MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

CRIMES- II PROJECT: WHETHER THERE IS A NEED FOR REFUGEE LAW IN

INDIA OR NOT?

Submitted to: Prof. Abhishek Negi

Submitted by: Harshita Verma
Section: A
Enrolment No.: 2021 030
 TABLE OF CONTENTS

ABSTRACT ............................................................................................................................ 3

INTRODUCTION ..................................................................................................................... 3

FOREIGNERS AND REFUGEES ............................................................................................... 5

The Principle of Non-Refoulment .................................................................................... 5

WHY IS THERE A NEED FOR DOMESTIC LAWS? ................................................................... 7

CONCLUSION ........................................................................................................................ 7
 1. ABSTRACT
The refugee crisis has been one of the oldest problems since independence. India has always
been home to many refugees and has provided them shelter during times of humanitarian crisis.
The soul of the Indian Constitution has been focused on the needs of the citizens of the country
as well as foreigners. Whenever it has been faced with a humanitarian crisis, it has tried to deal
with it in a way that balances it out with the issue of national security. However, the lack of
domestic laws has made the implementation of administrative action difficult, failing to make
any true advances in jurisprudence. India not being a signatory to the 1951 United Nations
Convention (hereinafter referred to as “UN Convention”) has created major setbacks which are
anti-humanitarian in nature. The status of refugees has consistently been a subject of
uncertainty. Whether they should be treated as citizens or not, if not, what is their status? Or
do they have the status of a foreigner or enemy alien, an illegal migrant, or a separate class?

This article encircles an in-depth discussion of the current legislative enactments that apply to
refugees and further analyses judicial pronouncements in their role in protecting refugees and
their human rights.

2. INTRODUCTION
The term ‘refugee’ has been defined under Article 1 of the UN Convention as “A person who
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of
that country.” 1 A person becomes a refugee due to a circumstantial situation beyond their
control. All the human rights violations, socio-economic and political instability, and
nationwide violence, leading to fear of persecution leave them with no option but to flee.

Apart from the definition of refugees, who are the people who are recognised as refugees?
What is the standard for one to prove that they are refugees?

One critical requirement for establishing a successful claim for refugee status is that the
claimant be truly in danger. Various legal standards have been developed to establish the level
of proof necessary to demonstrate a real and well-founded fear of persecution. Various courts

1
Joan Fitzpatrick, Revitalising the 1951 Refugee Convention, HARVARD HUMAN RIGHTS JOURNAL, vol. 9, 229-
53 (1996).
in different nations have ruled on this issue differently, but collecting all the information can
lead to forming a standard procedure. In the INS v. Cardoza Fouseca2, the interpretation of the
“well-founded fear” standard suggests that as long as the claimant is able to show that the
situation is established by the evidence, then there is no need to prove that the situation will
lead to persecution, but at the same time it’s also not enough that persecution should be a
reasonable possibility.

This standard was considered further in the case of R v. Secretary for the Home Department3,
notably in Ex parte Sivakumaran4, where the judgement stated that the test should be
determining if there is evidence of a “real and substantial danger of persecution.” In Joseph
Ayei v. Ministry of Employment and Immigration5, the Canadian Federal Court of Appeal
rejected the House of Lords’ formulation, instead opting for a “reasonable chance”
requirement. In essence, these criteria indicate a somewhat liberal standard, somewhat of a
finalised approach states that if there is a reasonable possibility of persecution in the state of
origin, then they can be given the status of a refugee.

India is the most prominent refugee receiving countries in the world. Since independence there
has been an influx of refugees. Although it has not signed the 1951 UN Convention or the 1967
Protocol therefore isn’t bound by it, yet it has been a place where thousands of Rohingya
Muslims, Tibetan, Sri Lankan Tamil, and various Afghan Nationals have found refuge. Apart
from this, India has ratified a number of international human rights and refugee treaties,
including the United Nations Declaration of Territorial Asylum (1967), the Universal
Declaration of Human Rights (1948), and the International Covenant on Civil and Political
Rights (1966). Furthermore, India is a member of the United Nations High Commissioner for
Refugees (UNHCR’s) Executive Committee, this committee overlooks the material assistance
programmes of UNCHR. Still it doesn’t acknowledge the UNHCR’s function within its
boundaries.

2
Ins v. Cardoza Fouseca, 467 US Supreme Court Case, 407 (1987).
3
R v. Secretary of State for the Home Department, , 1 All ER 193 [1988].
4
Ex Parte Sivakumaran and Cojoined Appeals, House of Lords Decision AC 514 (1988).
5
Joseph Ayei, Canadian Federal Court of Appeal, Imm. L.R. (2d) 169 (1989).
 3. FOREIGNERS AND REFUGEES
The refugees here are treated under the Foreigner’s Act, of 1946 and placed under the term
“foreigner” which puts them on the same footing as immigrants or tourists, hence depriving
them of the privileges of the UN Convention, 1956.6 Since there is no apparent distinction
between refugees and other foreigners, refugees run the possibility of detention and punishment
by Indian immigration authorities if they enter the country without legal passports or travel
documents. The authorities can even bar their movement across the country, providing the
authorities power to confine the “foreigners” to refugee camps. The present system to deal with
the refugee situation is ad hoc and arbitrary.

3.1.The Principle of Non-Refoulment

This principle states that no country shall deport, expel or forcefully send back the refugee to
the original territory against his will if there is a threat to his life or liberty. This principle has
been a part of customary international law and binds its signatories. Since India hasn’t signed
the UN Convention it isn’t bound by this principle. The judiciary has given varying judgments
regarding the issue of Non-refoulment throughout time. The case of Ktaer Abbas Habib Al
Qutaifi v. Union of India7 prevented the expulsion of two Iraqi individuals due to concerns
about potential threats to their freedom in their home country. The court affirmed the principle
of non-refoulement and extended its scope within the framework of Article 21. The refugees
were transferred to the care of the UNHCR in India. But in most of the cases since India is not
bound by this principle it passes erroneous orders which frivolously deports the refugee even
though there is a threat to their liberty. The Madras High Court declined to accept the forcible
repatriation of Sri Lankan refugees against their will in instances such as Gurunathan and
others v. Government of India8 and A.C. Mohd. Siddique v. Government of India.9

The Supreme Court of India halted the deportation of refugees in instances such as Mailwand’s
Trust of Afghan Human Freedom v. State of Punjab10 and N.D. Pancholi v. State of Punjab
& Ors.11 The Supreme Court imposed a stay on the deportation of Burmese refugees in the

6
The Foreigners Act, 1946.
7
Ktaer Abbas Habib Al Qutaifi v. India, 1999 CRI.L.J. 919.
8
Gurunathan and others v. Government of India, WP No. S 6708 and 7916 of 1992 (1994).
9
A.C. Mohd. Siddique v. Government of India, 1998(47) DRJ(DB).
10
Maiwand’s Trust of Afghan Human Freedom v. State of Punjab, Crl. WP No.125 & 126 of 1986.
11
N.D. Pancholi v. State of Punjab & Ors. [WP (civil) No. 1294 of 1987.
Andaman Islands in the case of Malavika Karlekar v. Union of India12, citing a pending
adjudication of their refugee status and a prima facie case for granting such status.

Non-refoulement, according to the Supreme Court, goes beyond customary international law;
it has constitutional importance as an important aspect of the Indian Constitution’s guarantee
of the right to life, as defined in Article 21. 13 The Gujarat High Court confirmed the Supreme
Court’s decision in 1999, clearly stating that Article 21 of the Indian Constitution ensures non-
refoulement.14 Despite this, refugees are still vulnerable to the penalties of being apprehended,
detained, and prosecuted for breaking the Foreigners Act of 1946 and the Foreigners Order of
1948. In contrast, the Indian Supreme Court emphasised the government’s unfettered
jurisdiction to deport in a 1991 verdict, noting that the executive government has an
unrestricted right to remove foreigners, with no constitutional limits on this discretion. 15

India’s take on the whole situation of not ratifying the UN Convention 1951 and Protocol of
1967 has been faced with a lot of criticism. It has various reasons for not ratifying the
convention. India rejected the Convention because it saw it through a Eurocentric lens and was
afraid that humanitarian-based refugee policies would invite unwelcome Western
interference.16 Accepting the Convention would imply giving up certain sovereign powers as
well as obligating cooperation with the UNHCR. Due to the historical conflicts, particularly
between Hindu and Muslim populations after Partition, prompted the government to evaluate
individuals based on their possible influence on preserving demographic balance among
diverse ethnicities, faiths, and linguistic grouping instead of their position as human
individuals. For example, in 1971 the inflow of Bangladeshi immigrants in the North-Eastern
States of Tripura, Assam, Meghalaya, created unrest among indigenous people who feared a
shift in demographic balance leading them to become minorities. With its porous borders,
India is also concerned about uncontrolled infiltration of terrorists and criminals, which might
jeopardise internal security.

12
Malavika Karlekar v. Union of India, Crl. WP No.243 of 1988.
13
INDIA CONST. art. 21.
14
supra note 8.
15
Louis De Raedt v. Union of India, 1991 3 SCC 554.
16
Centre for Equity Studies and Rosa Luxemburg-Stiftung, Towards an Ethical Refugee Policy
(delivered at the Annexe of the India International Centre, Delhi, February 5, 2020).
 4. WHY IS THERE A NEED FOR DOMESTIC LAWS?
India has also failed to form domestic legislation that can give a special status to the run-away
refugees. Parliament’s recent passage of the Citizenship Amendment Act17 marks a change
from the previous ad hoc refugee system. This rule, which excludes Muslim refugees from
Pakistan, Bangladesh, and Afghanistan who entered India before December 31, 2014, departs
from the 1951 Refugee Convention’s comprehensive policy, which protects persecuted
minorities on a variety of grounds. By expressly identifying six religious minorities (Hindus,
Sikhs, Jains, Buddhists, Christians, and Parsis) for protection, the Act has breached key human
rights treaty principles of equality and non-discrimination. This significant departure from
India’s constitutional commitment to secularism and international agreements raises questions
about the consequences of not signing the 1951 Convention and the absence of a domestic law
as well.

There have always been issues of National Security so formally adopting and incorporating the
UN Convention 1951 won’t be of much help as India would be subjected to legal obligations
that may create problems for India. As a result, it is critical to improve India’s legislative system
to match it with human rights legislation and international duties. Establishing a strong and
safe legal framework is critical to ensure that Indian citizenship adheres to human rights
principles and preserves the spirit of the Indian Constitution. This method seeks to reduce
uncertainty and prevent the government and judiciary from entirely choosing the destiny of
refugees, which can be influenced by governing bodies’ political agendas. In the lack of
national refugee legislation or adherence to international treaties, the refugee population is now
subject to discriminatory practices, limitations, and uneven treatment. Implementing such
procedures would decrease the possibility of refugees being used as captive vote banks and
would enhance responsibility in meeting their needs in accordance with international norms.

5. CONCLUSION
The previous discussion clearly suggests that India’s legal structure and practices provide
refugees with limited and inadequate protection. They are not recognised as a distinct category
under Indian law, and they are treated on a level with other foreign nationals, ignoring the
particular circumstances that force them to flee their home countries. This approach ignores

17
The Citizenship (Amendment) Act, 2019, No. 49 of 2019.
the special obstacles that refugees experience, as well as the inconsistency in applying the
general provisions of the Foreigners Act to them. The lack of specialised legislation addressing
refugee protection, rights, and entitlements has resulted in a considerable proportion of
refugees being denied necessary safeguards. This rejection undermines India’s international
legal commitment to human rights as well as its own constitutional standards.

As a result, handling the refugee issue in India in a reasonable, fair, and compassionate way
that is consistent with India’s international and constitutional responsibilities needs the prompt
implementation of a particular statutory framework. This framework should explicitly identify
refugees as a separate class, provide a fair mechanism for assessing refugee status, and create
a due process for refugee protection that is consistent with non-refoulement and the right to a
decent existence.