A Prefatory Note On The Refugees And Asylum Seekers (Protection) Bill, 2006


AIR 1961 SC 954. Dr. While a unanimous need was expressed in the consultation process for a statutory refugee protection regime in India. The National Human Rights Commission (“NHRC”) appointed a Experts Committee on Refugee Protection to examine the Model Law and suggest changes. Rajeev Dhavan was asked to assist in this process. Following consultations in Colombo. N. Bradman Weerakoon from Sri Lanka and was convened by the then United Nations High Commissioner for Refugees. 1. 2006 PREFATORY NOTE I. set up in November 1994. and Arnit Das (2000) 5 SCC 488]. Kamal Hossain from Bangladesh. Thangal Kunju Musaliar AIR 1956 SC 246. The EPG. the Model Law for Refugee Protection was adopted in 1997. 2. PILSARC studied various Indian rights-empowering statutes and the best practices of foreign refugee protection laws before suggesting the ‘Refugees and Asylum Seekers (Protection) Bill. With a view to suggesting changes to the Model Law. there were some misgivings concerning the substantive and procedural comprehensiveness of the Model Law. New Delhi and Dhaka. which was drafted by an Eminent Persons Group (“EPG”) headed by former Chief Justice of India. A BRIEF REVIEW OF THE MODEL LAW AND DETAILS OF PROPOSED CHANGES The Preamble 1. Sadako Ogata. fairness and due process. also comprised Justice Dorab Patel from Pakistan. Burrakur Coal Co. which is enclosed herewith. Bhagwati. Mr. 2006’. Changes to the Preamble of the Model Law were made keeping in mind the constitutional scheme of equality. Ms. and.2 II.1 The purpose of a legislation should be spelt out in the Preamble since a preamble can have interpretative value [See. Ltd. A. Mr. the need to formulate an appropriate statutory regime that protects the dignified treatment of refugees 2 . P.1 BACKGROUND This is a revised proposal for the Model National Law for Refugee Protection in India (“Model Law”). India’s experience and traditional hospitality to refugees as well as India’s accession to major international human rights treaties. Risikesh Shah from Nepal and Mr.THE REFUGEES AND ASYLUM SEEKERS (PROTECTION) BILL. PILSARC’s Director Dr.

in concert with national and international organisations. 1987 (“SAARC Terrorism Convention”). (b) ethnic identity. in the case of an asylum seeker with multiple nationalities. Section 83 of the Patents Act. a clause has been added to ensure that India is not mandated to provide protection unless the asylum seeker faces a well founded fear of persecution in all the countries in which he is a citizen.3 The refugee definition set out in the Model Law reproduces both the five chief grounds of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) and the four additional grounds of the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.4 The Model Law’s exclusion clause departs from conventional exclusion provisions in three ways: (a) it imposes a high standard of proof on the State authority. and. However. (c) it makes reference to the SAARC Regional Convention on the Suppression of Terrorism. the Model Law adds three new grounds to claim refugee status: a well founded fear of persecution on account of (a) sex. 1969 (“OAU Convention”). for example. The standard of proof required – a conviction – to exclude criminals against humanity and peace 3 . Therefore. such as the Office of the United Nations High Commissioner for Refugees (“UNHCR”). The clause will also subject the refugee protection regime to the peremptory international law norm of non refoulement and any other principal norms of refugee protection. the proposed change to the Model Law will include an objects clause to underline the need for refugee protection by a fair procedure with due process and for effective protection through a system of socio-economic protection. (c) serious violations of human rights. (b) it omits generalised exclusion grounds. 1970]. In addition. it may be advisable to incorporate an explanation extending refugee protection to victims of persecution committed by nonState actors also. Exclusion from Refugee Status 2.2 The ‘objects clause’. The Definition of ‘Refugee’ 2. In addition to the ‘multiple nationalities clause’. in the main body of the statute is an enforceable mechanism to give directions to a statute and can be a formidable primary aid in statutory interpretation [See. detailing the intention of the legislature. and. The Objects Clause 2.

The reference to the SAARC Terrorism Convention will diminish refugee protection by diluting the defences against extradition. The Model Law does not prescribe an adequate regime for the removal of a refugee or asylum seeker to protect them arbitrary State action. Therefore. the SAARC Terrorism Convention deems certain offences as ‘non-political offences’ and takes away a valuable defence available to a person sought to be extradited or removed from a signatory state. even where the person is simply accused of a terrorist offence. 4 . or where their life. The permissible grounds for removal have been restricted to a refugee or asylum seeker’s (a) proved involvement in a crime against humanity etc. and.and war criminals is higher than accepted international norms and is unlikely to be met considering the volatile situations from whence such people flee making it impossible for courts to function freely and fairly. This not only a back-door expansion of the scope of exclusion. is also similarly diluted. This important rule has been re-stated to clearly and authoritatively to prohibit any action to remove persons to any place where they may face persecution on account of any of the grounds contained in the Refugee Convention. The Rule of Non Refoulement and Conditions for Return 2. To be seen in the light of the bar to refoulement.5 The jus cogens principle of non refoulement in the Model Law merely prevents the expulsion or return of a refugee or asylum seeker to a place where his ‘life and freedom’ are threatened. (c) final denial of asylum. contained in Section 7(2) of the Indian Extradition Act.6 To remove a refugee or asylum seeker from India. physical safety and freedom are threatened on account of any of the grounds set out in the OAU Convention. Through its Additional Protocol. distinct conditions that are clearly stated must be met. 1963.. but also a contravention of Article 14(2) of the Universal Declaration of Human Rights that denies persons the ‘right to seek and enjoy asylum’ only “in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. 2. (b) threat to Indian sovereignty or integrity. the requirement of a conviction and the reference to the SAARC Terrorism Convention has been removed and substituted with a revised exclusion clause. (d) exclusion from refugee status. new provisions have been formulated to set out distinct conditions upon which a refugee or asylum seeker may be removed from India.” The ‘political offence’ exception to extradition.

Entry into India and Procedure for Asylum 2. Therefore. While setting up these statutory authorities. with applications filed before a Commissioner and appeals lying to a Refugee Committee.7 The question of constituting the necessary authorities to process asylum applications. Matters of asylum before these authorities have been excluded from the jurisdiction of other courts to avoid a multiplicity of claims. of ensuring their independence and appointing members to their posts is only cursorily examined in the Model Law. (d) removal and resignation procedures and concomitant safeguards. Functions and Powers of the Authorities 2. Considering the models adopted by the Protection of Human Rights Act. such a procedure is important in the interim period between the entry of an asylum seeker into India and the consequent application for asylum before the Commissioner. (c) term and conditions of service. (e) secretarial assistance. order the summoning of witnesses. inter alia. a new chapter has been inserted to clearly delineate the roles and powers of both these authorities in the refugee determination process. 5 . To complement the general bar against refoulement. freedom from interference and judicial status. (g) rules of procedure. discovery of documents and the reception of evidence on oath. 1993 (“POHRA”) and the various National Commissions Acts. and. or set out the powers that these authorities are vested with. (b) qualifications of persons who may be appointed to these authorities. These authorities have also been given the power to conduct inquiries suo moto. (h) location of the authorities.8 The Model Law does not enumerate the functions of the two-tier authorities it creates.(e) cessation of refugee status. The removal process must conform to the norms of due process and natural justice. To be effective.9 The Model Law does not set out procedural safeguards against the refoulement or detention of asylum seekers at Indian borders. The EPG envisaged a two-tier judicial-tribunal structure. Constitution and Appointment of Relevant Authorities 2. these quasi-judicial bodies have been vested with limited powers of a civil court to. these provisions have been enlarged to provide for (a) appointment of the Commissioner and constitution of a Refugee Appellate Board. care must be taken to ensure their compliance with due process and natural justice by incorporating suitable safeguards as to their independence. (f) allocation of work.

voluntary. Temporary refugees must also be protected with a basic regime of rights. legal assistance and the services of a translator. Changes have been proposed in the Model Law to include provisions to register mass influx refugees and enable the government to impose reasonable restrictions in the public interest. the proposed changes to the Model Law will protect returning refugees by ensuring that their decision is written. There is a need to ensure that the decision of a refugee to return to his home country is voluntary and not made as a result of State pressure or eviction. if required. Rights of Refugees and Effective Protection 2. Hence. Mass Influx 2. it is important that mass influx situations are met with established procedures free from political compulsion and some measure of minimum protection extended to such refugees. in whatever limited measure.The procedure that has been proposed (a) stipulates a time period within which an asylum application must be filed. Voluntary Repatriation 2. it is a salutary provision and needs to be strengthened to provide refugees with a strong regime of social and economic rights.11 The EPG’s Model Law included a brief clause on the voluntary repatriation of refugees to their country of origin. informed and vetted by a quasi-judicial authority to allow a safe and dignified return. who 6 . It is important that the asylum seeker is given an adequate opportunity to present his case with. to mass influx entrants has been arbitrary and subject to executive discretion. Accordingly. until his application for asylum has been finally disposed.10 Although the Indian Government has consistently hosted mass influxes. its responses to regional crises has been guided by political considerations and its provision of socio-economic protection. Refugees.12 Although the Model Law makes provision for the rights of accepted refugees in India. and (b) exempts an asylum seeker from the operation of the ‘illegal entry offence’ of the Foreigners Act. India has dealt with the voluntary repatriation of refugees both in terms of the Bangladesh crisis in 1971 and the Sri Lankan Tamil crisis that is continuing. The asylum claims procedure before the relevant authorities must conform to the norms of due process and natural justice. 1946.

form a vulnerable community anywhere. 1966. respect their religious background (Article 4). also requires that countries not discriminate between refugees (Article 3). housing (Article 21). 2. and. labour equality and social security (Article 24). 1984. provide access to courts (Article 16). Vishaka (1997) 6 SCC 241. the freedom of movement (Article 26). the International Convention on Civil and Political Rights. Nilabati Behera (1993) 2 SCC 746. 1966. As a host country. These and other miscellaneous provisions have also been added to the Model Law. and.13 While India has not acceded to the Refugee Convention. both bluecollar and white-collar (Articles 17 – 19). provide access to public education (Article 22). respect their right to association (Article 15). 7 .14 In addition to the substantive changes mentioned above. People’s Union for Civil Liberties (1997) 3 SCC 433]. 1979. (b) empowering the Central Government to frame rules for the procedural execution of the Model Law. Miscellaneous Provisions 2. in addition to the political rights of non refoulement and asylum. (d) giving the Model Law overriding effect over other statutes. the International Convention on the Elimination of all Forms of Racial Discrimination. The Refugee Convention. a separate chapter has been inserted into the Model Law dealing with the rights and obligations of refugees whose asylum clams have been accepted. Social and Cultural Rights. Therefore.have fled their homes because of conditions of extreme persecution and violence. 1966. provide the rights to work. Inhuman or Degrading Treatment or Punishment. These include the Universal Declaration of Human Rights. 1948. the International Convention on Economic. the Model Law must also contain provisions for (a) bringing the members of the various authorities within the meaning of ‘public servant’ in Indian law. and. A separate clause to provide a minimum corps of rights to asylum seekers and mass influx entrants has also been included to suffice temporary protection in India. The provisions of these international human rights instruments are applicable in India and may be enforced by Indian courts [See inter alia. the Convention for the Elimination of all Forms of Discrimination Against Women. (c) protecting actions of the State done in good faith. the Convention Against Torture and Cruel. it has joined a number of other international human rights affirming conventions. administrative assistance (Article 25). often denying them the basic right to better their lives. India often adds to this trauma of flight by dealing arbitrarily with refugees.

Principles (iv) (v) Additions and changes to the refugee definition and exclusion clauses. Procedure for Asylum (vi) (vii) A new chapter prescribing the procedure for an asylum seeker to apply for asylum and appeal.III. and. An expanded definitions clause.1 SUMMARY OF PROPOSED CHANGES In sum: (a) (b) (c) There is a need for a statutory refugee protection regime in India. have proposed the following changes: Preliminary (i) (ii) (iii) A revised and simplified Preamble. An enforceable ‘objects clause’ within the main body of the statute. A new clause to bar the jurisdiction of regular courts from asylum claims. 3. We have reworked the Model Law. A comprehensive non refoulement clause to impose a general bar against the removal of refugees from India except upon certain specified conditions. (viii) (ix) (x) Refugee Status Determination (xi) A new chapter dealing specifically with the constitution and appointment of a Commissioner of Refugees and a Refugee Appellate Board. Interim protection for asylum seekers to remain in India pending the determination of their application for asylum. Provisions granting certain rights to asylum seekers upon hearing. 8 . A new clause for the reasoned decisions of the authorities. The Model Law addresses this need. but falls short of a comprehensive procedural and substantive protection.

Mass Influx (xiv) (xv) A new chapter for the registration of refugees in a mass influx situation. (xxi) A new clause to bring the members of authorities within the meaning of ‘public servant’. (xix) Provisions specifying the interim protection that asylum seekers and mass influx refugees are entitled to while in India. specifically – have all important principles of refugee protection been mentioned? 9 . Effective Protection (xviii) Provisions detailing the rights that recognised refugees are entitled to in India. (xxiii) A new ‘good faith clause’. Voluntary Repatriation (xvii) Enlarged provisions for voluntary repatriation to protect refugees from coerced return.(xii) (xiii) Provisions for the independence of these authorities and their operation free from external pressure. (xxiv) A new ‘non obstante clause’. (xxii) A new clause empowering the government to frame rules. IV. Miscellaneous (xx) Provisions to protect the rights of refugees during voluntary repatriation. we specifically need elucidation on the following areas: (I) Clause 3 – the objects clause. 4.1 POINTS FOR DISCUSSION AND SUGGESTIONS THAT ARE INVITED Apart from general comments. A new chapter specifying the powers and functions of these authorities. Provisions allowing the imposition of reasonable restrictions in the public interest.

modelled on Section 4 of the (South African) Refugees Act 1998. does the Explanation sufficiently include non-State persecution (e. there are two exceptions to the rule against refoulement to allow removals when: (i) (ii) there are “reasonable grounds for regarding [the refugee] as a danger to the security of the country” or. too high a standard to insist upon. and. (a) Clause 7(1) overrides contrary provisions in the Bill and in Indian law (“notwithstanding anything contained in the Act”) and lays down the rule that return to a place where “life or freedom is threatened” is prohibited. constitutes a danger to the community of [the host] country” [Article 33(2) of the 1951 Refugee Convention]. women in Pakistan in light of the decision of the House of Lords in Islam [1999] All ER 545) within the scope of refugee protection? Clause 5 – the exclusion clause. (ii) 10 . “having been convicted by a final judgement of a particularly serious crime. (III) (IV) (V) The EPG’s Model Law broadly replicates these categories thus: (i) “where a Minister has certified that there are reasonable grounds to believe that an asylum seeker or refugee is a threat to the sovereignty and integrity of India”. Will the construction of this clause suffice? (b) Traditionally. “where an asylum seeker or refugee has been convicted by a final judgement of a crime against peace. is a conviction for crimes against humanity etc. removal is only permitted to a safe third country]. let alone convicted? Clause 7(1) – the non refoulement clause. a war crime or a crime against humanity and constitutes a danger to the community” [Clause 5].g. Gujarat riots.e.(II) Clause 4 – the definition of ‘refugee’. when the refugee. is the prohibition against return sufficiently comprehensive? Clause 7(2) – exceptions to non refoulement. Clause 7(2) makes the possibilities of removal subject to the rule stated sub-clause (1) (“subject to sub-section (1)”) [i. since very few such criminals are ever indicted.

The Procedures Chapter (Clauses 8-11) lays down most functions of the authorities. Returning a person on these grounds will expose him equally to the persecution he is fleeing. We would like further expert interaction on this. therefore. This clause is taken from the Protection of Human Rights Act. (ii) on asylum being finally rejected and (iii) upon perjury in the asylum claim. There may be a need for separate provisions to invest the authorities with suo moto powers. but not to a country/place where he will be persecuted. Clause 14(8) – the clause preventing the Commissioner and Members of the appellate authority from holding a governmental office after such employment. Is its inclusion in the Bill warranted? Clause 15 – procedure for removal. to legalise the entry that would otherwise be in violation of the Foreigners Act. Clause 16 and 17 – functions of the authorities. 1993 [“POHRA”] to apply to ex-NHRC members. There is a dual scheme for investing asylum seekers and refugees with rights: substantive (VII) (VIII) (IX) (X) (XI) (XII) (XIII) 11 . subjects the removal of the Commissioner/Member of the Appellate Board to Supreme Court scrutiny following the example of POHRA. No similar provision exists in foreign legislation or international instruments. Clauses 30-32 – the right and duties clauses. (VI) Clause 8(2) – the ‘assistance upon entry’ clause. We need further advice on this.However. 1946? Clause 8(4) – the illegal entry clause. Clauses 25-28 – mass influx chapter. these grounds should be added in the exceptions to non refoulement clause to allow a removal. asylum seekers and refugees can be removed from the host country by other ways – (i) on being hit by the exclusion or cessation clauses. but the chapter only deals with applications for asylum. will this clause suffice to prevent the harassment of asylum seekers by (often lowranking) border guards exercising powers under Sections 14 and 14A of Foreigners Act. Clause 29 – voluntary repatriation.

Telefax – (+91-11) 2682 2525 Email – pilsarc@touchteindia. is a dual right of recognised refugees (Clause32). New Friends Colony New Delhi 110 065 CONTACT US Telephone – (+91-11) 2684 1079. Identity is a minimum guarantee for asylum seekers and.net www.org 12 . (XVI) General Questions: (a) Is the Bill too long and complex? If so. (XIV) Clause 33 – rule making power. proceedings under the Bill should be subject to judicial review but sealed from the intervention of civil courts. how can it be modified? PUBLIC INTEREST LEGAL SUPPORT AND RESEARCH CENTRE A-131. (XV) Clause 38 – finality and jurisdiction. together with the right to international travel. Read together with Clause 10(4).pilsarc.protection for recognised refugees (Clause 30) and lesser interim protection for asylum seekers and mass influx refugees (Clause 31).

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