Assessing the fate of Refugees: Indian Legal Obligations

A country which did not ratify two of the most important conventions relating to the treatment of
refugees has time and again given recourse to populations fleeing their sovereign borders. With
minimal to no legislative direction and ambiguity in the judicial discretion, it is highly pertinent
that an assessment is made to understand the fate of populations fleeing their borders and
knocking the doors of the Indian jurisdiction. Whether there is a binding principle which
mandates the executive to absorb this citizenry within its sovereign territories or whether such
citizenry is left to comfort themselves within the whims and fancies of the executive tyranny.

This discussion assumes even more significance in light of the Rohingya refugee crisis and the
Centre’s response to the crisis. When at previous instances the Indian executive has allowed for
the absorption of refugee populations within its sovereign borders how come the Narendra Modi
government is not willing to accommodate this citizenry? Isn’t there some legal principle
guiding the decision of the judiciary in matters like these?

India never ratified the 1951 Convention on Refugees and the 1967 Protocol relating to the
Status of Refugees. Both these documents emphasised a very important principle of International
importance: The principle of Non-Refoulement. The principle as incorporated in the Article 33
of the 1951 Convention mandates that ‘A state shall not expel or return a refugee from the
frontiers of its territories where his life or freedom would be threatened on account of his race,
religion, nationality membership of a particular social group or political opinion.’ A similar
reproduction of the principle was also done in the 2015 Private Members’ Bill titled, Protection
of Refugees and Asylum Seekers Bill (Bill No. 290 of 2015), but the principle did not attain
legislative sanction as the bill could not be legislated. Hence, it is safe to say that the principle
does not find any legislative authority within the Indian Jurisdiction.

Article 21 of the Constitution of India, has often been quoted as the repository of the Principle of
Non-Refoulement, but the fact of the matter is that A. 21 mandates that the life and liberty of any
individual shall not be deprived except by procedure established by law. Which in turn, means
that if there is a legislative direction which allows the executive to refoul the population from the
frontiers of its borders, the executive can very well refoul said population without violating A.
21.
The international organisations like the United Nations High Commission for Refugees and the
national organisations like National Human Rights Commission have often been acclaimed to
uphold the principle by persuading the Executive to take measures which are in the interests of
the refugee population. Although, such institutions do not enjoy any statutory authority over the
executive, they can merely assist and advise the government. Also, these institutions are also
marred by their own limitations. The operations of UNHRC have been grossly insufficient. The
statistics posted by the UNHRC have indicated that they in the year 2016, they were unable to
help more than 85% of the refugee population residing within the Indian jurisdiction. The
commission has often been reprimanded by the courts for their minimal efforts. In the case of
Ktaer Abbas Habib Al Qutaifi v. Union of India (1998 Cri LJ 919), N.N. Mathur J. highly
deplored the actions of the UNHCR which instead of facilitating an agreement between the
concerned state pertaining to the refugee, only provided said refugee with a certificate of
according upon him the status of refugee. Whereas the NHRC has been barred by its own
bureaucratic concerns and has time and again been belittled because of its inefficiency to help
the refugee population.

Judicial instruction on the issue is very scattered with the judiciary often quoting the
International Covenants to give refuge to such populations. Although, it has also stated that no
International Covenant can be honoured if it is in direct violation of the municipal law. The
present municipal legislations are deportation-oriented and do not imbibe the Principle of Non-
Refoulement. The Foreigners Act and the Passport Act both give wide discretion to the
authorities to deport and refoul refugees and other similar citizenries.

In summary, the country which has adopted a very ‘Protective’ stance for the stateless citizenry,
lacks any statutory or judicial direction as to how such population should be treated. The
populations such as the Rohingyas who knock on the doors of the Indian sovereignty have to
succumb to the whims and fancies of the Executive agenda. In the present case, the Rohingya
population is completely dependent on the decision of the Narendra Modi led government, which
has no mandatory direction to adhere to while deciding their fate.