A

Dissertation
On

Topic
PROTECTION OF REFUGEES
(INTERNATIONAL REFUGEE LAW)

Subject: SEMINAR-I
Submitted for
IX Semester
B.A. L.L.B.
BATCH: 2017-2022

Submitted By: Supervised By:

RAJSHEKHAR MISHRA Ms. Manjari Singh
182060450113 (Assistant Professor)
Batch: 2017-22

1
  DECLARATION
I, hereby declare that the dissertation entitled “Protection of refugees” is based on
original research undertaken by me and it has not been submitted in any University
for any degree or diploma.

Signature of the student

.....................................

Enrolment No.182060450113

Date: 27.11.2021

2
  CERTIFICATE

This is to certify that the dissertation entitled “Protection of refugees” has been
prepared by Mr. Rajshekhar Mishra, a student of City Academy Law College,
Tiwariganj, Lucknow under my supervision and guidance. I recommend it for
evaluation.

Ms. Manjari Singh

Assistant Professor
............................
Date: 27.11.2021

3
  ACKNOWLEDGEMENT

On the completion of present work, I feel happy to express my deep gratitude to all
those who have inspired, encouraged, guided and blessed me in preparing and
presenting this dissertation.
I like the opportunity and honour to express my deep sense of gratitude to my guide
Ms. Manjari Singh,I am indebted to her for his invaluable guidance and help. She
not only gave me his able, experienced, and scholarly advice but also allowed me a
free hand in the treatment of this subject.

I record my thanks to my family for their help and encouragement in my work.

_________________________
RAJSHEKHAR MISHRA

4
 o LIST OF CASES

 Gurunathan and others vs. Government of India

 A.C. Mohd.Siddique vs. Government of India and others

 P. Nedumaran vs. Union of India

 Syed Ata Mohammadi vs. Union of India

 Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab

 N.D.Pancholi vs. State of Punjab & Others

 Malavika Karlekar vs. Union of India

 Luis De Raedt vs. Union of India

 State of Arunachal Pradesh vs. Khudiram Chakma

 Digbijay Mote v. Union of India

 Majid Ahmed Abdul Majid MohdJad Al Hak v. Union of India

5
  ABBRIVATIONS
 1951 Convention : Convention Relating to the Status of Refugees, 1951
 Art. : Article
 AIR : All India Report
 ASEAN : Association of Southeast Asian Nations
 CEDAW : Convention on the Elimination of Discrimination Against
Women
 e.g. : exempli gratia
 FR : Fundamental Rights
 H.C. : High Court
 HR : Human Rights
 Ibid : In the Same Place
 Infra : Below
 ICC : International Criminal Court
 ICCPR : International Convention on Civil and Political Rights
 ICESCR : International Convention on Economic Social and
Cultural Rights
 ICJ : International Court of Justice
 IDP : Internally Displaced Persons
 NGO : Non-Governmental Organisation
 OAU : Organization of African Unity
 OAU Convention : OAU Convention Governing the Specific Aspects of
Refugee
Problems in Africa, 1969
 OHCHR : Office of the United Nations High Commissioner for
Human Rights
 p. : Page
 pp. : Pages
 SAARC : South Asian Association for Regional Cooperation
 SC : Supreme Court
 SCC : Supreme Court Cases
 Sec. : Section
 Supra : Abovementioned
 UDHR : Universal Declaration of Human Rights

 UN : United Nations
 UNCRC :United Nations Convention on the Rights of the Child
 UNHCR : United Nations High Commissioner for Refugees
 UNSC : United Nations Security Council
 Vol. : Volume
 WHO : World Health Organization

6
  TABLE OF CONTENTS

Chapter 1:

 Introduction ………………………………………………………...……...01-14
 Overview …………………………………………………………………..…….
 Research objective……………………………………………………….………
 Research question………………………………………………………………..
 Research methodology ………………………………………………..…...........
 Literature review………………………………………………………………...
 Hypothesis…………………………………………………………………….…
 Presentation of Study……………………………….……….…………………...
 History of refugees….…………………………………………………..............
 Major Refugee groups ……………………………………………….………....

Chapter 2: Refugee and their rights ……………………………………………...…. 15-28

o Overview …………………………………………………………..…………...
o Definition of Refugees …………………………………………….
……….......
o Rights of Refugees under International Laws….
………………………….........
o Right crucial to refugee protection……………………………………………...
o Other international legal standards that protect refugees and asylum seeker…..
o Other sources of law and guidance……………………………………………..
o Refugee Status in India…………………………………………………………
o The contemporary refugee dilemma……………………………………………

Chapter 3: India’s Refugee saga from 1947 to 2019……………………………….…29-37

 Overview …………………………………………………………..………..…
 The Refugee of Partition…………………………………………….……..…..
 Seeking Political Asylum in India………………………………………...........
 Why fewer Asylum seeker apply in India………………………………..….....
 Recent Development…………………………………………………….…..…

7
  Problem faced by the Refugees………………………………………………..
 Steps taken for the Refugees……………………………………………….….

Chapter 4: Indian practice regarding Refugee protection…………………………….…….38-51

 Overview ……………………………………………………………..…..…...
 Resorting to ‘Human Rights’ to Enhance the Protection of Refugees ..…........
 Constitutional protection……...………………………………………….…....
 Laws governing Refugees in India……………….……………………..……..
 Analysis of the role of UNHCR in India………………………..…..…….…...
 Analysis of the role of NHCR in India…………………………………….…..

Chapter 5: Judicial Responses towards the Protection of Refugees………………..52-61

 Overview …………………………………………………………………...….
 The Border, Immigration Authorities and the Police…………………....….....
 Administrative Policies and Directions………………………….………........
 The Courts……………………………………………………………………..
 Legal Framework for Refugee Protection in India…………………………….

Chapter 6: Suggestion and Conclusion……………………………………………….62-66

 Conclusion…………………………………………………………….…….....
 Suggestion……………………..……………………………………………….

BIBLIOGRAPHY ………………………………………………………………….......04

8
 CHAPTER 1
INTRODUCTION

OVERVIEW:-

 There are numerous aspects pertaining to refugees which are of major importance both to
India, as a country and to the refugees, particularly in the context of law enforcement.
Given the security scenario prevailing in the country, particularly arising out of the role
of some of the neighbours in this regard, an utterly humanitarian matter like the
‘refugees’ has come to be influenced by considerations of national security. It is a reality
that we can ill-afford to overlook this aspect of the matter in any dispassionate
deliberation of the subject under review in this article. While law and order is a State
subject under the Indian Constitution, international relations and international borders are
under the exclusive purview of the Union government. This has resulted in a variety of
agencies, both of the Central as well as the State governments, having to deal with
refugee matters connected with law enforcement. Also, all policies governing refugees
are laid down by the Union government though the impact of the refugee problem as such
has to be borne by the State administration to a greater degree if not wholly.

 The rights of refugees are one of the world's major problems. According to the United
Nations Article 1 on the Status of Refugees, refugees are “well-known for fear that they
will be persecuted for reasons such as race, religion, nationality, membership of a
particular social group, or political opinion. Outside the country of his nationality, and
because of such fear, he does not want to get himself out of the security of that country.1"
 They travel to other countries when their life is in constant threat for various reasons and
when their health is not perfect. Many countries in the world have a formal rule
governing refugees living in their own countries and have the protection they need to be
provided, but in India, there is no uniform legal framework.
 Modern refugee issues have caused serious political and economic problems for the
temporary receptionist countries, as well as the problems of carrying on the

1
United Nations High Commission for Refugeeshttps://www.unhcr.org/3b66c2aa10

9
 administrative and financial resources of private companies and national governments.
The refugee issue has violated national jurisdiction and institutions. In South Asia, micro-
borders have moved thousands of people into neighbouring states and amplified the
movement of refugees and migrants across the border. In these post-colonial national
states, people travel to neighbouring states to escape violence or are denied basic human
rights, including food, water and shelter.
 India is a country with many refugee groups from different countries, mainly its
neighbours. There are no applicable refugee rules, which can be found in the 1951 UN
Convention. Neither the Convention nor the 1967 Protocol on the Status of Refugees
was signed. Many countries regulate regional instruments for the protection of refugees,
but there is no tool to protect the refugees of the Asian region. Since independence, India
has been adhering to temporary policies on refugee migration. India has a large number
of refugees due to its geographical location, religious community and wider culture.
 There are 51,000 Chakmakas in India and 56,000 Sri Lankan refugees. In Nepal,
75,000 Southern Bhutanese of Nepal descent have escaped ethnic cleansing. One
million people of Bangladeshi descent are lost in the paths of Karachi, and 2,38,000
unwanted Biharis are "unstable" in Bangladesh. 47,000 Rohingya-Burmese refugees in
Bangladesh are awaiting the return of the country imposed, and many are leaving Burma.
One million or more people have been internally displaced 2 in Sri Lanka. Currently,
Rohingya refugees are a major concern for India. India, as a country and refugees,
especially in the context of law enforcement, has many aspects of refugee relatedness.
 UNHRC and HNRC are human rights organizations of the UN and India respectively.
Major Refugee Issue in India by the 1947 Indo-Pakistan Partition, there were millions of
transactions between these newly created countries. Some of the major refugee groups in
India are from Iran, Tibet, Bangladesh, Pakistan, Afghanistan, Sri Lanka and
Myanmar.
 Refugee protection has been a major concern for the international community since the
United Nations was formed, but the issue has yet to be resolved. Migration has been an
issue since ancient times. Aboriginal people migrated in search of food, water and
resources, and now refugees settle for security and other reasons. There are 15.2 million

2
The State of World Refugees, Report 2000, UNHCR, Geneva, Switzerland

10
 refugees worldwide, and 1 million are awaiting approval for asylum. Refugees face
many problems in India and around the world.
o The issues of utmost significance and which need to be probed in are who exactly
is a economic migrant or migrant, voluntary migrant or involuntary migrant or
refugee. It is a distinction not easy to make in a region where migration is
complicated by the fact that governments or majority groups do systematically
deny relief and violate the human rights of these affected communities.
 The influx of 40,000 Chin- Burmese into Mizoram is rooted in the traditional migratory
routes of trans- border communities in the Tri-junction of Bangladesh-Burma-India. But
equally, ethnic Chins in Burma are victims of persecution by majoritarian Burmese state.
It is an army of illegals beyond the reach of law and thus protection, which has been
criminalized due to want of a legal right to stay. Even those who fall within the
internationally accepted definition of refugees — who flee owing to well-founded fear of
being persecuted — find protection is less an issue of law and policy than political
judgment. It is a matter of great concern that no south Asian state signed the UN
Convention on Status of Refugees3.
o Some nation states like Africa and America have been the trailblazers in creating
regional instruments for addressing the situation and problems of refugees and
migrants in their States. But in Asia and especially South Asia, few social
scientists or policy makers have cared to tackle the problem of trans-border influx
of illegals. This complete juristic apathy has resulted in non-availability of any
substantial literature on the subject.
o In response to this challenge the international community has developed a
complex mechanism of world-wide cooperation involving a tripartite partnership
of national governments, private agencies, and international organisations; no
longer confined by strict definition of the “refugee”, it is prepared to approach the
problem in all its various aspects-political, social, economic and humanitarian.
Thus, the role of UNHCR4 has assumed an added significance.
 The Office of the United Nations High Commissioner for Refugees (UNHCR) has been
charged with the functions of providing international protection to refugees, under the
3
1951 Refugee Convention
4
United Nations High Commission for Refugees

11
 auspices of the United Nations, and of seeking solutions to refugees, and of seeking
solutions to refugee problems.

 A proper understanding of the circumstances pertaining to specific refugee situations by

the concerned law enforcement agency or even by an individual official, would pave the
way for taking care of both the security as well as the humane aspects- from both the
humanitarian as well as the human rights angle. At the same time, knowledge on the part
of all those who handle refugees- whether they are part of the government machinery or
outside it (including international agencies, NGOs etc) of the laws of the land and also
how the security and enforcement personnel function, would considerably facilitate
looking after the refugees.
 These functions include ensuring, with and through governments, the legal and practical
protection of refugees, mobilizing and coordinating the deployment of the resources
required to ensure their survival and well-being, and promoting conditions in countries of
origin that will be conducive to the ideal solution of voluntary repatriation and help in
preventing further refugee problems.
 However, the response of Indian Government on such an important issue has been far
from satisfactory.

1.2 RESEARCH OBJECTIVE

 The main objective of this research paper is to present the laws and rights available to
refugees. It presents many aspects related to refugees starting from the history of refugees
and the current situation of them. United Nations High Commissioner for Refugees
(UNHCR) is the main organization to provide international protection to refugees and
assist them in other manners.

 In India, National Human Rights Commission (NHRC) is the body which was given
statutory basis by Protection of Human Rights Act, 1993 which is responsible to protect
the refugees and promote human rights. The paper also has the information about Laws
and conventions regarding refugees.

12
 1.3 RESEARCH QUESTION

 There are many refugees in India but there are no specific laws regarding their rights.
The question is why he was not a signatory to India's 1951 Refugee Convention. Is
there any South Asian Convention on Refugees or Domestic Law?
 The world's biggest refugee crisis is also an issue for the UN. This article will inform
research scholars and refugees on the laws, history, traditions and rights of refugees in
India and around the world.
1.4 RESEARCH METHODOLOGY
 There is no research effort to understand the methods and its application objectives.
Several research methods were used to identify the above information. Theoretical
methodology for research is concerned.
 The traditional method of research is used by research scholars. Information on traditions
and other materials related to UNHCR and NHRC are used. Books, web articles,
newspapers, research articles on human rights for refugees have been used. The analysis
of the rights of refugees in India is brought from laws, case laws, books, articles, journals,
web pages.

1.5 LITERATURE REVIEW

 For the purpose of present study, the following books and articles which more or less deal
with the subject matter have been looked into and they are:

BOOK REVIEW

 BS. Chimney (Ed.), “International Refugee Law: A Reader”, New Delhi, Sage
Publications, 2000. P.S. Chimney is an international law professor and is a leading
scholar in both international law and international refugee law. The book is divided into
eight chapters dealing with various aspects of international refugee protection, including

13
 refugee definition, asylum, refugee rights and duties, and the UNHCR. Professor
Chimney explores asylum, historical background, reparations, and temporary protection,
but Professor Chimney fails to examine the country's dilemma without discussing the
existence of the law of burden sharing. One is its transnational commitment, and the other
is the internationally accepted restructuring provision, which is the basis of the current
research.
 JC Hathaway,"Refugees' Rights Under International Law", Cambridge University Press,
2005. Very little has been written about the rights in other articles of the conference. This
includes the non-restructuring policy in section 33. The author tries to highlight the
different types of rights granted to refugees by convention, but fails to find somewhere to
leave their country for fear of harassment and seek refuge in another country. The non-
refundable international rule thus comes into force, instead disrupting the extradition
process.
 RathinBandopadhyay, "Human Rights of Non-Citizens: Law and Truth", Deep and
Deep Publications Pvt. In his book, he sought to outline the human rights of non-citizens
and the laws that apply to these people who are citizens of any country. In this context,
Dr.RathinBandopadhyay has pointed out that the principle of non-repayment is an
international norm and has established itself in advance. The evolution of policy has been
dealt with and its relation to other international instruments is discussed.
 Guy S. Goodwin-Gill,"Refugees in International Law", Oxford, Clarendon Press, 1983.
Author of this valuable book is the Office of the United Nations High Commissioner for
Refugees (UNHCR). His earlier work on international law and the inter-state movement
of individuals (Oxford, 1978) led to the present work, based on his PhD thesis. The
combination of his material and practical familiarity with his rigorous academic judgment
make this book an effective resource for those who are already working for the safety of
refugees. The book begins right by defining the concept of refugees. Two important
chapters follow the notion of repayment and asylum. The author firmly argues that there
is now an international legal obligation that has not been restored. He also acknowledges
that there is no such duty to grant asylum. A person may have the human right to seek
asylum but cannot obtain it. The author argues, however, that while states are not
obligated to provide asylum, they require states to treat refugees in accordance with

14
 standards that permit appropriate remedies for voluntary repatriation, local integration or
resettlement in another country. However, the author fails to point out the peculiar
situation that arises during the extradition of the fugitive, rather than working on a
suitable solution. It is not yet clear whether a state is obligated to return or give him
shelter.
 KeesWouters, “International Legal Standards for the Protection from Refoulement”,
Intersentia, Mortsel, 2009. KeesWouters worked as a legal officer at the refugee
department of the Dutch section of Amnesty International and in the legal aid department
of the national office of the Dutch Council for Refugees. He became a staff member and
lecturer at the Office of Human Rights Studies and Social Development of Mahidol
University in Thailand Wouters’ book provides an analysis of other instruments that
support and better define the concept and nature of non-refoulement. In particular, the
author starts from the point of view that the international protection underlying refugee
status is based on the prevention of human rights violations.
 The structure of the book is based on the author’s analysis of the main international legal
instruments constituting the legal background to non-refoulement. But, for the purpose of
understanding the concept of human rights in international refugee laws the author has
not explained as to what would be the position of a state which grants asylum to the
person fearing persecution. The work rather offers the basis for further exploration of this
challenging principle under general international law, and in particular for the protection
of the fundamental rights of those seeking refuge from persecution abroad.

ARTICLES
 Apart from text-books, various articles, published by different journals have been
reviewed for the purpose of finding out the works, research and studies already done and
also for understanding the present position regarding the research work proposed to be
done. The articles and papers surveyed are as follows:
 Jessica Rodger,"Defining the parameters of non-repayment theory", LLM Research
Report, International Law (Laws 509). Faculty of Law at Victoria University of
Wellington. In this thesis, the author examines the principle of non-repayment, which

15
 prevents refugees from returning to places that threaten their lives or independence. This
is detailed in principle; Its status in international law and in what circumstances it applies;
Before looking at the state procedure regarding non-repayment. 19 The author argues that
current policies implemented by states such as temporary protection and safe third-
country rule are endangering policy and the refugee regime. This article also considers
ways in which the current system can be changed to protect the policy of non-repayment
while meeting the needs of the states.
 Ruma Mandal,"Security Measures Outside the 1951 Conference (" Complementary
Security "), Legal and Security Policy Research Series, Department of International
Security, UNHCR, PBLA / 2005/02, June 2005 UNH External Advisor with CCR
Explores Various Types The 1951 Convention and / or its 1967 Convention Ways uvat
provided protection from the state. Under the UNHCR mandate, the author sought to
investigate the difference between conference refugees and other refugees under
international law, including human rights treaties and regional refugee instruments that
benefit non-conference refugees. Exam 21 is one of those aspects of international law in
the procedures adopted by the states to identify persons other than convention refugees
and the appropriate standard for the treatment of such persons. In the present work, the
author places special emphasis on the concept of "complementary security," which,
according to the author, relates to practices developed in industrialized states to provide
income protection to individuals considered outside the purview of the 1951 Convention.
 Guy S. Goodwin-Gill, "Refund Policy." Its position and purpose in international law”, a
study prepared by the United Nations High Commissioner for Refugees, International
Journal of Refugee Law, 1993. The purpose of this thesis is to establish as clearly as
possible the present position and purpose of the non-repayment policy in international
law. It looks at the modern meaning of the regime, its origins, and the debates
incorporated in the 1951 Convention on the Status of Refugees. The author argues that
restatement is not important as a treaty-based rule, but as a principle of conventional
international law. The differences between the two types of terms are explored, and the
differences in nature, purpose and content indicate the inclusion of policy in various
agreements, notices and resolutions. A similar policy of non-repatriation or asylum for
those outside the 1951 Convention / 1967 Protocol is considered briefly, as well as the

16
 relationship between repayment and asylum. As a contract and custom-based clause, the
principle of non-repayment is that each person has a well-founded fear of harassment, or
faces a substantial torture risk, or other serious violations of basic human rights. The
principle of non-repayment prohibits the return of any such person, including denial of
permission on the frontier, deportation, deportation, forcible return and extradition
regardless of the location of the intercept.
 Omar N. Chaudhary,"Returning Non-refundable Assessment under Indian Law",
Economic and Political Weekly Journal, Vol. 39, July 17, 2004. In the present study, the
author evaluated the principle of reorganization under Indian laws. He argues that India is
a refugee-producing country rather than a refugee-producing country, so it is one thing to
say that India's practice complies with international norms, but it is another to say that the
laws of India. India did not sign the Convention on the Status of Refugees 23 1951,
still maintaining a policy of non-repayment. The author makes a comparative study
between the different articles of the conference and its applicability to the Constitution of
India and other municipal laws passed in India. The author has at last held the view that
India needs greater commitment from other countries or any other international
commitment to the rights of refugees before the conference.
 Vijay Padmanabhan,"No Transfer or Transfer: Identifying and Protecting Human
Rights in Non-repayment", Fordham Law Review, Volume 80, Issue 1, 2011. Teacher
Assistant Professor, Vanderbilt University Law School Human rights law states There is
considerable reason to believe that he or she will be tortured or subjected to cruel,
inhuman or degrading treatment. He holds the view that the principle of non-repatriation
stems from human rights principles, emphasizing a situation when a state runs into
conflict when it uses a non-refundable policy to protect its citizens from suspected aliens.
The author sought to argue in his essay that there is a conflict of human rights obligations
arising in these exchange situations.
 Tor Krever, "Moping-Up: UNHCR, Neutrality and Reconstruction After the Cold War",
Chinese Law Journal International Law, 2011. The author of this article is critical to
UNHCR's evolution Offers a re-evaluation and looks at the UNHCR's recent growth
curve for the UN. In the early 1990s and the use of a humanitarian discourse, he argues, it
is not refugees who undermine the UNHCR's protection mandate, but instead conceals

17
 the basis for policies such as restricting interests and pursuing the state. The author
asserts that the post-Cold War era had the mark of a completely different origin in the
understanding and operation of the UNHCR.
 Pilar Villanueva Sainz-Prado, "Contemporary Relevance of the 1951 Conference on the
Status of Refugees", International Journal of Human Rights, Volume 6, Number 2
(Summer 2002). This article establishes by analysing both the status of refugees and its
significance and non-repayment policy and its attainment, the contemporary relevance of
the 1951 Refugee Convention and its sustainability in dealing with refugee issues. The
author of the article emphasizes that refugee groups, such as children, women and
refugees, pay special attention to making refugee law a complete and effective law.

1.6 HYPOTHESIS

 Researcher has done research on protecting the rights of refugees in India. The
International Convention on the Issue of Refugees is the 1951 Convention on the Status
of Refugees and its 1967 Protocol. The term 'refugee' ... "A person is out of the country
of his or her country because of fear of being persecuted because of race, religion,
nationality, membership of a particular social group or political opinion, or, because of
such fear, he does not want to seek protection from that country" Or, the absence of a
nationality As it happened as a result of such events and who is outside the country of his
former behaviour, such reasons cannot, or fear, is unwilling to return to it. "
 This research analyses the history of refugees in India and the problems faced by
refugees, as well as India's position at the 1951 Convention, where the researcher gives a
brief overview of India's entry into the UN in 1951 and its position.
 The status of refugees in India is explained by the Constitutional Defence, India and the
Justice Department, the UNHCR and the NHRC in India, international laws and refugee
conferences, and the Refugee Policy of India.

18
 1.7 PRESENTATION OF STUDY

 The present study includes of six chapters including introduction and conclusion. A
synthesis of institutional structure of the refugee law and jurisprudential analysis
conducted thereon and results therefrom.

o The Chapter-I gives an Introduction to the whole study. It touches upon all the
heads and sub-heads that have been part of the study and gives a sufficient idea as
to the theme of the study that is ‘Protection of rights of Refugees in India’ and as
to what entails in it.
o The Chapter-II has been captioned as Refugees and their rightsdeals with
definition and studies of the refugee amending to the convention, 1951.Universal
declaration of Human Rights, 1948 provides the crucial rights to refugee
protection, which has been analyzed under the legal framework of international
humanitarian law as well as conventions.
o The Chapter-III has been captioned as India’s Refugee saga from 1947 to
2019,which talks about the status of India in its 72 years as its fair share of refugee
problems and how it dealt with it. The issues faced by the refugees and what steps were
taken to deal with those issues is thoroughly explained in this chapter.
o The Chapter-IV has been titled as Indian practice regarding Refugee
protection;it deals with theIndian commitment to refugee protection under its
constitution and different laws forming to it.However, there has been lack of
unified and consistent refugee policy, equipped with uniform and competent
authority towards refugee. The role of the non-governmental organization has also
been important in the Indian scenario.
o The Chapter-V has been captioned as Judicial Responses towards the
Protection of Refugees whereby a jurisprudential canvass of the national
implementation of the international norms of refugee law in the absence of any
national legislation thereon by the highest judicial establishment of the country
has been scanned on the edifice of human rights philosophy. The treatment of
refugees by the administrative and immigration authorities has been ferreted out.
The legal position vis-à-vis specific international refugee law issues in India have

19
 also been addressed. The challenges of voluntary repatriation and new initiatives
and the issues of return in safety and with dignity and pot-return monitoring and
re-integration assistance have also been examined on the basis of juridical
autopsy. The issue of vulnerability of asylum-seekers in India has also been
perused while taking into consideration the co-operation with the UNHCR in a
desideratum of treatment of persons who have been granted asylum in India.
o The Chapter-VI has been titled Conclusion and Suggestions where under
reformulation of the contemporary international refugee law in conformity with
the present-day realities und metamorphosis coupled with a new definition of
refugee devoid of any geo- political, ethno-religious, socio-economic and Lego-
political dichotomies.

1.8HISTORY OF REFUGEES 

1.8.1History of Refugees in the World

 Asylum seekers have been around for years, and the early man migrated to find food,
shelter and other resources. In 600 AD, the right to seek asylum in a sacred place or
church was codified in law by King Ethelbert of Kent. Many such laws emerged
throughout Europe in the Middle Ages, the beginning of such arrangements. But in many
countries in the 18th century, people had to show ID verification to cross borders.

 Many wars in the past have been the main reason for refugees to flee their places. The
Balkan wars displaced 80,000 refugees. The Spanish Civil War in the United States and
the Russian Revolution of 1917 led to people becoming refugees. The League of
Nations was the first international refugee affair.

 During the World War there were major refugee crises. The First World War lasted
almost 4 years. One million refugees from Belgium moved to the UK and other
countries. France and Germany are also affected. When Russia attacked Prussia, 870000
escaped. World War II is a war that has never happened in world history. By 1959, some
900,000 European refugees were taken by European countries. 461,000 were accepted by

20
 the United States and 523,000 by other countries. World War II caused some 60,000,000
refugees in Europe.

 1.8.2 History of Refugees in India

 India is one of the most densely populated countries and recently experienced refugees.
Migration in the past has been due to the Indukush mountains in the west and the Patkoy
borders in the east. Due to the Indo-Pakistani divide, a large number of people have
settled. After India gained independence, nearly 20 million people came to India. It had
to set up several relief camps addressing a large number of refugees. People started to
come from Bangladesh, Pakistan. It passed the Rehabilitation Fund Administration Act in
1948 to address these issues financially.

 A large number migrated from India to Pakistan and vice versa and the problem was very
similar to that of refugees. Another incident occurred in 1959 when the Dalai Lama and
his supporters approached India as refugees and India granted them political asylum. In
1971, a large number of refugees travelled from East Pakistan to India. Refugees from Sri
Lanka and Bangladesh arrived in India in 1983 and 1986 respectively. By the end of
1992, India had hosted 2,000,000 migrants and 237,000 migrants. India has always had
few or no other refugees throughout its history.

1.9MAJOR REFUGEE GROUPS

 With the worst casualties in world history, World War II, nearly 60 million people were
displaced. 5.1 million Palestinians have fled their homes due to the Israeli-Palestinian
conflict. Since the US launched the war in Iraq, 4 million people have been displaced.
According to the UNHCR, 647,781 Vietnamese refugees have been resettled around the
world, and the Vietnam War has led to 1.6 million refugees, including the mountain
population of Vietnam. The Kakuma refugee group in Kenya is home to 184,550
refugees from South Sudan and Somalia. The refugee crisis in the Middle East and Africa
has seen nearly 4.1 million fleeing Syria.

 Soviet Jews have been immigrating to us for decades, and nearly 380,000 refugees have
settled there. Between 1945 and 1952, 137,000 Jewish refugees immigrated to the
United States. Myanmar (Burma) refugees fled the country during the Vietnam Civil War

21
 and settled in Australia, Canada, the United States and New Zealand. In recent years, a
group of Rohingya refugee Muslim minorities have been denied basic human rights.
Thousands of them now live in India, Bangladesh and other countries. The Rohingyas
were declared the most persecuted group by the UNHCR.

CHAPTER 2
REFUGEES AND THEIR RIGHTS

OVERVIEW

 People who are forced to leave their homes because of persecution are called refugees,
whether on a personal basis or as part of a mass eviction due to political, religious,
military or other issues.
 The definition of a refugee has varied over time and space, but the growing international
concern over the light of refugees leads to a general consensus. As defined in the 1951
United Nations Convention on the Status of Refugees (Refugee Convention), a refugee is
defined as a person "because of the well-known fear of being persecuted for reasons of
race, religion, nationality and membership." A particular social group or political opinion
is out of the country of his nation, and because of such fear, he does not want to get
himself out of the security of that country or return there for fear of persecution.
 Although the definition of the Refugee Convention is used by international organizations
such as the United Nations, the term is often misunderstood and is often used in everyday
language. For example, media stories often confuse refugees for economic reasons
(economic migrants) and persecuted groups who do not cross international borders
(internally displaced persons) by staying in their own country.
 Causes of Harassment One of the five reasons listed in Article 1A (2) of the Refugee
Convention: race, religion, nationality, membership of a particular social group, or
political opinion. No other site-based harassment will be considered.

22
 Race is used in a broader sense and includes ethnic groups and social groups of common
ancestry.
 Religion has a broad meaning, including identification with a group that shares common
traditions or beliefs, as well as the active practice of religion.
 Nationalism involves a person's citizenship. Persecution of ethnic, linguistic and cultural
groups within a population can also be called persecution based on nationality.
 A particular social group refers to people who share similar backgrounds, customs, or
social status. This type is often combined with harassment based on one of the other four
causes. This applies to the families of employers, landlords, homosexuals, entrepreneurs
and former members of the military.
 Political opinion refers to ideas that are not accepted by the government, including
comments that criticize government policies and methods. This includes comments made
by individuals (i.e., officials think a person has a particular political opinion) even though
the person does not actually have that opinion. Those who hide their political opinions
after leaving their home countries may be eligible for refugee status if they are able to
show that their views may harass them if they return.
 Definitions come into force when countries and organizations try to determine who is and
isn't a refugee. Asylum seekers - that is, refugee status in another country - usually have
to establish separately that their fear of harassment is well established, and that a host of
cases will determine if he or she qualifies for refugee status. However, during a mass
evacuation, a host country cannot perform individual screening. In such circumstances,
especially when the public fled for similar reasons, a ‘committee’ could be declared to
determine the status of refugees, thereby treating every citizen as a refugee, rather than a
lack of evidence.
 International law recognizes the right to asylum, but does not compel states to grant it.
Sometimes providing ‘temporary protection’ when people face sudden influx of people,
their usual asylum systems will become overwhelming. Under such circumstances people
can be admitted quickly into safe countries, but without any guarantee of permanent
asylum.Therefore, 'temporary protection' can be helpful to governments and asylum
seekers in certain circumstances. Yet this is no substitute for the broader security

23
 measures provided by the Refugee Convention. Refugee protection and aid agencies
generally promote three "lasting solutions" to the fate of refugees:
 Voluntary repatriation: Refugees can return to their home country because of them life
and liberty are no longer threatened;
 Integra Local Integration: Host governments allow refugees to integrate in the first
country refuge and
 Resettlement in a third country: repatriation is unsafe and the first asylum seeker denies
local integration.
 Most refugees in the world await lasting solutions to their predicament. Although most
are given temporary or temporary asylum in neighbouring countries, they cannot
regularize or consolidate their status. Their rights to move and work are often very
restrictive, and educational and recreational opportunities are often non-existent or
severe. These refugees may be attacked by local security forces or by cross-border
invasions.
 A special type of refugee may have been forced to leave their homes for such reasons, but
they did not cross an international border. These people are called internally displaced
persons. By the end of 2000, about 11.5 million refugees around the world had left their
home countries for various reasons, and between 20-25 million and more than 20-25
million who had left their homes for similar reasons. Most of the current conflicts in the
world involve conflicts between political or ethnic groups within countries rather than
inter-state wars. As we see this trend, the number of people who are forced to flee their
homes and live in conflict in their home countries will increase.

DEFINATION OF REFUGEE

 The term refugee is often used by the media, politicians and the general public to describe
anyone who is forced to relinquish his usual residency. Ecological disaster or poverty, all
of which are considered to be eligible for the accolade of being a refugee.
 Refugee is not a concept of conventional international law. Therefore, refugee is not
defined. Refugees are subject to treaties and other international agreements. Therefore, it

24
 is not possible to provide a single definition, which can be used in all situations. As
Professor Goodhearted rightly observed:
 The sociological definition of the word "refugee" differs from a legal one; The definition
designed for the purposes of the binding international treaty is very different from the
definition adopted by an association with a humanitarian purpose. "
 Generally, however, a "refugee" is considered to be forced to flee his or her home due to
political disturbances, harassment, famine or natural disaster. A man's status as a refugee
is determined primarily by the factors that led to his or her status: the breaking of the ties
that bound him to the foreigner and the states of his nationality.
 A refugee differs from a normal alien because of the inherent nature of the relationship
between him and the authorities of his origin, which arises from his fear of political
harassment when he returns. The refugee differs from an unstable person because he,
unlike an unstable person, may have an unfair national status.
 As Sir John Hope Simpson defined:
 “The essential quality of a refugee is that as a result of political events, he has sought
refuge in a territory other than his former residence, which makes it impossible or
impossible to continue living in his former territory.”
 The main problem with refugees, however, is that they are a continuing embarrassment to
the international legal community. The tension between refugees and the conventional
international order is a unique political movement of refugee status. This presents refugee
protection a unique challenge to law and legal practice, especially when the refugee is in
a state where he seeks refuge and protection.

The 1951 Refugee Convention

 In the 1951 Convention relating to the Status of Refugees 5 and for the purposes of that
convention, the term “refugee” has been defined under Article 1 thereunder.6
 Article 1 (A) of the 1951 Convention covers two groups, two groups of persons who are
considered or refuges for the purpose of its application.

5
The Convention was adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and
Stateless persons, held at Geneva from 2 to 25 July, 1951.
6
See, supra note, 1.

25
  The First group could be called “Statutory refugees i.e. persons who have already been
considered as refugees under previous international agreements or under the Constitution
of the IRO. The second group embraces persons who are accorded the status of a
“refugee” for the first time. It consists of two sub-groups, one possessing a nationality
and the other without a nationality.
o There are two conditions applicable to both groups:
 They must be outside the country of their nationality or of their habitual residence, and
 They must be there as a result of events, which took place before January 1, 1951.

 Persons with a nationality meeting these two tests are to be considered as refugees only if
they are outside the country of their nationality owing to well-founded fear of being
persecuted for reasons enumerated under Article l of the 1951 Convention. Persons
without nationality, meeting the first two tests, are considered refugees if they are unable
or, owing to well- founded fear of persecution, unwilling to return to the country of their
former habitual residence.
 The Convention excludes from its purview two groups — those persons who receive
protection or assistance from organs or agencies of the United Nations, other than the
High Commissioner, during the time of the existence of such protection or assistance;
these persons who, although they would normally come under the definition of a
“refugee” are not deemed worthy of international protection.

1967 Protocol

 The 1967 protocol is independent of the 1951 convention but independent. The protocol
removes the temporary and geographical limitations found in the conference. By agreeing
to the Protocol, States agree to use the core content of the 1951 Convention 7 without
limitation of time or space for all persons covered by the Ethical Refugee Definition.

7
Articles 2–34.

26
  Most states want to adopt both convention and protocol. In doing so, they reaffirm that
both agreements are central to the international refugee protection system.
 The 1951 Convention and the 1967 Protocol are a modern embodiment of the old-
fashioned institution, whose strength is their universality and partisanship and the core
values they represent.
 At the United Nations General Assembly8, we reaffirm the 1951 Convention on the Status
of Refugees and the 1967 Protocol as the foundation of the International Refugee
Protection Regime. We recognize the importance of full and effective use of state parties
and the values they create. We reaffirm the asylum company and the right to seek
asylum. We also reaffirm the basic principle of non-repayment under international
refugee law. "
 The 1951 Convention and the 1967 Protocol cover three main subjects with the definition
of refugee, withholding and exclusion of refugee status;
 The legal status (rights and duties) of refugees in a country of refuge. This includes the
duty of refugees to respect the laws and regulations of the asylum country and their rights
in that country, including protecting them from repatriation; And
 States ’obligations, including cooperating with the UNHCR in implementing its functions
and facilitating the oversight of the use of the Convention.

African Unity Organization (OAU)

 The OAU Convention on the Management of Specific Aspects of Refugee Problems in

Africa is a regional treaty adopted in 1969 that incorporates a more objective basis, as
defined in the 1951 Convention:
 “Due to external occupation, occupation, foreign domination or events,
any person is compelled to leave his country, or in an area that disrupts
public order, or throughout his own country or nation.”

Declaration of Cartagena, 1984

8
New York Declaration for Refugees and Migrants, Resolution 71/1, 2016.

27
  In 1984, a proclamation of Latin American government representatives and distinguished
judges adopted the Declaration of Cartagena. Like the OAU Convention, the Declaration
adds a more objective basis to the definition of refugee in the 1951 Convention:
 "People who leave their countries" because their lives, security or
liberties are threatened by common violence, foreign occupation, internal
conflict, gross violation of human rights, or other conditions that severely
affect public order".

Bangkok Principles

 Under Bangkok Principles the definition of the term refugee applies to:
o “A person is a victim of persecution or a well-founded fear for reasons such as
race, color, religion, political belief or membership of a political social group.
 he leaves a nation, or a country of his nationality, a state or country in which he is a
custodian; Or
 being outside of such state or country does not intend or want to return it or to secure it."
 Here are two explanations for the article supra state:

 Refugees are treated as refugees; and

 The expression 'leaves' includes voluntary and involuntary discharge.

THE RIGHTS OF REFUGEES UNDER INTERNATIONA LAW

 An important aspect of the safety of refugees is the right conferred on them by the l95l
convention, without reference to the similar status of nationalists or foreigners.
Recognition of previously acquired rights, especially in matters of marriage, free access
to the courts of the territory of all treaty states, administrative assistance of the state or
international authorities of the resident state, issuance of identity documents and travel
documents and transfer of property.
 When a decision is made about eviction based on national security or public order, the
asylum seeker must be allowed to submit evidence to destroy him legally within the

28
 borders of the asylum state, and must be appealed for this purpose. Before a competent
authority. A legitimate country will be allowed for a refugee who has made the decision
to leave. The refugee rights group also has the right to return to the country where his or
her life is threatened.
 Refugees are, in some cases, entitled to favourable treatment, assistance and amenities,
all important aspects of security policy. It also provides direct assistance to refugees in
some administrative matters of the asylum country authorities or UNHCR and other
international agencies. UNHCR is specifically authorized by its law to facilitate voluntary
repatriation of refugees.9

The Rights of Refugees under the 1951 Convention

 In Articles 3 to 34, the Convention describes the rights of refugees. Some of these rights
apply to refugee or asylum seekers in a state or jurisdiction. Others apply for asylum or
when refugee status is granted or after a certain period of time. General human rights law
certainly applies to refugees.
 Rights at Stake10
 Forbidden repatriation of a refugee is called refinancing and is one of the most
fundamental principles of international refugee law. This principle is laid down in Article
33 of the Convention on the Status of Refugees, which states that any State may threaten
a refugee in any way because of his or her race, religion, nationality, membership of a
particular social group, or political opinion.
 Some countries detain asylum seekers when they seek asylum or deportation
(reintegration). Asylum seekers may already be incarcerated and tortured in the country
where they fled. Therefore, the effects of detention may be particularly severe, resulting
in severe emotional and psychological stress. Article 31 of the Refugee Convention states
that refugees should not be penalized for illegally entering a country if they come to their
destination and inform the authorities. Therefore, asylum seekers should not be detained

9
Statute of The Office Of UNHCR, item 1 (G.A. Res. 428 (v)
10
http://hrlibrary.umn.edu/edumat/studyguides/refugees.htm#ii.

29
 for possessing fake identification documents or for destroying identity or travel
documents.

Refugee Conference Articles 12 - 3011: - Individuals who are recognized as convention

refugees have the right to:

 All refugees must be provided with identity documents and travel documents that allow
them to travel outside the country12
 Rights Refugees should be treated like the citizens of the country receiving the following
rights:
 Religion Free use of religion and religious education13

 Free access to courts, including legal aid14

 Access to Elementary Education15

 Relief Access to public relief and assistance16

 Security provided by Social Security17

 Protection of intellectual property such as innovations and trade names

 Literature Conservation of literary, artistic and scientific works18

 Equal treatment by taxing authorities19

 Rights refugees should receive the most favourable treatment of a foreigner with respect
to the following rights:
 The right to trade unions

 Right to belong to other non-political non-profit organizations20

11
1951 Convention Relating to the Status of Refugees
12
Article 27 of 1951 Convention
13
Article 4 of 1951 Convention
14
Article 16 of 1951 Convention
15
Article 22 of 1951 Convention
16
Article 23 of 1951 Convention
17
Article 24 of 1951 Convention
18
Article 14 of 1951 Convention
19
Article 29 of 1951 Convention
20
Article 15 of 1951 Convention

30
  The right to work in a wage-earning employment21

 Refugees should receive the most favourable treatment possible, which is generally the
least favourable to those foreigners in the same circumstances as to the following rights:
 Owner's right to own property22

 The right to practice a profession23

 Right to self-employment24

 Access to housing25

 Access to higher education26

 Rights refugees should generally receive the same treatment given to foreigners with

respect to the following rights:

 The right to choose where they live

 Right to move freely within the country

 Religion Free use of religion and religious education

 Free access to courts, including legal aid

 Access to Elementary Education

 Relief Access to public relief and assistance

 Security provided by Social Security

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

 Literature Conservation of literary, artistic and scientific works

 Equal treatment by taxing authorities

The Principle of Non-Discrimination

21
Article 17 of 1951 Convention
22
Article 13 of 1951 Convention
23
Article 19 of 1951 Convention
24
Article 18 of 1951 Convention
25
Article 21 of 1951 Convention
26
Article 22 of 1951 Convention. https://www.unhcr.org/4ca34be29.pdf

31
  Non-discrimination is a core principle of international law and the foundation of all
human rights treaties. Discrimination is prohibited on the basis of race, color, gender,
language, religion, political or other opinion, national or social origin, property, birth or
other status.
 Since discrimination on the basis of race, religion, nationality, and a particular social
group or political opinion is a major cause of refugee movements, it is imperative that
asylum-seeker international conventions must prevent discrimination.

Right to be granted Identity Papers and Travel Documents

 In accordance with the provisions of the Universal Declaration on the Right of Everyone
to be recognized everywhere as a person before the law 27. Under sections 27 and 28, the
1951 Convention establishes that identity documents are issued to any refugee in the
territory of a state and who do not have a valid travel document.

Certain imperative Rights of Refugees

 Right to Freedom of Movement - Article 26 of the 1951 Convention provides that state
parties must legally grant refugees in their territory the right to choose their residence and
move freely within that boundary, as foreigners generally do. This means that state
parties should not impose restrictions that apply only to refugees, but to respect the
principle of non-discrimination.

 Right to family life, including unity - Many refugees are separated from their family
members as a result of harassment or in the confrontation and chaos of flight. Separation
increases the risks that all family members face, especially women and children, as a
result of violence and exploitation, may not be able to provide the protection and support
they need, but should be held accountable to their families and younger siblings.
Separation can have devastating consequences for the well-being of all refugee family
members and their ability to rebuild their lives. International human rights law recognizes
the family as the basic group unit of society, which is entitled to be protected by society

27
Article 6 of the Universal Declaration of Human Rights, https://www.un.org/en/universal-declaration-human-
rights/

32
 and the state. The 1951 Convention of Plenipotentiaries reaffirmed the “essential right”
of family solidarity for refugees.28
 The Right to Work - The 1951 Convention expressly acknowledges the importance of
the socio-economic rights of refugees. There are four rules on access to work and the
right to work: the right to wage employment (Article 17), the right to self-employment
(Article 18), the right to free labor (Article 19), and the right to benefit from labor
regulations (Article 24).

 Right to Education - Non-partisan access to education is essential to achieving a basic

human right and other rights. Education helps protect refugee children from abuse,
exploitation, child labor, early marriage and recruitment by armed groups.

 Access to the Courts - Article 16 of the 1951 Convention provides that refugees have the
right to access the courts and to be treated in parallel with the nation for legal aid. In
practice, refugees often face obstacles as a result of poverty, marginalization and
discrimination. Under the law, refugee protection organizations need to ensure they have
access to justice effectively.

 Right to Social Welfare and Health Care - Article 25 of the UDHR ensures that
everyone has the right to adequate quality of life for health and wellbeing, including food,
clothing, housing and medical and necessary social services. This relates to a number of
other rights, including the provision of access to a non-discriminatory basis and
determining health, such as safe access to drinking water and adequate sanitation and
access to health-related education and information. Including sexual and reproductive
health.

Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees andStateless
28

Persons

33
2.4 RIGHT CRUCIAL TO REFUGEE PROTECTION

 The most important rights of refugee protection are the fundamental rights enshrined in
the 1948 Declaration of Human Rights:
 Right to life, liberty and protection of person
 The right to seek and enjoy asylum
 Release from torture, or cruel, inhuman or degrading treatment or punishment
 Freedom from slavery or slavery
 Recognition as a person before the law
 Thinking is freedom of thought, conscience and religion
 Freedom from arbitrary arrest and detention
 Privacy, freedom from arbitrary interference in home and family
 Freedom of expression and opinion
 Right to educate
 Right to participate in the cultural life of a community.

2.5 OTHER INTERNATIONAL LEGAL STANDARDS THAT PROTECTS

REFUGEES AND ASYLUM-SEEKERS

 As explained above, the International Refugee Act 1951 Convention and its 1967
Protocol and Related Regional Instruments. But international refugee law does not work
in isolation. This is complemented by other legal bodies, particularly international human
rights law, international humanitarian law, international criminal law, and conventional
international law.
 There is no hierarchical relationship between these legal systems, but they are
interconnected.

International human rights law

 As with all people, asylum seekers and refugees are protected by international human
rights law. This legal system extends to everyone within the confines of a state or its

34
 jurisdiction or jurisdiction. As confirmed by the UDHR29: "All human beings are born
free, equal in dignity and rights."
 Refugees and asylum seekers are entitled to some degree of interdependence: states are
obligated to respect, protect and exercise their rights under international human rights
law, and the specific rights of refugees.
 Under international human rights law, certain guarantees, such as the prohibition of
torture and slavery, cannot be restrained or suspended for any reason. Others may be
degraded under certain conditions, such as upholding public order or health or protecting
the rights of others. Insults should not be used in a prejudicial manner, must be officially
declared and in accordance with the law.
 The Convention Against Torture and the Convention on the Rights of the Child is a
human rights tool that provides important protections for asylum seekers and refugees.
Other human rights agreements also complement international refugee law in important
ways.
 Essential security includes refugees and internally displaced women and children30.

The Convention against Torture: How it protects refugees

 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment has a particularly significant place in international refugee law:
• It defines and prohibits torture and other ill
treatment that may lead to applications for the
protection of many refugees.
 It prohibits a refoulement or forced return to circumstances where there are substantial
reasons for believing that a person may be tortured.
 Its non-refoulement provision is not limited to people who are formally recognized as
refugees. Therefore, it may be helpful for people who have missed the deadline to apply
for asylum seekers, or those who are subject to wrongful termination, or in countries
where there is no personal procedure for determining the status of refugees.

29
Universal Declaration of Human Rights 1948.
30
Arthur C. Helton, Displacement & Human Rights, Journal of International Affairs, Winter 1994, 47, No. 2, p. 380.

35
  Unlike the provision in the 1951 Convention, the non-refoulement of the Convention
Against Torture is complete. No limitation or disrespect is allowed from this rule.
 Under the Convention, a Committee Against Torture has been established. Individuals
may bring complaints against this group against a state party, subject to the state's
recognition of the group's ability to obtain and consider personal communications.

The Convention on the Rights of the Child: How it protects refugees

 Every country in the world has ratified the Convention on the Rights of the Child. This
convention applies to all children, including refugees or asylum seekers.
 The conference outlines four basic principles that support the treatment of all children:
 Discrimination policy
 Policy of the best interests of the child
 Right to life and survival and development
 Right to hear
 In addition, the Convention contains rules specifically applicable to refugee children.

International humanitarian law

 International humanitarian law, also known as martial law or armed conflict, is a complex
field that precedes human rights and refugee law. It seeks to limit the methods and
methods of war and the effects of armed conflict or to those who do not participate. An
important part of international humanitarian law is the four Geneva Conventions of 1949
and two additional Protocols agreed in 1977.
 According to international humanitarian law, people who do not participate in
combat must be respected, protected from the effects of war, and provided with
side-by-side assistance, whether they are displaced or not. As many refugees and
displaced persons find themselves in the midst of international or internal armed
conflicts, its policies will also help protect them.

36
  International humanitarian law binds all parties to a confrontation with both government
forces and non-governmental armed groups. The most serious violations of international
humanitarian law are considered war crimes. Under Section 1 (F) of the 1951
Convention, persons with serious reasons for feeling that they have committed "war
crimes" must be excluded from refugee status. Both international humanitarian law and
international criminal law are relevant to this resolution.

International criminal law

 International criminal law is specifically designed to prohibit bad behaviour. The

International Criminal Court's Rome Statute, which has been in force since 2002, has
jurisdiction over the major crimes of genocide, war crimes and crimes against humanity,
and details what these crimes are. For example, the definitions of crimes against
humanity and war crimes explicitly include "rape, sexual slavery, forced prostitution,
forced pregnancy, forced contraception, or any other form of comparable attraction."
 Similarly, the International Tribunal's rulings on former Yugoslavia and Rwanda have
confirmed that slavery, rape, torture and genocide are crimes against humanity. Rome
law applies to determine what crimes can lead to the exclusion of someone from refugee
status.

Customary International Law

 Although there are countries that are not under contractual obligations, they still qualify
because these instruments reflect conventional international law. For example, the
Universal Declaration of Human Rights31, the International Covenant on Civil and
Political Rights32, and the Standard Minimum Rules for the Treatment of Prisoners 33
prohibit arbitrary prolonged detention. The International Court of Justice has cited the
31
Helton (1989) p. 41; C. Amerasingle, State Responsibility for Injuries to Aliens (1967) p.44. AND Barcelona
Traction and Light Co., I.C.J. Rep. (1970) p.32 (state bound to protect foreign national admitted into its territory),
Article 9.
32
Ibid. p.42, Article 9(1).
33
Standard Minimum Rules for the Treatment of Prisoners, adopted at the first United Nations Congress on the
Prevention of Crime and Treatment of Offenders; approved by ECOSOC resolutions 663 (XXIV), 3l July 1957 and
2076 (LXII), 13 May 1977. And Declaration On The Human Right Of Individuals Who Are Not Nationals Of The
Country In Which They Live, Note 30.

37
 Charter of the United Nations and the Declaration of Human Rights, saying that such
imprisonment violates international law.
 The abundance of legal instruments that condemn arbitrary and prolonged detention
under inhumane conditions, widely accepted by the international community and ratified
by the International Court of Justice, demonstrates that conventional international law
prohibits such imprisonment. Therefore, the International Human Rights Code of Ethics
protects refugees just like all other people34.

OTHER SOURCES OF LAW AND GUIDANCE

UN General Assembly resolutions and declarations

 Each year, the General Assembly adopts a resolution on the matter, considering the report
on the work of UNHCR. It also adopted a number of resolutions on specific aspects of
refugee protection, such as the support of refugee minorities, human rights and mass
evictions, and the plight of specific countries in which a large proportion of refugees are
receiving refugees.
 In September 2016, the General Assembly adopted the New York Declaration on
Refugees and Immigrants and began negotiations with the International Government to
reach a "global agreement for safe, orderly and routine migration." Like the Universal
Declaration of Human Rights adopted in 1948, the New York Declaration is a political
document. It puts refugees at the centre of political attention and promotes a broader,
holistic social approach to refugee protection.

UNHCR Working Group Results

 The Executive Committee (often referred to as Exam) is the Executive Committee of the
UNHCR. It meets once a year in a full session to discuss the work of UNHCR and
accepts the results by consensus. These results represent the agreement of nearly 100

34
Arthur C. Helton, Displacement & Human Rights, Journal of International Affairs, Winter 1994, 47, No. 2, p. 387.

38
 countries over decades, and are an essential part of the international refugee protection
framework.
 Governments, ministries and lawmakers often consult the executive committee decisions
when developing laws and policies. In addition, national and regional courts continue to
refer to "soft law" instruments as credible and authoritative sources in matters such as
policy, legal practice and interpretation.
 The Executive Committee's decisions thus represent joint international positions,
including legal expertise in refugee matters. They help advance common understanding
and set standards in many areas of refugee protection and solutions, and are a way to
further develop international security governance.

UNHCR Guidance

 The UNHCR issues guidance on international refugee law. Its Manual on Procedures and
Criteria for Determining the Status of Refugees (1979, reprint 2011) 35 is very
authoritative. Many national asylum seekers use this handbook to guide their decision-
making, and it is regularly cited by courts around the world. The UNHCR also publishes
guidelines on international security to complement the manual. These guidelines provide
detailed, contemporary guidance on the 1951 Convention / 1967 Protocol and the
provisions of other international security matters. They can be helpful to lawmakers
reviewing national law and practice.

2.7 REFUGEE STATUS IN INDIA

 It is noteworthy that as a country born with refugee issues, India has not signed the 1951
Refugee Convention or its 1967 Additional Protocol nor has there been any domestic law
on refugees. Refugees are persecuted and hunted in the country where they were born and
are therefore forced to flee. Causes are always social, political, religious, ethnic war,
35
Handbook on procedures and criteria for determining refugee status(1979, reissued 2011)

39
 armed conflict and rebellion, which can be fatal. Furthermore, our country today must
have signed the "1951 Convention on the Status of Refugees" and the 1967 Additional
Protocol to recognize its international concerns.
 In the current context, protecting and protecting the rights of refugees has become an
uphill task as India wants refugees from Afghanistan, Bangladesh, Burma (Myanmar),
Bhutan, Iran and Iraq as a place of trust and peace in South Asia. Nepal, Sri Lanka,
Sudan and Tibet. Now, the Government of India is responsible for abandoning the Indian
silence on the compliance of the Refugee Act. India can no longer deal with the problems
and problems of refugees by adopting outdated L9th century policies as outlined in the
outdated "Foreigners Act of 1946" and the "Occupation Act of 1962".
 Recently, as of February 20, 2000, there were more than 2.5 lakh refugees in India,
according to UNHCR. The maximum number of refugees is 46,000 from Bangladesh,
18,607 from Afghanistan and 1037 from other countries around a log from Tibet to Sri
Lanka. But Bangladeshis are not considered refugees but are considered economic
immigrants. Presents a great enthusiasm for protecting their basic and fundamental
freedoms and rights. Refugees suffer from lack of adequate laws, and they do not receive
charity, humanitarian and humanitarian treatment.
 Although India was one of the most important founding members of the United Nations
and a signatory to the Universal Declaration of Human Rights, it did not comply with the
1951 Convention. India honoured its various international obligations and obligations by
signing various international human rights "instruments" such as the International
Conference on the Elimination of All Forms of Discrimination against Women, the
United Nations Convention on the Political Rights of Women, and the Convention on the
Suppression of Punishment and Punishment. Such as the conviction of the crime of
racism and genocide.
 It is therefore encouraging to see that the Supreme Court of India defends and protects
the human rights and civil rights of refugees through judicial activity and creativity. We
can correctly recall that the Supreme Court first banned INTER-ALIA from forcibly
evicting Chakma refugees from the Northeast of the country.

2.8 THE CONTEMPORARY REFUGEE DILEMMA

40
 Refugees thus enjoy rights as a result of both specific refugee and human rights
treaties and customary international law. These traditional sources of protection,
including the remedy of non-refoulement, must be respected. Human rights law,
both treaty-based and customary in character, protects refugees, along with
displaced persons and other non-nationals. But the mechanisms to enforce human
rights law, largely founded on monitoring and reporting activities, are no well-
established at the international level. Apart from the question of coverage under
the refugee treaties i.e. conventional refugee law, there are serious issues
regarding state compliance with treaty obligations.
 Instances of non-compliance-which can be assessed by considering a wide variety
of refugee circumstances-including the forced return of refugees to places where
they may experience persecution harsh treatment or detention of asylum-seeker or
undue restriction of access to asylum. Governments of developed countries
frequently devise such measures to deny or deter the entry of asylum-seekers from
less de eloped countries. The UNHCR, in conjunction with governments,
intergovernmental groups and NGOs should launch or international campaign to
secure frill compliance with refugee treaty obligations.
 The need of strengthening refugee protection at the international level is pressing.
Governments, acting through the United Nations and regional intergovernmental
organizations, must not only expand the coverage of international law, but also
improve its enforcement.

41
 CHAPTER 3
INDIA’SREFUGEESAGA, FROM 1947 to 2019

3.1 OVERVIEW

 In the seven decades since it became an independent country, India has witnessed and
welcomed a wave of migrants fleeing conflict in neighbouring countries. Whenever one
hears the word refugee, there are many words and phrases that come to mind - such as the
Human Rights Code, the Mass Evacuation Code, the Violence Model, the National
Security Code.

 A well-known person that a refugee is “persecuted because of a race, religion, nationality,

membership of a particular social group, or political opinion, is out of the country of his
country, or is unable, or, for such fear, he does not want to protect the country; A
nationality is not the result of events Cording and being out of his former custom, who,
owing to such fear, is unwilling to return to it.

 This definition is provided by the protocol relating to the status of refugees, which is an
important contract in international refugee law. This treaty, which came into force nearly
four and a half centuries ago on October 4, 1967, and the 146 countries are parties to the
Protocol.
 In its 72 years as an independent nation state, India has seen its fair share of refugee
issues. Of course, it started with sharing/partition.

3.2 THE REFUGEE OF PARTITION36

 Although those who crossed the newly formed frontier between India and Pakistan —
whether by choice or by force — did not lose their nations, they were still forced to live
the lives of a refugee. Refugee camps across North India served as homes for those facing
the burden of secession.

https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-saga-from-1947-to-
36

2017.html

42
 Since these refugees are automatically citizens of the newly independent India, the
question of national security as they exist is questionable. But at this point, the war with
Pakistan erupted in 1948 when the growing state was trying to stand on its feet and
struggle to provide these refugees with basic necessities such as food, clothing and
shelter.

 The national capital of Delhi in particular has seen a huge influx of refugees. An entire
city - Faridabad had to be built to rehabilitate refugees living in horrific conditions in
various camps. The magnitude of the problem was an unprecedented challenge for the
young government, and only the efforts of many, including social reformer and freedom
fighter Kamala Devi Chattopadhyay, could facilitate the rehabilitation of secessionist
refugees.

 In 1959, nearly a decade after the sharing of the next major movement of refugees toward
India, the Dalai Lama and more than 100,000 followers left Tibet and returned to India
seeking political asylum. Providing asylum to them on humanitarian grounds is costly to
India and has drawn the wrath of the Chinese government.

 As a result, Sino-Indian relations were a great success. After New Delhi decided to
provide a haven for these fleeing Tibetans, border disputes between the two countries and
Chinese aggression in the Indian territory began to grow with greater frequency.

 The war with China in 1962, in particular, was very expensive for India. There were
many reasons that led to the war, but political asylum for the Tibetans was certainly one
of the triggers.

 Tibetan refugees settled in the northern and north-eastern Indian states, and the seat of the
Dalai Lama, the spiritual and political leader of the Tibetan community, was established
in Dharamshala, Himachal Pradesh. The exiled Tibetan government operates from there.
 Although India did not sign the 1951 Refugee Convention or the 1967 Protocol, which
has 140 signatures, it is intriguing that the country still serves as South Asia's largest
refugee home. Tibetan refugees continue to live in harmony with other local Indian
groups, and as a community they are considered to be peaceful.

43
The Bangladeshi refugee

 The next major refugee crisis occurred during Bangladesh's War of Independence in
1971, when millions of refugees migrated from India to India, fleeing the conflict
between the Pakistani army and Bangladesh forces. This has led to a sudden increase in
population in the states bordering Bangladesh, and it has become increasingly difficult
for the Indian government to ensure food security. According to some estimates, more
than 10 million Bangladeshi refugees fled to India in 1971.

 Today, the issue of illegal Bangladeshi immigrants is being used by political parties to
get votes in every election cycle. Unlike Tibetan refugees, they are seen as a security
threat.

 Furthermore, the ongoing clashes between local communities and Bangladeshi refugees
today often provoke violence, often resulting in deaths. The conflict is severe in many
northeastern states like Assam, Tripura and Manipur. The continuing flow of refugees
and illegal immigrants from Bangladesh to local communities and tribal groups has led to
a shift in the area's social population, causing locals to become a minority in their own
country. This is one of the main reasons for the killing of over 80 people in the wake of
the Khokrajar riots in Assam in 2012.

Sri Lankan Tamil Refugees

 Another notable group of refugees in India include the Sri Lankan Tamils, who have
abandoned the island nation in the wake of the recent Sri Lankan governments' extreme
discrimination policies, the 1983 Black July riots and the bloody Sri Lankan civil war.

 These refugees, who are often more than a million, have settled in Tamil Nadu because of
their proximity to Sri Lanka, and it is easy for them as Tamils to adjust to life there.
Between 1983 and 1987, over 1.34 lakh Sri Lankan Tamils crossed the Balkan Strait to
India. In three more phases, more and more refugees entered India. The war-affected Sri

44
 Lankans have sought refuge in South India, and now more than 60,000 refugees are
staying in 109 camps in Tamil Nadu alone,” India Today reported.
 Despite the end of the civil war nearly nine years ago, there are still a large number of Sri
Lankan Tamils who started as refugee camps decades ago. India's involvement in the Sri
Lankan conflict has most famously led to the assassination of former Prime Minister
Rajiv Gandhi, and refugees remain a major issue, which has repeatedly affected relations
with India and Sri Lanka.

The Afghan refugees

 After the Soviet invasion of Afghanistan in 1979, many Afghans sought refuge in India.
Small groups of Afghanistan refugees continued to come to India in subsequent years.
These refugees are mostly concentrated in and around Delhi and have established places
for themselves.

 Also, the UN According to the High Commissioner for Refugees (UNHCR) website,
many Hindu and Sikh Afghans who came to India after fighting in their home country in
the early 1990s have been granted citizenship over the past decade. Both the World Bank
and UNHCR reports that there are currently more than 200,000 Afghan refugees living in
India.

Rohingya refugees

 The debate over refugees gained national prominence last year after 40,000 Rohingya
Muslims sought refuge in India from Myanmar. The UNHCR's Office has issued ID
cards to some 16,500 Rohingya in India, which it says helps refugees "prevent
harassment, arbitrary arrest, detention and deportation."

 However, India has classified the Rohingyas as illegal immigrants and a security threat,
working with the Burmese government. The Government of India has stated that the
principle of non-repatriation or forcing the refugees to return to their home country does
not apply to India because they did not sign the 1951 Refugee Convention.

45
  The Indian government has appealed to Myanmar to return the Rohingya refugees.
However, a statement in The Indian Express states, “India's claim that the Rohingyas are
being repatriated to Myanmar relies on the assumption that the refugees are of Burmese
stock. The problem at hand, however, is that the Burmese did not treat the Rohingyas as
their subjects, they were immigrants brought from Bangladesh during the British colonial
rule. Moreover, Bangladesh, a favourite destination for Rohingya in the face of atrocities
in Myanmar, thinks they are native to the Burmese state and should be protected there.

3.3 SEEKINGPOLITICAL ASYLUM IN INDIA

 The terms asylum seeker and refugee are often confused: a person who claims to be a
refugee, but is not yet firmly evaluated or judged by the country in which they seek
asylum. On average, about 1 million people seek asylum on an individual basis each
year37.
 UNHCR reports show that despite being the world's largest democracy, India is not a
popular destination among political asylum seekers.
 For example, there were 35.03 lakh political asylum seekers in the world in 2018, but
only 0.34 per cent (11,957) of them sought political asylum in India.
 The United States, Germany and Turkey are applying for asylum seekers at 7.18 lakh,
3.69 lakh and 3.11 lakh respectively.But that does not mean that no one has applied to
India.
 As for South Asia, there are a large number of political asylum applications in India. In
2018, out of 11,957 political asylum seekers in India, 65 per cent (7,864) were from
Afghanistan. It was followed by Myanmar (2,064) and Yemen (1,134).
 Analysing the data on India-related political asylum claims, we find that the number of
Indian asylum seekers abroad is 33.4 per cent higher than the number of other countries
seeking asylum in India in 2018.
 Despite these political asylum demands, by the end of 2018, India had sheltered 1.95 lakh
refugees.

37
United Nations High Commissioner for Refugees,https://www.unhcr.org/

46
  In South Asia, Pakistan has the largest number of refugees (14.04 lakh, mostly from
Afghanistan), followed by Bangladesh (9.06 lakh, mostly Rohingya Muslims from
Myanmar).

3.4 WHY FEWER ASYLUM SEEKERS APPLY IN INDIA

 India did not sign the 1951 United Nations Convention on the Status of Refugees, as well
as the 1967 UN Convention. Neither did sign the protocol. These two describe the rights
and security that refugees can enjoy in host countries.
 In addition, there is no clearly defined domestic policy on refugees in India or any law to
guide the authorities on how refugees should be treated in India. So far, their treatment is
subjective and varies from case to case.
 Worldwide reports of refugees and asylum seekers, in spite of legal disruption, show that
the vast majority of people forced to flee their home countries have sought refuge in
some neighbourhood.
 Entitled “Global Trends: Compulsory Migration in 2018,” the UNHCR report says there
were 25.9 million refugees in 2018. Four out of five (80 per cent) refugees live in
neighbouring countries of their own.
 When it comes to India's immediate neighbourhood, Afghanistan, China (Tibet),
Myanmar, Pakistan, Bangladesh and Sri Lanka are sources of refugees because of
internal chaos and civil war there.
 From Pakistan (at the time of the Partition in 1947), Tibet (during the Talia Lama's
escape from Tibet in India in the late 1950s and early 1960s), Bangladesh (during the
Bangladesh Liberation War in the 1970s) and Sri Lanka (during the Civil War in the late
1980s).
 But apart from the protracted war in Afghanistan in recent times and the Rohingya crisis
in Myanmar, there is no major impetus for forcing large-scale migration.
 As for Afghanistan, most refugees have sought refuge in Pakistan, and for Rohingya
Muslims, most of them are currently housed in Cox's Bazar and surrounding camps in
Bangladesh.

3.5 RECENT DEVELOPMENTS

47
  Over the past few years, India has seen an aggressive politicization of the issue of
providing shelter to refugees, particularly the Rohingya Muslims.

 The Bhartiya Janata Party is calling for the repatriation of the Rohingyas. They are often
said to be a threat to national security. Other political parties, including the Congress,
have shied away from taking a stand on the issue.

 In October last year, India deported seven Rohingyas to Myanmar. Four months later,
India handed over a Rohingya Muslim family of five to Myanmar.

 The government's decision came despite an August 2018 United Nations report accusing
the Myanmar military of "massacres" and "raping" the Rohingyas. The report claimed
that this was done with "genocide intent" in 2017, forcing more than seven million
Rohingya Muslims to flee to neighbouring Bangladesh.

 However, Myanmar has denied the allegations and called its action counter-insurgency
after the Muslim insurgents attacked its army.

 As for Indians seeking asylum abroad, the Narendra Modi government in 2018 believes
that asylum seekers to a foreign government will "degrade India's system of making
private gains, even if India is a democratic country." Ways to legally address their
grievances”.

 In 2010, the then Congress-led United Progressive Alliance called on Parliament to

consider "a plan to enact a law to establish an effective mechanism to protect refugees
and asylum seekers before and after granting asylum."

 Although the issue was being considered, the then government said it had not taken a
final decision and thus could not "set the time frame for the introduction of legislation in
Parliament."
 In nine years, there is no law on refugees. As Prime Minister Narendra Modi heads a
strong majority government at the Centre, it remains to be seen whether India will have a
clearly defined law governing its policy for refugees and asylum seekers in the future38.
38
India Today, https://www.indiatoday.in/

48
3.6 PROBLEM FACED BY REFUGEES
 The protection of refugees is to protect them against the persecution carried out by
their peers (such as the Rohingya being expelled by the Myanmar government).
India was home to various nationalities (such as the Tibetan Dalai Lama and
Afghanistan correspondent Nargis), so it is not wrong to include India in the
category of "host countries".
 The problems India faces in today's refugee world:
 Although Refuge is one of the forerunners in terms of refugee population (i.e. a host
country), there does not seem to be asylum law in India: there was an attempt in
2015 when Mr Shashi Tharoor tried to move the Private Members Bill into the
asylum laws in our country but it was all in vain.
 Problem of Problem Resources: As refugees continue to be unaware of their legal
status, they cannot access services assigned to them as ration card services or other
services.
 The government's attitude toward refugees has always been a temporary one, and
there is no such refugee law.

3.7 STEPS TAKEN FOR THE REFUGEES

 Although not a member of the United Nations Refugee Convention, India has
always shown its commitment to refugee protection and stability, like the United
Nations General Assembly.
 One of the most important tasks that India has done is signing the New York
Declaration on Refugees, that is, the Global Compact Refugee Conference. The
Global Compact on Refugees has two main objectives: the first is to ensure that
refugees are adequately protected and protected, and the second is to reduce the
pressure on developing countries such as India, where 80% of refugees are guests.
 GCR creates economic opportunities not only for refugees but also for developing
countries.

49
  The GCR also addresses the need to include the host community in the making of
skills, professionalism and capacity building among refugees.
 The GCR is a wake-up call that seeks the state's role in recognizing refugees'
identity gaps and income generation to improve their self-reliance. India’s
commitment to refugee protection under the GCR is made clear by its active
participation in GCR consultations39.
 Pakistan The Central Government has decided to continue with eight umbrella
projects for the relief and resettlement of migrant and deported persons, including
providing assistance to Pakistan-occupied Kashmir (POK) and the displaced Brew
Persons (IDPs) from Mizoram.
 The Union Cabinet, headed by Prime Minister Narendra Modi, has approved plans
for relief and rehabilitation of refugees, displaced persons, terrorism, communalism,
Naxal violence and cross-border firing and mine / IED blasts. The government said
in an official statement that the riots were caused by Indian territories and various
incidents.
 The government will have to shell out Rs 3,183 crore during the period 2017-18 to
2019-20 to implement the -18 projects. In 1997, the Cabinet advanced to repatriate
the Buru tribes who were forced to flee their homes in Mizoram due to ethnic
violence, a day after an agreement was signed between the Centre, Mizoram and
Tripura governments and the Mizoram Buru displaced people. Forum in the
presence of Union Home Minister Rajnath Singh (MPDBF).
 As a result of the settlement among the different stakeholders, 5,407 Buru families
with 32,876 persons currently residing in Tripura's temporary shelters will be
brought back to Mizoram40.

39
The Hindu, https://www.thehindu.com/

40
Economic Times,https://economictimes.indiatimes.com/

50
 CHAPTER 4
INDIAN PRACTICE REGARDING REFUGEE PROTECTION

4.1 OVERVIEW

 India is one of the few countries in the world that has experienced the plight of refugees,
over a period of less than half a century 41. The history of India is marked by the large
migration of people from other countries and continents. The migration took place mainly
in the two gateways to the west — the Hindukush Mountains and the Patkoi range in the
east. Since ancient times, people from different parts of the world have come to India in
various sectors such as travelers, invaders, migrants and refugees, and have transformed
the land into a home with or without a separate identity 42. In the first twenty-five years
after independence, India had to take responsibility for 20 million refugees. This was
mainly due to the partition of the country. As a result of the partition of the Indian
subcontinent in 1947, India had to face a tremendous task of providing relief and
rehabilitating the displaced people from West Pakistan.
 The Declaration of Independence in 1947 resulted in the creation of India and Pakistan,
the world's largest extortion and mass movement in recent history in the Indian
subcontinent, estimated at 15 million on the Indian subcontinent, nearly 8.5 million
emigrated from India and 6.5 million the other way 43. In the initial phase, 160 relief
camps were organized and the total cost of relief until the end of 1950 was Rs. 60 crores.
Various programs were prepared for the resettlement of refugees. The Government of
India has taken necessary legislative and administrative measures to address the situation.
The Rehabilitation Fund Administration Act, 1948 was passed in this direction. The two
governments (India and Pakistan) entered into a special treaty on April 8, 1950,
regulating the flow of refugees and developing mechanisms for settling refugees' claims
regarding property, land and payments. The main aspects of the contract can be divided
41
Prof. J. N. Saxsena, “Legal Status of Refugees: Indian Position”, Indian Journal of International Law, vol. 26, No.
3 & 4, 1986, p. 501.
42
M.P. Singh, “Position of Aliens in Indian Law”, Heidelberg Colloquium on “The Legal Position of Aliens in
Nation and International Law,” September 1985, p. 55
43
Supra note 1.

51
 into four parts. The first part aims to eliminate the fears of religious minorities and
guarantee their basic human rights. The second part was concerned with solving the
immediate problem by promoting communal peace and normalizing the troubled
situation. It sought to achieve that by restoring trust among members of the minority
community. The third part aims to establish an environment in which other differences
can be resolved amicably. The last section addresses enforcement machinery, which aims
to address the grievances of the two countries' minority communities44.
 Therefore, the complexity of the legal status of these displaced persons as the definition
of 'displaced person' as provided by the Rehabilitation Fund Management Act of 1948
differs from the definition of the term 'refugee' provided by 1951. Convention on the
Status of Refugees. In this case, the situation of creating refugees is the result of an
agreement between the two governments. So how can these people be called refugees
because their predicament was mainly caused by civil strife? The plight of the migrant
population is the plight of the refugees. They relocated from one country to another,
underwent tragic experiences, and sought refuge in the country from which they
appeared. Refugees from India and Pakistan embark on a journey of fear and confusion,
abandoning their stove and home - deserving of refugee status under international law.
They were considered by the world community45.
 As a result of the Chinese annexation of Tibet in 1950, India faced another refugee arrival
in 1959, when the Dalai Lama and his 13,000 followers fled the country and reached
India as refugees. The Indian government granted political asylum to the Dalai Lama and
his followers. The Dalai Lama's company is a serious blow. This is political-religious
persecution. "One can honestly say that the political asylum granted to Tibetan refugees
played a small but significant role in the growing hostility between the two countries46."
 In 1971, India faced another massive influx of refugees, with 10 million people fleeing
East Pakistan and now Bangladesh as refugees. However, after a decade-long hiatus,
India has again been hit hard by the influx of thousands of refugees from Sri Lanka and
Bangladesh since 1983 and 1986 respectively. According to the World Refugee Report

44
Prof. Rahmatullah Khan, “India: India And its Refugees”, In Round Table of Asian Experts on Current Problems
in the International Protection of Refugees and Displaced Persons (Maniila, 14-18 April 1980), p. 108.
45
Ibid.
46
Ibid.

52
 digit prepared by the Bureau of Refugee Programs, State Department (July 1993): At the
end of 1992, India hosted nearly 400,000 internally displaced persons.
 UN 1951 It is very sad that India is not a party to the Refugee Convention or its
1967 protocol, and there is no Indian law governing asylum or refugee status. According
to local domestic and bilateral political and humanitarian considerations, the Indian
government handles refugee matters administratively.

4.2 RESORTING TO ‘HUMAN RIGHTS’ TO ENHANCE THE

PROTECTION OF REFUGEES

 In the international system of human rights protection, the grant of asylum by a

State to persons entitled to invoke Article 14 of the Universal Declaration of
Human Rights cannot be regarded as an unfriendly act by another State.
Similarly, and particularly in the post-Cold War context, it is widely
acknowledged that international attention to human rights violations is not an
interference in a country’s domestic affairs but is rather part of routine
international diplomacy. Although some States will go to great lengths to avoid
scrutiny or criticism before international human rights bodies, the international
community has identified a need to strengthen and improve application and
enforceability of the international system of human rights protection. This has
been realized through, for example, the UN-sponsored human rights missions in
Cambodia, El Salvador, Guatemala, Haiti, the former Yugoslavia and Rwanda;
the establishment of international criminal tribunals for the former Yugoslavia
and Rwanda; and technical cooperation in the field of human rights with
governments and other actors. Ofcourse the degree varies, ranging from assistance
and advice, to monitoring and reporting and direct protection.
 In its own policies and programmes, UNHCR has incorporated a number of
human rights principles. Its protection activities in countries of asylum and
countries of origin include working with States in the areas of legal
rehabilitations, institution building, law reform and enforcement of the rule of law
and providing humanitarian assistance to internally displaced persons. Increased
cooperation with international and regional human rights mechanisms are also

53
 new areas of involvement for UNHCR. These activities add to an already
overburdened agenda. Some States have expressed concern that UNHCR should
not undertake tasks, which go beyond its formal mandate. This concern is well
taken as these more recent activities are placing considerable strain on UNHCR’s
limited resources. In this context the question of whether UNHCR has the
capacity and capability to do these tasks must be addressed. Despite these
apprehensions, in this era of downsizing and reform of the UN system it seems
unlikely that UNHCR will be permitted to continue its activities along traditional
lines. Furthermore, ‘in country’ protection activities are becoming increasingly
formalized as part of UNHCR’s evolving protection mandate.47
 In efforts to prevent refugee flows the UN and others, notably NGOs, are
providing technical assistance to States within a general human rights framework.
This includes the promotion of human rights standards through the training of
judges, lawyers, and human rights activists; giving substance to educational rights
by funding the construction of new schools in war-tom countries; and promoting
economic rights through community-based projects focused on providing
assistance to returning refugees. Promoting enactment and enforceability of
domestic refugee and human rights laws, promotion of national human rights
institutions, and training of government authorities, are other prevention-oriented
activities in which the UN, Governments, and NGOs are increasingly engaged.
 As part of the development of human rights principles through UN Conventions, a
number of international treaty bodies have been established to investigate
violations, enforce standards, and assist States in implementing their treaty
obligations. These bodies have the authority to examine periodic State party
reports regarding implementation of the treaty provisions. With the agreement of
States, some treaty bodies have the competence to invest gate and decide upon
individual and inter-state complaints and undertake field missions in order to
monitor implementation measures. During examination of State party reports the
Committees may prepare formal conclusions and observations on the performance

47
For a description of the changing nature of UNHCR’s mandate see The Refugee in International Law (K ed.), by
Guy S. Goodwin-Gill, in particular Chapter 1, Clarendon Press, Oxford, 1996; also see ‘Field Strategy for Human
Rights Protection’, by William Clarence, Vol. 9, No.2, URL, April 1996, at pp. 232-233.

54
 of States in complying with international human rights law. They may also
formulate specific recommendations to Governments. In recent years, some of
these Committees such as the Human Rights Committee, the Committee on the
Rights of the Child, and the Committee Against Torture, have regularly raised
issues about the treatment of refugees by State parties to the respective
Conventions.
 The UN human rights machinery has paid increasing attention to the plight of
refugees. This raises awareness of refugee protection issues through promoting
legal standards for refugees and internally displaced persons in addition to sharing
information concerning incidents of violations of refugees’ rights. Human rights
NGOs and UNHCR have played key roles in educating members of the
international and domestic human rights communities on the linkages between
safeguarding human rights and refugee protection. These initiatives have firmly
entrenched human rights issues in relation to the refugee problem48.

4.3CONSTITUTIONAL PROTECTION

 Some articles of the Indian Constitution apply equally to refugees on Indian soil, and they
apply to Indian citizens49.

 The Supreme Court of India has consistently held that the fundamental right to life and
personal liberty under Article 21 of the Constitution of India applies to all, irrespective of
whether they are citizens or aliens of India. The various High Courts in India have
liberally adopted the rules of natural justice for refugee issues, and the United Nations
High Commissioner for Refugees (UNHCR) plays an important role. The Hon'ble High
Court of Guwahati, in a number of rulings, recognized the refugee problem and allowed
refugees to access the UNHCR to determine the status of their refugees, whilst retaining
deportation orders issued by the district court or administration.

48
A useful compilation of the various activities of the UN human rights mechanisms concerning refugees and issues
of forced displacement is found in the UN Commission on Human Rights report ‘Human Rights. Mass Exoduses
and Displaced Persons’. UN Document E/CN.4/1997/42 of 14 January 1997.
49
Articles,14,20 and 21 of the Indian Constitution.

55
  Gurunathan and others Vs. Government of India vs. others 50 and A C Mohd. Vs.
SiddiqueGovernment of India and other51 matters, the Madras High Court does not want
to allow any Sri Lankan refugees to return. Sri Lanka against their will.

 In the case of P. Nedumaran vs. Union of India52 in the case of the Madras High Court,
Sri Lankan refugees prayed for the request of the UNHCR authorities to check the
volunteerism of the Indian Union and the State of Tamil Nadu. Returning to Sri Lanka
and allowing refugees who are unwilling to return to their camps in India. The Hon'ble
Court was pleased to consider this.” Since the UNHCR is involved in finding the
voluntary nature of the return of refugees to Sri Lanka and therefore a global institution,
the Court cannot consider whether consent is voluntary or not. “Moreover, the Court
acknowledged the competence and bias of UNHCR representatives. In the case of Syed
Ata Mohammadivs. Union of India53, the Mumbai High Court was delighted to lead
"Iranian refugees no doubt because they are recognized as a refugee by the UNHCR".
The Hon’bleCourt allowed the refugee to travel to any country he wishes. This order is in
line with the internationally accepted principles of the ‘non-refoulement’ of refugees to
their country of origin.

50
WP No.S 6708 and 7916 of 1992
51
1998(47)DRJ(DB)p.74
52
The case is pending before the National Human Rights Commission of India, 13 August 1997
53
Syed Ata Mohammadi vs. State, Criminal writ petition no.7504/1994 at the Bombay High Court

56
  The Supreme Court of India has stopped the deportation of refugees in many cases, such
as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab 54; and, N.D.Pancholi
vs. State of Punjab & Others55. In the case of the Malavika Karlekar vs. Union of India56,
the Supreme Court has ordered the deportation of Burmese refugees to the Andaman
Islands because “their claim for refugee status is pending and a preliminary case has been
filed to grant refugee status. The Supreme Court's verdict in the Chakma Refugee case
clearly stated that no one can lose his or her life without due process of law. Earlier, the
Supreme Court ruled in Luis De Raedt vs. Union of India57and also State of Arunachal
Pradesh vs. Khudiram Chakma58.
Arrest, Detention and Release
 Another aspect of non-refoulment is noted here. The notion of 'International Zones',
which are marked as being outside the Indian jurisdiction and the normal jurisdiction of
Indian courts, is a major 'risk factor' for refugees. Accessing refugees for legal solutions.
This legal fiction is a violation of internationally accepted policy. In the case of a
Palestinian refugee deported from Kathmandu to New Delhi International Airport, he was
sent back to Kathmandu from the airport's traffic lounge. He was flown back to New
Delhi International Airport on the basis of a telephone call.
 Such detention is a classic case of the above point of excluding legal remedies for the
detained refugee. The only relief in such a case is through the administrative authorities.59
 Articles 22 and 25 of the Constitution of India reflect that the rules for natural justice in
the common law system apply equally to refugees in India. The established principle of
law in India is that no person, whether a citizen or an alien, will lose his life, liberty or
property without the authority of law. Courts have gone further to uphold the Indian
Constitution as a fundamental element of the Constitution which is expressly included
and cannot be amended.
 The Constitution of India does not contain any specific provision that compels the State
to enforce or enforce treaties and conventions. A joint reading of all the rules and the
54
Crl. WP No.125 & 126 of 1986.
55
N.D. Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987, unreported)]
56
Crl. WP No.243 of 1988.
57
(1991) 3SCC 544.
58
1994 Supp. (1) SCC 615

59
Delhi High Court, Criminal Writ Petition-60/1997

57
 analysis of the case law in this case shows that international treaties, treaties, traditions
and treaties can only become part of domestic law in India if they are specifically
incorporated into the law of the land. The Supreme Court, through a number of rulings,
held that international customary law must go through the process of turning into
municipal law before it becomes an international law.

4.4 LAWS GOVERNING REFUGEES IN INDIA

 We have a number of domestic legislations in force to deal with refugees. India draws no
 distinction between a “foreigner” and a “refugee”. And this gives rise to a plethora of
problems
 which will be highlighted subsequently. The laws are-
 Passport (Entry into India) Act, 1920.
 Passport Act, 1967.
 Registration of Foreigners Act, 1939.
 Foreigners Act, 1946.
 Foreigners Order, 1948.
 The Passport (Entry into India) Act, 1920 and the Passport Act, 1967 makes no
distinctionbetween genuine refugees and other categories of foreigners like economic
migrants, tourists and students. As a result, the refugees run a big risk of arrest by
immigration authorities and illegal deportation in the absence of a valid passport 60.
Penalty should not be imposed on refugees61 because they may leave in turmoil not have
the time to get a passport issued. In most of the countries, access to passport offices may
not be possible due to distance and lack of infrastructure. Once the refugee enters the
Indian Territory, they may get valid passports and identity cards if the public interest
criteria is fulfilled62. But so far only Tibetan refugees have been issued valid passports.
The reason for their “privileged treatment” is that their political and spiritual leader too
resides in India and they have their parliament on the Indian soil. Some scholars criticize

60
Bimal N Patel, India and International Law, (2005 edn), MartinusNijhoff Publishers, 2005.
Section 30 of the Passport Act1920 read with rule 6A of the Indian Passport Rules 1950.
61
See Article 31 of the Refugee Convention
62
See Section 20 of the Passport Act, 1967

58
 because it hampers the sovereignty of India63. The reasoning may be that in order to
protect national interest, no refugee is given the fundamental right to freedom of
movement or issued an identity card. Also, it causes trouble for refugees to open bank
accounts, obtain ration cards or rent accommodation because they have no identity. This
is contradictory in nature because the constitution does not guarantee freedom of
movement but the administration may give this right based on a case to case analysis
imposing reasonable restrictions. This clearly violates the equality principle as all
refugees should be treated alike on Indian soil.

 The Registration of Foreigners Act, 1939 empowers the Central Government to make
rules for foreigners. Where and whom to report, provide proof of identity and registration
certificate64. This law should not be applicable to refugees as they have already suffered
at the hands of their Government and these burdensome technicalities add to their agony.
Furthermore, the power of Central government is used in an arbitrary manner to harass
genuine refugees and there are no checks to curb this power.

 The Foreigners Act, 1946 places some more restrictions on refugees like defining whom
to meet and the routes only through which they can enter the country65. One of the biggest
criticisms of this act is that the authorities have “unlimited power” to arrest and detain
any foreigner on mere suspicion for non-compliance under this act. Though the court
tried to restrict this power by stating that in order to penalize, there should be actual
contravention of provisions66. Unfortunately, more and more refugees continue to be
detained onfrivolous grounds and they are not released for long durations.

 Lastly the Foreigners Order, 1948 authorises the State government to “grant or refuse”
aforeigner entry into the Indian territory on grounds like invalid passport, unsound mind,
public

63
This argument does not relate to the article, it is made solely for better explanation.
64
R. J.S. Tahir (eds.) RaginiTrakrooZutshi, Jayashree Satpute, Md. Saood Tahir: Refugees and the Law, 2edn,
HRLN, 2011, pp 78.
65
Ibid, pp 79.
66
Kallan Khan v. State 1961 (1) Cr. LJ 584, para 13

59
  safety or is detected suffering from a “loathsome” 67disease. The civil authority can
refusepermission if the formalities are not fulfilled under the Foreigner Act. This rule is
malafide andarbitrary because the condition of a refugee is different and he deserves to be
treated oncompassionate grounds having the human rights perspective. Common parlance
is that most of
 the refugees are detained in transit areas, prior to their entry in India. These transit areas
aremainly airports, sea coasts or land specifically earmarked for this purpose and they are
treated as“International Zones” where the domestic law does not apply. In this scenario, a
refugee can onlyseek administrative remedies and not legal remedies as he is deemed to
not have entered theterritory of India officially 68. When such a case is handled by
bureaucrats or custom officials,they lack legal knowledge and competence which poses a
great danger of deportation andultimately persecution of the refugees. This leads to
violation of principles of non-refoulement.The Indian Penal Code makes no distinction
between nationals, refugees or foreigners69. Arefugee may be penalized for cheating,
fabricating documents and forgery70. Often, theconcerned authorities are inconsiderate to
the compelling factors of refugees and the genuinereasons why they don’t possess valid
documents. According to the researcher, IPC should not beapplicable to refugees at all.

4.5 ANALYSIS OF THE ROLE OF UNHCR IN INDIA

 UNHCR plays a very comprehensive role for protection of uprooted and displaced
people. India has been an executive member of the UNHCR since 1995 and has been
availing the benefits since then. Their work starts the moment, a refugee enters India.
Such person may apply for refugee status and registration at the UNHCR office. A legal
officer is appointed to interview such refugees and procure all the relevant information. If
there are inconsistencies in the interview, they should be handled with care and caution as
the background and the mental state of the refugee should be considered. Many a times,

67
Nowhere in the act, loathsome is defined.
arbitrary.
68
R. J.S. Tahir (eds.) RaginiTrakrooZutshi, Jayashree Satpute, Md. Saood Tahir: Refugees and the Law, 2edn,
HRLN, 2011, pp. 137.
36Ibid, pp. 85
69

70
See Section 416, 420, 463, 464 of IPC, 1860.

60
 there are language barriers and all the information cannot be collected. This is not a
reason for declining the refugee status by the
 UNHCR. The main object for deciding the status is the fear of persecution or threat to
life. The
 UNHCR mandate helps in protecting refugees against illegal arrest and detention and also
rescues the person if they are already under arrest. But a mandate is issued only to
refugees from outside South Asian region. This leaves ample room for discrimination and
exploitation of “other” refugees. The UNHCR provides a number of amenities which the
Indian government fails to do in most cases. Because their status and identity are well
established by the UNHCR office, they can procure a valid passport, travel documents
authorizing them to travel abroad, ration cards or open a bank account. The legal officers
of UNHCR provide free legal aid to the recognized refugees.

 The organization has formal agreements with other NGOs to provide financial assistance
to the
 poor and needy across the globe including India. Furthermore, they provide free medical
treatment to the sick refugees in government hospitals with special emphasis on women
and child health care71. The UNHCR has an army of volunteers and interns who assist in
providing
 vocational training which makes them self-reliant, primary education and counselling to
the distressed refugees with the assistance of other NGOs who have an expertise in these
fields.
 Most of the work is centred around finding durable solutions for mitigating the suffering
of refugees at the hands of the host nation. UNHCR works hand in hand with the Central
government. This clearly proves that a refugee having the UNHCR certificate is better
protected and has more than a normal refugee.
 But whatever is done is not sufficient because the mandate of UNHCR is limited and
it cannot work without the support and participation of the country. Whenever there
is mass
 influx of refugees, UNHCR depends on its NGOs to provide information about the crises.

71
Ibid, pp 185-188.

61
  Thiscauses problems because most of the NGOs in India are not updated with the
exact number of refugees and they have limited man power, finances and know-how
of technology. India being the largest receiver of refugees in Asia, it is next to
impossible to regulate movement and update information of every refugee going in
and out of the country. Moreover, in India, the State policies which are
administrative in nature determine the protection of refugees which leaves very
little ground for UNHCR to provide protection. As a result, onlysome refugees who
are not from South Asia get UNHCR recognition and protection and not allrefugees are
treated in the same manner.
 This process of deciding the status claim is criticized because it is arbitrary and there is
no higher official to regulate this practice. The veryexistence of UNHCR depends on the
whim of the Central Government as India has not ratifiedthe refugee convention. Its fate
and scope of work is solely determined by the Indiangovernment.
 In most cases, the members are denied access to refugee camps which makes it
impossible to grant them refugee status. The office of UNHCR receives most of its
fundsthrough donations by international organizations and NGOs 72. In such
circumstances, itmay face a financial crunch and may not be able to give protection
to the refugees. In 1992, the UNHCR denied subsistence allowance in an arbitrary
manner to Afghan refugees which proved burdensome for a number of families73.
 Hence, the Government should give more powersto UNHCR so that the identities of all
refugees coming to India can be recorded. This will reduce cases of false documents and
ultimately minimize refugee arrests regarding the same.
 Another suggestion that will ease the agony of refugees seeking UNHCR certificate to set
aside a part of the annual budget for UNHCR so that more and more refugees can be
rehabilitated in Indiaand a balance of refugee and citizen rights can be built.

4.6 ANALYSIS OF THE ROLE OF NHCR IN INDIA

United Nation High Commission for Refugees, http://www.unhcr.org/pages/49c3646c119.html

72

73
Ranabir Samaddar(ed.), Refugees and the State. Practices of Asylum and care in India 1947-2000, (2003 edn.)
SAGE publications, UK, 2003. BS Chimni, “Status of Refugees in India, pp. 460

62
  National Human Rights Commission, State Human Rights Commissions and Human
Rights
 Courts have been established in India under the Protection of Human rights Act, 1993. As
per
 this act, they have the powers of a civil court and can suo moto inquire into any petition;
interfere in the judicial proceedings protecting the party from human right abuse, study
treaties and prepare reports74. They have been actively involved in the protection of
refugees since inception.
 In 1994, the NHRC gave directions to the Govt. of Tamil Nadu to provide immediate
medical
 treatment to Sri Lankan refugees who were put in camps. But how far did the refugees
receive medical aid is a debatable issue as most of it is just on paper. In the year 1995, a
PIL was filed by the NHRC on behalf of the “Chakma” refugees who hailed from
Bangladesh way back in 1965 and were residing in Arunachal Pradesh. The NHRC
founded that the State Government is acting in accordance with the AAPSU (All
Arunachal Pradesh Students Union) and threatening Chakmas. The Supreme Court
intervened with the liberal interpretation of law to suggest that refugees are the “class
apart” from foreigners and they are to be protected under Article 21 of the Indian
Constitution and they cannot be evicted from their domestic households. The court
emphasised that the State is under an obligation to protect the life and personal liberty of
every human being thus abiding the principle of non-refoulement 75. This case also
highlights the issue of local agitation.
 India has been a witness to many clashes between the refugees and the locals. The main
contention of the local population is that refugees have more facilities despite being
outsiders. They have better access to amenities like medical facilities, food, water,
education, financial assistance and protection than the local population of that
particular State.
 After the Rajiv Gandhi assassination, India became hostile to Sri Lankan refugees and
atrocities were committed upon them despite their protected status. The government was

See Article 12 and 13 of the Protection of Human Rights Act, 1993

74

75
National Human Right Commission v State of Arunachal Pradesh, Supreme Court of India 1996, AIR 1996
SCC 1234.

63
 alsoresponsible for forceful repatriations thus violating the principles of non-refoulement.
NHRC proposed a model law for refugees under the guidance of Justice PN
Bhagwati in 2000 but unfortunately that has not seen light till this date. It also
proposed changes in theoutdated Foreigners Act, 1946 which deprives refugees’ rights as
guaranteed under the Genevaconvention, refugee convention and additional protocol of
196776.
 Currently we only have the Refugee and Asylum (Protection) Bill, 2009 77. The model
law clearly defined the rights and duties of refugees and protection to be given to
them by the State. India can thus be considered in a paradoxical state- on one hand
it refuses to ratify the already existing Refugee Convention and on the other hand, it
does not pass its own independent legislation. To top it all, it continues to allow large
influx of refugees from all across the globe to enter India.

76
Rajeev Dhawan, On model law for refugees: A response to the National Human Rights Commission, NHRC
Annual Reports 1997-2000, New Delhi, 2003.
77
http://news.rediff.com/report/2009/oct/19/home-ministrys-refugee-bill-worries-security-agencies.htm

64
 CHAPTER 5
JUDICIAL RESPONSES TOWARDS THE PROTECTION OF
REFUGEES

5.1 OVERVIEW

 The concept of ‘Refugee Law’ in the Indian judicial system has evolved over a period of
time. Due to lack of a refugee specific statute, the judicial system is constrained to
enforce upon refugees, laws which are applicable to foreigners in general, thereby
consciously, or subconsciously ignoring the unique predicament peculiar to
refugees.Unfortunately, the ensuing acts or omissions result in a grave travesty of natural
justice for the refugee, who has per force of tragic circumstances lost his home, country,
social group, lifestyle, livelihood and may even have lost members of his immediate
family. It may serve well to reiterate that a refugee flees persecution from his country of
origin, only when there is grave apprehension of danger to his life and liberty. Often,
circumstances, which lead to a situation of strife, civil war, ethnic cleansing etc., is
targeted at a particular group or community and results in the flight of the targeted group
into a neighbouring country or any other friendly country which may be
accessible.78There is acute lack of general awareness of the need for a specific legislation
regulating the numerous groups and individual refugees presently in India.
o A broad understanding of the concept of ‘refugeehood’ is essential to grasp the
necessity of refugee related legislation, which would serve to curtail the rampant
illegal entry of economic migrants into India. Once a framework for entry of
refugees is drawn up, it would restrict movement of any other unauthorised mass
of foreigners into the Indian Territory and would be a guideline for local
authorities to determine the manner of dealing with genuine refugees.
 Further lacking, is transparency in the policies of the Administration in granting
asylum/facilities/grants etc., to certain refugees or refugee groups without spelling out
reasons for granting such benefits to some and not to other refugees in similar
circumstances. Such lack of transparency further confounds the issue.

78
Sumbul Rizvi, Advocate, Bulletin on IHL & Refugee Law, Vol. 2, No. 1.

65
  Despite lack of legislation, perplexing administrative attitudes and the strict laws
regulating entry, exist and stay of foreigners in India, the Indian judiciary is in the
process of steadily evolving its own set of mechanism to deal with refugee issues. In
order to better appreciate the ensuing process of evolution of refugee law through judicial
precedents, it may be clarified that the Indian judicial system includes not just the courts
but also related agencies that determine the key elements of refugee extended to refugees:

 The Border, Immigration Authorities and the Police

 Administrative policies and directions,

 The Courts.

 Legal Framework for Refugee Protection in India.

5.2 THE BORDER, IMMIGRATION AUTHORITIES AND THE POLICE

 They are usually the first representatives of the legal system, which a refugee encounters
the moment he tries to, enter India. In the event of the refugee not having the valid travel
documents i.e., passport, visa and entry permit, he may face forced return/deportation to
the country where he came from. In the alternative, he may be interrogated and detained
at the border itself, pending decision by the administrative authorities regarding his plea
for refuge/asylum. The refugee may be lodged in the local district jail and proceedings
may be initiated for violation of the relevant provision of the Foreigners Act 1946, the
Registration of Foreigners Act 1939 and the Passport Act 196779.
o Also compounding the legal process is the applicability of penal provisions under
the Indian Penal Code, when some refugees may have misled the authorities by
producing fraudulent travel documents. The refugee may be charged for cheating
the Boarder/Immigration authorities for forging and using as genuine a forged
document.80 Refugees may enter without any travel documents. In such cases the
offence amounts to violation of the relevant provisions of the Foreigners Act,
1946,81 the Registration of Foreigners Act, 1939 and the Passport Act, 1967 and
79
Under S. 6,7,14 of the Foreigners Act, 1946.
80
S. 415 to 420, 463 to 465, 468, 470, 471, 474, 477 of the Indian Penal Code.
81
Under S. 6,7,14 of the Foreigners Act, 1946.

66
 can be legally dealt with in a simpler manner as compared to violations of the
penal provisions of law.
 It may also happen that a refugee may be incarcerated in illegal detention, i.e., without
registration of a formal case. Such a situation may arise when the refugee has come from
or is suspected to have come from a country, which does not share satisfactory relation
with India. In that case, the refugee maybe suspected to be a spy or a terrorist/militant
entering our borders with intent to cause harm to the stability and integrity of India.
 In cases where the refugee lands at established seaports and airports on Indian Territory,
without valid travel documents, once detected, the Immigration officers manning the
concerned ports immediately detain him. The refugee may be deported forthwith, if there
is no other charge pending against him, except the offence of illegal entry. However, in
case where there is any accompanying penal offence like forgery82. A case may be
registered against the refugee at the local police station, and the refugee may be formally
arrested and lodged in the local prison/detention cell pending trial.
 In cases where refugees initially enter India with valid travel documents, or in cases
where discrepancies, if any, in the travel documents are undetected by the Border
Control/Immigration authorities, the refugee may be arrested on expiry of the said
documents or earlier, when the said discrepancy is detected by the Police. Sometimes,
refugees do not obtain renewal of their visas/residential permit from the local Foreigners
Regional Registration Office (FRRO). In such cases random checks are routinely
conducted by the local police, amongst foreigners including refugees, and those who do
not comply with the mandatory requirement of renewal/obtaining residence permits etc.
are arrested.

5.3 ADMINISTRATIVE POLICIES AND DIRECTIONS

 The administration includes the Ministry of Home Affairs, Ministry of External Affairs
and other related Departments of the Government of India at the Central and State levels.
 Due to the lack of specific refugee related legislation, the said administrative flats (vide
S. 3-3A of the Foreigners Act 1946) determine the course of action to be adopted by the
authorities with regard to specific refugee groups. Often, policies of the Central
82
For instance, using as genuine a forged document and cheating the immigration authorities, which is punishable
under the Indian Penal Code, see supra, note. 39.

67
 Government are not communicated. They may be orally communicated to the States and
other authorities, in cases where the Government may not want to commit itself. This
practice often creates confusion and proves to be an impediment in pinning down
responsibility and in the implementation of the said policies/orders.
 In routine matters, the Centre communicates its policies to the Home Ministry in the
States, which in turn communicate the same to the concerned Departments. There may
often be lack of communication between the Departments and concerned Ministries
resulting in severe delay in decisions on refugees who may be languishing in prison all
the while.

5.4 THE COURTS

 We only have the 2009 Refugee and Asylum (Protection) Bill, the definitive law on
refugees is not available in India, but the main law supporting it is the Foreigners Act of
1946, which further persecutes refugees on the basis of Alien and refugee differences.
 Refugees in India are considered under the term alien. The term is found in the Indian
Constitution (section 22), section 83 of the Indian Civil Procedure Code, section 3 (2) (b)
of the Indian Citizenship Act 1955, and some other statutes. Most actions cause further
problems for refugees. The Foreigners Act, 1946 empowers authorities to arrest or detain
suspects for non-compliance with any aliens. Current laws in India are insufficient to
protect refugees and the protection of refugees requires a very large law. According to the
doctrine of non-repatriation, no country can deport, expel, or forcibly return to its original
territory if there is a legitimate threat to its life, liberty and independence.
 The judiciary plays an important role in protecting refugees, and many cases have made
important judgments on refugees. The Department of Justice has simplified the concepts
of social action litigation and public interest litigation.

 In Digbijay Mote v. Union of India, an NGO was running a school for the Sri Lankan
refugees, When PIL was made when the condition to run the school was difficult,
Ministry of Women and Social Welfare provided financial assistance to the
school.83 In Majid Ahmed Abdul Majid MohdJad Al Hak v. Union of India, basic

83
Digbijay Mote v. Union of India, 1993 (4) SCC 175

68
 amenities like food and medicines must be provided to the refugees who are in
detention.84

 Non-Refoulment and Right to refugee Status: MalvikaKarelkar v. Union of India The

Right to Refusal and Refugees. In the Indian Union, the deportation order against 21
Burmese refugees was suspended by the SC and allowed them to obtain refugee status
under the UNHCR85.

 If a refugee is caught in violation of any law of the land, he should be prosecuted for such
violation. Initially, once arrested, the refugee may not be able to report his or her arrest to
the outside world. This is primarily due to the inability of refugees to establish external
contacts in an unfamiliar country. Once he receives his bearings with the help of prison
and prison officials, the refugee can contact some NGO, High Commissioner for
Refugees of the United Nations, or some friends and fellow refugees, who can then seek
legislation to help secure his release. The cases of Benjamin Tang Neng& Shah
Ghazaiare examples86 of this situation.

 It can be assumed that the strategy for release will naturally be bail. It should be noted,
however, that a refugee is not a local person in the area where he was arrested. Therefore,
it is not possible for any person to make a local "bail" for him and to ensure that he is
present in court at every date of trial. Therefore, if the trial court does not agree to grant
personal bail to the refugee and or pay the bail amount, the release may be elusive87.

 The court may also insist on the regular attendance of the refugee at the concerned police
station in order to be doubly assured that the concerned refugee may not become
untraceable. Directions to the effect, including appearance in court on subsequent dates of
hearing, shall be binding on the refugee; any lapse in such directives can amount to
cancellation of bail and issuance of warrants of arrest. Even then if the refugee is
untraceable, he may be formally declared a “proclaimed offender” and all the concerned
police stations shall be intimated of his disappearance. Subsequent arrest may invite a
84
Digbijay Mote v. Union of India, Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97
85
MalvikaKarelkar v. Union of India, Writ Petition (Crim) No.583 of 1992.
86
Supra note 32 & 33
87
Supra note. 25

69
 severe penalty. In the alternative, instead of seeking bail for the refugee, if the charge
sheet has been presented by the prosecution in court, the refugee may be advised to plead
guilty directly and seek release on payment of a fine along with imprisonment to be set
off with the imprisonment already undergone. The alternative of pleading guilty may be
resorted to even if bail has been sought. The same coupled with cogent arguments in
favour of the refugee has usually had the effect of awarding a lenient sentence and a
nominal fine.
 Invariably, the attitude of the lower courts in refugee cases has been that of complete lack
of knowledge of the concept of refugee-hood, refugee related laws etc. Hence a detailed
explanation of the same results in generating sympathy towards the refugee himself
coupled with an attempt by the court to find a way out for the refugee from his presence
predicament. This altered and aware attitude gives rise to the use of the limited
discretionary power with the lower court judge in imposing a minimum fine and
conviction to the already thwarted refugee.
 On the other hand, the divergent view by other lower courts may be that of strict
technicality whereby, the court may be of the opinion that deportation of the refugee on
completion of the sentence is mandatory. In such situations, the matter may be taken up
with the administrative authorities or in the alternative the order may be appealed to a
higher court.
 The High Courts of various States in India have liberally adopted the rules of natural
justice to refugee issues, along with recognition of the UNHCR as playing an important
role in the protection of refugees. The 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
lower court or the administration, in cases where the refugee has been arrested for
violations of the Foreigners Act.
 In Gurunathan and other v. Government of India and A.C. Mohd. Siddique v.
Government of India and others88, the High Court of Madras has expressed its
unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against
their will.

88
Madras High Court, Writ Petition No. 6708 & 7916/1992.

70
  In another far reaching judgement, in the case ofP. Nedumaran v. Union of India 89before
the High Court of Madras, where 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 Court was pleased to hold that since UNHCR was involved in ascertaining the
voluntariness of the refugee return to Sri Lanka, and 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 Syed Ata Mohammadi v. Union of India 90 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 Court further permitted the refugee to travel
to whichever country he wishes.
 The Supreme Court of India has in a number of cases stayed deportation of refugees, e.g.
In the Maiwand’s Trust of Afghan Human Freedom v. State of Punjab,91N.D. Pancholi v.
State of Punjab & Others.92 In Dr. Malavika Karlekar v. Union of India,93, the Supreme
Court was pleased to direct 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 Supreme Court has consistently held the Fundamental Right enshrined under Article
21 of the Indian Constitution regarding the right to life and personal liberty applies to all,
irrespective of the fact whether they are citizens of India or aliens. Reference may be
made to the Supreme Court judgement in the Chakma refugee case. 94 Earlier, the
judgements of the Supreme Court in the matters of Louis De Raedt v. Union of India95&
State of Arunachal Pradesh v. Khudirani Chakma96had stressed the same point.

89
Madras High Court, W.M.P. Nos. 17372, 17424, 18086/1992 in Writ Petition Nos. 12298 & 12343/1992.
90
Bombay High Court. Criminal writ Petition No. 7504/1994.
91
Supreme Court of India, Writ Petition (Criminal) 123 & 126/1986.
92
Supreme Court of India, Writ Petition (Criminal) 243/1988
93
Supreme Court of India, Writ Petition (Criminal) 583/1992.
94
Writ Petition (Civil) No. 720/95 before the Hon’ble Supreme Court of India, 1996 (1), SCC 293.
95
(1991) 3 SCC554.
96
(1994) (1) SCC Supp. 615.

71
 o Hence, the stand taken by the Indian judiciary has over all been encouraging,
despite the fact that there is no existing statute relating to refugees. The
precedents set down by the High Courts and the Supreme Court are in the process
of paving the path for refugee related legislation.

5.5 LEGAL FRAMEWORK FOR REFUGEE PROTECTION IN INDIA

o India is not a state party to the 1951 Convention or the 1967 Protocol on the
Status of Refugees. However, it has agreed to other international instruments
applicable to the rights of refugees. In April 1979, India ratified the 1966
International Covenant on Civil and Political Rights and the 1966 International
Covenant on Economic, Social and Cultural Rights. Article 13 of the former
instrument relates to the expulsion of a person legally present in the territory of
the State. Under this article, India reserves the right to enforce municipal law on
foreigners. In December 1992, India agreed to the Convention on the Rights of
the Child in 1989, which referred to Article 22 of Refugee Children and Refugee
Family Reunification97. The Convention on the Elimination of All Forms of
Racial Discrimination was ratified in 1963 and the Convention on the Elimination
of All Forms of Discrimination against Women in 1979.
 Inappropriate international human rights instruments include the 1948 UDHR, whose
Article 14 (i) states, "Everyone has the right to seek and seek asylum in other countries
seeking refuge from persecution." The Non-Restructuring Policy incorporated in the
Asian-African Legal Advisory Council's 1966 Refugee Treatment Principles ("Bangkok
Principles"), in particular, includes the non-refusal of the frontier. The Declaration and
Action Plan of the 1993 Vienna World Convention on Human Rights included a specific
section on refugees, which reaffirmed each individual's right to seek asylum and
enjoyment and the right to return to one's home country98.
 Unless these provisions are incorporated by law into municipal law, Indian courts are not
empowered to enforce the provisions of the above international human rights instruments
and in the Indian context this process is often overlooked in the above agreements.
97
Article 10 dealing peneraJJy with famiJy reunification and Art:cJe 38 JeaJing with children in situations of armed
conflict are also relevant.
98
Vienna Declaration and Programme of Action, A/CONF. 157/CONF. 157/23 of 12 July 1993 at p. 8.

72
 Parliament has no obligation to enact legislation 99 to enforce an agreement, and in the
absence of such law, the judiciary is not entitled to comply with the contractual
obligation of the executive.
 Therefore, while each state has a duty to comply with the obligations arising out of
international law, states cannot offer acts or omissions on the part of their legislative or
executive100 elements as an excuse for failing to comply with the above obligations. If a
state fails to comply with its municipal law in accordance with its international
obligations101, international law does not provide such conflicting municipal law as null
and void102.
 Various court rulings have sought to provide humanitarian solutions to refugee problems
in the absence of a stable legislative body, primarily with regard to the principles of non-
refoulment, the right to asylum and voluntary repatriation. The courts, however, have
reached their conclusions without entering into a debate on international refugee law103.
 However, it is worth noting that courts may take into account certain circumstances of the
previously mentioned contract terms. Article 37 of the Constitution of India provides that
the guiding principles of State policy in Part IV are fundamental to the administration of
the country and that it is the duty of the State to adopt these principles in making laws.
 Section 5 (c) of the Fourth Amendment provides that the State shall seek to respect
international law and treaty obligations104. Thus, although Indian courts are not free to
make law, they follow the principle of incentives rather than to interfere with the
aspirations of the Fourth Part of the Constitution105.

99
The well-established position that “the making of a treaty is an executive act, while the performance of its
obligations, if they entail alteration of the existing domestic law, requires legislative action.” Was stated in the Privy
Council case of Attorney General for Canada v. Attorney-General for Ontario (1937) AC 326. This position still
holds: see for example, State of Gujarat v. Vora Fiddali A.1.R. 1964, SC 1043.
100
P. Chandrasekhara Rao, the Indian Constitution and international Law, Taxman, 1993, 130, also see: S.R.C. L v.
Union of India, A.I.R. Kant. 85.
101
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949,
p.174, at page 180: also: Article 13 of the Draft Declaration on the Rights and Duties of States, adopted by the
International Law Commission in 1949; Articles 27 and 46 of the Vienna Convention on the Law of Treaties, 1969.
102
Supra note 53, p. 18.
103
B.S. Chimni, Legal Condition of Refugees in India, Journal of Refugee Studies, vol. 7, No. 4 1994, pp. 378-401,
p. 380.
104
For a compilation of Supreme Court judgements that refer to international instruments. Fali S. Nariman,
“Economic, Social and Cultural Rights and the Role of Lawyers”, The Review, International Commission of Jurists,
Dec. 1995, no. 55, pp. 141-151, p. 145
105
Supra note 65 at page 125; also. Delhi Transport Corporation v. D.T.C. Mazdoor Congress
A.I.R. 1991 SC 101, Central Inland Water Transport Corp. Ltd v. Brojo Nath, A.I.R. 1986, SC. 1571.

73
  There are non-refugee laws in India, so refugees are not classified and treated differently
from other foreigners. Appropriate Indian Laws for Refugees: Foreigners Act, 1946
(Sections 3, 3A, 7, 14); Foreigners Registration Act, 1939 (section 3,6); Passport (Entry
into India) Act, 1920; Passport Act, 1967; Union Legislation, 1962. The Union
Legislature106 has jurisdiction over issues relating to citizenship, naturalization and aliens.
 The arrival of refugees, however, is handled by administrative decisions rather than
legislative requirements. This administrative discretion is used within the framework of
the 1946 Foreigners Act, and stems from a series of administrative orders passed under
the authority of Article 3 of the Act107 on the basis of refugee policy in the country. It is
worth noting that the impact of administrative policy on judicial decisions is negligible
and that progress on one side is very independent of the progress of the other.
 Thus, in India, the refugees get positive rights, the Constitution of India under all the
aliens apply to: before the law and equality rights (section 14), lives to protect the law of
free access and personal freedom by law established procedure (Article 21), their own
religion and follow the campaign, Click on freedom (Article 25). In fact, any law or
administrative action that violates these rights is null and void and can be declared by the
courts (Article 13 read with Articles 32 and 226).

Item 17 of the Union List (Schedule Seven appended to Article 246).

106

Section 3 provides the power to make orders and is drafted very broadly — “The Central government may by
107

order make provision, either generally or with respect to all foreigners, or with respect to any particular foreigner or
any prescribed class or description of foreigner, for prohibiting, regulating, or restricting the entry of foreigners into
India or their departure there form of their presence or continued presence therein”.

74
 CHAPTER:6
CONCLUSION AND SUGGESTION

6.1 CONCLUSION

 It can be easily seen from the foregoing paragraphs 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
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, specially the latter.

 Every person has the right to live a dignified and peaceful life; No person should be
unstable. It is the duty of every nation to ensure the rights of every individual around the
world. In the case of refugees, in all cases the above rights are not guaranteed to them.
India, though not a member of the 1951 Refugee Convention, is an ardent supporter of
refugees seeking India's help, but recognizing refugees under the definition of "aliens"
and "aliens" can sometimes lead to absurdities. While there are some reasons to justify
not making municipal law on refugees in India, there are some instances where refugees
are denied their rights as discussed in this study.
 Moreover, the current rules governing refugees in India include political domination in
determining refugee settlement activities

75
 In the whole world, despite many traditions and laws governing refugees, refugees still
face problems. When there is no refugee law in a large country like India, we can
understand that many countries have one face and one boat. If the UNHCR and the
NHRC work together, there will be further growth in the refugee legal field. Whenever
the UNHCR tries to do something about refugees, India needs to set a law.
 Although refugees are protected under various articles of the Constitution, there must be
a uniform law that provides equal rights to all refugees. India continues to take a
humanitarian view of the refugee issue.

 Considering the security issues that India did not sign up to the 1951 Convention, it
should give proper consideration. It is important to note that the Refugee Act is not
misused and abused by people who seek opportunities. Many judgments in India support
refugees. India has done a good job with regard to refugees, but there is much more to be
done. Many refugees living in India are getting support, but India is planning to deport
them. In the past, the NHRC has submitted a report for the purposes of the Refugee Act,
but has not received an answer. If UNHCR and NHRC do it together, there may be an
answer.
 The Refugee Convention and its Protocol of 1951 and 1967 were conventions that
received universal response with many countries signing the Convention. They look at
most of the causes of refugees and tell us the rights and other arrangements that should be
given to them. As a whole, India needs refugee law to manage refugees entering India in
relation to refugees, and in the future, there may be many more issues for various reasons.

 India continues its humanitarian outlook on the issue of refugees, despite its own security
concerns, especially over the past two decades, and the pressure of the population and the
economic factors of the aides. Although the country has not enacted a special legislation
to manage refugees, it has not proven to be a serious handicap in satisfying the massive
refugee problems around the country.
 The spirit and contents of the UN and international conferences on this matter are greatly
respected through executive and judicial intervention. Through this, the country has
created a practical balance between humanitarian and humanitarian obligations on the

76
 one hand and security and national interest on the other. It is in balancing these interests
that, at times, seem to compete with each other, and the security and law enforcement
agencies face daily challenges. If a separate Number of Refugees Act is enacted for the
country, this aspect needs to be given due attention. It is important that the security and
enforcement authorities do not heed the inherent, especially post-legal, and fundamental
human aspects of the refugee situation.
 This article therefore highlights the need for a specific municipal law to govern refugee
rules with well-defined definitions and to reduce the involvement of politics.

6.2 SUGGESTIONS

 There have been endless debates and discussions over which is better- passing a domestic
 legislation or framing a refugee convention specifically for India. According to the
researcher both should peacefully co-exist so that incase there is lacuna in domestic law,
it is covered in the Asian Convention and vice versa.

NEED FOR A DOMESTIC LAW

 India has no unique law for refugees, but it is very necessary to consider the latest issues
and many issues that may come up in the future. Until a law is drafted, India will
continue to hold refugees depending on their country and political views. The NHRC has
submitted several reports on the need for a law for refugee-based India, but they have no
response. A law is needed to ensure that all refugees are treated equally and proper
arrangements are made for them during times of crisis.
 Domestic migration provisions must also be in place. All actions that affect the most
vulnerable of refugees must be replaced with this new law, which will facilitate the
procedure for granting refugee status. This will help to end discrimination against
refugees in India and in every possible way for the development of refugees.

 A domestic law is needed in India to ensure that all refugees are given basic protection.
Without that, refugee rights are not right in the real sense, they are simply privilege at
the hands of theadministration.

77
  A domestic law should also define refugees to include “internally displaced people” due
tonatural calamities, terrorist activities. For instance, the Kashmiris were forced to flee
Kashmirdue to the militant activities.
 Housing and employment can be ensured to refugees so that they can become self-reliant.
 A number of civil society organizations should work in collaboration with the Govt.
under thisact to improve their living conditions.
 To use as far as possible medical and other relevant expert evidence from professionals
specially trained in the field of torture and other traumatic experience
 A domestic legislation will overrule all the existing acts like the Passport act and the
foreigneract and will reduce the suffering of refugees by specifically dealing with their
problems.
 A domestic legislation will make the procedure of granting refugee status simple, fair
andtransparent. It will also call for greater accountability and checks on the power of the
officials.
 To affirm the humanitarian nature of the granting of refugee status and to avoid
politicizing the issues.

 It will abolish discrimination which currently exists among refugees of different

nationalities.
 Non-refoulement must be made a non-derogable human right of the refugees in the
domestic legal system
 Special provisions guaranteeing protection to women and childrenshould be made
because inthe Indian society, crimes against women (rape) and children (child trafficking)
is at its peak. This will also be in consonance with India’s obligations under CEDAW and
UNCRC.
NEED FOR A SOUTH ASIAN REFUGEE CONVENTION

 India is a superpower in Asia, so it has a tendency to “dominate” over other nations. In

such acase drafting a South Asian Refugee conventionwill be of great significance to
ensure refugeeprotection.

78
 The convention can be drafted by experts from all countrieshighlighting their specific
issuesrelating to the refugees based on the understanding of each nation. In this way, the
conventionwill reflect the background of every country.
 The definition of refugee should be broadened to incorporate people displaced due to
ofenvironmental disasters, socially ostracized because of admitting openly of a different
sexualorientation and people fleeing because of threat caused by crimes against women
and children.This can ensure that there is no western intervention incase of dealing with
refugees and at thesame time, maximum protection can be given.
 The convention will book the violators of refugee rights for crimes against humanity. It
can alsoformulate a regional tribunal to handle cases of refugees- their rights, duties,
trials andrepatriation.
 This will reduce tension between neighbouring countries and improve diplomatic
relations. Itcan be worded as, “providing refuge is a humanitarian act and shall not be
interpreted as infringement to the Sovereignty of the nation”. It may also state that
the Convention willnot hold any state guilty as its only purpose is providing safe refuge
to the people seeking it.
 When both the Convention and the municipal law are in order, there is no scope for
deviation. Itwill be able to address all the problems and issues associated with refugees in
the most efficientmanner.
o There will be lesser arbitrariness in procedures and still if some official tries to
deviatefrom his duty to give protection to the refugees, he will be held liable. It is
high time that wehave a definite refugee mechanism here because refugees will
never stop coming to India for thereasons discussed above.

79
 BIBLIOGRAPHY
STATUTORY MATERIAL:

 Additional Protocol Relating to the Status of Refugees of 31 January 1967.

 Cartagena Declaration on Refugees, 1984.
 Cohen, R. 'Protecting the internally displaced, in World Refugee Survey 1996, United
States Committee for Refugees, Washington DC, 1996.
 Commentaries on the Displaced Persons (Compensation and Rehabilitation) Act, No. 44
of 1954
 Holborn, Louise W 1965a The Cuban Refugee Problem. Report prepared for the U.S.
Department of Health, Education and Welfare, Cuban Refugee Program, Unpublished
manuscript.
 Impact of Armed Conflict on Children, Report of Graca Machel, expert of the Secretary-
General of the United Nations, UNICEF, 1996.
 Indian Emigration Act, 1922.
 Model National Refugee Law.
 Statue of the Office of the United Nations High Commissioner for Refugees 1950.
 The Defence of India Rules 1939 (made under the Defence of India Act 1939)
 The Displaced Persons (Claims) Act, 1950, Delhi: National Archives of India.
 The Extradition Act 1870.
 The Foreigners Act, 1946.
 The Indian Passport Act, 1920.
 The Registration of Foreigners Act, 1939.
 UN Convention on Civil and Political Rights, 1966; UN Convention on Punishment for
Crime of Genocide, 1948; UN Convention on Rights of Child, 1989; UN Convention on
Social, Economic & Cultural Rights, 1966; UN Convention on the Elimination of All
Forms of Discrimination Against Women.
 UN Convention Relating to the Status of Refugees 1951.
 UNHCR Manual, Geneva, UNHCR, 2000.
 UNHCR Policy on Refugee Women, Geneva: UNHCR, 1990
 Universal Declaration of Human Rights, 1948.

80
BOOKS:

 Paras Diwan and Payush Diwan, Human Rights and the Law, Deep and Deep
Publications.
 Bose, Tapan K., Protection of Refugees in South Asia: Need for Legal Framework,
Katlimandu: South Asia Forum for Human Rights, 2002.
 G.J.L. Coles, Human Rights and Refugee Law, Staff Member, UNHCR.
 B.S. Chimni (Ed.), “International Refugee Law: A Reader”, New Delhi, Sage
Publications, 2000.
 Guy S. Goodwin-Gill, “The Refugee in International Law”, Oxford, Clarendon Press.
1983.
 KeesWouters, “International Legal Standards for the Protection from Refoulement”,
Intersentia, Mortsel, 2009.
 J. C. Hathaway, “The Rights of Refugees under International Law”, Cambridge
University Press, 2005.
 RathinBandopadhyay, “Human Rights of the Non-citizens: Law and Reality”, Deep and
Deep Publications Pvt. Ltd. 2007
 Grahl Madsen A, The Status of Refugees in International Law, Leyden, the Netherlands,
Sijthoff, 1966.
 Muni S.D., and Lok Raj Baral (eds.)., Refugees and Regional Security in South Asia,
New Delhi: Konark, 1996.
 Patil V.T. and Trivedi P.R., Refugees and Human Rights, New Delhi.
 ARTICLES:
 Jessica Rodger, “Defining the Parameters of the Non-refoulement Principle”, LLM
Research Paper, International Law (Laws 509)
 Ruma Mandal, “Protection Mechanisms Outside the 1951 Convention (“Complementary
Protection”), Legal and Protection Policy Research Series, Department of International
Protection, UNHCR, PPLA/2005/02, June 2005
 Guy S. Goodwin-Gill, “The Principle of Non-Refoulement'. Its Standing and Scope in
International Law”, A Study prepared for the Division of International Protection Office
of the United Nations High Commissioner for Refugees, International Journal of Refugee
Law, 1993

81
  Omar N. Chaudhary, “Turning Back an Assessment of Non-Refoulement Under Indian
Law”, Economic and Political Weekly, Vol. 39, July 17, 2004.
 Vijay Padmanabhan, “To Transfer or Not to Transfer: Identifying and Protecting Human
Rights Interests in Non- Refoulement”, Fordham Law Review, Vol.80, Issue 1, 2011.
 Tor Krever, “Mopping-up”: UNHCR, Neutrality and Non-Refoulement since the Cold
War”, Chinese Journal of International Law, 2011.
 Pilar Villanueva Sainz-Prado, “The Contemporary Relevance of the 1951 Convention
Relating to the Status of Refugees”, International Journal of Human Rights, Vol.6, No. 2
(Summer 2002).
 Hossain Kamal, 'Refugees and Human Rights: A South Asian Perspective', TIxe State of
World's Refugees 1997-98, Geneva: UNHCR, 1998.
 Krishna Iyer, Justice V.R., 'The Legal Saga for Refugees and Humanitarian Odyssey',
Bulletin on IHL and Refugee Law, Vol. 2, No. 2 (A), at p. 313.

JOURNALS:

 Alex Cuntiffe, ‘The Refugee Crisis: A Study Of The United Nations High Commission
For Refugees’, Political Studies, 1995, (XLDI).
 Arthur C. Helton, ‘Displacement and Human Rights’, Journal of International Affairs,
Vol. 47, No. 2, Winter, 1994.
 Batchelor C., ‘Stateless Persons: Some Gaps in International Protection’, International
Journal of Refugee Law, vol. 49, no. 1, 1995.
 G.J.L. Coles, ‘Human Rights and Refugee Law’, Staff Member, UNHRC.
 G.S.Goodwin-Gill, ‘The Refugee in International Law’, 1983, p.97.
 Hyndman P., ‘Refugees under International Law with A Reference To The Concept Of
Asylum’, 60 Australian Law Journal, 1986,148.
 Smith Peter M., ‘International Humanitarn Assistance for Refugees: Law and Practice’,
Indian Journal of International Law. No. 3 & 4, Vol. 25, July/Dec. 1985.
 Weis, P., 'The Office of The United Nations High Commissioner for Refugees And
Human Rights', I, Human Rights Journal, 1968, pp. 243,249.
 WEBSITES:

82
 www.ijrcentre.org/refugee-law
 www.ohchr.org
 www.hrea.org
 http://hrlibrary.umn.edu/
 www.supremecourtonline.com
 www.google.com
 http://www.ili.ac.in/oad.htm
 www.legalserviseindia.com
 www.manupatra.com
 https://www.unhcr.org/3b66c2aa10
 https://indianexpress.com/
 http://westlaw.com/
 http://hrlibrary.umn.edu/-

83