INTRODUCTION

We went in joy and in sorrow; Because of the destruction and the disgrace, We grieved for our community and we rejoiced that we had escaped with so many survivors... I am grateful for all the beautiful eyes who saw a (hu)man in me and not an alien1

It has been stated numerous times that a refugee is a creature of circumstance. Personally with none whatsoever experience as being a refugee, can I only relate to being one when such vivid and eloquent poem is struck before my eyes. Many a times we as humans have become insensitive to all that is around us because it doesnt affect us, our lives, our homes, our family- in short our interest. Many of us do not stop to think once that it could have been us, our lives, our home, our family, our interest but instead we are so caught up in our lives that it becomes their lives and theirs alone. India a land of diversity has over a period accumulated scores of refugees from different parts of the world. Reasons for each refugee individual or community may vary but there have been generalisations made that: 1. India being a secular country with inherent diversification of its population is a favourable choice. 2. India being fairly stable than compared to her neighbours allows for easy trans-border influx of refugees from Tibet, Bangladesh, Burma, Sri Lanka, Bhutanese and Pakistan. Then there are other refugees from other parts of the world such as the African continent, Afghanistan and Palestine. Their reasons as to why they have chosen India as the receiving country would be unknown to us. It is also a known fact that India is not a party to the United Nations Convention relating to the Status of Refugees, 1951 along with the Protocol of 1967 nor does it have a specific domestic law in respect to it. This fact poses the question as to how does a country with such huge influx of refugees protect their rights.

R. Elhanan B. Abraham Helin, Poem Written on the Expulsion of the Jews of Frankfurt, Germany (1692), reprinted in 6 Encyclopedia Judaica 1071 (1971)., available at http://www.worldlii.org/int/journals/ISILYBIHRL/2001/10.html, visited on 4.12.11.

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Therefore this paper plans to discuss in Part I who is a refugee, in Part II the refugee scene in India which would include Indias refusal to be part of the Refugee Convention, legal framework and case laws that would apply to refugees in India, afterwhich it would discuss why India has failed to legislate an Act in respect to it and the need of having such an Act, finally it shall conclude with the discussion of some of the challenges in refugee protection and possible solutions.

I A. Who is a Refugee? The term refugee cannot be used as a synonym for alien 2. Therefore a refugee cannot be viewed as other aliens present within a country. A person becomes a refugee because of circumstances that are beyond his control. Refugee is a term used in the modern world to compartmentalize a group of such persons who are displaced from their home due to certain action in the political or may be a matter of armed rebellion. The historical context in which refugees emerged as an internationally recognised category was provided by the massive displacement in Europe following two World Wars3. By then masses of people were displaced from their native places due to the post war acquisitions. That process of transit from one place to another conferred them with the identity of a refugee. The definition of refugee for the first time was raised at the Geneva Convention. Further the definition was propounded by the United Nations High Commission for Human Rights (UNHCR) was; refugee as a person, who owing to be a 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 is unable or owing to such fear, unwilling to avail himself of the protection of that country 4. Therefore it may be stated that the term refugee connotes a person who is forced to lead a nomadic life due to fear of his life in his country of origin, whatsoever may be the reason and is in search of a new abode.

B. Distinction between a Refugee and other Foreigners It must be clarified that in India all persons who are not citizens of India are referred to as foreigners. Simultaneously it is of great importance to note that the term foreigner can be used to mean different categories of persons. Of which 4 main groups can be distinguished from that of a refugee :
2

The term Alien is used to mean as a citizen of a state in transit, working, residing or otherwise within the territory of another state. See http://www.duhaime.org/LegalDictionary/A/Alien.aspx, visited on 4.12.11. 3 Paul, Smelser. J.(2001), International Encyclopedia of Social and Behavioral Sciences,Vol.19, Elsevier science Ltd., p.-12909. 4 Trakroo Ragini et al., (1997), Refugees And The Law, Human Rights Law Network, New Delhi, HRLN publications, p.4.

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1. Temporary Residents, Tourists and Travellers Persons under this category come to India for a specific purpose and duration with the prior permission of the Government of India. However, in certain circumstances such persons could become a refugee, if, during their sojourn in India, the situation in their country of origin becomes such as to endanger their lives and liberty if they were to return to their country. 2. Illegal Economic Migrants Any foreigner who might have left his or her country of origin without due authorisation from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee. 3. Criminals, Spies, Infiltrators, Militants etc. None of these can ever become eligible to be refugees. 4. Internally Displaced Persons (IDP) Those persons who are fleeing persecution and human rights violations from one region of the country and have sought refuge in another region of the same country, fall under this category. Such persons cannot be categorised as refugees as they have not crossed any international border.

II Refugee scene in India A. Indias Reason for Refusal The question of not signing the UN Convention has engaged the attention of the Government of India on several occasions, in 1967, in 1992-94 and just before India became a member of the Executive Committee of UNHCR. The Ministry of External Affairs is to have said that the refugee protection is Euro-centric, further : They do not address adequately situations faced by developing countries, as it is designed primarily to deal with individual cases and not with situations of mass influx, they also do not deal adequately with situations of mixed flows, that is, they do not distinguish between political refugees and economic migrants... the Convention does not provide for a proper balance between the rights and obligations of receiving and source states. The concept of international burden-sharing has not been developed adequately in the Convention. The idea of .minimum responsibility for states not to create refugee outflows and cooperating with other states in the resolution of refugee

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problems should be developed. The credibility of the institution of asylum, which has been steadily whittled down by the developed countries, must be restored5. B. Refugees and Indian Legal Framework Indias stance on refugee law is that of a child who wants to have the cake and eat it too. She complains of the UNHCR as being too Euro-centric but at the same time she wants help from UNHCR while dealing with her refugees6. It has been noted that India follows a bilateral policy when dealing with refugees7. To handle the refugee situation India has categorised the refugees those are settled down and the category that is being coming by time. The plight of those refugees in India generally depends upon the amount of protection they are availing from either the Indian government or the United Nations High Commission for Refugees (UNHCR). By optimising the situation of the refugees in India and applying the principles led down for the categorisation they can be divided into:I. Refugees who receive full protection according to standards set by government of India8. II. Refugees whose presence in Indian Territory is acknowledged only by UNHCR and are protected under the principle of non-refoulment9. III. Refugees who have entered India and have assimilated into their communities10. Their presence is not acknowledged by either the Indian government or UNHCR. This procedure as adopted by India causes innumerable hardship to refugees as it allows Government authorities to arbitrarily decided upon when and who shall be given refugee protection within the country. Furthermore the role of UNHCR is slightly precarious when
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UN Division, Ministry of External Affairs, Refugees (No UI/ 151.5/8/99) The UNHCR assisted Tibetan refugees through the decade of the 1960s. Its office in India was discontinued in 1975. But following the influx of Iranian and Afghan refugees in 1980, it was re-established under the aegis of UNDP Since then, UNHCR has assisted in status determination of refugees. 7 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. See http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html, visited on 5.12.11 8 Tibetans, Chakmas, SriLankan Tamilians 9 The second category of refugees mainly consists of Afghan, Iranian, Somali, Sudanese, and Burmese. Their presence in India has been recognised and acknowledged by the UNHCR under the principle of nonrefoulement 10 Chins.

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dealing with a country who has not ratified the Refugee Convention. At times it has been found that UNHCR has colluded with the State in offering protection and matters of repatriation of refugees. Laws Applicable 1. Constitution of India The Indian Constitution guarantees certain fundamental freedoms to all persons and not just to Indian citizens. Hence, persons who flee their country of origin and seek asylum in India have the protection of those fundamental rights11, independent of the need for any recognition by the government of India or by any other inter- national body like the UNHCR. 2. Foreigners Act, 1946: Due to the absence of a domestic law in India, Foreigners Act, 1946 governs the conduct of foreigners in India. Refugees are said to have come within the ambit of the said Act for section.2(a) states that, any person who is not a citizen of India is a foreigner. As stated before the Indian Government in wanting to absolve it responsibilities as a receiving country has categorised refugees in an Act that does not have the very term defined in it. Further the said Act merely deals with entry and exit of non citizens but does not look into refugee problems and procedures. .

Judiciarys Role The judiciary has played a very important role in protecting refugees. Where the legislature has failed Court orders have tried to fill legislative gaps Indian courts have decided in a number of cases that the constitutional protection of life and liberty must be provided to refugees. In the case of Luis de Readt v. Union of India12 and State of Arunachal Pradesh v. Khudiram Chakma13, the Supreme Court held that article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all, including aliens and the state is bound to protect the life and liberty of every human being.
11

Right to Equality before Law (Article 14); Protection of Life and Liberty (Article 21); Right to Fair Trial; Practice and Propagate Own Religion (Article 25) 12 1991 AIR 1886 13 1994 AIR 1461

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While in the case of National Human Rights Commission v. State of Arunachal Pradesh14 the Supreme Court restrained the forcible expulsion of Chakma refugees from the state. In its interim order on November 2, 1995, it directed the state government to ensure that the Chakmas situated in its territory are not ousted by any coercive action not in accordance with the law. The court directed the state government to ensure that the life and personal liberty of each and every Chakma residing within the state should be protected. The court also decided that the Chakmas shall not be evicted from their homes except in accordance with the law and the quit notices and ultimatums given by other groups should be dealt with in accordance with the law, and pending the decision on the citizenship applications of the refugees, they shall not be evicted. In a number of cases, Indian courts have protected the rights of refugees to non-refoulement15 and have protected them where there are substantial grounds to believe that their life would be in danger. In Zothansangpuri v State of Manipur16, the Imphal bench of the Gauhati High Court ruled that refugees have the right not to be deported if their life was in danger. In Dr Malvika Karlekar v. Union of India 17 , the Supreme Court held that authorities should consider whether refugee status should be granted; and until this decision was made, the petitioner should not be deported. The Gauhati High Court issued a landmark ruling in the case of U Myat Kayew and Nayzan v. State of Manipur 18 . It involved eight Burmese, aged 12 to 58, who were detained in the Manipur central jail in Imphal for illegal entry. These pro-democracy activists in Burma had voluntarily surrendered to the Indian authorities and were taken into custody. They were charged under section 14 of the Foreigners Act for illegal entry into India. They filed a petition for their release, however, to enable them to seek refugee status with UNHCR in New Delhi. The Gauhati High Court, under article 21, ruled that asylum seekers who enter India, even if illegally, should be permitted to approach the office of the UN high commissioner to seek refugee status.

14 15

(1996) 1 SCC 742. P Nendumaran vs Union of India, W P No 12298 and 12313 of 1992, Gurunathan vs Union of India WP 6708 and 79168 of 1992, A C Mohd Siddique vs Government of India and others 1998(47) DRJ(DB), Syed Ata Mohammadi vs Union of India Criminal Writ Petition no 7504/1994 at the Bombay High Court and Maiwands Trust of Afghan Human Freedom vs State of Punjab Crl WP No 125 and 126 of 1986. 16 Civil Rule No 981 of 1989. See http://dravidaperavai.50megs.com/, visited on 5.12.11. 17 (Criminal) 583 of 1992 in writ petition. See http://dravidaperavai.50megs.com/, visited on 5.12.11. 18 Civil Rule No 516 of 1991.

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In addition to the courts, the National Human Rights Commission has also functioned very vigilantly and effectively as a watchdog for the protection of refugees. The commission has approached the Supreme Court under article 32 of the Constitution and obtained protection of the Chakma refugees from the Chittagong Hills tribal areas of Bangladesh when their life and security were threatened by local politicians and youth leaders in the state of Arunachal Pradesh. Relief was granted by the Supreme Court on the basis of the rights of aliens under articles 14 and 21. The judiciary has also upheld a refugees right to leave the country. In Nuang Maung Mye Nyant v. Government of India19 and Shar Aung v. Government of India20, the courts ruled that even those refugees against whom cases were pending for illegal entry should be provided exit permits to enable them to leave the country for third country resettlement.23 However, judicial interventions, by definition, are case-specific and as a result, every case of innovation has been matched by parallel tales of indifference and noninterference. C. Need for a Domestic Refugee Law? From the aforesaid discussion one would be identify that the legal framework for protection of refugees in India is an eclectic interplay of administrative adhocism and judicial assertion of constitutional rights. The Constitution provides certain fundamental rights to all persons which apply to refugees as well. These constitutional precepts have also been supplemented by expansive judicial interpretation. However the enjoyment of these rights has remained a pipe dream for the refugee community due to inconsistent and arbitrary government policies dictated more by political exigencies than by legal imperatives. Therefore the question as to whether India requires a specific domestic legislation on refugee protection is quite ridiculous when the answer to the question is a big emphatic yes. One may again- ridiculously question as to why we need one when we are doing so much fine without such legislation. The reason why we need a specific domestic legislation is because: 1. In the absence of a specific municipal law incorporating and protecting the rights of refugees, it is left to the courts to read the provisions of the international human rights instruments into the provisions of Articles 14, 21 and 25 of the Constitution. The zeal
19 20

CWP No 5120/94. See. http://dravidaperavai.50megs.com/, visited on 5.12.11. WP No 110 of 1998. See. http://dravidaperavai.50megs.com/, visited on 5.12.11.

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of the Court to protect the rights of refugees, though commendable, has its limitations. The dangers of judge-centric solutions are that in many cases the outcome of the case would depend on the outlook of a particular judge to the issue before him. There indeed cannot be any certainty or uniformity in judicial activism.21

2. Having a specific law would prevent the yo-yo / elastic reaction between the administration of refugees and judicial pronouncements. It would allow for a uniform accessibility to rights to all refuges and not be discriminated on mere political agenda of the country. 3. As stated before it would bring about clarity and certainty of laws that would be applicable to refugees. Thereby it would also limit the discrimination and violation of universal rights of the refugees by corrupt government officials.

Coming to the grounds as to why India does not have a domestic law in respect to it are the following: i. It will create threat to the national integrity and sovereignty in terms of external militancy like situation.

ii.

It will cause an extra burden on the economy of the state to accommodate such a great number of influxes of refugees into the territory.

iii.

It is not required on the ground that India does have its own similar legislations to tackle the refugee like circumstances in terms of Foreigners Act etc.

The fears of the Government are understandable but one must also apply the rule of proportionality. Mere fear of what may happen in the future is quite not sufficient to stand by on the sidelines and allow for millions of people be subjugated inhuman circumstances. India may have the Foreigners Act but Indian law and practice provides a distorted and incomplete protection to refugees. It even fails to recognise refugees as a distinct category of persons and treats them at par with all other foreigners. Therefore the question of having
21

See http://www.halsburys.in/need-for-domestic.html, visited on 5.12.11.

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similar legislations as to having a specific legislation does not suffice because the two are very different- with different needs.

Conclusion The challenges in implementing refugee protection begin with state interest and the interests of refugees monetary. Then the next hurdle that one can identify is that like all human relationships when a friend talks to a person whom you arent too friendly with strains are caused in between your friendship. Similarly, issue of granting refugee status to certain people may cause strains in diplomatic relations with other countries. And as it is a known fact that no country is an independent island and each depends on the other countries cannot afford to offend others. Further the UNHCR is after all a sole international institution with limitations it is therefore with the help of individual countries that refugee protection can be implemented. But if countries such as India were to abdicate its responsibilities then the implementation of such protections allows for violations of the rights of the refugees. One of the solutions to the refugee problem would be if India being an executive member of the UNHCR implements a domestic law for the protection of refugees. This act of India may cause a ripple effect that would encourage other non parties to also legislate on such domestic laws. This would be for the betterment of the refugees and would prevent refugees to be dependent on the benevolence of the state rather than on a rights regime to reconstruct their lives with dignity. Therefore India needs to legislate on a domestic refugee protection law. The uniform treatment of refugees is a must in India as she continues to accept asylum seekers across its porous borders. The restrictions and unequal treatment imposed on the refugee population by the Indian government is discriminatory. And finally fairness in protection shall be ensured in terms of improving and maintaining standards in registration and profiling, making status determination procedures fairer and more efficient and most of all having a lenient specific law towards the well governance of refugees in India is the want of the time. Towards the end this could be suggested that, India should make a thorough review of its refugee policy on the grounds taking into consideration the humanitarian as well as legal aspects. Being a refugee prone area in the South Asian region India has to take the lead to formulate a regional policy consistent with the need and analysing the refugee conditions for obtaining global equity.
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BIBLIOGRAPHY
PRIMARY SOURCES STATUTE 1. Constitution of India 2. Foreigners Act 1946. SECONDARY SOURCES ARTICLES
1.

1. Acharya, Bhairav., The Law, Policy And Practice of Refugee Protection in India, ( 2006 ). 2. Nair, Arjun, National Refugee Law for India: Benefits and Roadblocks, Dec. 2007. 3. Thames, Knox H., Indias Failure to Adequately Protect Refugees(2003).

REPORTS 4. South Asian Human Rights Development Corporation, Refugee Protection in India, Oct.1997. 5. United Nations, UNHCR Global Appeal 2011 Update; India and the Working environment, (2011).

WEB SOURCES 1. http://www.wcl.american.edu/hrbrief/v7i1/india.htm This web page deals with the living condition of refugees in India and Indias failure in accommodating the refugees a suitable place too reside with dignity.

2. http://www.ipcs.org/pdf_file/issue/51462796IPCS, This web page deals with the need of a national refugee law for India and specifically deals with the constraints thereto in achieving such. 3. http://infochangeindia.org/agenda/migration-displacement/unhcr%E2%80%99s-rolein-refugee-protection-in-india.html 4. http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=437b6db64
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 BOOKS 1. Muntarbhorn, V., 1992, The status of refugees in Asia, Oxford, Clarendon Press. This book examines the issues concerning the status of refugees in Asia. 2. Adelman, H and C. Michael Lanphier, 1990, Refugee or Asylum Seeker: A choice of Canada, London, York lanes Press. This book aims at providing an overview on exile. 3. Allen, T, and Hubert Morsink, 1994, When Refugees Go Home, New Jersy, Africa World Press. This book gives an in-depth research into social dimensions of pressing problems and contemporary issues of refugees. 4. Raja, J, 2003, Refugees and Their Right to Communicate: South Asian Perspective, Bangalore, World Association for Christian Communication. This book is collection of papers presented at the South Asian Consultation on Refugees and their right to communicate, held at Bangalore. This Consultation aims at deriving various facets of refugee protection in the region. 5. Trakroo, R et al., 1997, Refugees and The Law, New Delhi, Human Rights Law Network. This book looks at refugee law and aims at sensitizing the views throughout the world with humanitarian issues.

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