United Nations Human Rights Council
The Republic of India
Basic rights of child refugees with special emphasis on slave trade and
child trafficking in correlation
Introduction
Several International Conventions, such as the United Nations Convention
on Status of Refugees, 1951(hereinafter referred to as the "Refugee
Convention") and its Protocol of 1967, lay down the procedure for
determining the status of refugees and protection of their rights. India has
a history of witnessing a mass influx of refugees but still prefers to have
ad hocism in its refugee policies & laws. The country is not a signatory to
the Refugee Convention nor its Protocol of 1967. The well-known reasons
available in the existing public literature are; security issues as borders
are highly porous, the enormous strain on domestic resources, and a
demographic imbalance that might come. However, the Indian Judiciary
has evolved with time and treated refugees as a separate class of persons
and extended the scope of protection for refugees through various Articles
of The Constitution of India, specifically Articles 14, 21, 25, and 32.
However, India still needs to strengthen the legal protection of refugees
and their Human Rights. The need to analyse the judicial
pronouncements, responses of the Indian Parliament, its role in protecting
refugees, and their human rights with special reference to their Right to
Education is of utmost importance.
Legal Framework
The Supreme Court of India has consistently held that 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. The various High Courts in
India have liberally adopted the rules of natural justice to refugee issues,
along with recognition of the United Nations High Commissioner for
Refugees (UNHCR) as playing an important role in the protection of
refugees.
Article 13(a) guarantees a set of rights to every refugee so long as he or
she remains within India. It announces fair and due treatment, without dis-
crimination, on the enumerated grounds.117 In fact, non-discrimination is
the single most common dominant theme of all international and regional
human rights instruments.118 The NML is obviously guided by the Indian
Constitution and case law on non-discriminatory legislation and its
application.119 The CSR, the OAU Convention and the Bangkok Principles
contain the principle in Article 3, Article IV and Article IV (5), respectively,
but the NML is more exhaustive than them as it covers more grounds.
Indian law permits, through Article 21, any person, including a refugee, to
claim that the action against him is not a fair, just and reasonable
procedure. In addition, Article 14 forbids discrimination on account of
arbitrary action.
Major Problems
In India, the major problem faced is that when they flee from their home
country, they leave behind a lot more than just their homeland, including
children who abandon their schools. Some get displaced while they have
just entered their schools, while others might be persecuted as they
pursue their tertiary education. When they are at the primary level finding
out a school and getting basic education is much easier than others. At
the secondary stage, it gets difficult to switch to the new curriculum and
refugees at this stage experience more difficulties. Also, in refugee
schools, often because of the pressure on the capacity, the maximum age
for attending schools is capped, disrupting the education of refugees
whose secondary education was limited at the secondary stage. The only
option they are left with is to get some vocational training or work for
some low-paid jobs. It is very easy for a kid to lose hope and all ambitions
in such difficulties.
Solutions
Neither is India a party to the 1951 Convention nor it has a law dedicated
to refugee. It has various Acts that deal with Foreigners but they do not
encompass the term ‘refugee’ in them. Presence of a municipal law that
talks about refugees would secure their rights and help in preventing
refugee victimisation in India. When a legal protection is available to an
individual or group of individuals; it gives them a security. A security from
the fear that there is an imminent danger to their life and property in the
new state.
A national level centre for refugees can be established on the lines of
UNHCR. This would act as an enforcing agency and can help in regulating
refugees in India in terms of their security and ensure the access to basic
amenity to them. This centre can work with the UNHCR, the Ministry of
External Affairs and the Ministry of Defence to get a holistic coverage of
refugee issue in India.
Citizens should be informed about the rights of the refugees. They must
be counselled about the circumstances that the refugees have gone
through and an attempt to create empathy in favour of refugees must be
made. In this regard, civil society, NGOs and the government alike can join
hands. This would help removing xenophobia and would reduce violence
against the refugees that is usually at the behest of the local population
which considers them as outsiders.
Submitted by:
Republic of India
