NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

7TH TRIMESTER

HUMAN RIGHTS

PROJECT ON:

THE RIGHTS OF REFUGEES AND THEIR SITUATION IN

INDIA

SUBMITTED TO:
DR. UDAY PRATAP SINGH
ASSOCIATE PROFESSOR

SUBMITTED BY:
SAMAR SINGH
2016 BA LL.B (Hons.) 60

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 TABLE OF CONTENTS:

1. Introduction………………………………………………………………………….3

2. Rights at Stake……………………………………………………………………….6

3. Key agencies for Protection of Human Rights……………………………………....8

4. Refugee scene in India and according Refugee status……………………………….9

5. Refugees in India……………………………………………………………………12

6. International Commitments by India………………………………………………..18

7. Constitutional Provisions…………………………………………………………….19

8. Conclusion…………………………………………………………………………...21

9. Bibliography…………………………………………………………………………22

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INTRODUCTION:

The notion of human rights builds on the idea of a shared humanity and is closely related to
theories of democracy and liberalism. Since the horrors of the Second World War, the
phenomenon of international protection of human rights has gained momentum.

The 1945 Charter of the United Nations, followed by the Universal Declaration of Human Rights
in 1948, ushered a new era of international commitment to human freedom. Human Rights today
has become a global agenda. The 20th century’s advances in human rights and human
development were unprecedented but there is a long unfinished agenda before the world. The
military, political, religious and social conflicts have brought in their wake a huge number of
displaced persons including millions of refugees in search of new homes. Today, there are about
20 million refugees the world over. The refugee population in South Asia itself constitutes
roughly 12% of the world’s total refugees.

The definition of a refugee has varied according to time and place, but increased international
concern for the plight of refugees has lead to a general consensus. As defined in the 1951 United
Nations Convention Relating to the Status of Refugees (the Refugee Convention),
A refugee is defined as a person who owing to well founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and unable or unwilling to avail the protection of his
country.

While the definition in the Refugee Convention has been used by international organizations
such as the United Nations, the term continues to be misunderstood and is often used
inconsistently in our language.

The reasons for persecution must be because of one of the five grounds listed in article 1 A(2) of
the Refugee Convention: race, religion, nationality, membership of a particular social group or
political opinion. Persecution based on any other ground will not be considered.

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Race is used in the broadest sense and includes ethnic groups and social groups of common
descent.

Religion also has a broad meaning, including identification with a group that tends to share
common traditions or beliefs, as well as the active practice of religion.

Nationality includes an individual’s citizenship. Persecution of ethnic, linguistic and cultural

groups within a population also may be termed persecution based on nationality.

A particular social group refers to people who share a similar background, habits or social
status. This category often overlaps with persecution based on one of the other four grounds. It
has applied to families of capitalists, landowners, homosexuals, entrepreneurs and former
members of the military.

Political opinion refers to ideas not tolerated by the authorities, including opinions critical of
government policies and methods. It includes opinions attributed to individuals (i.e., the
authorities think a person has a certain political opinion) even if the individual does not in fact
hold that opinion. Individuals who conceal their political opinions until after they have fled their
countries may qualify for refugee status if they can show that their views are likely to subject
them to persecution if they return home.

Definitions come into play when countries and organizations attempt to determine who is and
who is not a refugee. Asylum seekers that is, those who are seeking refugee status in another
country normally need to establish individually that their fear of persecution is well-founded and
undergo a legal procedure in which the host country decides if she or he qualifies for refugee
status. However, during a mass exodus, it may not be possible for a host country to carry out
individual screening. In such circumstances, particularly when civilians are fleeing for similar
reasons, a 'group' determination of refugee status may be declared, whereby each civilian is
considered a refugee, in the absence of evidence to the contrary.

No person becomes a refugee of his own volition. Thus, a refugee is different from an economic
migrant; the latter seeks to improve his livelihood, a refugee to save his life. Another group
known as internally displaced persons (IDP’s) share many characteristics with refugees who

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cross international borders, are not eligible for protection under international refugee law or
entitled to legal guarantees and material assistance offered by the United Nations High
Commission for Refugees (UNHCR).

International law recognizes the right to seek asylum, but does not oblige states to provide it.
Nations at times offer 'temporary protection' when they face a sudden mass influx of people and
their regular asylum systems would be overwhelmed. In such circumstances people can be
speedily admitted to safe countries, but without any guarantee of permanent asylum. Thus
'temporary protection' is helpful to both governments and asylum seekers in specific
circumstances. Yet it only complements and does not substitute for the wider protection
measures offered by the Refugee Convention.

Refugee protection and assistance organizations generally promote three "durable solutions" to
the fate of refugees:

 Voluntary repatriation : refugees are able to return to their home country because their
lives and liberty are no longer threatened;
 Local integration: host governments allow refugees to integrate into the country of first
asylum; and

 Resettlement in a third country: repatriation is unsafe and the first-asylum country refuses
local integration.

Most of the world's refugees wait for durable solutions for their predicament. While most have
been granted provisional or temporary asylum in neighboring countries, they are not able to
regularize their status or integrate.  Their rights to move and work are often highly restricted, and
educational and recreational opportunities are often nonexistent or severely lacking. These
refugees may also be subject to attack, either by local security forces or by cross-border
incursions from the country of origin.

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RIGHTS AT STAKE:

Prohibition on the forced return of a refugee is called nonrefoulement and is one of the most
fundamental principles in international refugee law. This principle is laid out in Article 33 of the
Convention Relating to the Status of Refugees, which says that no state "shall expel or return a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom would
be threatened on account of his race, religion, nationality, membership of a particular social
group or political opinion."

Some countries detain asylum seekers upon arrival, during the asylum process or while waiting
for deportation (refoulement). Asylum seekers may have already suffered imprisonment and
torture in the country from which they have fled. Therefore, the consequences of detention may
be particularly serious, causing severe emotional and psychological stress. Article 31 of the
Refugee Convention says that refugees should not be penalized for having entered a country
illegally if they have come directly from a place where they were in danger and have made
themselves known to the authorities. Therefore, asylum seekers should not be detained for being
in possession of forged identity papers or for destroying identity or travel documents.

Articles 12 - 30 of the Refugee Convention set out the rights which individuals are entitled to
once they have been recognised as Convention refugees:

 All refugees must be granted identity papers and travel documents that allow them to
travel outside the country
 Refugees must receive the same treatment as nationals of the receiving country with
regard to the following rights:

 Free exercise of religion and religious education

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  Free access to the courts, including legal assistance

 Access to elementary education

 Access to public relief and assistance

 Protection provided by social security

 Protection of intellectual property, such as inventions and trade names

 Protection of literary, artistic and scientific work

 Equal treatment by taxing authorities

 Refugees must receive the most favourable treatment possible, which must be at least as
favourable to that accorded aliens generally in the same circumstances, with regard to the
following rights:

 The right to own property

 The right to practice a profession

 The right to self-employment

 Access to housing

 Access to higher education

 Refugees must receive the same treatment as that accorded to aliens generally with regard
to the following rights:

 The right to choose their place of residence

 The right to move freely within the country

  Free exercise of religion and religious education

 Free access to the courts, including legal assistance

 Access to elementary education

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  Access to public relief and assistance

 Protection provided by social security

 Protection of intellectual property, such as inventions and trade names

 Protection of literary, artistic and scientific work

 Equal treatment by taxing authorities

KEY AGENCIES FOR PROTECTION OF HUMAN RIGHTS:

United Nations High Commissioner for Refugees:

The United Nations High Commissioner for Refugees (UNHCR) was created in 1951 to assist in
the international protection of refugees. The organization’s primary objective is to ensure that all
persons can exercise the right to seek asylum and find safe refuge in another state, and to return
home voluntarily. One of the agency’s pressing tasks is to encourage governments to adopt fair
and flexible processes to promote just and effective refugee law. When UNHCR was first
established, material aspects of refugee relief (e.g., housing, food) were seen to be the
responsibility of the government that had granted asylum. As many of the world’s more recent
major refugee flows have occurred in less developed countries, however, UNHCR has acquired
the additional role of coordinating material assistance for refugees and returnees. Although this
was not UNHCR's original mandate, coordination of material assistance has become one of its

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principal functions alongside protection and the promotion of solutions. The International
Organization of Migration (IOM) assists with the return of rejected asylum seekers and refugees
referred by UNHCR.

International Committee of the Red Cross:

The International Committee of the Red Cross (ICRC) is an independent humanitarian

organization that acts as a neutral entity in assisting and protecting victims of war, from
providing medical care to victims to arranging exchanges of family messages. As members of
the civilian population, displaced persons benefit from ICRC protection and assistance activities
including the protection of civilians; visits to detainees; medical assistance; food aid; and
restoration of family links between persons separated by war. The ICRC does not have a general
mandate to provide protection and assistance to internally displaced persons. Over the years,
however, it has provided limited assistance to certain groups of internally displaced persons. The
ICRC is considered well placed to provide such help given its experience in humanitarian and
crisis situations. These operations have been carried out at the request of the UN Secretary-
General or the General Assembly, at the request of the country involved.

THE REFUGEE SCENE IN INDIA:

A brief look at the refugee scenario in India will help appreciate in the proper perspective, the
complexities of law enforcement in a variety of situations impinging upon the refugees. India has
been home to refugees for centuries. From the time when almost the entire Zorastrian community
took refuge in India fleeing from the persecution they were then subjected to on religious
grounds in Iran, India has, from time to time continued to receive a large number of refugees
from different countries, not necessarily from the neighbouring countries alone. The most
significant thing which deserves to be taken note of is that, there has not been a single occasion
of any refugee originating from the Indian soil except the transboundary movement of the people
during the partition of the country in 1947. On the other hand, it has invariably been a receiving
country and in the process, enlarging its multi-cultural and multi-ethnic fabric. In keeping with
its secular policies, India has been the home to refugees belonging to all religions and sects. It is

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relevant to point out that since its independence India has received refugees not only from some
of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan
and Uganda.

The South Asian sub-continent has often witnessed situations where refugees from one or the
other neighboring countries have crossed over to India. Considering the sensitivities of national
and regional politics in the sub-continent, the problem of refugees crossing over to India cannot
be totally disassociated from the overall security issues relevant locally. At the end of 2004,
India had well over 2,51,400 refugees, who do not include those from countries like Afghanistan,
Iran, Iraq, Somalia, Sudan and Uganda.

ACCORDING REFUGEE STATUS:

Even though India has been the home for a large number and variety of refugees throughout the
past, India has dealt with the issues of ‘refugees’ on a bilateral basis. India, as explained in the
earlier pages, has been observing a ‘refugee regime’ which generally conforms to the
international instruments on the subject without, however, giving a formal shape to the practices
adopted by it in the form of a separate statute. Refugees are no doubt ‘foreigners’. Even though
there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in
India is that they are dealt with under the existing Indian laws, both general and special, which
are otherwise applicable to all foreigners. This is because there is no separate law to deal with
‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis.
UNHCR often plays a complementary role to the efforts of the Government, particularly in
regard to verification about the individual’s background and the general circumstances prevailing
in the country of origin. That agency also plays an important role in the resettlement of refugees
etc.

It may be restated for purposes of clarity and understanding that a refugee is defined as one who
is outside the country of nationality (or even country of habitual residence) due to one of the five
grounds, namely, a well-founded fear of persecution on the basis of religion, race, nationality or
membership of a political or social group. In some countries, a person who flees his home

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country because of armed conflicts or wars or other generalised violation of human rights and
who may not be targeted on account of any of the five grounds specified above, is excluded from
the purview of the above definition of ‘refugee’. In many countries a difference is sought to be
made between persecution effected by State agents and the one effected by non-state agents as
may be the case in places where ‘rebel’ ‘terrorist’ and such other groups are active. Under such
circumstances it is only those who are affected by the action of the State agents who are held to
fulfill the definition of ‘refugee’ and not the latter.

One of the principal elements to satisfy a claim to refugee status is that the claimant must be
‘genuinely at risk’. Various legal “tests” have developed which concern the standard of proof
that is required to satisfy what constitutes being genuinely at risk or having a genuine well
founded fear of persecution. Some of these tests have been articulated by courts in a number of
countries. In the case of INS vs Cardoza Fouseca interpretation of the “well founded fear”
standard would indicate that “so long as an objective situation is established by the evidence, it
need not be shown that the situation will probably result in persecution, but it is not enough that
persecution is a reasonable possibility.”

In the case of India, the decision as whether to treat a person or a group of persons as refugees or
not is taken on the merits and circumstances of the cases coming before it. The Government of
India (GOI) may be often seen as following a policy of bilateralism in dealing with persons
seeking to be refugees. For example, Afghan refugees of Indian origin and others, who entered
India through Pakistan without any travel documents, were allowed entry through the Indo-
Pakistan border till 1993. Most of the refugees had entered India through the Attari border near
Amritsar in Punjab. Subsequent to 1993, the Government altered its policy of permitting Afghan
refugees freely into India.

In the case of a large number of them (many of them were Afghan Sikhs and Afghan Hindus)
who had to flee from Afghanistan under circumstances which fulfilled one or more of the
grounds specified earlier for being treated as a ‘refugee’, the Government of India did not
officially treat them as refugees. However, the UNHCR with the consent of the GOI, recognized
them as refugees under its mandate and is rendering assistance to them. In such cases, even
though the local Government is kept in the picture, the UNHCR becomes responsible to look

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after them as well as ‘administer’ them and also to ensure that such refugees do not in any way
violate the code of conduct governing them.

In contrast, in 1989, when the Myanmar authorities started suppressing the pro-democracy
movement in that country and about 3,000 nationals of that country sought refuge in India, the
GOI declared that in accordance with well accepted international norms defining refugee status,
no genuine refugee from Myanmar would be turned back and in fact, they were accepted as
refugees by the GOI. Similar is the case of Sri Lankan Tamil refugees crossing the sea to enter
the southern Indian State of Tamil Nadu. The Government of India followed a specific refugee
policy regarding Sri Lankan refugees and permitted them entry despite the fact that the refugees
did not have travel documents.

In cases where the Government of India recognizes the claim of refugee status of a particular
group of refugees, there is minimal interference if any, caused to the refugees. This is the case
even though there may be no official declaration of any policy of grant of refugee status to that
group. However, there are instances where refugees recognized by the Government of India and
issued with valid refugee identity documents by the government, are later prosecuted for illegal
entry/over stay. The National Human Rights Commission had taken up successfully the cause of
a number of Sri Lankan Tamil refugees who had been likewise prosecuted.

REFUGEES IN INDIA:

REFUGEES FROM GREATER IRAN:

According to Zoroastrian legend , a few centuries after the conquest of the Sassanid state and the
subsequent collapse of Zoroastrianism as a state-sponsored religion, at least one group of
Zoroastrians eventually migrated to what is now the Indian state of Gujarat to maintain their
Zoroastrian religious tradition. Although this 16th/17th century legend is taken at face value by
the majority of the Parsis, persecution was not yet a significant issue at the time of migration.
Given that the same legend observes that they migrated from Sanjan (in present-day
Turkmenistan), the decline of silk road trade in favour of sea-route trade makes it equally likely
that their immigration was economically motivated.

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INDO-PAKISTAN REFUGEE FLOWS:

At the time of Partition in 1947, huge population movement in the form of population exchange
was there among the two countries in extreme violent conditions. Since 1947 and till 1950s an
estimated nearly 8 million Hindus and Sikhs migrated from Pakistan to India and almost the
same number although considerably less, to Pakistan.

The massive refugee flows or rather the population exchange to be more benign took place in a
violent environment. Violence was particularly acute in Punjab where armed conflicts erupted
between Hindus and Muslims. On each side of the border, ethnic groups massacred one another
and seized property in an effort to create ethnically more homogeneous regions. When the
massacres ended, the death toll was around half a million. Like Pakistan, India did not expected
that the refugees to go back to their place of origin and therefore took initiative for resettlement
of these people. Since there had been a defacto exchange of both people an immovable property,
refugees were resettled on properties left by those, who fled. But it must be mentioned that the
resettlement was not so systematic and organized in Bengal and Assam, in comparison to Punjab.
Most people were deprived of their proper resettlement in Bengal due to lack of initiative.

TIBETAN REFUGEES:

Following the footsteps of Dalai Lama, more than 150,000 Tibetan refugees have fled to India
during the past 50 years. Armed forces of People's Liberation Army of the People's Republic of
China entered Tibet in 1950 and began consolidation of control over Tibet during the reign of the
14th Dalai Lama. The flash point came in March 1959 when Chinese forces tried to disperse a
crowd in front of the Norbulingka palace where Dalai Lama was staying. Consequently, due to
the desperate situation of bloodshed in the Tibetan capital Lhasa, and a suspected coup attempt
on the Dalai Lama by Chinese army, the Dalai Lama fled to India. He was followed by a fleet of
about 80,000 Tibetan refugees.

The Dalai Lama sought asylum in India. After a series of discussions between the Dalai Lama
and Jawaharlal Nehru, the then Indian Prime Minister, who agreed to provide all assistance to the

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Tibetan Refugees to settle down in India for some time, till their eventual return. Accordingly
Government of Mysore (as Karnataka state was called at that time) allotted nearly 3,000 acres of
land at Bylakuppe in Mysore district in Karnataka in 1960 and the first ever Tibetan exile
settlement namely Lugsung Samdupling came into existence in 1961. A few years later another
settlement namely Tibetan Dickey Larsoe was established. This was followed by the
establishment of three more settlements in Karnataka state making it the state with the largest
Tibetan refugee population.

After that more and more Indian states provided land for Tibetan refugees. The government of
India built special schools for Tibetans that provide free education, health care and scholarships
for those students who excel in school. There are a few medical and civil engineering seats
reserved for Tibetans.

Tibetans live in India with a stay permit which is processed through a document called
Registration Certificate (RC). It is renewed every year. In some areas it is renewed every six
months. Every Tibetan refugee above age the 16 must register for the stay permit. However, RC
is not issued to new arrival refugees, which makes life hard and precarious for them.

For Tibetans to travel abroad, the government of India issues another document called Yellow
Book, which is an Identity Certificate. Without RC, Yellow Book cannot be processed. It is
therefore, proving extremely difficult for new refugees. The Yellow Book, on the other hand
takes one year to process. In some cases, it may take two years before it is acquired.

The Dalai Lama established the Tibetan government-in-exile in India. It is based in Dharamsala
in the northern Indian state of Himachal Pradesh. The exile government looks after the welfare of
the Tibetans in India, coordinates socio-political activities of the Tibetans around the world and
lead the Tibetan movement for a Free Tibet and protection of Tibet's environment.

At present the population of the Tibetan refugees in India is estimated to be around 120,000.

SRI LANKAN TAMIL REFUGEES:

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Sri Lankan Tamil Refugees came to India in two phases. The first exodus of Refugees
commenced on 24th July 1983 and continued till July 1987. During this period, more than 1,
00,000 refugees arrived in India. Following the India-Sri Lanka accord of 1987, refugees began
to return to Sri Lanka.

The second Eelam war triggered a fresh exodus of refugees. After 25 Aug 1989, 1,22,000
refuges came to TamilNadu. Of these 1,16,000 were destitutes and were accommodated in
refugee camps. The return of the refugees commenced on 22 January, 1992. According to
UNHCR between 20 Jan, 1992 and 20 Mar, 1995, more than 50000 refugees have returned to Sri
Lanka. The Sri Lankan Tamil refugees in Tamil Nadu could be categorized into three categories:
(1) Those in the refugee camps; As per the estimate more than 68000 refugees were
accommodated in 122 refugee camps in different parts of the State, (2) Refugees who have been
identified as belonging to militant groups (3) and refugees who maintain themselves outside the
refugee camps.

The root of the refugee influx into India from Sri Lanka began in 1970 when the Sinhalese
dominated government of Sri Lanka introduced certain affirmative action programme to provide
education and employment to the Sinhalese population. Tamil leaders fought these measures, and
pressed for autonomy for the Tamil majority region of the North Sri Lanka. In 1983, Sinhalese
militants launched a programme against Tamils in Colombo, forcing Tamils to flee northward.
India took active part in combating the militancy and simultaneous effort to mediate between Sri
Lankan and Tamil Governments.

The reason India intervened in the internal conflict of Sri Lanka may be justified because of the
reason that the burden of Sri Lankan Tamil Refugees has to be borne by India herself. This may
find relevance because in the late 1980s India provided support to the Tamil militants while
offering to serve as a mediator. As, Sri Lankan troops fought in the north, often killing civilians,
the Indian Government air lifted relief supplies to the Tamils. India continued to press for a
political settlement granting regional autonomy to the Tamils. For the purpose of political
settlement of Tamil problem, Indian Prime Minister Rajiv Gandhi signed consecutive two
agreements with the Sri Lankan Government to suppress the Tamil militants who are ironically
trained and supported in all respect by the Tamil Nadu government.

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EAST PAKISTANI REFUGEE INFLUX IN 1971:

Since 25 Mar 1971, Pakistan went into military operation upon the Bengalis of East Pakistan
which resulted in violent struggle in the soil of East Pakistan and caused mass killing and
destruction of property of the civilian people. Consequently, massive exodus of refugees were
poured into India by crossing the international border of the then East Pakistan.

The civil war came after years of conflict between the governments of East Pakistan and the
central government of Pakistan over the issue of regional autonomy and military rule. The
Awami League of East Pakistan won a majority of seats in the Elections for Pakistan’s National
Assembly in Feb. 1971. The league called for a national federation in which the Federal
government would be responsible only for defence and foreign affairs and with the federating
units maintaining their own militia, currencies, revenue and control over foreign trade. Following
a period of intense unsuccessful negotiation a military crackdown began on East Pakistan in Mar
25, 1971. Awami leaders including Sheikh Mujibur Rehman were arrested and just after that the
people of East Pakistan Bengalis proclaimed independent Bangladesh on Apr 10, 1971 and a
government of exile was established in Kolkata, India. Subsequently, fighting broke out between
the Pakistan Army and ‘Mukti Bahini’ who were subsequently aided and assisted by the Indian
military force.

According to one account, the mass killings of Apr 1971, rose to more than 3, 00,000 people
leading to a flow of refugees of 60,000 a day. All kinds of humanitarian assistance were given by
India to these refugees despite of her economic constraints. By spending that much of a huge
amount, India provided food, shelter, clothing, drugs and medicines to the badly affected people.
The refugee issue however was far from over with the liberation of Bangladesh. Although, most
of them returned, a million or so, stayed back creating fresh problems in the states adjacent to
Bangladesh that is in West Bengal, Tripura, Assam and Meghalaya. Moreover, since, atert he
independence, Bangladesh again turned into the refugee producing country by producing huge
number of Chakma refugees from Chittagong Hill area.

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BHUTANESE IMMIGRANTS:

Since the ethnic conflict between the ruling Drupkas of Bhutan and the ethnic Bhutanese of
Nepali origin started in 1990, around 15,000 Bhutanese refugees of ethnic Nepali Origin took
shelter at Siliguri and Jalpaiguri in West Bengal. If one is to go by categorization of over 86,000
Bhutanese refugees of ethnic Nepali origin in Nepal after bilateral discussions between
Kathmandu and Thimpu, the Bhutanese refugees does not all under any category. The
Government of India does not recognize them as refugees and hence provide little assistance.
However, under the 1949 Indo-Bhutan friendship treaty, they are allowed to stay in India and can
engage themselves in employment activities and other facilities like education etc. Nepal and
Bhutan still continue with bilateral discussions as an attempt to find an amicable solution of the
problems, but no substantial findings has come out yet. However, these people prayed for asylum
to the Government of India but they have not received any status. At the maximum, they have
been allowed to stay in India, but at the same time, there is little hope that these Bhutanese
immigrants as asylum-seekers could return to their country of origin.

AFGHAN REFUGEES:

Inflow of Afghan refugees started in 197-80 which is just after the Soviet invasion in
Afghanistan. Although approximately 4 million civilians fled to Iran and Pakistan during this
period, but few thousands of people, mostly elite and upper middle class people have come to
India. Most of them had valid travel documents to stay in India temporarily on their way to the
countries of Asylum in the Western World and those who could not go to any other country
stayed back in India and sought protection from the UNHCR, New Delhi. By January 1991, there
were about 20,000 Afghan refugees in India all of whom were accorded refugee status by the
UNHCR, New Delhi. Although, the government of India did not adopt any specific policy
towards these refugees, it allowed all Afghans to stay in India for the purpose of getting
UNHCR’s protection and assistance.

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However, by the end of May 1993, the Afghan refugees population increased to some 25,000,
due to large influx of Hindu and Sikh Afghans, the majority of whom have arrived in India since
July 1992 owing to events in Afghanistan.

INTERNATIONAL COMMITMENTS BY INDIA:

India does not have on its statute book a specific and separate law to govern refugees. In the
absence of such a specific law, all existing Indian laws like The Criminal Procedure Code. The
Indian Penal Code, The Evidence Act etc. apply to the refugees as well. Even though India is not
a signatory to the 1951 Convention on refugees and also the 1967 Protocol, it does apply certain
articles in the 1951 convention. These include:

(1) Article 7 as India provides refugees the same treatment as all aliens
(2) Article 3 as India fully applies a policy of non- discrimination

(3) Article 3 A as no penalty is imposed on illegal entry

(4) Article 4 as religious freedom is guaranteed

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 (5) Article 16 as free access to the courts is provided

(6) Article 27 and 28 as identity and travel cards are issued to refugees.

(7) Article 21 as freedom of housing is allowed and refugees need not stay in camps.

India is a signatory to a number of United Nations and World Conventions on Human Rights,
refugee issues and related matters. India’s obligations in regard to refugees arise out of the latter.
India became a member of the Executive Committee of the High Commissioner’s Programme
(EXCOM) in 1995. The EXCOM is the organization of the UN, which approves and supervises
the material assistance programme of UNHCR. Membership of the EXCOM indicates particular
interest and greater commitment to refugee matters. India voted affirmatively to adopt the
Universal Declaration of Human Rights which affirms rights for all persons, citizens and non-
citizens alike. India voted affirmatively to adopt the UN Declaration of Territorial Asylum in
1967.

India ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the
International Convention on Economic, Social and Cultural Rights (ICESCR) in 1976. India also
ratified the UN Convention on the Rights of the Child in 1989 and the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) in 1974. India accepted
the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were
formulated for the guidance of member states in respect of matters concerning the status and
treatment of refugees. These Principles also contain provisions relating to repatriation, right to
compensation, granting asylum and the minimum standard of treatment in the state of asylum.

CONSTITUTIONAL PROVISIONS:

There are a few Articles of the Indian Constitution which are equally applicable to refugees on
the Indian soil in the same way as they are applicable to the Indian Citizens.

The Supreme Court of India has consistently held that the Fundamental Right enshrined under
Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to

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all irrespective of the fact whether they are citizens of India or aliens. The various High Courts in
India have liberally adopted the rules of natural justice to refugee issues, along with recognition
of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role
in the protection of refugees. The Hon’ble 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 district court or the
administration.

In the matter of Gurunathan and others vs. Government of India and others and in the matter of
A.C.Mohd.Siddique vs. Government of India and others  , the High Court of Madras expressed its
unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will.
In the case of P.Nedumaran vs. Union Of India  before the Madras High Court, 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 Hon’ble Court was pleased to hold that ”since the UNHCR was involved in
ascertaining the voluntariness of the refugees’ return to Sri Lanka, hence 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 the matter of Syed Mohammadi vs. Union of India , 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 Supreme Court of India has in a number of cases stayed deportation of refugees such as
Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab  ; and, N.D.Pancholi vs. State of
Punjab & Others . In the matter of Malavika Karlekar vs. Union of India  , the Supreme Court
directed 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 constitution of India contains just a few provisions o the status of International law in India.
Leading among them is Article 51(c) which directs India to foster respect for its international

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obligations arising under international law for its economic and social progress. In India,
refugees are registered under the Registration Act, 1939 which is applicable to all foreigners
entering the country. Apart from this, there are other acts like the Foreigners’ Act, 1946 and the
Passports’ Act, 1967. Under these laws, the entry can be restricted for any foreigners who enter
India as illegal immigrants but there are certain exemptions.

CONCLUSION:

It can be easily seen from the foregoing pages that India notwithstanding its own security
concerns, particularly in the last couple of decades, and pressure of population and the attendant
economic factors, continues to take a humanitarian view of the problem of refugees. Even though
the country has not enacted a special law to govern ‘refugees’, it has not proved to be a serious
handicap in coping satisfactorily with the enormous refugee problems besetting the country. The
spirit and contents of the UN and International Conventions on the subject have been, by and
large, honoured through executive as well as judicial intervention. By this means, the country has
evolved a practical balance between human and humanitarian obligations on the one hand and
security and national interest on the other. It is in balancing these interests, which may

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sometimes appear to be competing with each other, that the security and law enforcement
agencies face day-to-day challenges. If and when a separate ‘Refugee Law’ for the country is
enacted, it is important that this aspect is given due consideration. It is important that security
and enforcement officials do not overlook both the legal as well as the underlying human angles
inherent in the ‘refugee’ situation.

BIBLIOGRAPHY:

BOOKS:

 Human Rights of Non-Citizen: Law and Reality by Rathin Bandopadyay ; Deep and
Deep Publications

 Human Rights: Issues and Challenges by Adil-ul-Hasan; Akanksha Publications

 Human Rights and Refugees in South Asia by Innovative Research Association,

Allahabad

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 WEBSITES:

 www.unac.com

 www.unhcr.com

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