the works, research and studies already done and also for
understanding the present position regarding the research work proposed to be done. The
articles and papers surveyed are as follows:
Jessica Rodger, "Defining the parameters of non-repayment theory", LLM Research Report,
International Law (Laws 509). Faculty of Law at Victoria University of Wellington. In this
thesis, the author examines the principle of non-repayment, which prevents refugees from
returning to places that threaten their lives or independence. This is detailed in principle; Its
status in international law and in what circumstances it applies; Before looking at the state
procedure regarding non-repayment. 19 The author argues that current policies implemented
by states such as temporary protection and safe third-country rule are endangering policy and
the refugee regime. This article also considers ways in which the current system can be
changed to protect the policy of non-repayment while meeting the needs of the states.
Ruma Mandal, "Security Measures Outside the 1951 Conference (" Complementary Security
"), Legal and Security Policy Research Series, Department of International Security,
UNHCR, PBLA / 2005/02, June 2005 UNH External Advisor with CCR Explores Various
Types The 1951 Convention and / or its 1967 Convention Ways uvat provided protection
from the state. Under the UNHCR mandate, the author sought to investigate the difference
between conference refugees and other refugees under international law, including human
rights treaties and regional refugee instruments that benefit non-conference refugees. Exam
21 is one of those aspects of international law in the procedures adopted by the states to
identify persons other than convention refugees and the appropriate standard for the treatment
of such persons. In the present work, the author places special emphasis on the concept of
"complementary security," which, according to the author, relates to practices developed in
industrialized states to provide income protection to individuals considered outside the
purview of the 1951 Convention.
Guy S. Goodwin-Gill, "Refund Policy." Its position and purpose in international law”, a
study prepared by the United Nations High Commissioner for Refugees, International Journal
of Refugee Law, 1993. The purpose of this thesis is to establish as clearly as possible the
present position and purpose of the non-repayment policy in international law. It looks at the
7
modern meaning of the regime, its origins, and the debates incorporated in the 1951
Convention on the Status of Refugees. The author argues that restatement is not important as
a treaty-based rule, but as a principle of conventional international law. The differences
between the two types of terms are explored, and the differences in nature, purpose and
content indicate the inclusion of policy in various agreements, notices and resolutions. A
similar policy of non-repatriation or asylum for those outside the 1951 Convention / 1967
Protocol is considered briefly, as well as the relationship between repayment and asylum. As
a contract and custom-based clause, the principle of non-repayment is that each person has a
well-founded fear of harassment, or faces a substantial torture risk, or other serious violations
of basic human rights. The principle of non-repayment prohibits the return of any such
person, including denial of permission on the frontier, deportation, deportation, forcible
return and extradition regardless of the location of the intercept.
Omar N. Chaudhary, "Returning Non-refundable Assessment under Indian Law", Economic

and Political Weekly Journal, Vol. 39, July 17, 2004. In the present study, the author
evaluated the principle of reorganization under Indian laws. He argues that India is a refugee-
producing country rather than a refugee-producing country, so it is one thing to say that
India's practice complies with international norms, but it is another to say that the laws of
India. India did not sign the Convention on the Status of Refugees 23 1951, still maintaining
a policy of non-repayment. The author makes a comparative study between the different
articles of the conference and its applicability to the Constitution of India and other municipal
laws passed in India. The author has at last held the view that India needs greater
commitment from other countries or any other international commitment to the rights of
refugees before the conference.
Vijay Padmanabhan, "No Transfer or Transfer: Identifying and Protecting Human Rights in
Non-repayment", Fordham Law Review, Volume 80, Issue 1, 2011. Teacher Assistant
Professor, Vanderbilt University Law School Human rights law states There is considerable
reason to believe that he or she will be tortured or subjected to cruel, inhuman or degrading
treatment. He holds the view that the principle of non-repatriation stems from human rights
principles, emphasizing a situation when a state runs into conflict when it uses a non-
refundable policy to protect its citizens from suspected aliens. The author sought to argue in
his essay that there is a conflict of human rights obligations arising in these exchange
situations.
8
Tor Krever, "Moping-Up: UNHCR, Neutrality and Reconstruction After the Cold War",
Chinese Law Journal International Law, 2011. The author of this article is critical to
UNHCR's evolution Offers a re-evaluation and looks at the UNHCR's recent growth curve
for the UN. In the early 1990s and the use of a humanitarian discourse, he argues, it is not
refugees who undermine the UNHCR's protection mandate, but instead conceals the basis for
policies such as restricting interests and pursuing the state. The author asserts that the post-
Cold War era had the mark of a completely different origin in the understanding and
operation of the UNHCR.
Pilar Villanueva Sainz-Prado, "Contemporary Relevance of the 1951 Conference on the

Status of Refugees", International Journal of Human Rights, Volume 6, Number 2 (Summer
2002). This article establishes by analysing both the status of refugees and its significance
and non-repayment policy and its attainment, the contemporary relevance of the 1951
Refugee Convention and its sustainability in dealing with refugee issues. The author of the
article emphasizes that refugee groups, such as children, women and refugees, pay special
attention to making refugee law a complete and effective law.
1.6 HYPOTHESIS
Researcher has done research on protecting the rights of refugees in India. The International
Convention on the Issue of Refugees is the 1951 Convention on the Status of Refugees and
its 1967 Protocol. The term 'refugee' ... "A person is out of the country of his or her country
because of fear of being persecuted because of race, religion, nationality, membership of a
particular social group or political opinion, or, because of such fear, he does not want to seek
protection from that country" Or, the absence of a nationality As it happened as a result of
such events and who is outside the country of his former behaviour, such reasons cannot, or
fear, is unwilling to return to it. "
This research analyses the history of refugees in India and the problems faced by refugees, as
well as India's position at the 1951 Convention, where the researcher gives a brief overview
of India's entry into the UN in 1951 and its position.
The status of refugees in India is explained by the Constitutional Defence, India and the
Justice Department, the UNHCR and the NHRC in India, international laws and refugee
conferences, and the Refugee Policy of India.
1.7 CHAPTERISATION/ PRESENTATION OF STUDY
9
The present study includes of six chapters including introduction and conclusion. A synthesis
of institutional structure of the refugee law and jurisprudential analysis conducted thereon
and results therefrom.
The Chapter-I gives an Introduction to the whole study. It touches upon all the
heads and sub-heads that have been part of the study and gives a sufficient idea as to the
theme of the study that is ‘Protection of rights of Refugees in India’ and as to what entails in
it.
The Chapter-II has been captioned as Refugees and their rights deals with
definition and studies of the refugee amending to the convention, 1951. Universal
declaration of Human Rights, 1948 provides the crucial rights to refugee protection,
which has been analyzed under the legal framework of international humanitarian
law as well as conventions.
The Chapter-III has been captioned as India’s Refugee saga from 1947 to 2019,
which talks about the status of India in its 72 years as its fair share of refugee problems and how it
dealt with it. The issues faced by the refugees and what steps were taken to deal with those issues is
thoroughly explained in this chapter.
The Chapter-IV has been titled as Indian practice regarding Refugee protection, it
deals with the Indian commitment to refugee protection under its constitution and different
laws forming to it. However, there has been lack of unified and consistent refugee policy,
equipped with uniform and competent authority towards refugee. The role of the non-
governmental organization has also been important in the Indian scenario.
The Chapter-V has been captioned as Judicial Responses towards the Protection of
Refugees whereby a jurisprudential canvass of the national implementation of the
international norms of refugee law in the absence of any national legislation thereon by the
highest judicial establishment of the country has been scanned on the edifice of human rights
philosophy. The treatment of refugees by the administrative and immigration authorities has
been ferreted out. The legal position vis-à-vis specific international refugee law issues in
India have also been addressed. The challenges of voluntary repatriation and new initiatives
and the issues of return in safety and with dignity and pot-return monitoring and re-
integration assistance have also been examined on the basis of juridical autopsy. The issue of
vulnerability of asylum-seekers in India has also been perused while taking into consideration
10
the co-operation with the UNHCR in a desideratum of treatment of persons who have been
granted asylum in India.
The Chapter-VI has been titled Conclusion and Suggestions where under
reformulation of the contemporary international refugee law in conformity with the present-
day realities und metamorphosis coupled with a new definition of refugee devoid of any geo-
political, ethno-religious, socio-economic and Lego-political dichotomies.
1.8 HISTORY OF REFUGEES
1.8.1 History of Refugees in the World
Asylum seekers have been around for years, and the early man migrated to find food, shelter
and other resources. In 600 AD, the right to seek asylum in a sacred place or church was
codified in law by King Ethelbert of Kent. Many such laws emerged throughout Europe in
the Middle Ages, the beginning of such arrangements. But in many countries in the 18th
century, people had to show ID verification to cross borders.
Many wars in the past have been the main reason for refugees to flee their places. The Balkan
wars displaced 80,000 refugees. The Spanish Civil War in the United States and the Russian
Revolution of 1917 led to people becoming refugees. The League of Nations was the first
international refugee affair.
During the World War there were major refugee crises. The First World War lasted almost 4
years. One million refugees from Belgium moved to the UK and other countries. France and
Germany are also affected. When Russia attacked Prussia, 870000 escaped. World War II is a
war that has never happened in world history. By 1959, some 900,000 European refugees
were taken by European countries. 461,000 were accepted by the United States and 523,000
by other countries. World War II caused some 60,000,000 refugees in Europe.
1.8.2 History of Refugees in India
India is one of the most densely populated countries and recently experienced refugees.
Migration in the past has been due to the Indukush mountains in the west and the Patkoy
borders in the east. Due to the Indo-Pakistani divide, a large number of people have settled.
11
After India gained independence, nearly 20 million people came to India. It had to set up
several relief camps addressing a large number of refugees. People started to come from
Bangladesh, Pakistan. It passed the Rehabilitation Fund Administration Act in 1948 to
address these issues financially.
A large number migrated from India to Pakistan and vice versa and the problem was very
similar to that of refugees. Another incident occurred in 1959 when the Dalai Lama and his
supporters approached India as refugees and India granted them political asylum. In 1971, a
large number of refugees travelled from East Pakistan to India. Refugees from Sri Lanka and
Bangladesh arrived in India in 1983 and 1986 respectively. By the end of 1992, India had
hosted 2,000,000 migrants and 237,000 migrants. India has always had few or no other
refugees throughout its history.
1.9 MAJOR REFUGEE GROUPS
With the worst casualties in world history, World War II, nearly 60 million people were
displaced. 5.1 million Palestinians have fled their homes due to the Israeli-Palestinian
conflict. Since the US launched the war in Iraq, 4 million people have been displaced.
According to the UNHCR, 647,781 Vietnamese refugees have been resettled around the
world, and the Vietnam War has led to 1.6 million refugees, including the mountain
population of Vietnam. The Kakuma refugee group in Kenya is home to 184,550 refugees
from South Sudan and Somalia. The refugee crisis in the Middle East and Africa has seen
nearly 4.1 million fleeing Syria.
Soviet Jews have been immigrating to us for decades, and nearly 380,000 refugees have
settled there. Between 1945 and 1952, 137,000 Jewish refugees immigrated to the United
States. Myanmar (Burma) refugees fled the country during the Vietnam Civil War and settled
in Australia, Canada, the United States and New Zealand. In recent years, a group of
Rohingya refugee Muslim minorities have been denied basic human rights. Thousands of
them now live in India, Bangladesh and other countries. The Rohingyas were declared the
most persecuted group by the UNHCR.
12
CHAPTER 2
REFUGEES AND THEIR RIGHTS
2.1 OVERVIEW
People who are forced to leave their homes because of persecution are called refugees,
whether on a personal basis or as part of a mass eviction due to political, religious, military or
other issues.
The definition of a refugee has varied over time and space, but the growing international
concern over the plight of refugees leads to a general consensus. As defined in the 1951
United Nations Convention on the Status of Refugees (Refugee Convention), a refugee is
defined as a person "because of the well-known fear of being persecuted for reasons of race,
religion, nationality and membership." A particular social group or political opinion is out of
the country of his nation, and because of such fear, he does not want to get himself out of the
security of that country or return there for fear of persecution.
Although the definition of the Refugee Convention is used by international organizations

such as the United Nations, the term is often misunderstood and is often used in everyday
language. For example, media stories often confuse refugees for economic reasons (economic
migrants) and persecuted groups who do not cross international borders (internally displaced
persons) by staying in their own country.
Causes of Harassment One of the five reasons listed in Article 1A (2) of the Refugee
Convention: race, religion, nationality, membership of a particular social group, or political
opinion. No other site-based harassment will be considered.
Race is used in a broader sense and includes ethnic groups and social groups of common
ancestry.
13
Religion has a broad meaning, including identification with a group that shares common
traditions or beliefs, as well as the active practice of religion.
Nationalism involves a person's citizenship. Persecution of ethnic, linguistic and cultural

groups within a population can also be called persecution based on nationality.
A particular social group refers to people who share similar backgrounds, customs, or social
status. This type is often combined with harassment based on one of the other four causes.
This applies to the families of employers, landlords, homosexuals, entrepreneurs and former
members of the military.
Political opinion refers to ideas that are not accepted by the government, including comments
that criticize government policies and methods. This includes comments made by individuals
(i.e., officials think a person has a particular political opinion) even though the person does
not actually have that opinion. Those who hide their political opinions after leaving their
home countries may be eligible for refugee status if they are able to show that their views
may harass them if they return.
Definitions come into force when countries and organizations try to determine who is and
isn't a refugee. Asylum seekers - that is, refugee status in another country - usually have to
establish separately that their fear of harassment is well established, and that a host of cases
will determine if he or she qualifies for refugee status. However, during a mass evacuation, a
host country cannot perform individual screening. In such circumstances, especially when the
public fled for similar reasons, a ‘committee’ could be declared to determine the status of
refugees, thereby treating every citizen as a refugee, rather than a lack of evidence.
International law recognizes the right to asylum, but does not compel states to grant it.
Sometimes providing ‘temporary protection’ when people face sudden influx of people, their
usual asylum systems will become overwhelming. Under such circumstances people can be
admitted quickly into safe countries, but without any guarantee of permanent asylum.
Therefore, 'temporary protection' can be helpful to governments and asylum seekers in certain
circumstances. Yet this is no substitute for the broader security measures provided by the
Refugee Convention. Refugee protection and aid agencies generally promote three "lasting
solutions" to the fate of refugees:
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Voluntary repatriation: Refugees can return to their home country because of them life and
liberty are no longer threatened;
Integra Local Integration: Host governments allow refugees to integrate in the first country
refuge and
Resettlement in a third country: repatriation is unsafe and the first asylum seeker denies local
integration.
Most refugees in the world await lasting solutions to their predicament. Although most are
given temporary or temporary asylum in neighbouring countries, they cannot regularize or
consolidate their status. Their rights to move and work are often very restrictive, and
educational and recreational opportunities are often non-existent or severe. These refugees
may be attacked by local security forces or by cross-border invasions.
A special type of refugee may have been forced to leave their homes for such reasons, but
they did not cross an international border. These people are called internally displaced
persons. By the end of 2000, about 11.5 million refugees around the world had left their
home countries for various reasons, and between 20-25 million and more than 20-25 million
who had left their homes for similar reasons. Most of the current conflicts in the world
involve conflicts between political or ethnic groups within countries rather than inter-state
wars. As we see this trend, the number of people who are forced to flee their homes and live
in conflict in their home countries will increase.
2.2 DEFINATION OF REFUGEE
The term refugee is often used by the media, politicians and the general public to describe
anyone who is forced to relinquish his usual residency. Ecological disaster or poverty, all of
which are considered to be eligible for the accolade of being a refugee.
Refugee is not a concept of conventional international law. Therefore, refugee is not defined.
Refugees are subject to treaties and other international agreements. Therefore, it is not
possible to provide a single definition, which can be used in all situations. As Professor
Goedhart rightly observed:
15
The sociological definition of the word "refugee" differs from a legal one; The definition
designed for the purposes of the binding international treaty is very different from the
definition adopted by an association with a humanitarian purpose. "
Generally, however, a "refugee" is considered to be forced to flee his or her home due to
political disturbances, harassment, famine or natural disaster. A man's status as a refugee is
determined primarily by the factors that led to his or her status: the breaking of the ties that
bound him to the foreigner and the states of his nationality.
A refugee differs from a normal alien because of the inherent nature of the relationship
between him and the authorities of his origin, which arises from his fear of political
harassment when he returns. The refugee differs from an unstable person because he, unlike
an unstable person, may have an unfair national status.
As Sir John Hope Simpson defined:
“The essential quality of a refugee is that as a result of political events, he has sought refuge
in a territory other than his former residence, which makes it impossible or impossible to
continue living in his former territory.”
The main problem with refugees, however, is that they are a continuing embarrassment to the
international legal community. The tension between refugees and the conventional
international order is a unique political movement of refugee status. This presents refugee
protection a unique challenge to law and legal practice, especially when the refugee is in a
state where he seeks refuge and protection.
The 1951 Refugee Convention
In the 1951 Convention relating to the Status of Refugees 5 and for the purposes of that
convention, the term “refugee” has been defined under Article 1 thereunder.6
Article 1 (A) of the 1951 Convention covers two groups, two groups of persons who are
considered or refuges for the purpose of its application.
5
The Convention was adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees
and Stateless persons, held at Geneva from 2 to 25 July, 1951.
6
See, supra note, 1.
16
The First group could be called “Statutory refugees i.e. persons who have already been
considered as refugees under previous international agreements or under the Constitution of
the IRO. The second group embraces persons who are accorded the status of a “refugee” for
the first time. It consists of two sub-groups, one possessing a nationality and the other
without a nationality. There are two conditions applicable to both groups:
• They must be outside the country of their nationality or of their habitual residence,
and
• They must be there as a result of events, which took place before January 1, 1951.
Persons with a nationality meeting these two tests are to be considered as refugees only if
they are outside the country of their nationality owing to well-founded fear of being
persecuted for reasons enumerated under Article l of the 1951 Convention. Persons without
nationality, meeting the first two tests, are considered refugees if they are unable or, owing to
well- founded fear of persecution, unwilling to return to the country of their former habitual
residence.
The Convention excludes from its purview two groups — those persons who receive
protection or assistance from organs or agencies of the United Nations, other than the High
Commissioner, during the time of the existence of such protection or assistance; these
persons who, although they would normally come under the definition of a “refugee” are not
deemed worthy of international protection.
1967 Protocol
The 1967 protocol is independent of the 1951 convention but independent. The protocol
removes the temporary and geographical limitations found in the conference. By agreeing to
the Protocol, States agree to use the core content of the 1951 Convention 7 without limitation
of time or space for all persons covered by the Ethical Refugee Definition.
Most states want to adopt both convention and protocol. In doing so, they reaffirm that both
agreements are central to the international refugee protection system.
7
Articles 2–34.
17
The 1951 Convention and the 1967 Protocol are a modern embodiment of the old-fashioned
institution, whose strength is their universality and partisanship and the core values they
represent.
At the United Nations General Assembly8, we reaffirm the 1951 Convention on the Status of
Refugees and the 1967 Protocol as the foundation of the International Refugee Protection
Regime. We recognize the importance of full and effective use of state parties and the values
they create. We reaffirm the asylum company and the right to seek asylum. We also reaffirm
the basic principle of non-repayment under international refugee law. "
The 1951 Convention and the 1967 Protocol cover three main subjects with the definition of
refugee, withholding and exclusion of refugee status;
The legal status (rights and duties) of refugees in a country of refuge. This includes the duty
of refugees to respect the laws and regulations of the asylum country and their rights in that
country, including protecting them from repatriation; And
States ’obligations, including cooperating with the UNHCR in implementing its functions
and facilitating the oversight of the use of the Convention.
African Unity Organization (OAU)
The OAU Convention on the Management of Specific Aspects of Refugee Problems in

Africa is a regional treaty adopted in 1969 that incorporates a more objective basis, as defined
in the 1951 Convention:
“Due to external occupation, occupation, foreign domination or events, any person is

compelled to leave his country, or in an area that disrupts public order, or throughout his
own country or nation.”
Declaration of Cartagena, 1984
In 1984, a proclamation of Latin American government representatives and distinguished

judges adopted the Declaration of Cartagena. Like the OAU Convention, the Declaration
adds a more objective basis to the definition of refugee in the 1951 Convention:
8
New York Declaration for Refugees and Migrants, Resolution 71/1, 2016.
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"People who leave their countries" because their lives, security or liberties are threatened by
common violence, foreign occupation, internal conflict, gross violation of human rights, or
other conditions that severely affect public order ".
Bangkok Principles
Under Bangkok Principles the definition of the term refugee applies to:
“A person is a victim of persecution or a well-founded fear for reasons such as race, color,
religion, political belief or membership of a political social group.
(A) he leaves a nation, or a country of his nationality, a state or country in which he is a

custodian; Or
(B) being outside of such state or country does not intend or want to return it or to secure it .9
"
Here are two explanations for the article supra state:
i) Refugees are treated as refugees; and
ii) The expression 'leaves' includes voluntary and involuntary discharge.
2.3 THE RIGHTS OF REFUGEES UNDER INTERNATIONA LAW
An important aspect of the safety of refugees is the right conferred on them by the l95l
convention, without reference to the similar status of nationalists or foreigners. Recognition
of previously acquired rights, especially in matters of marriage, free access to the courts of
the territory of all treaty states, administrative assistance of the state or international
authorities of the resident state, issuance of identity documents and travel documents and
transfer of property.
When a decision is made about eviction based on national security or public order, the
asylum seeker must be allowed to submit evidence to destroy him legally within the borders
of the asylum state, and must be appealed for this purpose. Before a competent authority. A
legitimate country will be allowed for a refugee who has made the decision to leave. The
9
Article 1, The 1966 Principles Concerning Treatment of Refugees adopted by the Asian — African Legal
Consultative Committee.
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refugee rights group also has the right to return to the country where his or her life is
threatened.
Refugees are, in some cases, entitled to favourable treatment, assistance

and amenities, all important aspects of security policy. It also provides direct assistance to
refugees in some administrative matters of the asylum country authorities or UNHCR and
other international agencies. UNHCR is specifically authorized by its law to facilitate
voluntary repatriation of refugees.10
2.3.1 The Rights of Refugees under the 1951 Convention
In Articles 3 to 34, the Convention describes the rights of refugees. Some of these rights
apply to refugee or asylum seekers in a state or jurisdiction. Others apply for asylum or when
refugee status is granted or after a certain period of time. General human rights law certainly
applies to refugees.
Rights at Stake11
Forbidden repatriation of a refugee is called refinancing and is one of the most fundamental
principles of international refugee law. This principle is laid down in Article 33 of the
Convention on the Status of Refugees, which states that any State may threaten a refugee in
any way because of his or her race, religion, nationality, membership of a particular social
group, or political opinion.
Some countries detain asylum seekers when they seek asylum or deportation (reintegration).
Asylum seekers may already be incarcerated and tortured in the country where they fled.
Therefore, the effects of detention may be particularly severe, resulting in severe emotional
and psychological stress. Article 31 of the Refugee Convention states that refugees should not
be penalized for illegally entering a country if they come to their destination and inform the
authorities. Therefore, asylum seekers should not be detained for possessing fake
identification documents or for destroying identity or travel documents.
10
Statute of The Office Of UNHCR, item 1 (G.A. Res. 428 (v)
11
http://hrlibrary.umn.edu/edumat/studyguides/refugees.htm#ii.
20
Refugee Conference Articles 12 - 3012: - Individuals who are recognized as convention
refugees have the right to:
All refugees must be provided with identity documents and travel documents that allow them
to travel outside the country13
Rights Refugees should be treated like the citizens of the country receiving the following
rights:
• Religion Free use of religion and religious education14
• Free access to courts, including legal aid15
• Access to Elementary Education16
• Relief Access to public relief and assistance17
• Security provided by Social Security18
• Protection of intellectual property such as innovations and trade names
• Literature Conservation of literary, artistic and scientific works19
• Equal treatment by taxing authorities20
Rights refugees should receive the most favourable treatment of a foreigner with respect to
the following rights:
• The right to trade unions
• Right to belong to other non-political non-profit organizations21
• The right to work in a wage-earning employment22
12
1951 Convention Relating to the Status of Refugees
13
Article 27 of 1951 Convention
14
15
16
17
18
19
20
21
22
21
Refugees should receive the most favourable treatment possible, which is generally the least
favourable to those foreigners in the same circumstances as to the following rights:
• Owner's right to own property23
• The right to practice a profession24
• Right to self-employment25
• Access to housing26
• Access to higher education27
• Rights refugees should generally receive the same treatment given to foreigners with
respect to the following rights:
• The right to choose where they live
• Right to move freely within the country
• Religion Free use of religion and religious education
• Free access to courts, including legal aid
• Access to Elementary Education
• Relief Access to public relief and assistance
• Security provided by Social Security
• Protection of intellectual property, such as inventions and trade names
• Literature Conservation of literary, artistic and scientific works
• Equal treatment by taxing authorities
The Principle of Non-Discrimination
Non-discrimination is a core principle of international law and the foundation of all human
rights treaties. Discrimination is prohibited on the basis of race, color, gender, language,
religion, political or other opinion, national or social origin, property, birth or other status.
23
24
25
26
27
Article 22 of 1951 Convention. https://www.unhcr.org/4ca34be29.pdf
22
Since discrimination on the basis of race, religion, nationality, and a particular social group or
political opinion is a major cause of refugee movements, it is imperative that asylum-seeker
international conventions must prevent discrimination.
Right to be granted Identity Papers and Travel Documents
In accordance with the provisions of the Universal Declaration on the Right of Everyone to
be recognized everywhere as a person before the law 28. Under sections 27 and 28, the 1951
Convention establishes that identity documents are issued to any refugee in the territory of a
state and who do not have a valid travel document.
Certain imperative Rights of Refugees
 Right to Freedom of Movement - Article 26 of the 1951 Convention provides that

state parties must legally grant refugees in their territory the right to choose their
residence and move freely within that boundary, as foreigners generally do. This
means that state parties should not impose restrictions that apply only to refugees, but
to respect the principle of non-discrimination.
 Right to family life, including unity - Many refugees are separated from their family
members as a result of harassment or in the confrontation and chaos of flight.
Separation increases the risks that all family members face, especially women and
children, as a result of violence and exploitation, may not be able to provide the
protection and support they need, but should be held accountable to their families and
younger siblings. Separation can have devastating consequences for the well-being of
all refugee family members and their ability to rebuild their lives. International human
rights law recognizes the family as the basic group unit of society, which is entitled to
be protected by society and the state. The 1951 Convention of Plenipotentiaries
reaffirmed the “essential right” of family solidarity for refugees.29
 The Right to Work - The 1951 Convention expressly acknowledges the importance
of the socio-economic rights of refugees. There are four rules on access to work and
the right to work: the right to wage employment (Article 17), the right to self-
28
Article 6 of the Universal Declaration of Human Rights, https://www.un.org/en/universal-declaration-
human-rights/
29
Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless
Persons
23
employment (Article 18), the right to free labor (Article 19), and the right to benefit
from labor regulations (Article 24).
 Right to Education - Non-partisan access to education is essential to achieving a

basic human right and other rights. Education helps protect refugee children from
abuse, exploitation, child labor, early marriage and recruitment by armed groups.
 Access to the Courts - Article 16 of the 1951 Convention provides that refugees have
the right to access the courts and to be treated in parallel with the nation for legal aid.
In practice, refugees often face obstacles as a result of poverty, marginalization and
discrimination. Under the law, refugee protection organizations need to ensure they
have access to justice effectively.
 Right to Social Welfare and Health Care - Article 25 of the UDHR ensures that
everyone has the right to adequate quality of life for health and wellbeing, including
food, clothing, housing and medical and necessary social services. This relates to a
number of other rights, including the provision of access to a non-discriminatory basis
and determining health, such as safe access to drinking water and adequate sanitation
and access to health-related education and information. Including sexual and
reproductive health.
2.4 RIGHT CRUCIAL TO REFUGEE PROTECTION
The most important rights of refugee protection are the fundamental rights enshrined in the
1948 Declaration of Human Rights:
• Right to life, liberty and protection of person

• The right to seek and enjoy asylum
• Release from torture, or cruel, inhuman or degrading treatment or punishment
• Freedom from slavery or slavery
• Recognition as a person before the law
• Thinking is freedom of thought, conscience and religion
• Freedom from arbitrary arrest and detention
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• Privacy, freedom from arbitrary interference in home and family
• Freedom of expression and opinion
• Right to educate
• Right to participate in the cultural life of a community.
2.5 OTHER INTERNATIONAL LEGAL STANDARDS THAT

PROTECTS REFUGEES AND ASYLUM-SEEKERS
As explained above, the International Refugee Act 1951 Convention and its 1967
Protocol and Related Regional Instruments. But international refugee law does not work in
isolation. This is complemented by other legal bodies, particularly international human rights
law, international humanitarian law, international criminal law, and conventional
international law.
There is no hierarchical relationship between these legal systems, but they are interconnected.
International human rights law
As with all people, asylum seekers and refugees are protected by international human rights
law. This legal system extends to everyone within the confines of a state or its jurisdiction or
jurisdiction. As confirmed by the UDHR30: "All human beings are born free, equal in dignity
and rights."
Refugees and asylum seekers are entitled to some degree of interdependence: states are
obligated to respect, protect and exercise their rights under international human rights law,
and the specific rights of refugees.
Under international human rights law, certain guarantees, such as the prohibition of torture
and slavery, cannot be restrained or suspended for any reason. Others may be degraded under
certain conditions, such as upholding public order or health or protecting the rights of others.
Insults should not be used in a prejudicial manner, must be officially declared and in
accordance with the law.
30
Universal Declaration of Human Rights 1948.
25
The Convention Against Torture and the Convention on the Rights of the Child is a
human rights tool that provides important protections for asylum seekers and refugees. Other
human rights agreements also complement international refugee law in important ways.
Essential security includes refugees and internally displaced women and children31.
I. The Convention against Torture: How it protects refugees
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment has a particularly significant place in international refugee law:
• It defines and prohibits torture and other ill treatment that may lead to applications for the
protection of many refugees.
It prohibits a refoulement or forced return to circumstances where there are substantial

reasons for believing that a person may be tortured.
Its non-refoulement provision is not limited to people who are formally recognized as
refugees. Therefore, it may be helpful for people who have missed the deadline to apply for
asylum seekers, or those who are subject to wrongful termination, or in countries where there
is no personal procedure for determining the status of refugees.
Unlike the provision in the 1951 Convention, the non-refoulement of the Convention Against
Torture is complete. No limitation or disrespect is allowed from this rule.
Under the Convention, a Committee Against Torture has been established. Individuals may
bring complaints against this group against a state party, subject to the state's recognition of
the group's ability to obtain and consider personal communications.
II. The Convention on the Rights of the Child: How it protects refugees
Every country in the world has ratified the Convention on the Rights of the Child. This
convention applies to all children, including refugees or asylum seekers.
The conference outlines four basic principles that support the treatment of all children:
31
Arthur C. Helton, Displacement & Human Rights, Journal of International Affairs, Winter 1994, 47, No. 2, p.
380.
26
• Discrimination policy
• Policy of the best interests of the child
• Right to life and survival and development
• Right to hear
In addition, the Convention contains rules specifically applicable to refugee children.
International humanitarian law
International humanitarian law, also known as martial law or armed conflict, is a complex
field that precedes human rights and refugee law. It seeks to limit the methods and methods
of war and the effects of armed conflict or to those who do not participate. An important part
of international humanitarian law is the four Geneva Conventions of 1949 and two additional
Protocols agreed in 1977.
According to international humanitarian law, people who do not participate in combat

must be respected, protected from the effects of war, and provided with side-by-side
assistance, whether they are displaced or not. As many refugees and displaced persons find
themselves in the midst of international or internal armed conflicts, its policies will also help
protect them.
International humanitarian law binds all parties to a confrontation with both government
forces and non-governmental armed groups. The most serious violations of international
humanitarian law are considered war crimes. Under Section 1F of the 1951 Convention,
persons with serious reasons for feeling that they have committed "war crimes" must be
excluded from refugee status. Both international humanitarian law and international criminal
law are relevant to this resolution.
International criminal law
International criminal law is specifically designed to prohibit bad behaviour. The

International Criminal Court's Rome Statute, which has been in force since 2002, has
jurisdiction over the major crimes of genocide, war crimes and crimes against humanity, and
details what these crimes are. For example, the definitions of crimes against humanity and
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war crimes explicitly include "rape, sexual slavery, forced prostitution, forced pregnancy,
forced contraception, or any other form of comparable attraction."
Similarly, the International Tribunal's rulings on former Yugoslavia and Rwanda have
confirmed that slavery, rape, torture and genocide are crimes against humanity. Rome law
applies to determine what crimes can lead to the exclusion of someone from refugee status.
Customary International Law
Although there are countries that are not under contractual obligations, they still qualify
because these instruments reflect conventional international law. For example, the Universal
Declaration of Human Rights32, the International Covenant on Civil and Political Rights 33,
and the Standard Minimum Rules for the Treatment of Prisoners34 prohibit arbitrary
prolonged detention. The International Court of Justice has cited the Charter of the United
Nations and the Declaration of Human Rights, saying that such imprisonment violates
international law.
The abundance of legal instruments that condemn arbitrary and prolonged detention under
inhumane conditions, widely accepted by the international community and ratified by the
International Court of Justice, demonstrates that conventional international law prohibits
such imprisonment. Therefore, the International Human Rights Code of Ethics protects
refugees just like all other people35.
2.6 OTHER SOURCES OF LAW AND GUIDANCE
UN General Assembly resolutions and declarations

32
Helton (1989) p. 41; C. Amerasingle, State Responsibility for Injuries to Aliens (1967) p.44. AND Barcelona
Traction and Light Co., I.C.J. Rep. (1970) p.32 (state bound to protect foreign national admitted into its
territory), Article 9.
33
Ibid. p.42, Article 9(1).
34
Standard Minimum Rules for the Treatment of Prisoners, adopted at the first United Nations Congress on the
Prevention of Crime and Treatment of Offenders; approved by ECOSOC resolutions 663 (XXIV), 3l July 1957
and 2076 (LXII), 13 May 1977. And Declaration On The Human Right Of Individuals Who Are Not Nationals
Of The Country In Which They Live, Note 30.
35
Arthur C. Helton, Displacement & Human Rights, Journal of International Affairs, Winter 1994, 47, No. 2, p.
387.
28
Each year, the General Assembly adopts a resolution on the matter, considering the report on
the work of UNHCR. It also adopted a number of resolutions on specific aspects of refugee
protection, such as the support of refugee minorities, human rights and mass evictions, and
the plight of specific countries in which a large proportion of refugees are receiving refugees.
In September 2016, the General Assembly adopted the New York Declaration on Refugees
and Immigrants and began negotiations with the International Government to reach a "global
agreement for safe, orderly and routine migration." Like the Universal Declaration of Human
Rights adopted in 1948, the New York Declaration is a political document. It puts refugees at
the centre of political attention and promotes a broader, holistic social approach to refugee
protection.
UNHCR Working Group Results
The Executive Committee (often referred to as Exam) is the Executive Committee of the
UNHCR. It meets once a year in a full session to discuss the work of UNHCR and accepts
the results by consensus. These results represent the agreement of nearly 100 countries over
decades, and are an essential part of the international refugee protection framework.
Governments, ministries and lawmakers often consult the executive committee decisions
when developing laws and policies. In addition, national and regional courts continue to refer
to "soft law" instruments as credible and authoritative sources in matters such as policy, legal
practice and interpretation.
The Executive Committee's decisions thus represent joint international positions, including
legal expertise in refugee matters. They help advance common understanding and set
standards in many areas of refugee protection and solutions, and are a way to further develop
international security governance.
UNHCR Guidance
The UNHCR issues guidance on international refugee law. Its Manual on Procedures and
Criteria for Determining the Status of Refugees (1979, reprint 2011)36 is very authoritative.
Many national asylum seekers use this handbook to guide their decision-making, and it is
regularly cited by courts around the world. The UNHCR also publishes guidelines on
international security to complement the manual. These guidelines provide detailed,
36
Handbook on procedures and criteria for determining refugee status (1979, reissued 2011)
29
contemporary guidance on the 1951 Convention / 1967 Protocol and the provisions of other
international security matters. They can be helpful to lawmakers reviewing national law and
practice.
2.7 REFUGEE STATUS IN INDIA
It is noteworthy that as a country born with refugee issues, India has not signed the 1951
Refugee Convention or its 1967 Additional Protocol nor has there been any domestic law on
refugees. Refugees are persecuted and hunted in the country where they were born and are
therefore forced to flee. Causes are always social, political, religious, ethnic war, armed
conflict and rebellion, which can be fatal. Furthermore, our country today must have signed
the "1951 Convention on the Status of Refugees" and the 1967 Additional Protocol to
recognize its international concerns.
In the current context, protecting and protecting the rights of refugees has become an uphill
task as India wants refugees from Afghanistan, Bangladesh, Burma (Myanmar), Bhutan, Iran
and Iraq as a place of trust and peace in South Asia. Nepal, Sri Lanka, Sudan and Tibet. Now,
the Government of India is responsible for abandoning the Indian silence on the compliance
of the Refugee Act. India can no longer deal with the problems and problems of refugees by
adopting outdated L9th century policies as outlined in the outdated "Foreigners Act of 1946"
and the "Occupation Act of 1962".
Recently, as of February 20, 2000, there were more than 2.5 lakh refugees in India,
according to UNHCR. The maximum number of refugees is 46,000 from Bangladesh, 18,607
from Afghanistan and 1037 from other countries around a log from Tibet to Sri Lanka. But
Bangladeshis are not considered refugees but are considered economic immigrants. Presents a
great enthusiasm for protecting their basic and fundamental freedoms and rights. Refugees
suffer from lack of adequate laws, and they do not receive charity, humanitarian and
humanitarian treatment.
Although India was one of the most important founding members of the United Nations and a
signatory to the Universal Declaration of Human Rights, it did not comply with the 1951
Convention. India honoured its various international obligations and obligations by signing
various international human rights "instruments" such as the International Conference on the
Elimination of All Forms of Discrimination against Women, the United Nations Convention
30
on the Political Rights of Women, and the Convention on the Suppression of Punishment and
Punishment. Such as the conviction of the crime of racism and genocide.
It is therefore encouraging to see that the Supreme Court of India defends and
protects the human rights and civil rights of refugees through judicial activity and creativity.
We can correctly recall that the Supreme Court first banned INTER-ALIA from forcibly
evicting Chakma refugees from the Northeast of the country.
2.8 THE CONTEMPORARY REFUGEE DILEMMA
Refugees thus enjoy rights as a result of both specific refugee and human rights
treaties and customary international law. These traditional sources of protection, including
the remedy of non-refoulement, must be respected. Human rights law, both treaty-based and
customary in character, protects refugees, along with displaced persons and other non-
nationals. But the mechanisms to enforce human rights law, largely founded on monitoring
and reporting activities, are no well-established at the international level. Apart from the
question of coverage under the refugee treaties i.e. conventional refugee law, there are serious
issues regarding state compliance with treaty obligations.
Instances of non-compliance-which can be assessed by considering a wide variety of

refugee circumstances-including the forced return of refugees to places where they may
experience persecution harsh treatment or detention of asylum-seeker or undue restriction of
access to asylum. Governments of developed countries frequently devise such measures to
deny or deter the entry of asylum-seekers from less de eloped countries. The UNHCR, in
conjunction with governments, intergovernmental groups and NGOs should launch or
international campaign to secure frill compliance with refugee treaty obligations.
The need of strengthening refugee protection at the international level is pressing.

Governments, acting through the United Nations and regional intergovernmental
organizations, must not only expand the coverage of international law, but also improve its
enforcement.
Recent approaches by states to cope with asylum-seekers, whether unilateral or

collective in character, that violate refugees’ human rights must be curbed. Until governments
31
establish comprehensive international standards and meaningful mechanisms, differential
treatment of those in need of protection will continue. Many asylum-seekers will simply
remain insecure and subject to human rights violations. The international community in its
widest sense must, therefore, act immediately to secure protection for the world’s
dispossessed.
CHAPTER 3
INDIA’S REFUGEE SAGA, FROM 1947 to 2019
3.1 OVERVIEW
In the seven decades since it became an independent country, India has witnessed and
welcomed a wave of migrants fleeing conflict in neighbouring countries. Whenever one hears
the word refugee, there are many words and phrases that come to mind - such as the Human
Rights Code, the Mass Evacuation Code, the Violence Model, the National Security Code.
A well-known person that a refugee is “persecuted because of a race, religion, nationality,

membership of a particular social group, or political opinion, is out of the country of his
country, or is unable, or, for such fear, he does not want to protect the country; A nationality
is not the result of events Cording and being out of his former custom, who, owing to such
fear, is unwilling to return to it.
This definition is provided by the protocol relating to the status of refugees, which is an
important contract in international refugee law. This treaty, which came into force nearly four
and a half centuries ago on October 4, 1967, and the 146 countries are parties to the Protocol.
In its 72 years as an independent nation state, India has seen its fair share of refugee issues.
Of course, it started with sharing/partition.
32
3.2 THE REFUGEE OF PARTITION37
Although those who crossed the newly formed frontier between India and Pakistan —
whether by choice or by force — did not lose their nations, they were still forced to live the
lives of a refugee. Refugee camps across North India served as homes for those facing the
burden of secession.
Since these refugees are automatically citizens of the newly independent India, the question
of national security as they exist is questionable. But at this point, the war with Pakistan
erupted in 1948 when the growing state was trying to stand on its feet and struggle to provide
these refugees with basic necessities such as food, clothing and shelter.
The national capital of Delhi in particular has seen a huge influx of refugees. An entire city -
Faridabad had to be built to rehabilitate refugees living in horrific conditions in various
camps. The magnitude of the problem was an unprecedented challenge for the young
government, and only the efforts of many, including social reformer and freedom fighter
Kamala Devi Chattopadhyay, could facilitate the rehabilitation of secessionist refugees.
In 1959, nearly a decade after the sharing of the next major movement of refugees toward
India, the Dalai Lama and more than 100,000 followers left Tibet and returned to India
seeking political asylum. Providing asylum to them on humanitarian grounds is costly to
India and has drawn the wrath of the Chinese government.
As a result, Sino-Indian relations were a great success. After New Delhi decided to provide a
haven for these fleeing Tibetans, border disputes between the two countries and Chinese
aggression in the Indian territory began to grow with greater frequency.
The war with China in 1962, in particular, was very expensive for India. There were many
reasons that led to the war, but political asylum for the Tibetans was certainly one of the
triggers.
Tibetan refugees settled in the northern and north-eastern Indian states, and the seat of the
Dalai Lama, the spiritual and political leader of the Tibetan community, was established in
Dharamshala, Himachal Pradesh. The exiled Tibetan government operates from there.
37
https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-saga-from-1947-to-
2017.html
33
Although India did not sign the 1951 Refugee Convention or the 1967 Protocol, which has
140 signatures, it is intriguing that the country still serves as South Asia's largest refugee
home. Tibetan refugees continue to live in harmony with other local Indian groups, and as a
community they are considered to be peaceful.
The Bangladeshi refugee
The next major refugee crisis occurred during Bangladesh's War of Independence in 1971,
when millions of refugees migrated from India to India, fleeing the conflict between the
Pakistani army and Bangladesh forces. This has led to a sudden increase in population in the
states bordering Bangladesh, and it has become increasingly difficult for the Indian
government to ensure food security. According to some estimates, more than 10 million
Bangladeshi refugees fled to India in 1971.
Today, the issue of illegal Bangladeshi immigrants is being used by political parties to get
votes in every election cycle. Unlike Tibetan refugees, they are seen as a security threat.
Furthermore, the ongoing clashes between local communities and Bangladeshi refugees today
often provoke violence, often resulting in deaths. The conflict is severe in many northeastern
states like Assam, Tripura and Manipur. The continuing flow of refugees and illegal
immigrants from Bangladesh to local communities and tribal groups has led to a shift in the
area's social population, causing locals to become a minority in their own country. This is one
of the main reasons for the killing of over 80 people in the wake of the Khokrajar riots in
Assam in 2012.
Sri Lankan Tamil Refugees
Another notable group of refugees in India include the Sri Lankan Tamils, who have
abandoned the island nation in the wake of the recent Sri Lankan governments' extreme
discrimination policies, the 1983 Black July riots and the bloody Sri Lankan civil war.
These refugees, who are often more than a million, have settled in Tamil Nadu because of
their proximity to Sri Lanka, and it is easy for them as Tamils to adjust to life there. Between
1983 and 1987, over 1.34 lakh Sri Lankan Tamils crossed the Balkan Strait to India. In three
more phases, more and more refugees entered India. The war-affected Sri Lankans have
34
sought refuge in South India, and now more than 60,000 refugees are staying in 109 camps in
Tamil Nadu alone,” India Today reported.
Despite the end of the civil war nearly nine years ago, there are still a large number of Sri
Lankan Tamils who started as refugee camps decades ago. India's involvement in the Sri
Lankan conflict has most famously led to the assassination of former Prime Minister Rajiv
Gandhi, and refugees remain a major issue, which has repeatedly affected relations with India
and Sri Lanka.
The Afghan refugees
After the Soviet invasion of Afghanistan in 1979, many Afghans sought refuge in India.
Small groups of Afghanistan refugees continued to come to India in subsequent years. These
refugees are mostly concentrated in and around Delhi and have established places for
themselves.
Also, the UN According to the High Commissioner for Refugees (UNHCR) website, many
Hindu and Sikh Afghans who came to India after fighting in their home country in the early
1990s have been granted citizenship over the past decade. Both the World Bank and UNHCR
reports that there are currently more than 200,000 Afghan refugees living in India.
Rohingya refugees
The debate over refugees gained national prominence last year after 40,000 Rohingya
Muslims sought refuge in India from Myanmar. The UNHCR's Office has issued ID cards to
some 16,500 Rohingya in India, which it says helps refugees "prevent harassment, arbitrary
arrest, detention and deportation."
However, India has classified the Rohingyas as illegal immigrants and a security threat,
working with the Burmese government. The Government of India has stated that the principle
of non-repatriation or forcing the refugees to return to their home country does not apply to
India because they did not sign the 1951 Refugee Convention.
The Indian government has appealed to Myanmar to return the Rohingya refugees. However,
a statement in The Indian Express states, “India's claim that the Rohingyas are being
35
repatriated to Myanmar relies on the assumption that the refugees are of Burmese stock. The
problem at hand, however, is that the Burmese did not treat the Rohingyas as their subjects,
they were immigrants brought from Bangladesh during the British colonial rule. Moreover,
Bangladesh, a favourite destination for Rohingya in the face of atrocities in Myanmar, thinks
they are native to the Burmese state and should be protected there.
The Chakma and Hejong refugees

Many of the Chakma and Hejong communities who once lived in the Chittagong highlands,
most of them located in Bangladesh - have been living as refugees in India for more than five
decades, mostly in the Northeast and West Bengal. As of the 2011 census, there were 47,471
Chakmas living in Arunachal Pradesh alone.
In 2015, the Supreme Court of India ordered the Centre to grant citizenship to Chakma and
Hejong refugees. In September last year, the Government of India decided to grant
citizenship to these groups, despite opposition from many groups in Arunachal Pradesh
where these refugees are concentrated.
3.3 SEEKING POLITICAL ASYLUM IN INDIA
The terms asylum seeker and refugee are often confused: a person who claims to be a
refugee, but is not yet firmly evaluated or judged by the country in which they seek asylum.
On average, about 1 million people seek asylum on an individual basis each year38.
UNHCR reports show that despite being the world's largest democracy, India is not a popular
destination among political asylum seekers.
For example, there were 35.03 lakh political asylum seekers in the world in 2018, but only
0.34 per cent (11,957) of them sought political asylum in India.
The United States, Germany and Turkey are applying for asylum seekers at 7.18 lakh, 3.69
lakh and 3.11 lakh respectively. But that does not mean that no one has applied to India.
As for South Asia, there are a large number of political asylum applications in India. In 2018,
out of 11,957 political asylum seekers in India, 65 per cent (7,864) were from Afghanistan. It
was followed by Myanmar (2,064) and Yemen (1,134).
38
United Nations High Commissioner for Refugees, https://www.unhcr.org/
36
Analysing the data on India-related political asylum claims, we find that the number of Indian
asylum seekers abroad is 33.4 per cent higher than the number of other countries seeking
asylum in India in 2018.
Despite these political asylum demands, by the end of 2018, India had sheltered 1.95 lakh
refugees.
In South Asia, Pakistan has the largest number of refugees (14.04 lakh, mostly from
Afghanistan), followed by Bangladesh (9.06 lakh, mostly Rohingya Muslims from
Myanmar).
3.4 WHY FEWER ASYLUM SEEKERS APPLY IN INDIA

India did not sign the 1951 United Nations Convention on the Status of Refugees, as well as
the 1967 UN Convention. Neither did sign the protocol. These two describe the rights and
security that refugees can enjoy in host countries.
In addition, there is no clearly defined domestic policy on refugees in India or any law to
guide the authorities on how refugees should be treated in India. So far, their treatment is
subjective and varies from case to case.
Worldwide reports of refugees and asylum seekers, in spite of legal disruption, show that the
vast majority of people forced to flee their home countries have sought refuge in some
neighbourhood.
Entitled “Global Trends: Compulsory Migration in 2018,” the UNHCR report says there were
25.9 million refugees in 2018. Four out of five (80 per cent) refugees live in neighbouring
countries of their own.
When it comes to India's immediate neighbourhood, Afghanistan, China (Tibet), Myanmar,
Pakistan, Bangladesh and Sri Lanka are sources of refugees because of internal chaos and
civil war there.
From Pakistan (at the time of the Partition in 1947), Tibet (during the Talia Lama's escape
from Tibet in India in the late 1950s and early 1960s), Bangladesh (during the Bangladesh
Liberation War in the 1970s) and Sri Lanka (during the Civil War in the late 1980s).
But apart from the protracted war in Afghanistan in recent times and the Rohingya crisis in
Myanmar, there is no major impetus for forcing large-scale migration.
As for Afghanistan, most refugees have sought refuge in Pakistan, and for Rohingya
Muslims, most of them are currently housed in Cox's Bazar and surrounding camps in
Bangladesh.
37
3.5 RECENT DEVELOPMENTS
Over the past few years, India has seen an aggressive politicization of the issue of providing
shelter to refugees, particularly the Rohingya Muslims.
The Bhartiya Janata Party is calling for the repatriation of the Rohingyas. They are often said
to be a threat to national security. Other political parties, including the Congress, have shied
away from taking a stand on the issue.
In October last year, India deported seven Rohingyas to Myanmar. Four months later, India
handed over a Rohingya Muslim family of five to Myanmar.
The government's decision came despite an August 2018 United Nations report accusing the
Myanmar military of "massacres" and "raping" the Rohingyas. The report claimed that this
was done with "genocide intent" in 2017, forcing more than seven million Rohingya Muslims
to flee to neighbouring Bangladesh.
However, Myanmar has denied the allegations and called its action counter-insurgency after
the Muslim insurgents attacked its army.
As for Indians seeking asylum abroad, the Narendra Modi government in 2018 believes that
asylum seekers to a foreign government will "degrade India's system of making private gains,
even if India is a democratic country." Ways to legally address their grievances”.
In 2010, the then Congress-led United Progressive Alliance called on Parliament to consider
"a plan to enact a law to establish an effective mechanism to protect refugees and asylum
seekers before and after granting asylum."
Although the issue was being considered, the then government said it had not taken a final
decision and thus could not "set the time frame for the introduction of legislation in
Parliament."
In nine years, there is no law on refugees. As Prime Minister Narendra Modi heads a strong
majority government at the Centre, it remains to be seen whether India will have a clearly
defined law governing its policy for refugees and asylum seekers in the future39.
39
India Today, https://www.indiatoday.in/
38
3.6 PROBLEM FACED BY REFUGEES
The protection of refugees is to protect them against the persecution carried out by their
peers (such as the Rohingya being expelled by the Myanmar government). India was
home to various nationalities (such as the Tibetan Dalai Lama and Afghanistan
correspondent Nargis), so it is not wrong to include India in the category of "host
countries".
The problems India faces in today's refugee world:
a) Although Refuge is one of the forerunners in terms of refugee population (i.e. a
host country), there does not seem to be asylum law in India: there was an
attempt in 2015 when Mr Shashi Tharoor tried to move the Private Members Bill
into the asylum laws in our country but it was all in vain.
b) Problem of Problem Resources: As refugees continue to be unaware of their
legal status, they cannot access services assigned to them as ration card services
or other services.
c) The government's attitude toward refugees has always been a temporary one, and
there is no such refugee law.
3.7 STEPS TAKEN FOR THE REFUGEES

• Although not a member of the United Nations Refugee Convention, India has
always shown its commitment to refugee protection and stability, like the United
Nations General Assembly.
• One of the most important tasks that India has done is signing the New York
Declaration on Refugees, that is, the Global Compact Refugee Conference. The
Global Compact on Refugees has two main objectives: the first is to ensure that
refugees are adequately protected and protected, and the second is to reduce the
pressure on developing countries such as India, where 80% of refugees are
guests.
• GCR creates economic opportunities not only for refugees but also for
developing countries.
• The GCR also addresses the need to include the host community in the making
of skills, professionalism and capacity building among refugees.
39
• The GCR is a wake-up call that seeks the state's role in recognizing refugees'
identity gaps and income generation to improve their self-reliance. India’s
commitment to refugee protection under the GCR is made clear by its active
participation in GCR consultations40.
• Pakistan The Central Government has decided to continue with eight umbrella
projects for the relief and resettlement of migrant and deported persons,
including providing assistance to Pakistan-occupied Kashmir (POK) and the
displaced Brew Persons (IDPs) from Mizoram.
• The Union Cabinet, headed by Prime Minister Narendra Modi, has approved
plans for relief and rehabilitation of refugees, displaced persons, terrorism,
communalism, Naxal violence and cross-border firing and mine / IED blasts. The
government said in an official statement that the riots were caused by Indian
territories and various incidents.
• The government will have to shell out Rs 3,183 crore during the period 2017-18
to 2019-20 to implement the -18 projects. In 1997, the Cabinet advanced to
repatriate the Buru tribes who were forced to flee their homes in Mizoram due to
ethnic violence, a day after an agreement was signed between the Centre,
Mizoram and Tripura governments and the Mizoram Buru displaced people.
Forum in the presence of Union Home Minister Rajnath Singh (MPDBF).
• As a result of the settlement among the different stakeholders, 5,407 Buru
families with 32,876 persons currently residing in Tripura's temporary shelters
will be brought back to Mizoram41.
40
The Hindu, https://www.thehindu.com/
41
Economic Times, https://economictimes.indiatimes.com/
40
CHAPTER 4
INDIAN PRACTICE REGARDING REFUGEE PROTECTION
4.1 OVERVIEW
India is one of the few countries in the world that has experienced the plight of refugees, over
a period of less than half a century 42. The history of India is marked by the large migration of
people from other countries and continents. The migration took place mainly in the two
gateways to the west — the Hindukush Mountains and the Patkoi range in the east. Since
ancient times, people from different parts of the world have come to India in various sectors
such as travelers, invaders, migrants and refugees, and have transformed the land into a home
with or without a separate identity 43. In the first twenty-five years after independence, India
had to take responsibility for 20 million refugees. This was mainly due to the partition of the
country. As a result of the partition of the Indian subcontinent in 1947, India had to face a
tremendous task of providing relief and rehabilitating the displaced people from West
Pakistan.
The Declaration of Independence in 1947 resulted in the creation of India and Pakistan, the
world's largest extortion and mass movement in recent history in the Indian subcontinent,
estimated at 15 million on the Indian subcontinent, nearly 8.5 million emigrated from India
42
Prof. J. N. Saxsena, “Legal Status of Refugees: Indian Position”, Indian Journal of International Law, vol. 26,
No. 3 & 4, 1986, p. 501.
43
M.P. Singh, “Position of Aliens in Indian Law”, Heidelberg Colloquium on “The Legal Position of Aliens in
Nation and International Law,” September 1985, p. 55
41
and 6.5 million the other way44. In the initial phase, 160 relief camps were organized and the
total cost of relief until the end of 1950 was Rs. 60 crores. Various programs were prepared
for the resettlement of refugees. The Government of India has taken necessary legislative and
administrative measures to address the situation. The Rehabilitation Fund Administration
Act, 1948 was passed in this direction. The two governments (India and Pakistan) entered
into a special treaty on April 8, 1950, regulating the flow of refugees and developing
mechanisms for settling refugees' claims regarding property, land and payments. The main
aspects of the contract can be divided into four parts. The first part aims to eliminate the fears
of religious minorities and guarantee their basic human rights. The second part was
concerned with solving the immediate problem by promoting communal peace and
normalizing the troubled situation. It sought to achieve that by restoring trust among
members of the minority community. The third part aims to establish an environment in
which other differences can be resolved amicably. The last section addresses enforcement
machinery, which aims to address the grievances of the two countries' minority
communities45.
Therefore, the complexity of the legal status of these displaced persons as the definition
of 'displaced person' as provided by the Rehabilitation Fund Management Act of 1948 differs
from the definition of the term 'refugee' provided by 1951. Convention on the Status of
Refugees. In this case, the situation of creating refugees is the result of an agreement between
the two governments. So how can these people be called refugees because their predicament
was mainly caused by civil strife? The plight of the migrant population is the plight of the
refugees. They relocated from one country to another, underwent tragic experiences, and
sought refuge in the country from which they appeared. Refugees from India and Pakistan
embark on a journey of fear and confusion, abandoning their stove and home - deserving of
refugee status under international law. They were considered by the world community46.
As a result of the Chinese annexation of Tibet in 1950, India faced another refugee arrival in
1959, when the Dalai Lama and his 13,000 followers fled the country and reached India as
refugees. The Indian government granted political asylum to the Dalai Lama and his
followers. The Dalai Lama's company is a serious blow. This is political-religious
44
Supra note 1.
45
Prof. Rahmatullah Khan, “India: India And its Refugees”, In Round Table of Asian Experts on Current
Problems in the International Protection of Refugees and Displaced Persons (Maniila, 14-18 April 1980), p. 108.
46
Ibid.
42
persecution. "One can honestly say that the political asylum granted to Tibetan refugees
played a small but significant role in the growing hostility between the two countries47."
In 1971, India faced another massive influx of refugees, with 10 million people fleeing East
Pakistan and now Bangladesh as refugees. However, after a decade-long hiatus, India has
again been hit hard by the influx of thousands of refugees from Sri Lanka and Bangladesh
since 1983 and 1986 respectively. According to the World Refugee Report digit prepared by
the Bureau of Refugee Programs, State Department (July 1993): At the end of 1992, India
hosted nearly 400,000 internally displaced persons.
UN 1951 It is very sad that India is not a party to the Refugee Convention or its 1967
protocol, and there is no Indian law governing asylum or refugee status. According to local
domestic and bilateral political and humanitarian considerations, the Indian government
handles refugee matters administratively.
India does not have the formal status by the UNHCR, usually allowed to deal only with
people from other countries, India's endless. Indian authorities generally provide renewed
temporary residence permits to UNHCR approved refugees. The official policy of the
Government of India is that all refugees, whether they are protectors or under the UNHCR,
are granted temporary refuge in India only. Other than the permanent resettlement of refugees
granted temporary refuge in places not provided.
4.2 RESORTING TO ‘HUMAN RIGHTS’ TO ENHANCE THE

PROTECTION OF REFUGEES
In the international system of human rights protection, the grant of asylum by a State
to persons entitled to invoke Article 14 of the Universal Declaration of Human Rights cannot
be regarded as an unfriendly act by another State. Similarly, and particularly in the post-Cold
War context, it is widely acknowledged that international attention to human rights violations
is not an interference in a country’s domestic affairs but is rather part of routine international
diplomacy. Although some States will go to great lengths to avoid scrutiny or criticism before
international human rights bodies, the international community has identified a need to
strengthen and improve application and enforceability of the international system of human
rights protection. This has been realized through, for example, the UN-sponsored human
47
Ibid.
43
rights missions in Cambodia, El Salvador, Guatemala, Haiti, the former Yugoslavia and
Rwanda; the establishment of international criminal tribunals for the former Yugoslavia and
Rwanda; and technical cooperation in the field of human rights with governments and other
actors. Ofcourse the degree varies, ranging from assistance and advice, to monitoring and
reporting and direct protection.
In its own policies and programmes, UNHCR has incorporated a number of human
rights principles. Its protection activities in countries of asylum and countries of origin
include working with States in the areas of legal rehabilitations, institution building, law
reform and enforcement of the rule of law and providing humanitarian assistance to internally
displaced persons. Increased cooperation with international and regional human rights
mechanisms are also new areas of involvement for UNHCR. These activities add to an
already overburdened agenda. Some States have expressed concern that UNHCR should not
undertake tasks, which go beyond its formal mandate. This concern is well taken as these
more recent activities are placing considerable strain on UNHCR’s limited resources. In this
context the question of whether UNHCR has the capacity and capability to do these tasks
must be addressed. Despite these apprehensions, in this era of downsizing and reform of the
UN system it seems unlikely that UNHCR will be permitted to continue its activities along
traditional lines. Furthermore, ‘in country’ protection activities are becoming increasingly
formalized as part of UNHCR’s evolving protection mandate.48
In efforts to prevent refugee flows the UN and others, notably NGOs, are providing
technical assistance to States within a general human rights framework. This includes the
promotion of human rights standards through the training of judges, lawyers, and human
rights activists; giving substance to educational rights by funding the construction of new
schools in war-tom countries; and promoting economic rights through community-based
projects focused on providing assistance to returning refugees. Promoting enactment and
enforceability of domestic refugee and human rights laws, promotion of national human
rights institutions, and training of government authorities, are other prevention-oriented
activities in which the UN, Governments, and NGOs are increasingly engaged.
As part of the development of human rights principles through UN Conventions, a

number of international treaty bodies have been established to investigate violations, enforce
48
For a description of the changing nature of UNHCR’s mandate see The Refugee in International Law (K ed.),
by Guy S. Goodwin-Gill, in particular Chapter 1, Clarendon Press, Oxford, 1996; also see ‘Field Strategy for
Human Rights Protection’, by William Clarence, Vol. 9, No.2, URL, April 1996, at pp. 232-233.
44
standards, and assist States in implementing their treaty obligations. These bodies have the
authority to examine periodic State party reports regarding implementation of the treaty
provisions. With the agreement of States, some treaty bodies have the competence to invest
gate and decide upon individual and inter-state complaints and undertake field missions in
order to monitor implementation measures. During examination of State party reports the
Committees may prepare formal conclusions and observations on the performance of States
in complying with international human rights law. They may also formulate specific
recommendations to Governments. In recent years, some of these Committees such as the
Human Rights Committee, the Committee on the Rights of the Child, and the Committee
Against Torture, have regularly raised issues about the treatment of refugees by State parties
to the respective Conventions.
The UN human rights machinery has paid increasing attention to the plight of
refugees. This raises awareness of refugee protection issues through promoting legal
standards for refugees and internally displaced persons in addition to sharing information
concerning incidents of violations of refugees’ rights. Human rights NGOs and UNHCR have
played key roles in educating members of the international and domestic human rights
communities on the linkages between safeguarding human rights and refugee protection.
These initiatives have firmly entrenched human rights issues in relation to the refugee
problem49.
4.3 CONSTITUTIONAL PROTECTION
Some articles of the Indian Constitution apply equally to refugees on Indian soil, and they
apply to Indian citizens50.
The Supreme Court of India has consistently held that the fundamental right to life and
personal liberty under Article 21 of the Constitution of India applies to all, irrespective of
whether they are citizens or aliens of India. The various High Courts in India have liberally
adopted the rules of natural justice for refugee issues, and the United Nations High
Commissioner for Refugees (UNHCR) plays an important role. The Hon'ble High Court of
Guwahati, in a number of rulings, recognized the refugee problem and allowed refugees to
49
A useful compilation of the various activities of the UN human rights mechanisms concerning refugees and
issues of forced displacement is found in the UN Commission on Human Rights report ‘Human Rights. Mass
Exoduses and Displaced Persons’. UN Document E/CN.4/1997/42 of 14 January 1997.
50
Articles,14,20 and 21 of the Indian Constitution.
45
access the UNHCR to determine the status of their refugees, whilst retaining deportation
orders issued by the district court or administration.
Gurunathan and others Vs. Government of India vs. others51 and A C Mohd. Vs. Siddique
Government of India and other52 matters, the Madras High Court does not want to allow any
Sri Lankan refugees to return. Sri Lanka against their will.
In the case of P. Nedumaran vs. Union of India 53 in the case of the Madras High Court, Sri
Lankan refugees prayed for the request of the UNHCR authorities to check the volunteerism
of the Indian Union and the State of Tamil Nadu. Returning to Sri Lanka and allowing
refugees who are unwilling to return to their camps in India. The Hon'ble Court was pleased
to consider this.” Since the UNHCR is involved in finding the voluntary nature of the return
of refugees to Sri Lanka and therefore a global institution, the Court cannot consider whether
consent is voluntary or not. “Moreover, the Court acknowledged the competence and bias of
UNHCR representatives. In the case of Syed Ata Mohammadi vs. Union of India54, the
Mumbai High Court was delighted to lead "Iranian refugees no doubt because they are
recognized as a refugee by the UNHCR". The Hon’ble Court allowed the refugee to travel to
any country he wishes. This order is in line with the internationally accepted principles of the
‘non-refoulement’ of refugees to their country of origin.
51
WP No.S 6708 and 7916 of 1992
52
1998(47) DRJ(DB)p.74
53
The case is pending before the National Human Rights Commission of India, 13 August 1997
54
Syed Ata Mohammadi vs. State, Criminal writ petition no.7504/1994 at the Bombay High Court
46
The Supreme Court of India has stopped the deportation of refugees in many cases, such as
Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab 55; and, N.D.Pancholi vs.
State of Punjab & Others56. In the case of the Malavika Karlekar vs. Union of India57, the
Supreme Court has ordered the deportation of Burmese refugees to the Andaman Islands
because “their claim for refugee status is pending and a preliminary case has been filed to
grant refugee status. The Supreme Court's verdict in the Chakma Refugee case clearly stated
that no one can lose his or her life without due process of law. Earlier, the Supreme Court
ruled in Luis De Raedt vs. Union of India58 and also State of Arunachal Pradesh vs.
Khudiram Chakma59.
Arrest, Detention and Release

Another aspect of non-refoulment is noted here. The notion of 'International Zones', which
are marked as being outside the Indian jurisdiction and the normal jurisdiction of Indian
courts, is a major 'risk factor' for refugees. Accessing refugees for legal solutions. This legal
fiction is a violation of internationally accepted policy. In the case of a Palestinian refugee
deported from Kathmandu to New Delhi International Airport, he was sent back to
Kathmandu from the airport's traffic lounge. He was flown back to New Delhi International
Airport on the basis of a telephone call.
Such detention is a classic case of the above point of excluding legal remedies for the
detained refugee. The only relief in such a case is through the administrative authorities.60
Articles 22 and 25 of the Constitution of India reflect that the rules for natural justice in the
common law system apply equally to refugees in India. The established principle of law in
India is that no person, whether a citizen or an alien, will lose his life, liberty or property
without the authority of law. Courts have gone further to uphold the Indian Constitution as a
fundamental element of the Constitution which is expressly included and cannot be amended.
The Constitution of India does not contain any specific provision that compels the State to
enforce or enforce treaties and conventions. A joint reading of all the rules and the analysis of
55
Crl. WP No.125 & 126 of 1986.
56
N.D. Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987, unreported)]
57
Crl. WP No.243 of 1988.
58
(1991) 3SCC 544.
59
1994 Supp. (1) SCC 615
60
Delhi High Court, Criminal Writ Petition-60/1997
47
the case law in this case shows that international treaties, treaties, traditions and treaties can
only become part of domestic law in India if they are specifically incorporated into the law of
the land. The Supreme Court, through a number of rulings, held that international customary
law must go through the process of turning into municipal law before it becomes an
international law.
Courts can use international law only when there is no conflict between international law and
domestic law, and if the rules of international law are to be applied and it does not conflict
with the spirit of the constitution and national law, it can enforce compatible laws. If there is
any such conflict, it is certain that domestic law will prevail.
4.4 LAWS GOVERNING REFUGEES IN INDIA
We have a number of domestic legislations in force to deal with refugees. India draws no
distinction between a “foreigner” and a “refugee”. And this gives rise to a plethora of
problems
which will be highlighted subsequently. The laws are-
 Passport (Entry into India) Act, 1920.
 Passport Act, 1967.
 Registration of Foreigners Act, 1939.
 Foreigners Act, 1946.
 Foreigners Order, 1948.
The Passport (Entry into India) Act, 1920 and the Passport Act, 1967 makes no distinction
between genuine refugees and other categories of foreigners like economic migrants, tourists
and students. As a result, the refugees run a big risk of arrest by immigration authorities and
illegal deportation in the absence of a valid passport 61. Penalty should not be imposed on
refugees62 because they may leave in turmoil not have the time to get a passport issued. In
most of the countries, access to passport offices may not be possible due to distance and lack
of infrastructure. Once the refugee enters the Indian Territory, they may get valid passports
and identity cards if the public interest criteria is fulfilled 63. But so far only Tibetan refugees
have been issued valid passports. The reason for their “privileged treatment” is that their
61
Bimal N Patel, India and International Law, (2005 edn), Martinus Nijhoff Publishers, 2005.
Section 30 of the Passport Act1920 read with rule 6A of the Indian Passport Rules 1950.
62
See Article 31 of the Refugee Convention
63
See Section 20 of the Passport Act, 1967
48
political and spiritual leader too resides in India and they have their parliament on the Indian
soil. Some scholars criticize because it hampers the sovereignty of India64. The reasoning may
be that in order to protect national interest, no refugee is given the fundamental right to
freedom of movement or issued an identity card. Also, it causes trouble for refugees to open
bank accounts, obtain ration cards or rent accommodation because they have no identity. This
is contradictory in nature because the constitution does not guarantee freedom of movement
but the administration may give this right based on a case to case analysis imposing
reasonable restrictions. This clearly violates the equality principle as all refugees should be
treated alike on Indian soil.
The Registration of Foreigners Act, 1939 empowers the Central Government to make rules
for foreigners. Where and whom to report, provide proof of identity and registration
certificate65. This law should not be applicable to refugees as they have already suffered at the
hands of their Government and these burdensome technicalities add to their agony.
Furthermore, the power of Central government is used in an arbitrary manner to harass
genuine refugees and there are no checks to curb this power.
The Foreigners Act, 1946 places some more restrictions on refugees like defining whom to
meet and the routes only through which they can enter the country 66. One of the biggest
criticisms of this act is that the authorities have “unlimited power” to arrest and detain any
foreigner on mere suspicion for non-compliance under this act. Though the court tried to
restrict this power by stating that in order to penalize, there should be actual contravention of
provisions67. Unfortunately, more and more refugees continue to be detained on frivolous
grounds and they are not released for long durations.
Lastly the Foreigners Order, 1948 authorises the State government to “grant or refuse” a
foreigner entry into the Indian territory on grounds like invalid passport, unsound mind,
public
64
This argument does not relate to the article, it is made solely for better explanation.
65
R. J.S. Tahir (eds.) Ragini Trakroo Zutshi, Jayashree Satpute, Md. Saood Tahir: Refugees and the Law, 2edn,
HRLN, 2011, pp 78.
66
Ibid, pp 79.
67
Kallan Khan v. State 1961 (1) Cr. LJ 584, para 13
49
safety or is detected suffering from a “loathsome”68 disease. The civil authority can refuse
permission if the formalities are not fulfilled under the Foreigner Act. This rule is malafide
and arbitrary because the condition of a refugee is different and he deserves to be treated on
compassionate grounds having the human rights perspective. Common parlance is that most
of
the refugees are detained in transit areas, prior to their entry in India. These transit areas are
mainly airports, sea coasts or land specifically earmarked for this purpose and they are treated
as “International Zones” where the domestic law does not apply. In this scenario, a refugee
can only seek administrative remedies and not legal remedies as he is deemed to not have
entered the territory of India officially69. When such a case is handled by bureaucrats or
custom officials, they lack legal knowledge and competence which poses a great danger of
deportation and ultimately persecution of the refugees. This leads to violation of principles of
non-refoulement. The Indian Penal Code makes no distinction between nationals, refugees or
foreigners70. A refugee may be penalized for cheating, fabricating documents and forgery 71.
Often, the concerned authorities are inconsiderate to the compelling factors of refugees and
the genuine reasons why they don’t possess valid documents. According to the researcher,
IPC should not be applicable to refugees at all.
The researcher emphasizes on the urgency of a specific law which only and only deals with
refugees and their problems in India. A clear-cut distinction between a “foreigner” and
“refugee” has to be made. Clearly the present laws are not sufficient to deal with refugees
because they need far greater protection than foreigner till the disturbance persists in their
own country. According to the researcher, these laws should be prohibited to deal with
refugees.
4.5 ANALYSIS OF THE ROLE OF UNHCR IN INDIA
UNHCR plays a very comprehensive role for protection of uprooted and displaced people.
India has been an executive member of the UNHCR since 1995 and has been availing the
benefits since then. Their work starts the moment, a refugee enters India. Such person may
apply for refugee status and registration at the UNHCR office. A legal officer is appointed to
68
Nowhere in the act, loathsome is defined. There should be specific names of disease else this provision is
arbitrary.
69
R. J.S. Tahir (eds.) Ragini Trakroo Zutshi, Jayashree Satpute, Md. Saood Tahir: Refugees and the Law, 2edn,
HRLN, 2011, pp. 137.
36Ibid, pp. 85
70
71
See Section 416, 420, 463, 464 of IPC, 1860.
50
interview such refugees and procure all the relevant information. If there are inconsistencies
in the interview, they should be handled with care and caution as the background and the
mental state of the refugee should be considered. Many a times, there are language barriers
and all the information cannot be collected. This is not a reason for declining the refugee
status by the
UNHCR. The main object for deciding the status is the fear of persecution or threat to life.
The
UNHCR mandate helps in protecting refugees against illegal arrest and detention and also
rescues the person if they are already under arrest. But a mandate is issued only to refugees
from outside South Asian region. This leaves ample room for discrimination and exploitation
of “other” refugees. The UNHCR provides a number of amenities which the Indian
government fails to do in most cases. Because their status and identity are well established by
the UNHCR office, they can procure a valid passport, travel documents authorizing them to
travel abroad, ration cards or open a bank account. The legal officers of UNHCR provide free
legal aid to the recognized refugees.
The organization has formal agreements with other NGOs to provide financial assistance to
the
poor and needy across the globe including India. Furthermore, they provide free medical
treatment to the sick refugees in government hospitals with special emphasis on women and
child health care72. The UNHCR has an army of volunteers and interns who assist in
providing
vocational training which makes them self-reliant, primary education and counselling to the
distressed refugees with the assistance of other NGOs who have an expertise in these fields.
Most of the work is centred around finding durable solutions for mitigating the suffering of
refugees at the hands of the host nation. UNHCR works hand in hand with the Central
government. This clearly proves that a refugee having the UNHCR certificate is better
protected and has more than a normal refugee.
But whatever is done is not sufficient because the mandate of UNHCR is limited and it
cannot work without the support and participation of the country. Whenever there is
mass
influx of refugees, UNHCR depends on its NGOs to provide information about the crises.
72
Ibid, pp 185-188.
51
This causes problems because most of the NGOs in India are not updated with the exact
number of refugees and they have limited man power, finances and know-how of
technology. India being the largest receiver of refugees in Asia, it is next to impossible to
regulate movement and update information of every refugee going in and out of the
country. Moreover, in India, the State policies which are administrative in nature
determine the protection of refugees which leaves very little ground for UNHCR to
provide protection. As a result, only some refugees who are not from South Asia get
UNHCR recognition and protection and not all refugees are treated in the same manner.
This process of deciding the status claim is criticized because it is arbitrary and there is no
higher official to regulate this practice. The very existence of UNHCR depends on the whim
of the Central Government as India has not ratified the refugee convention. Its fate and scope
of work is solely determined by the Indian government.
In most cases, the members are denied access to refugee camps which makes it impossible to
grant them refugee status. The office of UNHCR receives most of its funds through
donations by international organizations and NGOs 73. In such circumstances, it may
face a financial crunch and may not be able to give protection to the refugees . In 1992,
the UNHCR denied subsistence allowance in an arbitrary manner to Afghan refugees which
proved burdensome for a number of families74.
Hence, the Government should give more powers to UNHCR so that the identities of all
refugees coming to India can be recorded. This will reduce cases of false documents and
ultimately minimize refugee arrests regarding the same.
Another suggestion that will ease the agony of refugees seeking UNHCR certificate to set
aside a part of the annual budget for UNHCR so that more and more refugees can be
rehabilitated in India and a balance of refugee and citizen rights can be built.
4.6 ANALYSIS OF THE ROLE OF NHCR IN INDIA
National Human Rights Commission, State Human Rights Commissions and Human Rights
Courts have been established in India under the Protection of Human rights Act, 1993. As per
this act, they have the powers of a civil court and can suo moto inquire into any petition;
interfere in the judicial proceedings protecting the party from human right abuse, study
United Nation High Commission for Refugees, http://www.unhcr.org/pages/49c3646c119.html

73
74
Ranabir Samaddar(ed.), Refugees and the State. Practices of Asylum and care in India 1947-2000, (2003 edn.)
SAGE publications, UK, 2003. BS Chimni, “Status of Refugees in India, pp. 460
52
treaties and prepare reports75. They have been actively involved in the protection of refugees
since inception.
In 1994, the NHRC gave directions to the Govt. of Tamil Nadu to provide immediate medical
treatment to Sri Lankan refugees who were put in camps. But how far did the refugees
receive medical aid is a debatable issue as most of it is just on paper. In the year 1995, a PIL
was filed by the NHRC on behalf of the “Chakma” refugees who hailed from Bangladesh
way back in 1965 and were residing in Arunachal Pradesh. The NHRC founded that the State
Government is acting in accordance with the AAPSU (All Arunachal Pradesh Students
Union) and threatening Chakmas. The Supreme Court intervened with the liberal
interpretation of law to suggest that refugees are the “class apart” from foreigners and they
are to be protected under Article 21 of the Indian Constitution and they cannot be evicted
from their domestic households. The court emphasised that the State is under an obligation to
protect the life and personal liberty of every human being thus abiding the principle of non-
refoulement76 . This case also highlights the issue of local agitation.
India has been a witness to many clashes between the refugees and the locals. The main
contention of the local population is that refugees have more facilities despite being
outsiders. They have better access to amenities like medical facilities, food, water,
education, financial assistance and protection than the local population of that
particular State.
After the Rajiv Gandhi assassination, India became hostile to Sri Lankan refugees and
atrocities were committed upon them despite their protected status. The government was also
responsible for forceful repatriations thus violating the principles of non-refoulement. NHRC
proposed a model law for refugees under the guidance of Justice PN Bhagwati in 2000
but unfortunately that has not seen light till this date. It also proposed changes in the
outdated Foreigners Act, 1946 which deprives refugees’ rights as guaranteed under the
Geneva convention, refugee convention and additional protocol of 196777.
Currently we only have the Refugee and Asylum (Protection) Bill, 2009 78. The model
law clearly defined the rights and duties of refugees and protection to be given to them
by the State. India can thus be considered in a paradoxical state- on one hand it refuses
to ratify the already existing Refugee Convention and on the other hand, it does not
75
See Article 12 and 13 of the Protection of Human Rights Act, 1993
76
National Human Right Commission v State of Arunachal Pradesh, Supreme Court of India 1996, AIR 1996
SCC 1234.
77
Rajeev Dhawan, On model law for refugees: A response to the National Human Rights Commission, NHRC
Annual Reports 1997-2000, New Delhi, 2003.
78
http://news.rediff.com/report/2009/oct/19/home-ministrys-refugee-bill-worries-security-agencies.htm
53
pass its own independent legislation. To top it all, it continues to allow large influx of
refugees from all across the globe to enter India.
CHAPTER 5
JUDICIAL RESPONSES TOWARDS THE PROTECTION OF

REFUGEES
5.1 OVERVIEW
The concept of ‘Refugee Law’ in the Indian judicial system has evolved over a period of
time. Due to lack of a refugee specific statute, the judicial system is constrained to enforce
upon refugees, laws which are applicable to foreigners in general, thereby consciously, or
54
subconsciously ignoring the unique predicament peculiar to refugees. Unfortunately, the
ensuing acts or omissions result in a grave travesty of natural justice for the refugee, who has
per force of tragic circumstances lost his home, country, social group, lifestyle, livelihood
and may even have lost members of his immediate family. It may serve well to reiterate that a
refugee flees persecution from his country of origin, only when there is grave apprehension
of danger to his life and liberty. Often, circumstances, which lead to a situation of strife, civil
war, ethnic cleansing etc., is targeted at a particular group or community and results in the
flight of the targeted group into a neighbouring country or any other friendly country which
may be accessible.79 There is acute lack of general awareness of the need for a specific
legislation regulating the numerous groups and individual refugees presently in India.
A broad understanding of the concept of ‘refugeehood’ is essential to grasp the

necessity of refugee related legislation, which would serve to curtail the rampant illegal entry
of economic migrants into India. Once a framework for entry of refugees is drawn up, it
would restrict movement of any other unauthorised mass of foreigners into the Indian
Territory and would be a guideline for local authorities to determine the manner of dealing
with genuine refugees.
Further lacking, is transparency in the policies of the Administration in granting

asylum/facilities/grants etc., to certain refugees or refugee groups without spelling out
reasons for granting such benefits to some and not to other refugees in similar circumstances.
Such lack of transparency further confounds the issue.
Despite lack of legislation, perplexing administrative attitudes and the strict laws regulating
entry, exist and stay of foreigners in India, the Indian judiciary is in the process of steadily
evolving its own set of mechanism to deal with refugee issues. In order to better appreciate
the ensuing process of evolution of refugee law through judicial precedents, it may be
clarified that the Indian judicial system includes not just the courts but also related agencies
that determine the key elements of refugee extended to refugees:
A. The Border, Immigration Authorities and the Police
B. Administrative policies and directions,
C. The Courts.
79
Sumbul Rizvi, Advocate, Bulletin on IHL & Refugee Law, Vol. 2, No. 1.
55
D. Legal Framework for Refugee Protection in India.
5.2 THE BORDER, IMMIGRATION AUTHORITIES AND THE

POLICE
They are usually the first representatives of the legal system, which a refugee encounters the
moment he tries to, enter India. In the event of the refugee not having the valid travel
documents i.e., passport, visa and entry permit, he may face forced return/deportation to the
country where he came from. In the alternative, he may be interrogated and detained at the
border itself, pending decision by the administrative authorities regarding his plea for
refuge/asylum. The refugee may be lodged in the local district jail and proceedings may be
initiated for violation of the relevant provision of the Foreigners Act 1946, the Registration of
Foreigners Act 1939 and the Passport Act 196780.
Also compounding the legal process is the applicability of penal provisions under the
Indian Penal Code, when some refugees may have misled the authorities by producing
fraudulent travel documents. The refugee may be charged for cheating the
Boarder/Immigration authorities for forging and using as genuine a forged document. 81
Refugees may enter without any travel documents. In such cases the offence amounts to
violation of the relevant provisions of the Foreigners Act, 1946, 82 the Registration of
Foreigners Act, 1939 and the Passport Act, 1967 and can be legally dealt with in a simpler
manner as compared to violations of the penal provisions of law.
It may also happen that a refugee may be incarcerated in illegal detention, i.e., without
registration of a formal case. Such a situation may arise when the refugee has come from or is
suspected to have come from a country, which does not share satisfactory relation with India.
In that case, the refugee maybe suspected to be a spy or a terrorist/militant entering our
borders with intent to cause harm to the stability and integrity of India.
In cases where the refugee lands at established seaports and airports on Indian Territory,
without valid travel documents, once detected, the Immigration officers manning the
concerned ports immediately detain him. The refugee may be deported forthwith, if there is
no other charge pending against him, except the offence of illegal entry. However, in case
80
Under S. 6,7,14 of the Foreigners Act, 1946.
81
S. 415 to 420, 463 to 465, 468, 470, 471, 474, 477 of the Indian Penal Code.
82
Under S. 6,7,14 of the Foreigners Act, 1946.
56
where there is any accompanying penal offence like forgery83. A case may be registered
against the refugee at the local police station, and the refugee may be formally arrested and
lodged in the local prison/detention cell pending trial.
In cases where refugees initially enter India with valid travel documents, or in cases where
discrepancies, if any, in the travel documents are undetected by the Border
Control/Immigration authorities, the refugee may be arrested on expiry of the said documents
or earlier, when the said discrepancy is detected by the Police. Sometimes, refugees do not
obtain renewal of their visas/residential permit from the local Foreigners Regional
Registration Office (FRRO). In such cases random checks are routinely conducted by the
local police, amongst foreigners including refugees, and those who do not comply with the
mandatory requirement of renewal/obtaining residence permits etc. are arrested.
5.3 ADMINISTRATIVE POLICIES AND DIRECTIONS
The administration includes the Ministry of Home Affairs, Ministry of External Affairs and
other related Departments of the Government of India at the Central and State levels.
Due to the lack of specific refugee related legislation, the said administrative flats (vide S. 3-
3A of the Foreigners Act 1946) determine the course of action to be adopted by the
authorities with regard to specific refugee groups. Often, policies of the Central Government
are not communicated. They may be orally communicated to the States and other authorities,
in cases where the Government may not want to commit itself. This practice often creates
confusion and proves to be an impediment in pinning down responsibility and in the
implementation of the said policies/orders.
In routine matters, the Centre communicates its policies to the Home Ministry in the States,
which in turn communicate the same to the concerned Departments. There may often be lack
of communication between the Departments and concerned Ministries resulting in severe
delay in decisions on refugees who may be languishing in prison all the while.
5.4 THE COURTS
83
For instance, using as genuine a forged document and cheating the immigration authorities, which is
punishable under the Indian Penal Code, see supra, note. 39.
57
We only have the 2009 Refugee and Asylum (Protection) Bill, the definitive law on refugees
is not available in India, but the main law supporting it is the Foreigners Act of 1946, which
further persecutes refugees on the basis of Alien and refugee differences.
Refugees in India are considered under the term alien. The term is found in the Indian
Constitution (section 22), section 83 of the Indian Civil Procedure Code, section 3 (2) (b) of
the Indian Citizenship Act 1955, and some other statutes. Most actions cause further
problems for refugees. The Foreigners Act, 1946 empowers authorities to arrest or detain
suspects for non-compliance with any aliens. Current laws in India are insufficient to protect
refugees and the protection of refugees requires a very large law. According to the doctrine of
non-repatriation, no country can deport, expel, or forcibly return to its original territory if
there is a legitimate threat to its life, liberty and independence.
The judiciary plays an important role in protecting refugees, and many cases have made
important judgments on refugees. The Department of Justice has simplified the concepts of
social action litigation and public interest litigation.
In Digbijay Mote v. Union of India, an NGO was running a school for the Sri Lankan
refugees, When PIL was made when the condition to run the school was difficult, Ministry of
Women and Social Welfare provided financial assistance to the school. 84 In Majid Ahmed
Abdul Majid Mohd Jad Al Hak v. Union of India, basic amenities like food and medicines
must be provided to the refugees who are in detention.85
Non-Refoulment and Right to refugee Status: Malvika Karelkar v. Union of India The Right
to Refusal and Refugees. In the Indian Union, the deportation order against 21 Burmese
refugees was suspended by the SC and allowed them to obtain refugee status under the
UNHCR86.
If a refugee is caught in violation of any law of the land, he should be prosecuted for such
violation. Initially, once arrested, the refugee may not be able to report his or her arrest to the
outside world. This is primarily due to the inability of refugees to establish external contacts
in an unfamiliar country. Once he receives his bearings with the help of prison and prison
officials, the refugee can contact some NGO, High Commissioner for Refugees of the United
84
Digbijay Mote v. Union of India, 1993 (4) SCC 175
85
Digbijay Mote v. Union of India, Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97
86
Malvika Karelkar v. Union of India, Writ Petition (Crim) No.583 of 1992.
58
Nations, or some friends and fellow refugees, who can then seek legislation to help secure his
release. The cases of Benjamin Tang Neng & Shah Ghazai are examples87 of this situation.
It can be assumed that the strategy for release will naturally be bail. It should be noted,
however, that a refugee is not a local person in the area where he was arrested. Therefore, it is
not possible for any person to make a local "bail" for him and to ensure that he is present in
court at every date of trial. Therefore, if the trial court does not agree to grant personal bail to
the refugee and or pay the bail amount, the release may be elusive88.
The court may also insist on the regular attendance of the refugee at the concerned police
station in order to be doubly assured that the concerned refugee may not become untraceable.
Directions to the effect, including appearance in court on subsequent dates of hearing, shall
be binding on the refugee; any lapse in such directives can amount to cancellation of bail and
issuance of warrants of arrest. Even then if the refugee is untraceable, he may be formally
declared a “proclaimed offender” and all the concerned police stations shall be intimated of
his disappearance. Subsequent arrest may invite a severe penalty. In the alternative, instead of
seeking bail for the refugee, if the charge sheet has been presented by the prosecution in
court, the refugee may be advised to plead guilty directly and seek release on payment of a
fine along with imprisonment to be set off with the imprisonment already undergone. The
alternative of pleading guilty may be resorted to even if bail has been sought. The same
coupled with cogent arguments in favour of the refugee has usually had the effect of
awarding a lenient sentence and a nominal fine.
Invariably, the attitude of the lower courts in refugee cases has been that of complete lack of
knowledge of the concept of refugee-hood, refugee related laws etc. Hence a detailed
explanation of the same results in generating sympathy towards the refugee himself coupled
with an attempt by the court to find a way out for the refugee from his presence predicament.
This altered and aware attitude gives rise to the use of the limited discretionary power with
the lower court judge in imposing a minimum fine and conviction to the already thwarted
refugee.
On the other hand, the divergent view by other lower courts may be that of strict technicality
whereby, the court may be of the opinion that deportation of the refugee on completion of the
87
Supra note 32 & 33
88
Supra note. 25
59
sentence is mandatory. In such situations, the matter may be taken up with the administrative
authorities or in the alternative the order may be appealed to a higher court.
The High Courts of various States in India have liberally adopted the rules of natural justice
to refugee issues, along with recognition of the UNHCR as playing an important role in the
protection of refugees. The High Court of Guwahati has in various judgements recognised the
refugee issue and permitted refugees to approach the UNHCR for determination of their
refugee status, while staying the deportation orders issued by the lower court or the
administration, in cases where the refugee has been arrested for violations of the Foreigners
Act.
In Gurunathan and other v. Government of India and A.C. Mohd. Siddique v. Government of
India and others89, the High Court of Madras has expressed its unwillingness to let any Sri
Lankan refugees to be forced to return to Sri Lanka against their will.
In another far reaching judgement, in the case of P. Nedumaran v. Union of India 90 before
the High Court of Madras, where Sri Lankan refugees had prayed for a Writ of Mandamus
directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check
the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees
who did not want to return to continue to stay in the camps in India. The Court was pleased to
hold that since UNHCR was involved in ascertaining the voluntariness of the refugee return
to Sri Lanka, and being a world agency, it is not for the Court to consider whether the consent
is voluntary or not. Further, the Court acknowledged the competence and impartiality of the
representatives of UNHCR.
The Bombay High Court in Syed Ata Mohammadi v. Union of India 91 was pleased to direct
that there is no question of deporting the Iranian refugee to Iran, since he has been recognised
as a refugee by the UNHCR. The Court further permitted the refugee to travel to whichever
country he wishes.
The Supreme Court of India has in a number of cases stayed deportation of refugees, e.g. In
the Maiwand’s Trust of Afghan Human Freedom v. State of Punjab,92 N.D. Pancholi v. State
89
Madras High Court, Writ Petition No. 6708 & 7916/1992.
90
Madras High Court, W.M.P. Nos. 17372, 17424, 18086/1992 in Writ Petition Nos. 12298 & 12343/1992.
91
Bombay High Court. Criminal writ Petition No. 7504/1994.
92
Supreme Court of India, Writ Petition (Criminal) 123 & 126/1986.
60
of Punjab & Others.93 In Dr. Malavika Karlekar v. Union of India,94, the Supreme Court was
pleased to direct stay of deportation of the Andaman Island Burmese refugees, since their
claim for refugee status was pending determination and a prima facie case is made out for
grant of refugee status.
The Supreme Court has consistently held the Fundamental Right enshrined under Article 21
of the Indian Constitution regarding the right to life and personal liberty applies to all,
irrespective of the fact whether they are citizens of India or aliens. Reference may be made to
the Supreme Court judgement in the Chakma refugee case. 95 Earlier, the judgements of the
Supreme Court in the matters of Louis De Raedt v. Union of India96 & State of Arunachal
Pradesh v. Khudirani Chakma97 had stressed the same point.
Hence, the stand taken by the Indian judiciary has over all been encouraging, despite
the fact that there is no existing statute relating to refugees. The precedents set down by the
High Courts and the Supreme Court are in the process of paving the path for refugee related
legislation.
5.5 LEGAL FRAMEWORK FOR REFUGEE PROTECTION IN INDIA
India is not a state party to the 1951 Convention or the 1967 Protocol on the Status of
Refugees. However, it has agreed to other international instruments applicable to the rights of
refugees. In April 1979, India ratified the 1966 International Covenant on Civil and Political
Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. Article
13 of the former instrument relates to the expulsion of a person legally present in the territory
of the State. Under this article, India reserves the right to enforce municipal law on
foreigners. In December 1992, India agreed to the Convention on the Rights of the Child in
1989, which referred to Article 22 of Refugee Children and Refugee Family Reunification 98.
The Convention on the Elimination of All Forms of Racial Discrimination was ratified in
1963 and the Convention on the Elimination of All Forms of Discrimination against Women
in 1979.
93
Supreme Court of India, Writ Petition (Criminal) 243/1988
94
Supreme Court of India, Writ Petition (Criminal) 583/1992.
95
Writ Petition (Civil) No. 720/95 before the Hon’ble Supreme Court of India, 1996 (1), SCC 293.
96
(1991) 3 SCC 554.
97
(1994) (1) SCC Supp. 615.
98
Article 10 dealing peneraJJy with famiJy reunification and Art:cJe 38 JeaJing with children in situations of
armed conflict are also relevant.
61
Inappropriate international human rights instruments include the 1948 UDHR, whose Article
14 (i) states, "Everyone has the right to seek and seek asylum in other countries seeking
refuge from persecution." The Non-Restructuring Policy incorporated in the Asian-African
Legal Advisory Council's 1966 Refugee Treatment Principles ("Bangkok Principles"), in
particular, includes the non-refusal of the frontier. The Declaration and Action Plan of the
1993 Vienna World Convention on Human Rights included a specific section on refugees,
which reaffirmed each individual's right to seek asylum and enjoyment and the right to return
to one's home country99.
Unless these provisions are incorporated by law into municipal law, Indian courts are not
empowered to enforce the provisions of the above international human rights instruments and
in the Indian context this process is often overlooked in the above agreements. Parliament has
no obligation to enact legislation100 to enforce an agreement, and in the absence of such law,
the judiciary is not entitled to comply with the contractual obligation of the executive.
Therefore, while each state has a duty to comply with the obligations arising
out of international law, states cannot offer acts or omissions on the part of their legislative or
executive101 elements as an excuse for failing to comply with the above obligations. If a state
fails to comply with its municipal law in accordance with its international obligations 102,
international law does not provide such conflicting municipal law as null and void103.
Various court rulings have sought to provide humanitarian solutions to refugee problems in
the absence of a stable legislative body, primarily with regard to the principles of non-
refoulment, the right to asylum and voluntary repatriation. The courts, however, have reached
their conclusions without entering into a debate on international refugee law104.
99
Vienna Declaration and Programme of Action, A/CONF. 157/CONF. 157/23 of 12 July 1993 at p. 8.
100
The well-established position that “the making of a treaty is an executive act, while the performance of its
obligations, if they entail alteration of the existing domestic law, requires legislative action.” Was stated in the
Privy Council case of Attorney General for Canada v. Attorney-General for Ontario (1937) AC 326. This
position still holds: see for example, State of Gujarat v. Vora Fiddali A.1.R. 1964, SC 1043.
101
P. Chandrasekhara Rao, the Indian Constitution and international Law, Taxman, 1993, 130, also see: S.R.C.
L v. Union of India, A.I.R. Kant. 85.
102
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949,
p.174, at page 180: also: Article 13 of the Draft Declaration on the Rights and Duties of States, adopted by the
International Law Commission in 1949; Articles 27 and 46 of the Vienna Convention on the Law of Treaties,
1969.
103
Supra note 53, p. 18.
104
B.S. Chimni, Legal Condition of Refugees in India, Journal of Refugee Studies, vol. 7, No. 4 1994, pp. 378-
401, p. 380.
62
However, it is worth noting that courts may take into account certain circumstances of the
previously mentioned contract terms. Article 37 of the Constitution of India provides that the
guiding principles of State policy in Part IV are fundamental to the administration of the
country and that it is the duty of the State to adopt these principles in making laws.
Section 5 (c) of the Fourth Amendment provides that the State shall seek to respect
international law and treaty obligations105. Thus, although Indian courts are not free to make
law, they follow the principle of incentives rather than to interfere with the aspirations of the
Fourth Part of the Constitution106.
There are non-refugee laws in India, so refugees are not classified and treated differently
from other foreigners. Appropriate Indian Laws for Refugees: Foreigners Act, 1946 (Sections
3, 3A, 7, 14); Foreigners Registration Act, 1939 (section 3,6); Passport (Entry into India) Act,
1920; Passport Act, 1967; Union Legislation, 1962. The Union Legislature 107 has jurisdiction
over issues relating to citizenship, naturalization and aliens.
The arrival of refugees, however, is handled by administrative decisions rather

than legislative requirements. This administrative discretion is used within the framework of
the 1946 Foreigners Act, and stems from a series of administrative orders passed under the
authority of Article 3 of the Act 108 on the basis of refugee policy in the country. It is worth
noting that the impact of administrative policy on judicial decisions is negligible and that
progress on one side is very independent of the progress of the other.
Thus, in India, the refugees get positive rights, the Constitution of India under all the aliens
apply to: before the law and equality rights (section 14), lives to protect the law of free access
and personal freedom by law established procedure (Article 21), their own religion and
follow the campaign, Click on freedom (Article 25). In fact, any law or administrative action
that violates these rights is null and void and can be declared by the courts (Article 13 read
with Articles 32 and 226).
105
For a compilation of Supreme Court judgements that refer to international instruments. Fali S. Nariman,
“Economic, Social and Cultural Rights and the Role of Lawyers”, The Review, International Commission of
Jurists, Dec. 1995, no. 55, pp. 141-151, p. 145
106
Supra note 65 at page 125; also. Delhi Transport Corporation v. D.T.C. Mazdoor Congress
A.I.R. 1991 SC 101, Central Inland Water Transport Corp. Ltd v. Brojo Nath, A.I.R. 1986, SC. 1571.
107
Item 17 of the Union List (Schedule Seven appended to Article 246).
108
Section 3 provides the power to make orders and is drafted very broadly — “The Central government may by
order make provision, either generally or with respect to all foreigners, or with respect to any particular
foreigner or any prescribed class or description of foreigner, for prohibiting, regulating, or restricting the entry
of foreigners into India or their departure there form of their presence or continued presence therein”.
63
CHAPTER:6
CONCLUSION AND SUGGESTION
6.1 CONCLUSION
Every person has the right to live a dignified and peaceful life; No person should be unstable.
It is the duty of every nation to ensure the rights of every individual around the world. In the
case of refugees, in all cases the above rights are not guaranteed to them. India, though not a
member of the 1951 Refugee Convention, is an ardent supporter of refugees seeking India's
help, but recognizing refugees under the definition of "aliens" and "aliens" can sometimes
lead to absurdities. While there are some reasons to justify not making municipal law on
refugees in India, there are some instances where refugees are denied their rights as discussed
in this study.
64
Moreover, the current rules governing refugees in India include political domination in
determining refugee settlement activities
In the whole world, despite many traditions and laws governing refugees, refugees
still face problems. When there is no refugee law in a large country like India, we can
understand that many countries have one face and one boat. If the UNHCR and the NHRC
work together, there will be further growth in the refugee legal field. Whenever the UNHCR
tries to do something about refugees, India needs to set a law.
Although refugees are protected under various articles of the Constitution, there must be a
uniform law that provides equal rights to all refugees. India continues to take a humanitarian
view of the refugee issue.
Considering the security issues that India did not sign up to the 1951 Convention, it should
give proper consideration. It is important to note that the Refugee Act is not misused and
abused by people who seek opportunities. Many judgments in India support refugees. India
has done a good job with regard to refugees, but there is much more to be done. Many
refugees living in India are getting support, but India is planning to deport them. In the past,
the NHRC has submitted a report for the purposes of the Refugee Act, but has not received an
answer. If UNHCR and NHRC do it together, there may be an answer.
The Refugee Convention and its Protocol of 1951 and 1967 were conventions
that received universal response with many countries signing the Convention. They look at
most of the causes of refugees and tell us the rights and other arrangements that should be
given to them. As a whole, India needs refugee law to manage refugees entering India in
relation to refugees, and in the future, there may be many more issues for various reasons.
India continues its humanitarian outlook on the issue of refugees, despite its own security
concerns, especially over the past two decades, and the pressure of the population and the
economic factors of the aides. Although the country has not enacted a special legislation to
manage refugees, it has not proven to be a serious handicap in satisfying the massive refugee
problems around the country.
The spirit and contents of the UN and international conferences on this matter are greatly
respected through executive and judicial intervention. Through this, the country has created a
practical balance between humanitarian and humanitarian obligations on the one hand and
security and national interest on the other. It is in balancing these interests that, at times, seem
to compete with each other, and the security and law enforcement agencies face daily
65
challenges. If a separate Number of Refugees Act is enacted for the country, this aspect needs
to be given due attention. It is important that the security and enforcement authorities do not
heed the inherent, especially post-legal, and fundamental human aspects of the refugee
situation.
This article therefore highlights the need for a specific municipal law to govern refugee rules
with well-defined definitions and to reduce the involvement of politics.
6.2 SUGGESTIONS
There have been endless debates and discussions over which is better- passing a domestic
legislation or framing a refugee convention specifically for India. According to the researcher
both should peacefully co-exist so that in case there is lacuna in domestic law, it is covered in
the Asian Convention and vice versa.
NEED FOR A DOMESTIC LAW

India has no unique law for refugees, but it is very necessary to consider the latest issues and
many issues that may come up in the future. Until a law is drafted, India will continue to hold
refugees depending on their country and political views. The NHRC has submitted several
reports on the need for a law for refugee-based India, but they have no response. A law is
needed to ensure that all refugees are treated equally and proper arrangements are made for
them during times of crisis.
Domestic migration provisions must also be in place. All actions that affect the most
vulnerable of refugees must be replaced with this new law, which will facilitate the procedure
for granting refugee status. This will help to end discrimination against refugees in India and
in every possible way for the development of refugees.
 A domestic law is needed in India to ensure that all refugees are given basic
protection. Without that, refugee rights are not right in the real sense, they are simply
privilege at the hands of the administration.
 A domestic law should also define refugees to include “internally displaced people”
due to natural calamities, terrorist activities. For instance, the Kashmiris were forced
to flee Kashmir due to the militant activities.
66
 Housing and employment can be ensured to refugees so that they can become self-
reliant.
 A number of civil society organizations should work in collaboration with the Govt.
under this act to improve their living conditions.
 To use as far as possible medical and other relevant expert evidence from
professionals specially trained in the field of torture and other traumatic experience
 A domestic legislation will overrule all the existing acts like the Passport act and the
foreigner act and will reduce the suffering of refugees by specifically dealing with
their problems.
 A domestic legislation will make the procedure of granting refugee status simple, fair
and transparent. It will also call for greater accountability and checks on the power of
the officials.
 To affirm the humanitarian nature of the granting of refugee status and to avoid
politicising the issues.
 It will abolish discrimination which currently exists among refugees of different

nationalities.
 Non-refoulement must be made a non-derogable human right of the refugees in the
domestic legal system
 Special provisions guaranteeing protection to women and children should be made
because in the Indian society, crimes against women (rape) and children (child
trafficking) is at its peak. This will also be in consonance with India’s obligations
under CEDAW and UNCRC.
NEED FOR A SOUTH ASIAN REFUGEE CONVENTION
 India is a superpower in Asia, so it has a tendency to “dominate” over other nations.

In such a case drafting a South Asian Refugee convention will be of great
significance to ensure refugee protection.
 The convention can be drafted by experts from all countries highlighting their
specific issues relating to the refugees based on the understanding of each nation. In
this way, the convention will reflect the background of every country.
 The definition of refugee should be broadened to incorporate people displaced due to
of environmental disasters, socially ostracized because of admitting openly of a
67
different sexual orientation and people fleeing because of threat caused by crimes
against women and children. This can ensure that there is no western intervention in
case of dealing with refugees and at the same time, maximum protection can be
given.
 The convention will book the violators of refugee rights for crimes against humanity.
It can also formulate a regional tribunal to handle cases of refugees- their rights,
duties, trials and repatriation.
 This will reduce tension between neighbouring countries and improve diplomatic
relations. It can be worded as, “providing refuge is a humanitarian act and shall
not be interpreted as infringement to the Sovereignty of the nation”. It may also
state that the Convention will not hold any state guilty as its only purpose is
providing safe refuge to the people seeking it.
 When both the Convention and the municipal law are in order, there is no scope for
deviation. It will be able to address all the problems and issues associated with
refugees in the most efficient manner.
There will be lesser arbitrariness in procedures and still if some official tries to
deviate from his duty to give protection to the refugees, he will be held liable. It is
high time that we have a definite refugee mechanism here because refugees will
never stop coming to India for the reasons discussed above.
BIBLIOGRAPHY
STATUTORY MATERIAL:
1. Additional Protocol Relating to the Status of Refugees of 31 January 1967.

2. Cartagena Declaration on Refugees, 1984.
3. Cohen, R. 'Protecting the internally displaced, in World Refugee Survey 1996, United
States Committee for Refugees, Washington DC, 1996.
4. Commentaries on the Displaced Persons (Compensation and Rehabilitation) Act, No.
44 of 1954
68
5. Holborn, Louise W 1965a The Cuban Refugee Problem. Report prepared for the U.S.
Department of Health, Education and Welfare, Cuban Refugee Program, Unpublished
manuscript.
6. Impact of Armed Conflict on Children, Report of Graca Machel, expert of the
Secretary- General of the United Nations, UNICEF, 1996.
7. Indian Emigration Act, 1922.
8. Model National Refugee Law.
9. Statue of the Office of the United Nations High Commissioner for Refugees 1950.
10. The Defence of India Rules 1939 (made under the Defence of India Act 1939)
11. The Displaced Persons (Claims) Act, 1950, Delhi: National Archives of India.
12. The Extradition Act 1870.
13. The Foreigners Act, 1946.
14. The Indian Passport Act, 1920.
15. The Registration of Foreigners Act, 1939..
16. UN Convention on Civil and Political Rights, 1966; UN Convention on Punishment
for Crime of Genocide, 1948; UN Convention on Rights of Child, 1989; UN
Convention on Social, Economic & Cultural Rights, 1966; UN Convention on the
Elimination of All Forms of Discrimination Against Women.
17. UN Convention Relating to the Status of Refugees 1951.
18. UNHCR Manual, Geneva, UNHCR, 2000.
19. UNHCR Policy on Refugee Women, Geneva: UNHCR, 1990
20. Universal Declaration of Human Rights, 1948.
BOOKS:
1. Paras Diwan and Payush Diwan, Human Rights and the Law, Deep and Deep
Publications.
2. Bose, Tapan K., Protection of Refugees in South Asia: Need for Legal Framework,
Katlimandu: South Asia Forum for Human Rights, 2002.
3. G.J.L. Coles, Human Rights and Refugee Law, Staff Member, UNHCR.
4. B.S. Chimni (Ed.), “International Refugee Law: A Reader”, New Delhi, Sage
Publications, 2000.
5. Guy S. Goodwin-Gill, “The Refugee in International Law”, Oxford, Clarendon Press.
1983.
69
6. Kees Wouters, “International Legal Standards for the Protection from Refoulement”,
Intersentia, Mortsel, 2009.
7. J. C. Hathaway, “The Rights of Refugees under International Law”, Cambridge
University Press, 2005.
8. Rathin Bandopadhyay, “Human Rights of the Non-citizens: Law and Reality”, Deep
and Deep Publications Pvt. Ltd. 2007
9. Grahl Madsen A, The Status of Refugees in International Law, Leyden, the
Netherlands, Sijthoff, 1966.
10. Muni S.D., and Lok Raj Baral (eds.)., Refugees and Regional Security in South Asia,
New Delhi: Konark, 1996.
11. Patil V.T. and Trivedi P.R., Refugees and Human Rights, New Delhi.
12. Sanjoy K. Roy (ed.), Refugee and Human Rights, Jaipur: Rawat, 2001
13. Dr. S.K. Kapoor, International Law and Human Rights, 2014, Central Law Agency.
ARTICLES:
1. Jessica Rodger, “Defining the Parameters of the Non-refoulement Principle”, LLM

Research Paper, International Law (Laws 509)
2. Ruma Mandal, “Protection Mechanisms Outside the 1951 Convention
(“Complementary Protection”), Legal and Protection Policy Research Series,
Department of International Protection, UNHCR, PPLA/2005/02, June 2005
3. Guy S. Goodwin-Gill, “The Principle of Non-Refoulement'. Its Standing and Scope in
International Law”, A Study prepared for the Division of International Protection
Office of the United Nations High Commissioner for Refugees, International Journal
of Refugee Law, 1993
4. Omar N. Chaudhary, “Turning Back an Assessment of Non-Refoulement Under
Indian Law”, Economic and Political Weekly, Vol. 39, July 17, 2004.
5. Vijay Padmanabhan, “To Transfer or Not to Transfer: Identifying and Protecting
Human Rights Interests in Non- Refoulement”, Fordham Law Review, Vol.80, Issue
1, 2011.
6. Tor Krever, “Mopping-up”: UNHCR, Neutrality and Non-Refoulement since the Cold
War”, Chinese Journal of International Law, 2011.
70
7. Pilar Villanueva Sainz-Prado, “The Contemporary Relevance of the 1951 Convention
Relating to the Status of Refugees”, International Journal of Human Rights, Vol.6,
No. 2 (Summer 2002).
8. Hossain Kamal, 'Refugees and Human Rights: A South Asian Perspective', TIxe State
of World's Refugees 1997-98, Geneva: UNHCR, 1998.
9. Krishna Iyer, Justice V.R., 'The Legal Saga for Refugees and Humanitarian Odyssey',
Bulletin on IHL and Refugee Law, Vol. 2, No. 2 (A), at p. 313.
JOURNALS:
1. Alex Cuntiffe, ‘The Refugee Crisis: A Study Of The United Nations High
Commission For Refugees’, Political Studies, 1995, (XLDI).
2. Arthur C. Helton, ‘Displacement and Human Rights’, Journal of International Affairs,
Vol. 47, No. 2, Winter, 1994.
3. Batchelor C., ‘Stateless Persons: Some Gaps in International Protection’, International
Journal of Refugee Law, vol. 49, no. 1, 1995.
4. G.J.L. Coles, ‘Human Rights and Refugee Law’, Staff Member, UNHRC.
5. G.S.Goodwin-Gill, ‘The Refugee in International Law’, 1983, p.97.
6. Hyndman P., ‘Refugees under International Law with A Reference To The Concept
Of Asylum’, 60 Australian Law Journal, 1986,148.
7. Smith Peter M., ‘International Humanitarn Assistance for Refugees: Law and
Practice’, Indian Journal of International Law. No. 3 & 4, Vol. 25, July/Dec. 1985.
8. Weis, P., 'The Office of The United Nations High Commissioner for Refugees And
Human Rights', I, Human Rights Journal, 1968, pp. 243,249.
WEBSITES:
1. www.ijrcentre.org/refugee-law
2. www.ohchr.org
3. www.hrea.org
4. http://hrlibrary.umn.edu/
5. www.supremecourtonline.com
6. www.google.com
7. http://www.ili.ac.in/oad.htm
8. www.legalserviseindia.com
71
9. https://www.livemint.com/
10. https://www.indiatoday.in/
11. www.manupatra.com
12. https://www.unhcr.org/3b66c2aa10
13. https://indianexpress.com/
14. http://westlaw.com/
15. http://hrlibrary.umn.edu/
16. http://scholar.google.com/
17. https://www.unhcr.org/1951-refugee-convention.html
18. https://www.unhcr.org/
72

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A

PROTECTION OF RIGHTS OF REFUGEES IN

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

Place Signature of the student

Date: 20.05.2020 SURBHI

Date: 20.05.2020 SARVESH SHARMA

I record my thanks to esteemed …………………, for inculcating the concept of preparing

I record my thanks to my family for their help and encouragement in my work.

1. Gurunathan and others vs. Government of India

2. A.C. Mohd.Siddique vs. Government of India and others

3. P. Nedumaran vs. Union of India

4. Syed Ata Mohammadi vs. Union of India

5. Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab

6. N.D.Pancholi vs. State of Punjab & Others

7. Malavika Karlekar vs. Union of India

8. Luis De Raedt vs. Union of India

9. State of Arunachal Pradesh vs. Khudiram Chakma

10.Digbijay Mote v. Union of India

11.Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India

Chapter 1: Introduction ………………………………………………………...……...1-12

Chapter 2: Refugee and their rights ……………………………………………...…. 13-31

Chapter 3: India’s Refugee saga from 1947 to 2019……………………………….…32-40

Chapter 4: Indian practice regarding Refugee protection…………………………….…….41-53

Chapter 5: Judicial Responses towards the Protection of Refugees………………..54-63

Chapter 6: Suggestion and Conclusion……………………………………………….64-67

In response to this challenge the international community has developed a complex

1.3 RESEARCH QUESTION

1.4 RESEARCH METHODOLOGY

JC Hathaway, "Refugees' Rights Under International Law", Cambridge University Press,

Guy S. Goodwin-Gill, "Refugees in International Law", Oxford, Clarendon Press, 1983.

Omar N. Chaudhary, "Returning Non-refundable Assessment under Indian Law", Economic

Pilar Villanueva Sainz-Prado, "Contemporary Relevance of the 1951 Conference on the

1.7 CHAPTERISATION/ PRESENTATION OF STUDY

1.8 HISTORY OF REFUGEES

1.8.1 History of Refugees in the World

1.8.2 History of Refugees in India

1.9 MAJOR REFUGEE GROUPS

REFUGEES AND THEIR RIGHTS

Although the definition of the Refugee Convention is used by international organizations

Nationalism involves a person's citizenship. Persecution of ethnic, linguistic and cultural

2.2 DEFINATION OF REFUGEE

As Sir John Hope Simpson defined:

The 1951 Refugee Convention

African Unity Organization (OAU)

The OAU Convention on the Management of Specific Aspects of Refugee Problems in

“Due to external occupation, occupation, foreign domination or events, any person is

Declaration of Cartagena, 1984

In 1984, a proclamation of Latin American government representatives and distinguished

(A) he leaves a nation, or a country of his nationality, a state or country in which he is a

Here are two explanations for the article supra state:

i) Refugees are treated as refugees; and

ii) The expression 'leaves' includes voluntary and involuntary discharge.

2.3 THE RIGHTS OF REFUGEES UNDER INTERNATIONA LAW

Refugees are, in some cases, entitled to favourable treatment, assistance

2.3.1 The Rights of Refugees under the 1951 Convention

• Religion Free use of religion and religious education14

• Free access to courts, including legal aid15

• Access to Elementary Education16

• Relief Access to public relief and assistance17