NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

BANGALORE

Project Assignment on:

TOWARDS A SEPARATE LEGISLATION FOR

REFUGEES-WHETHER A DISTANT DREAM OR SOON
TO BE A REALITY

Submitted as per course requirement of Research Methodology

Submitted to:

Prof. T.V. Subba Rao

Submitted by:

GITIKA DIXIT

ID No. 784

1st year LLM (Human Rights)

Page | i
ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my

guide Professor/Mentor T.V. Subba Rao for his exemplary guidance, monitoring
and constant encouragement throughout the course of this thesis. The blessing,
help and guidance given by her time to time shall carry me a long way in the
journey of life on which I am about to embark.

With profound gratitude

Gitika Dixit

Page | ii
 INDEX
1. Chapter 1 .............................................................................................................. 1
a) Aims and objectives........................................................................................ 2
b) Hypothesis....................................................................................................... 3
c) Research questions.......................................................................................... 3
d) Statement of Problem ..................................................................................... 4
e) Importance of Problem.................................................................................... 4
f) Research Methodology ................................................................................... 4
g) Mode of Citation ............................................................................................. 5
h) Limitation......................................................................................................... 5
i) Review of literature ......................................................................................... 5
j) Books................................................................................................................ 5
 B.S Chimni,” International Refugee Law- A Reader”
Saga Publications India Pvt. Ltd., New Delhi 2000. ........................... 5
 James C. Hathaway, “The Law of Refugee status”,
Butterworth Publications, Canada Ltd, Toronto 1991 ........................ 5
 Manik Chakrabarty , Human Rights And Refugees,
Deep and Deep Publications Pvt. Ltd., New Delhi 1998 ......................6
 Paul Hockings, “Ancient Hindu Refugees Bandaga Social
History 1550-1975” ,Vikas Publishing House Pvt Ltd.,
New Delhi 1980 ................................................................................... 6
 Ragini Trakoo et al, “Refugees And The Law”,
Human Rights Law Network, New Delhi, 2011 ................................... 7
k) Articles.............................................................................................................. 7
 Saurabh Bhattacharjee, “India needs a refugee law,
Eco and Political Weekly, Vol.43, 1st March, 2008, pp71-76................ 7
 Markandey Katju, “India’s perception on Refugee law”
ISIL Year book of international Vol . 01, Jan-Dec 2001
page 251-252........................................................................................ 8
 V. Suryanarayan, “Beed for national Refugee law”
ISIL year book of international, Vol. 2 Jan-Dec 2002, pp7-17............... 8
 Fali S Nariman,”Refugee Protection “,
ISIL year book of international, Vol 2 Jan-Dec 2002, page 7-17............ 9
l) Chapterization....................................................................................................9

Page | iii
 CHAPTER 1

INTRODUCTION

The refugee problem is universal in nature and it cannot be confined to any particular level of
development within the existing worlds. 1Every country has its own problems that generate
conditions of resistance and removal of a group of people due to the existing scenario who
fear that they are liable to be persecuted for variety of reasons in the country of origin. A
person may become a refugee due to natural disasters that compel him or her to move out
from their places of habitual residence and seek refuge in another country which has more
favorable conditions. The status of a refugee in International law is constituted by a complex
network of national, regional and international laws. The continuing political instability in
most countries do not allow refugees to return to their homes and moreover the principle of
non refoulement prohibits the Indian Government from repatriating these refugees and it is
most likely that majority of them are likely to stay for extended periods of time. The presence
of different refugee groups in India represents the Indian response to the refugee situation
prevailing within the country which still remains a recurring problem. But the irony of the
situation is that even though India has one of the largest numbers of refugees in the world, it
is neither a party to the 1951 Refugee convention or the Protocol of 1967 nor does it have a
domestic refugee policy of its own. The Constitution of India offers some sort of protection
to outsiders under Article 14 which guarantees equality before the law, Article 21 with
respect to the right of life and personal liberty which applies to both citizens and aliens.
Articles 22(1), 22(2) and 25(1) of the Indian Constitution reflect that the rules of natural
justice in common law systems are equally applicable in India, even to refugees.

India being a multicultural and multi ethnic country, has one of the largest number of
refugees in the world, it has been and continues to be an ideal safe haven for people fleeing
from their own countries. In this context a comprehensive study is made on the need for a
national legislation for the protection of refugees in India.

1
Laura Barnett, Global Governance and the evolution of the international Refugee regime , International Journal of
Refugee Law VOL. 14 No. 2/3, Oxford University Press(2002) Pp 3-6

Page | 1
 The lack of national refugee legislation has created certain difficulties in dealing with the
refugee problem as the government has extended ore favorable treatment towards a particular
group of refugees while at the same time totally neglecting similarly placed group of people.
The absence of a standard legislative criterion is the main cause of this lack of uniformity in
treatment towards the refugees present within the country. Therefore, at present, in the
absence of any national refugee legislation, the provisions of various legislations like, The
Foreigners Act, 1946, The Registration of Foreigners Act, 1939, The Passport (Entry into
India) Act, 1920 and the Passport Act, 1967 are made applicable to refugees in India but
these legislations do not contain the definition of refugees as it makes reference only to
‘aliens’ or ‘foreigners’

Even though India continues to grapple with problems in providing basic amenities to its
own citizens, it continues to take in refugees either directly through the existing process of
registration of refugees or indirectly through it unmanned porous borders which facilitates
the entry of many irregular migrants.2 Under such circumstances it would be more
convenient for the Indian government if a well defined national refugee law existed because
this would then provide clear defined rules to be established for the refugees and leaves very
little scope for arbitrariness towards them. At the same time it would also provide a sense of
security to the refugees themselves. Though the 1951 convention may be considered as a
guide to deal with its refugee problem but by not acceding to the Convention and its protocol,
certain discretion is still vested with the Indian Government towards the treatment meted out
to refugee who cannot be said to be beneficial towards the vulnerable refugee population.3

AIMS AND OBJECTIVES

The aim of this paper is to critically analyze the current practice of the Indian government
towards refugees within the country. The researcher further aims to put forth both the reasons
as to whether India needs a refugee law, or the current practice feasible given the increasing
the number of refugees within the country and therefore whether in this context changes are
required or not.

2
B.S. Chimni(ed) International Refugee Law, A reader, Sage Publications India Pvt. Ltd, New Delhi (2000), p.9
3
Manik Chakrabarty, Human Rights and Refugees, Deep and Deep publications, New Delhi, (1998)p. XII

Page | 2
 The objectives of the research are:

1. To critically examine the inadequacy of the definition of refugees under the

1951Convention
2. To understand India’s obligations towards refugees under the International Human
Rights Instruments
3. To examine the difficulties faced by the refugees in India.
4. To examine the lacunae in the Indian approach towards refugee status determination
within its territory
5. To examine the role of the Indian judiciary in protecting the rights of the refugee in
India.
6. To examine and critically analyze the reasons for the refusal to adopt a national
legislation for the protection of refugees in India.
7. To examine the reasons as to whether India needs a refugee law.
8. To examine the existing model National Refugee legislation for the protection of
refugees in India.

HYPOTHESIS

With this backdrop the hypothesis of the researcher is that national refugee legislation is needed
in India to adequately protect the refugees on its soil.

RESEARCH QUESTIONS

Based on the hypothesis the following research questions are framed:

1. What is the existing legal framework for the protection of refugees under International
law?
2. India being a party to a number of International human rights instruments, and in this
context how has India met its obligations towards refugees?
3. Whether India has been able to respect the principle of non refoulement in dealing with
the refugee problem?
4. How has the judiciary and the UNHCR responded to the problems of refugees in India?

Page | 3
 5. What are the shortcomings under the existing legal framework for dealing with the issue
of refugees in India?
6. How will a National Refugee law serve the purpose of protection of refugees in India?

STATEMENT OF PROBLEM

While India remains a non-state party to the 1951 Convention and the 1967 Protocol, the
complexities that involve refugee protection have been addressed through ad hoc policies to a
certain extent. The primary legislation currently dealing with refugees’ influxes in India are
unrealistic to the present problems faced by a refugee; it fails to distinguish between a refugee
and a foreigner, as there is no indication of refugees as a separate category under any of the acts,
thereby depriving the right of the refugees to have rights. Moreover, the concept of burden
sharing imposes undue obligation upon a developing country like India. The problem with the
current state practice is that it fails to realize that it cannot go on with its half hearted attitude,
instead of evading responsibility through criticisms and indifference, India has to come up with a
specific legal enactment that genuinely addresses the concern of refugee population.

IMPORTANCE OF PROBLEM

In the light of the current situation of refugee influx, it becomes pertinent to note that why does
India need a national legislation on Refugee Law. In the absence of a national refugee law
refugees are dependent upon the benevolence of the policy makers as there is no specific
legislation from which their rights can be inferred. Ad hoc policy measures are not sufficient to
deal with the humanitarian issue relating to the refugees, this has only allowed arbitrary and
discriminatory methods which are of great detriment to certain categories of refugees. The
enactment of a suitable national refugee law by India can be the first step towards filling the void
in the international regime of refugee protection.

RESEARCH METHODOLGY

This paper adopts a combination of analytical and descriptive methods. Case study method is
also employed in identifying the national legal framework based on the Constitution and the
laws.

Page | 4
MODE OF CITATION

In this research, the Blue Book Method of citation has been followed.

LIMITATION

The research is limited to a doctrinal model which is made up by secondary sources along with
the judicial decisions. The research is about the analysis of the observations made by the
researcher which has not been given validation by the Centre or State Legislature.

REVIEW OF LITERATURE

 BOOKS

B.S Chimni,” International Refugee Law- A Reader” Saga Publications India Pvt. Ltd.,
New Delhi 2000.

According to the author’s point of view, India is a stalwart in the entire South Asia with a major
burden of providing shelter to refugees which is by far the maximum in the world. However, the
author ties to convey from the perspective of India, that India is a developing country which is
always providing refuge to large number of people while at the same time struggling with illegal
infiltration. The author aims at establishing the difficulties in providing equal protection to
refugees lie deeper than had been thought and it must take into account the normative quality of
law, which has justice as its ultimate objective, as an important tool in bringing an end to the
plights of the refugees as the ignorance of its significance has proved fatal. The author is of the
opinion that such research is vital in order to moot the ideas in support of uniformly secure and
equal living conditions for refugees around the world.

James C. Hathaway, “The Law of Refugee status”, Butterworth Publications, Canada Ltd,
Toronto 1991

A lot many nations identify the various sorts of obligations, be it moral or legal to take in people
running away from persecution but it is not extended to people who apply for political asylum.
On them, restrictive policies apply and the procedure is tiresome. So, the author explores as to
what is persecution and how exactly people applying narrate their sufferings which can be
considered true by the immigration officer. The author also tries to find out as to how officers of

Page | 5
asylum can pick out non genuine people from the other applicants without doing any
unacceptable act. Rejecting refugee applicants is a daily practice at the immigration office. This
makes it appropriate for a researcher of political science and sociology to read further into their
stories. Taking into consideration, the stories told by the applicants and interviews with their
lawyer, the author embarks on a journey comparing the procedure of application in the United
States with the developing countries. The author describes as to how difficult it is to differentiate
between terrorists and actual refugees while simultaneously maintain their obligations towards
people fearing persecution.

Manik Chakrabarty , Human Rights And Refugees, Deep and Deep Publications Pvt. Ltd.,
New Delhi 1998

Within the South Asian region, India stands out as an exception of tolerant, democratic and
secular government in the neighborhood of unstable and volatile states. The author explains that
in the absence of a specialized statutory framework, India relies on the Foreigners Act, 1946 to
govern the entry, stay and exit of foreigners in India. The author is of the view that this is an
archaic legislation that was enacted by a colonial government in response to the Second World
War. The author brings out the ambivalence of India’s refugee policy which is in connection to
relation to its treatment of the UNHCR. The author opines that although there is no formal
agreement between the Indian Government and the UNHCR, India continues to sit on the
UNHCR’s executive committee in Geneva. Furthermore, India has not signed or ratified the
Refugee Convention. This, according to the author, creates a paradoxical and rather baffling
situation regarding the UNHCR where India sits on its executive Committee and allows the
UNHCR to operate on its territory, but refuses to sign the legal instrument that brought the
Organization into existence.

Paul Hockings, “Ancient Hindu Refugees Bandaga Social History 1550-1975” ,Vikas
Publishing House Pvt Ltd., New Delhi 1980

The author explains that although India is not a party to the 1951 Refugee Convention, asylum
seekers who are not offered direct protection by the Indian Government can get refugee status
from the UNHCR in a defacto system of refugee protection in India. But in the recent past,
refugees under the UNHCR protection have begun losing faith in a system plagued by

Page | 6
insensitivity and inefficiency. The author is of the opinion that given the legal vacuum with
regard to refugees, the process of addressing large scale refugee inflows over the years has been
ad hoc, mainly through executive action. This according to the author is far from appropriate and
is often governed by ‘political instinct’ based on India’s diplomatic relations with the country of
origin at the time. The author tries to give a clear picture of refugees who are residing in India
and their difficulties especially by Jumma refugees, Srilankan Tamil refugees, Tibetan Refugees,
Bhutanese refugees, ethinic Burmese and Tribal refugees and the refugees protected by the
UNHCR in promotion and protection of refugees’ rights.

Ragini Trakoo et al, “Refugees And The Law”, Human Rights Law Network, New Delhi,
2011

According to the author, there is a need for a national legislation, as opposed to a regional
declaration or Convention. Firstly, the author states that a premature attempt at a regional
solution could mean the scuttling of national legislation as the process of negotiation will raise
politically sensitive issues which may be used by ruling elites to turn the ordinary citizen hostile
to even a national regime for the refugees. Secondly, the author argues that a non binding
regional instrument may have little impact but may provide enough justification of thwarting any
national legislation. Also, the author states that the scope of a regional instrument will be
confined to general issues affecting the region while a national legislation can go into much
more detail and therefore be more comprehensive. And, finally, the author tries to put forward
that the issues surrounding IDPs which for obvious reasons, have no place in a regional
instrument can be effectively addressed in a national legislation.

 ARTICLES

Saurabh Bhattacharjee, “India needs a refugee law, Eco and Political Weekly, Vol.43, 1 st
March, 2008, pp71-76

As the crisis in implementation of human rights and the increasing gap between the theory and
practice of human rights of refugees is witnessed, the author is of the view that it becomes
significant to identify the reasons of crisis and to establish some plausible solutions to overcome

Page | 7
the same. The author also opines since the situation is worst in the states which are non signatory
to the Refugee Convention, in want of a secured and certain regime for protection and a concrete
source of obligation, it becomes imperative to diagnose the situation of refugees in such
countries. The author endeavors to explain that amongst such countries, India is one of the most
important which hosts refugees from wide variety of countries ranging from Asia to Africa. The
diagnosis is important to provide appropriate cure.

Markandey Katju, “India’s perception on Refugee law” ISIL Year book of international
Vol . 01, Jan-Dec 2001 page 251-252

At present, in the wake of the increased gulf between the practice and the preaching of nations
regarding equal protection to refugees resulting into a situation of dissipation and docility, there
remains not an iota of doubt in the above mentioned assertion. In the opinion of the author, a
great deal has been written and spoken in recent years about the difficulties pertaining to the
rights of the refugees, enforcement of their rights in a country which is a signatory to the
Refugee Convention but most of the researchers have remained oblivious to the fact that a large
number of refugees are still living in countries which are not a signatory to the Refugee
Convention. According to the author, it is very difficult to trace out the obligations and to inquire
into the legal framework of the countries which are not a signatory to the Refugee Convention.
The author tries to provide a detailed analysis of the existing legal framework which aims at
ensuring protection for refugees, even in a non signatory state. The legal framework comprises of
the provisions under International Law, International Human Rights Law and Refugee Law. The
author also explains as to how it covers only those provisions which have application upon
countries that have not acceded to or signed the Refugee Convention.

V. Suryanarayan, “Beed for national Refugee law” ISIL year book of international, Vol. 2
Jan-Dec 2002, pp7-17.

There are numerous aspects pertaining to refugees who are of major importance both to India, as
a country and to the refugees, particularly in the context of law enforcement. According to the
author, given the security scenario prevailing in the country, particularly arising out of the role of
some of the neighbors’ in this regard, an utterly humanitarian matter like the ‘refugees’ has come
to be influenced by considerations of national security. The author is of the opinion that a proper
understanding of the circumstances pertaining to specific refugee situations by the concerned law

Page | 8
enforcement agency or even by an individual t, would pave the way for the security as well as
the humane aspects from both the humanitarian as well as the human rights angle. The author
also tries to analyze the conditions of refugees in India and discriminatory practices towards
them and to finally identify the possible ways out from the situation of discrimination, if any.

Fali S Nariman,”Refugee Protection “, ISIL year book of international, Vol 2 Jan-Dec

2002, page 7-17

Human rights regime towards refugees in India is suffering from several specific ailments like
ignorance of the constitutional obligations, lack of coordination amongst the international
agencies and the administrative authorities in India, absence of a national legislation towards
them, absence of a comprehensive and integrated institutional and legal mechanism, power
imbalance, narrow politics , lack of awareness and resources. According to the author, all these
factors combined together present a strenuous task of recalling and collecting the ‘first rate
concessions’ on the problems faced by the refugees in India and the way out by throwing light
upon the frequent dissemination of popular and infectious illegalities. The author tries to
categorize the legal principles, statutory and constitutional provisions which aim at ensuring
equal protection for refugees in India and to dissect the role of the judiciary in affording equal
protection to refugees and to draw upon certain sets of conclusive observations delineating the
essential ingredients of equal protection for refugees, The author explains that this is sought to be
done through underlining the major legal provisions and judicial decisions in India.

CHAPTERIZATION

In Chapter II entitled the 1951 Convention and the 1967 Protocol the researcher begins by
analyzing the elements of the definition of a “refugee” as provided under the 1951 Convention
and its 1967 protocol. Then the researcher goes on to point out the shortcomings of the definition
with special reference to the element of “persecution”. With the illustration of some real life
examples, the researcher has pointed out as to how the element of ‘threat of persecution’ is too
high a threshold to be met, as a result of which, genuine refugee cases fails to get recognized.
The researcher further points out as to how the new categories of refugees produced by the
changing climatic conditions failed to avail the benefit of the convention due to its restrictive

Page | 9
definition. By pointing out several other inadequacies the researcher states that the definition
under the Refugee s in ‘refugee like’ Convention has to be expanded so that real life problems
faced by internally displaced persons and similar other categories of people who find themselves
in ‘refugee like’ situations can be addressed. As part of the efforts reform, brief references have
been made to the OAU Convention, the Cartagena Declaration and the AALCO’s Bangkok
declaration. Towards the end, the researcher however acknowledges that in spite of all its
deficiencies the Refugee Convention has been able to sensitize on the issue of refugees by
affording protection and legal status to them, and there is no guarantee that a new Refugee
Convention will solve all the problems faced by refugees. As long as violence, natural calamities
social and political problems exist, there will never be an end to the problems faced by this
category of people and we need the Convention to take care of this category of people who are
victims of the circumstances in consonance with the spirit of the Convention, which is, to protect
refugees everywhere.

In Chapter III entitled India’s position on the Refugee Convention; the researcher in this
chapter deals with legislations that govern the refugees in India and has made special reference
to certain sections which confer arbitrary and discretionary powers upon the authorities dealing
with refugees; the researcher has also listed out the names of the international instruments to
which India is a party, and on the basis of this the researcher has attempted to trace the extent of
India’s obligations towards refugee protection. The researcher has done an in depth analysis of
India’s refusal to ratify the convention and its protocol, the genuineness of the validity of the
reasons for non ratification have been appreciated and analyzed by the researcher. In order to
make this research an unbiased one, the researcher has also scrutinized the reasons of refusal by
testing the credibility of the reasons in the context of today’s scenario.

The researcher has also listed out both the pre and post constitutional laws that governed the
refugees, evacuees and displaced persons. Then the researcher would like to analyze in detail the
contemporary legislation that governs refugees in the absence of any specific national refugee
legislation. The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, Foreigners
Order, 1948 and the Passport (Entry into India) Act, 1920 and Passport Act, 1967 are the chief
legal instruments currently applied to refugees in India. By analyzing these documents, the
researcher has tried to show as to how the present laws regulating refugees are outdated and

Page | 10
unrealistic. By categorizing refugees under the term ‘foreigners’, it makes no distinction between
a refugee and a foreigner which is one of the greatest demerits of these legislations. The
researcher has made special reference to certain sections which confer arbitrary and discretionary
powers upon the authorities dealing with the refugees and the researcher has opined that this lack
of uniformity in the practice is detrimental for the rights of the refugees.

In Chapter IV entitled the Role of Judiciary towards refugee protection; the researcher has
analyzed the steps taken by the judiciary in filling the legal vacuum of refugee protection in
India. In the absence of national refugee legislation, the researcher has analyzed as to how courts
have bridged the gap between international and municipal law by innovatively reading into the
domestic laws and the international humanitarian obligations. This chapter also shows as to how
the courts have expanded the benefit of certain rights guaranteed under the Constitution towards
the protection of refugees in India. Irrespective of India’s stand with respect to the 1951 Refugee
Convention or the 1967 Protocol, the decisions of the Court clearly reflect that India has a
paramount obligation to protect refugees in India.

In Chapter V entitled why India needs a national refugee law; the researcher has pointed out
the reasons as to why India needs a refugee law. The researcher would highlight that enactment
of a suitable national refugee law by India can be the first step towards filling the void in the
international regime of refugee protection.

In the concluding chapter, Chapter VI, the researcher has summarized the observations made
with respect to how best India has responded to the issue of refugee protection in the absence of
national refugee legislation alongwith a few suggestions.

Page | 11