Indian approach to refugee protection deserves special mentioning as it holds within her boundary about 3,30,000

refugees without any formal obligations based on international documents.[1] But from the human rights perspective

the lack of specific refugee legislation or formal recognition of 1951 Convention on Refugees or the 1967 Protocol has

led to varying treatment of different refugee groups within the territory. The status of refugees in India is governed

mainly by political and administrative decisions rather than any codified model of conduct.[2] Still India is renowned

as a refugee-receiving country than a refugee-producing country.[3]

LEGAL FRAME WORK FOR THE PROTECTION OF REFUGEE IN INDIA

The main approach adopted in India is to treat the refugees under the laws applicable for all foreigners. But there

exist a considerable difference between a refugee and a foreigner. The 1951 Convention on Refugee defines the

group as those who have fled from their home country owing to well-founded fear of persecution on race, religion,

nationality, membership of a particular social group or political opinion and is unable or unwilling to return to his

country because of that reason. But ordinary foreigners are quite different category. They may include temporary

residents, tourists or travellers. They come to India for specific purpose with the prior permission of Indian

Government. They may turn as refugees if during their stay in India the circumstances in their homeland turned as

equal to that of 1951. There is yet another category like illegal economic migrants who intrude into our borders

solely to improve their economic prospects without any formal authorisation from both the country of origin ad

destination. Another threatening group are that of criminals, spies, infiltrators, militants etc. They will be dealt with

Indian criminal laws or special laws even if they have a valid travel document. If all these categories of people are

handled with the same legislation there is bound to be disparities and injustices.

In the absence of a specific statute often the plight of the refugees are decided based on the Foreigner’s Act drafted as

early in 1946, the Emigration Act, 1983 and the rules framed there under, the Passport Act 1967 and above all the

Indian Constitution under Art 21. In India the major law enforcing agencies which will deal with the refugees on the

first hand are the security personnel at the border, the immigration personnel at land check post, international

airport and the seaport, and the State Police personnel. But till date it generally confirms to the international

documents for the protection of refugees. The status of refugees in India is governed mainly by political and

administrative decisions rather than any codified model of conduct.[4] The ad hoc nature of the Government’s

approach has led to varying treatment of different refugee groups. Nowadays there has been stringent approach in

dealing with foreigners due to security concerns. This has resulted in genuine refugees paying an unfortunate price

in a country that otherwise has an impressive history of protecting refugees.[5] Through this paper I am trying to

evaluate the implications of each Act with reference to the genuine refugee.

THE FOREIGNERS ACT AND ITS APPLICATION TO REFUGEES

The Foreigners Act is an archaic legislation that was enacted by a colonial government in response to the needs of the

Second World War.[6] The Act primarily deals with the stay and exit of foreigners in India.[7]

Section 2(a) of the Act defines a ‘foreigner’ as “a person who is not a citizen of India”, thus interpreted as covering all

refugees within its ambit. Through this Act the Central government is empowered to make order for prohibiting,

regulating and restricting entry of foreigners into India, their departure there from and presence/ continued

presence. The types of possible restrictions are 1) no entry or departure 2) entry only at such time only by such

route only at such port/place. 3) Observance of such conditions on arrival. There are a number of such Orders in

force that restrict the movement, activity and residence of foreigners; and, require their proof of identity and regular

appearance before the police.[8] The Act invariably gives wide powers to the executive to refuse entry if the foreigner

do not fulfil the entry conditions and may resort to instant deportation. This is often in contravention with the non-

refoulement which is practiced by members who are signatory to international documents and may seriously affect

the rights of a genuine refugee. In Hans Muller of Nuremberg[9] the Supreme Court affirmed that

“The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute

and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted

right to expel remains.”

Even after thirty five years the judiciary was reluctant to read humanitarian principles into this approach and the

situation continued in Louis de Raedt v. Union of India[10] and Sarbananda Sonowal’s case[11]. Later some how the

Court extended the Article 21 of Indian Constitution to take hold of the non-refoulement principle which will be

discussed later. The other highlights of the Foreigners Act are 1)Section 5 prevents foreigners from changing their

name while in India 2) Section 6 requires masters of ships and pilots of aircraft to maintain records of travelling

foreigners 3)Section 7 obliges hotel-keepers to maintain records of the stay of foreigners 4) Section 9 places the

burden of proving that a person is not a foreigner on that person 5) Section 12 provides for the delegation of these

powers; and 6) Sections 14, 14A and 14B penalise foreigners and abettors found in contravention of the Act or any

Order made there under.

The 175th Law commission report on the Foreigner’s Amendment Bill 2000 put forth suggestions to harmonise the

punishment provisions in Foreigners Act and Passport Act. It suggested for the immediate deportation of the

foreigner and establishment of a grass root level mechanism to monitor the entry of foreigners.

PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW

Refugee rights under the Convention and Protocol consist of two primary components. First, the principle of non–

refoulement, which prevents the states from returning a refugee to his or her home country where he has a well-
founded fear of persecution. It is often considered as the duty of the host state than as a right of the refugee. Second

relates to those rights available for the refugee which affects his day to day life in the host country. These like the

right to education, the right to hold property, etc. The later rights arise only when the first principle is exercised. The

lack of a specific statute for dealing with refugees or formal obligation under international documents gives an

impression that India is not under a formal duty to follow the principle of non-refoulement. But there are three

arguments which say that indirectly Indian system provide a mechanism to retain the refugee on his arrival in the

Indian territory. One is the working of legal institutions like UNHCR and the NHRC which prevent the return of valid

refugees to their home Countries.[12] Another attempt is to read it under Art 21 by laying down that the State shall

not expel or return a refugee in any manner what so ever 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 for it may turn out to be unfair unjust and unreasonable. Another view is that the Constitution under Article

51 automatically incorporates the international rule of non-refoulement into India’s domestic laws.[13]

CONSTITUTIONAL PROTECTION TO FOREIGNER’S

Foreigners are entitled to some degree of constitutional protection while in India. These include the protection of the

equality clause [Article 14] and the life, liberty and due process provisions [Article 21] of the Indian Constitution. By

the permissible classification criteria the executive can very well classify among the different categories of

foreigners. Thus refugees are supposed to get preferential treatment from the law enforcing agencies. The plight of a

foreigner/refugee after he is given a shelter is well taken care of by the various statutes applicable to aliens and they

very well confirm to the international standards. But the major concern is his entry to the country on arrival at the

border. In 1996, the Supreme Court in National Human Rights Commission v. State of Arunachal

Pradesh[14] intervened with a liberal interpretation of the law to suggest that refugees are a class apart from

foreigners deserving of the protection of Article 21 of the Constitution.[15] To quote from the judgment,

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and

certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So

also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus

the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot

permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they

would be forced to do so.”[16]

In the above case Court was rather concerned about the substantive and procedural aspect of Article 21 rather than

the imperative right of the refugee for a non-refoulement. In spite of this judgment it is a fact that in the absence of

an institutional framework one cannot fruitfully argue that State is obliged to follow the principle of non-refoulement

in its dealings with refugees unless it is raised to the level of customary international law as alleged by some
academicians.[17]. The argument is based on the fact that the principle is extensively practiced by the 137 countries

who are parties to the international convention for the protection of refugees and is often advised to be followed by

other countries too. So by the time it has raised to the level of customary international law as recognised by the

majority international community.

EVIDENCE REQUIRED TO ESTABLISH A REFUGEE CLAIM

Since Indian law considers all non-citizen’s as aliens it is rather difficult to prove the status of refugee if at all he is to

get a better protection. He should carry sufficient document to prove grounds for the fear of persecution may be in

the form of ID card of employment with some governmental agency/ ID card indicating membership in a group. The

claimant must be able to establish all his statements to interviewing authorities in a consistent manner without

discrepancies. There will be corroboration and confirmation of facts pertaining to persecution by the

authorities. The authorities will gather background details from the government authorities or through the NGO’s.

INDIA’S INTERNATIONAL COMMITMENTS

Even though India lacks a specific legislation pertaining to refugee protection it is a member to the Executive

Committee of High Commissioner’s Programme, 1995. EXCOM is the organization of UN which approves and

supervises the material assistance programme of UNHCR. Membership in it indicates particular interest and greater

commitment to refugee matters. India is a signatory to the UN Declaration on Territorial Asylum, 1967. There are

contentions that India has accepted the principle of non-refoulement as envisaged in the Bangkok Principle 1966

which were formulated for guidance of member states with respect to matters concerning status and treatment of

refugees.

MAJOR REFUGEE CATEGORIES IN INDIA

The major categories of refugees existing in India may be explained under three heads.

1) Those who receive full protection according to the standard set by the Government of India eg. The Srilankan

Tamil refugees and the Jumma people from Bangladesh.

2) Whose presence in Indian territory is acknowledged by the UNHCR and protected under the principles of non-

refoulement eg. Is that of Afgan, Somalian, Sudaneese, Burmeese etc.

3) Who have entered India and have assimilated into their communities. Their presence is not acknowledged either

by the Indian Government or by UNHCR. Eg. Tribal refugees, Nagas from Burma.
Conclusion

India often raises her concern of indefinite legal responsibility for not signing the International Convention or the

Protocol as the number of persons seeking shelter has increased over a period of time. The members are obliged to

provide food clothing shelter and other basic life amenities which involve the spending of a considerable portion of

country’s economy. This might be other reason for abstaining from the international community in the matters of

refugee protection. But it is an immediate necessity to review the possibility of according the principle of non-

refoulement under the present legal system or a new procedural legislation to meet the situation. Once India signs

the International document she has every chances of getting financial aid from the international community. An

international consensus on the policy is the only way towards greater human rights approach.

[1] India is neither party to the 1951 Convention on Refugees nor the 1967 Protocol

[2] Human Rights Law Network, Report Refugee Populations in India 2007, available at http://www.ssrn.com

[3] Tapan K. Bose, Protection of Refugees in South Asia: The Need for a Legal Frame Work (2000) as quoted in Omar

n. Chaudhary, Turning Back: An assessment of Non-Refoulement under Indian law,http://www.ssrn.com

[4] Human Rights Law Network, Report Refugee Populations in India 2007, available at http://www.ssrn.com

[5] Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’, available at www.ssrn.com

[6] See the Statement of Objects and Reasons of the Foreigners Act, 1946.

[7] The preamble of the Act describes it as an Act to confer upon Central Government certain powers in respect of

foreigners’ Whereas it is expedient to provide for the exercise by the central government of certain powers in respect

of the entry of foreigners to India, their presence therein and their departure therefrom.

[8] See, for instance, the Foreigners (Restriction on Movements) Order, 1960; Foreigners

(Restriction on Activities) Order, 1962; Foreigners (Restrictions on Residence) Order,

1968; Foreigners (Proof on Identity) Order, 1986; and, Foreigners (Report to Police)

Order, 1971.

[9] Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367 at p. 36.

[10] (1991) 3 SCC 554 at pr. 13

[11] (2005) 5SCC 665 at prs. 74-79.

 [12] Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International Journal of Refugee

Law 238 (2000)

[13] Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International Journal of Refugee

Law 238 (2000)

[14] (1996) 1 SCC 742

[15] The case involved a dispute between Chakma refugees residing in Arunachal Pradesh and a group of hostile

locals(AAPSU). The Chakma people had been displaced in 1964 from erstwhile East Pakistan (now Bangladesh) and

moved from Assam to the current state of Arunachal Pradesh, a sparsely populated area of India. Although many

applied for citizenship, local officials prevented their applications from reaching the federal government; despite

living in India for over 30 years, some of the Chakmas remained, officially speaking, non-citizens. As the Chakma

population skyrocketed, the AAPSU issued .quit orders,. demanding that the Chakma leave or suffer severe harm.

Arunachal Pradesh formulated plans to move the Chakmas to another state, even though some neighboring states

threatened to kill the Chakmas upon entry. Meanwhile the Ministry of Home Affairs was attempting to confer blanket

citizenship (but was continually foiled by the state, which refused to forward the naturalization applications) and

demanded that the state provide security at their present location. Finally, the NHRC filed a petition in court

demanding that Arunachal Pradesh halt the Chakmas. forced migration and protect them from harm. Fortunately for

the Chakmas, the Supreme Court ruled that they could not be moved until the federal government had ruled on their

citizenship, and that, in the meanwhile, the state had an obligation to protect them from violence.

[16] (1996) 1 SCC 742 at para 20

[17] H. Knox Thames, India’s Failure to Adequately Protect Refugees

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Comments
1. lavanya says:
October 26, 2010 at 7:09 pm

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 2

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the article related to refugee is very informative and it helpd me to understand the condition of india regarding the issues

related to refugees..it will be help to do my moot..

Reply

2. adv.Santhy Rakesh says:

October 28, 2010 at 12:36 pm

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Thanks for the comment lavanya…Human rights issues invariably involve questions on existing value system, so… only a

comparative analysis will help you take ‘sides’….especially during moot court competitions. i think the endnotes in this

article will help u for the same . good luck lavanya.

Reply

3. JISSY.K says:
January 11, 2011 at 3:10 pm

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This article is very informative and helpful.

Reply

4. mickey says:
February 7, 2011 at 2:19 pm

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Hi Mr. Boris Paul,

I have a friend who fled Tibet into India she is now in the UK. She is very scared of returning to India as she say Indian

police is corrupt and would kill her. Is there any evidence of this? and also do you know whether Tibetans (buddhists) are

treated particularly badly by Indian police. Thanks if you have time to respond. Kind regards mickey schroder

Reply
5. praveen says:
September 1, 2013 at 10:51 pm

Rate This

Hi,

This blog is very much informative. I could like to know, is that possible to bring out any refugee from camp and giving

some work to them. I mean they can live freely within india. To do this, Is there is any procedure? Advance thanks.. waiting

for your reply

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