Refugee Law & Policy In India: Need of a Specific Humanitarian Legislation

By | May 3, 2020
Refugee Law & Policy

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This article ‘Refugee Law and Policy In India: Need of a Specific Humanitarian Legislation’ outlines the lacunae with regards to the prevailing law and policy for Refugee in India. 

India’s diversity and stability have attracted refugees from South Asia and beyond. Despite a long history of sheltering refugees that pre-dates the establishment of the modern state, India has not acceded to the 1951 Refugee Convention nor enacted national refugee law or a specific policy for the protection of refugees. India employs the Foreigners Act, 1946 to regulate the manner in which foreigners enter, stay in and leave India.  India has hosted several mass influxes in its independent history including around 16 million Bangladeshis in 1971, that has lent a sense of complacency to policymakers.

Indian courts have preferred to remain silent on refugee law while upholding the executive’s untrammelled powers of deporting and removing foreigners from India. The few cases where Indian courts have intervened in favour of refugees should be confined to their facts. The need to carve out refugee protection from the general body of immigration law is developing and should, in the future, yield an enforceable principle of asylum.

Introduction

The problem regarding the refugee policy has been in the issue of grave concern globally, nationally and regionally. These types of human beings that have been consigned to the platform of sub-human beings are rarely welcome. The getting nations everywhere throughout the world decay to get them. The reasons frequently referred to are – the absence of assets, rule of weight sharing, approach reasons, danger to the security of the state from the psychological oppressor, and so on. The dread of abuse in the nation of inception and the blade of expulsion on their head by the nation of gathering further adds to the effectively hopeless condition.[1]

There has been an old age tradition of providing humanitarian treatment and protection to refugees in India. However, due to the absence of a statute or legislation in this regard draws a threat of terrorism and a violation of the stance in South Asian politics. Even though there is no concrete legislation when it comes to refugee policy, India has not failed to address the needs of the refugees who seek homage after fleeing their home countries.

4,20,400 refugees were hosted by India, 1,10,000 being from Tibet alone who fled post China’s annexation in 1951. Tamil Sri Lankans comprised of a good 1,02,300, who escaped with the conflict of Sri Lankan armed forces and Liberation Tigers of Tamil Eelam. 36,000 Buddhists from Bangladesh also fled to Arunachal Pradesh after the annexation of their land by Muslims.

The treatment of India towards different refugees has also been different when it comes to the provisions of refugee law. When it comes to the Chakmas from Bangladesh, they were not provided with adequate facilities as cited by the National Human Rights Commission (NHRC) and were repatriated in 1988. To the contrary, the Tibetans faced a far better treatment as compared to other refugee groups to the extent that the headquarter of the Tibetan Government in Exile is present in Dharamshala, Himachal Pradesh.

In 1951, a Convention on Status of Refugees dealing with the issue of refugees defined ‘refugee’ as-

“….a person owing to 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, as a result of such events, is unable or, owing to such fear, unwilling to return to it.”

India is not a party to the 1967 Protocol or the Convention of 1951. Though, The Constitution of India does protect a refugee individually under refugee law. But these provisions of these customs have now been incorporated in the ambit of customary law and may be regarded to be added into domestic law inconsistency with the present municipal laws of the nations. According to the Constitution, Article 51(c) provides for fostering respect for international law.[2]

Indian Legal Scenario

According to the Constitution, India has been described as a Union of States. This, in the eyes of International Law is considered as a State. The sole power to make any legislation in respect to citizenship, aliens, etc. is given to Parliament, i.e. the Union Legislature. Although, there has not been any legislation passed by the Parliament with respect to the status and entry of refugees. This topic has been handled by the administrative and political levels. As a result, the refugees in India are dealt under the law applicable to aliens due to the non-existence of a specific provision for refugee law.

Refugees in India fall under the ambit of the term ‘alien’. This word appears in The Constitution of India,[3] Section 83 of the Indian Civil Procedure Code, and Section 3(2)(b) of the Indian Citizenship Act, 1955 and many numerous other sources. Another legislation which deals with the entry of aliens is mentioned in the Foreigners Act, 1946. It also goes to the extent of defining the word ‘foreigner’ as “a person who is not a citizen of India”.

Even though there are numerous legislations which define an alien, a refugee is not distinguished from an alien and is not defined distinctively, therefore refugees are at risk of arrest and detention by the immigration authorities once they enter India without valid documents/passport. Once a refugee is detained by customs, a First Information Report is filed against him. A refugee may face deportation via seaports, airports if he does not have access to his documents.

However, by and large, the courts have taken an indulgent view in the matter of discipline for their unlawful passage or criminal operations in India and furthermore, by discharging prisoners pending assurance of refugee status, staying expelling and allowing them a chance to move toward the United Nations High Commissioner of Refugees (hereinafter alluded to as UNHCR), refugees keep on risking trepidation, detainment and indictment for the infringement of the Foreigner’s Act, 1946 and the Foreigners Order, 1948. The Indian Supreme Court has additionally held that the administration’s entitlement to deport is absolute:

“….  the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion… the executive Government has unrestricted right to expel a foreigner.”

Protection of Refugees by the Constitution

The Constitution of India provides numerous Fundamental Rights to refugees. Right to life and personal liberty[4], right to equality[5], right to protection under arbitrary arrest[6], freedom of religion[7], right to approach the Supreme Court for the enforcement of Fundamental Rights.[8]

The refugees are guaranteed human rights to live with dignity but there is no individual law for refugees. The Apex Court has taken Article 21 to the purview in the absence of legislation to implement and regulate the stay of refugees in India. In the case of NHRC v. State of Arunachal Pradesh,[9] the government was ordered to safeguard the interests and rights of the Chakmas residing in Arunachal along with the application for citizenship for them to the concerned authorities. Further, in P. Nedumaran v. Union of India, the need for repatriation to be voluntary was discussed. It was held that the nature of repatriation should be voluntary in nature and should be carried out in accordance with the principles of UNHCR.

In fact, Article 21 of the Indian Constitution imposes certain requirements: any activity of the State which denies an outsider of their life and individual freedom without a methodology set up by law would fall foul of it, and such activity would absolutely incorporate the refoulement of refugees. Accordingly, the author opined that the Court ought to have continued to test the legitimacy of Foreigners Act as against Article 21.

Conclusion

The discussion clearly establishes the fact that the domestic law of India does not provide complete protection to refugees. Indian law even fails to recognise the refugees as another category and ai treats them at par with all other aliens. It fails to reason with the understanding of why and under what circumstances does a refugee leave his country of origin to seek homage in some other nation. The absence of special legislation disturbs the rights and privileges of a refugee and this further runs in denial of basic protection to a large number of refugees.

Even though there is no specific legislation on the status of refugees does not mean that refugees are not provided with any assistance or protection. Active institutions like the NHRC have tried to be in consonance with the judiciary to form innovative judicial interpretation to establish. However, such interpretations have very limited scope to certain cases and have not been implemented across a wide spectrum.

The non-existence of national legislation on the nature and status of refugees also concludes that refugees are dependant on the whims and fancies as well as the benevolence of the state rather than the rights that should be guaranteed to them. Thus, they are depended on the mercy of the state and have no absolute recourse in order of the violation of their rights. A fair and humane response of refugees in India draws a responsibility for the adoption of a fair procedure and legislation that is specific and deals with the welfare of refugees.


[1] Padmini Singh, Refugee Law and Policy in India, 4 ISIL Y.B. Int’l Human. & Refugee L.

285 (2004).

[2] Jai S. Singh, Refugee Law and Policy in India: Efforts of Indian Courts, 9 ISIL Y.B. Int’l Human. & Refugee L. 211 (2009).

[3] INDIA CONST. Art. 22, Para 3 and Entry 17, List 1, Schedule 7)

[4] INDIA CONST. Art. 21

[5] INDIA CONST. Art. 14

[6] INDIA CONST. Art. 22

[7] INDIA CONST. Art. 25.

[8] INDIA CONST. Art. 32.

[9] 1996 SCC (1) 742


  1. Constituent Assembly – Journey And Challenges(Opens in a new browser tab)
  2. Refugee Crisis in India