Refugee laws and judicial decisions in India

Dr. V. Vijayakumar
Part – VII
Electives: Refugee Law - 2019
 Constitutional provisions
 VII Schedule
List I

Entry 17 – Citizenship, naturalization and aliens;

Entry 19 – Admission into and emigration and
expulsion from India: Passports and visas

 List III
Entry 27 – Relief and Rehabilitation of persons
displaced from their original place of residence
by reason of the setting up of the Dominions of
India and Pakistan
 Part – II - Citizenship (Articles 5 – 11);

 Article 14 – equality – ‘person’

 Article 20 (1), (2) and (3) – ‘Person’

 Article 21 – life and personal liberty – ‘person’

 Article 22 – detention – ‘person’

 Article 25 (1) – All ‘persons’ – religious freedon

 Article 27 – No ‘person’ shall be compelled to pay taxes

 Article 28 (3) No ‘Person’

 Judicial Decisions
 A. General:

1. M.C. Mehta v. Union of India, (1987) 1 SCC 395 – ‘Article 21 –

Human Rights jurisprudence – cannot be thwarted by status
quoists on the basis of unfounded apprehensions’
2. PUCL v. Union of India, (1997) 1 SCC 301 – ‘International law
is not confined to regulating the relations between the states
– today matters of social concern, such as health, education
and economies apart from human rights fall within the ambit
of international relations – International law is more than ever
aimed at individuals’
3. Kubic Darusz v. Union of India, (1990) 1 SCC 568 –
‘Preventive detention of a foreign national who is not a
resident of the country involves an element of international
law and the appropriate authorities ought not to be seen to
have been oblivious of its international obligations in this
regard – detention not justified having regard to the object of
reventive detention as also international law and human rights
concept
 Nilabati Behra v. State of Orissa, AIR 1993 SC
1960 – Overruling even the reservation that
the Government of India had on Article 9 (5)
of ICCPR

 Visaka v. State of Rajastha, (1997) 6 SCC 241

Sexual harassment – integrating international
obligations into domestic law

 D. K. Basu v. State of West Bengal, AIR 1999

SC 2003 – Detention and torture in custody
 B. Refugees:

1. Definition of ‘Refugee’

a. Chief Settlement Commissioner, Punjab v.

Om Prakash, AIR 1969 SC 33

The court referred to different phrases like

‘displaced persons’, ‘refugees’ and
‘evacuees’ from different legislation but left
the question whether the person was a
‘refugee’ or a ‘displaced person’
unanswered
b. Narendra Bahadur v. State of Uttar Pradesh,
AIR 1977 SC 660 – A notification issued under
U.P Land Acquisition (Rehabilitation of Refugees)
Act, 1948 was assailed by stating that the land
acquired was for displaced persons and not for
refugees and that it is not in accordance with s.
7 (1) of the Act… Justice Krishna Iyer -
‘The courts should be averse to strike down a
notification for acquisition of land on ‘fanciful
grounds based on hypertechnicality’. What is
needed is substantial compliance with law and
the notification satisfies that requirement’. He
also lamented the considerable delay in
attending to the needs of those refugees.
2. Property Rights:

a. Union of India v. Avtar Singh, AIR 1984 SC

1048 – Order of the central government
passed in revision under the Punjab Refugees
(Registration of Land Claims) Act, 1948 was
held to be valid

b. Jawaharlal Wadhwa v. H. Chakrobruty (1989)

1 SCC 76 – The right to recover the
possession of land allotted to refugee along
with the building he had put up by raising
loans was upheld
c. Amar Singh v. Custodian, Evacuee Property, AIR 1957 SC 599

1. The allottee is entitled to right of use and occupation of the property until
such time as the property remains vested in the Custodian.
2. The benefit of such right will ensure to his heirs and successors, (Definition
of 'allottee').
3. His enjoyment of the property is on the basis of paying land-revenue
thereupon and cesses for the time being. Additional rent may be fixed
thereupon by the Custodian. If and when he does so, the allottee is bound
to pay the same.
4. He is entitled to quiet and undisturbed enjoyment of the property during
that period.
5. He is entitled to make improvements on the land with the assent of the
Custodian and is entitled to compensation in the manner provided in the
Punjab Tenancy Act.
6. He is entitled to exchange the whole or any part of the land for other
evacuee land with the consent of the Custodian.
7. He is entitled to lease the land for a period not exceeding three years
without the permission of the Custodian and for longer period with his
consent. But he is not entitled to transfer his rights by way of sale gift, will,
mortgage or other private contract.
8. His rights in the allotment are subject to the fairly extensive powers of
cancellation under the Act and rules as then in force prior to July 22 1952,
on varied administrative considerations and actions.
d. Hoshnak Singh v. Union of India, AIR 1979 SC
1328 – The right of an allottee (a displaced
person) under Displaced Persons
(Compensation and Rehabilitation) Act 1954,
and Rules 1955 to demand compensation in
cash for taking over part of the allotted land
was upheld.
Allotted land – Total – 32.5 acres
Railway lines - 15 acres - compensation paid
Highway - -- - compensation paid
Housing colony for refugees – 15.5 units - No
compensation
3. Acquisition of property for public purpose:
a. Narendra Bahadur Singh v. State of U.P, AIR 1977
SC 660 – Acquisition was held to be valid –
compensation needs to be paid
b. Collector, 24 Parganas v. Lalit Mohan Mullick, AIR
1986 SC 622 – The acquisition of land under W.B
Land Development and Planning Act, 1948, for
resettlement of displaced persons/immigrants and
also for establishing hospital for crippled children of
displaced persons – was held to be valid
c. State of U.P v. Anghalia Housing (p) Ltd, AIR 1970
SC 704 – reallocation of lands that have not been
developed after a specified date under the U. P Land
Acquisition (Rehabilitation of Refugees) Act, 1948,
was held to be valid
4. Predominance of refugee interest:

a. Deonarayan Mondal v. State of West Bengal,

AIR 1973 SC 1353;
b. S. C. Bose v. D.M, Burdwan, AIR 1972 SC
2481;
c. Muralidahar Malla v. State of West Bengal,
AIR 1973 SC 767;
d. Babulal Mitra v. State of West Bengal, AIR
1973 SC 197;
e. Abdul Aziz v. D. M, Burdwan, AIR 1973 SC
770
5. Status of Non-citizens:

a. Louis De Raedt v. Union of India, AIR 1991 SC 1886

- Right confined only to article 21 and a foreigner is
not entitled for the fundamental freedom to reside
and settle anywhere in India as provided under
article 19 (1) (e);

b. Chairman, Railway Board v. Chandrima Das, AIR

2000 SC988

c. K. A. H. Al Qutaifi v. Union of India, 998 (2) GLH

1005
6. Refugee specific:

a. Khudiram Chakma v. Union Territory of

Arunachal Pradesh, AIR 1992 Gau 105 –
Court held that chakmas in Arunachal
Pradesh are not citizens (as they are not
in Assam after the Citizenship
Amendment Act of 1985). However, they
have cultivated land for several years
and the government has to compensate
them for their money and labour
invested in that land
b. State of Arunachal Pradesh v. Khudiram
Chakma, AIR 1994 SC 1461
i. State to ensure that the life and
personal liberty of each and every
chakma;
ii. State to protect them from forcible
eviction by any group and not to be
denied their domestic life and comfort;
iii. The State not to evict any chakma till
his / her application for citizenship is
finally disposed off
c. NHRC v. State of Arunachal Pradesh, (1996) 1
SCC 742 – We are a country governed by the Rule
of Law. Our Constitution confers certain rights on
every human-being and certain other rights on
citizens. Every person is entitled to equality before
the law and equal protection of the laws. So also,
no person can be deprived of his life or personal
liberty except according to procedure established
by law. Thus the State is bound to protect the life
and liberty of every human-being, be he a citizen
or otherwise, and it cannot permit anybody or
group of persons, e. g., the AAPSU, to threaten
the Chakmas to leave the State, failing which they
would be forced to do so.
… No State Government worth the name can tolerate
such threats by one group of persons to another
group of persons; it is duty bound to protect the
threatened group from such assaults and if it fails to
do so, it will fail to perform its Constitutional as well as
statutory obligations. Those given such threats would
be liable to be dealt with in accordance with law. The
State Government must act impartially and carry out
its legal obligations to safeguard the life, health and
well-being of Chakmas residing in the State without
being inhibited by local politics. Besides, by refusing to
forward their applications, the Chakmas are denied
rights, Constitutional and statutory, to be considered
for being registered as citizens of India.
d. Digvijay Mote v. Government of India, W.A
354/1994 – Sri Lankan refugee children at the IGIA,
Jakkur

e. P. Nedumaran and Sr. Ramdoss v. Government of

India, W.P No. 12343 of 1992, Madras H.C –
voluntariness of repatriation – Sri Lankan Tamil
refugees - undertaking given by Union government

f. Bogyi v. Union of India, C.R No. 1847/89, Gauhati

High Court – Stayed the deportation orders –
allowed them to seek ‘refugee status’ from UNHCR
at New Delhi – temporary release of a Myanmarese
refugee
g. Malavika Karlekar v. Union of India, W.P. 583/92 SC –
Stayed the deportation orders and directed the 21
Burmese refugees from Andaman islands to seek
refugee status from the UNHCR

h. N. D. Pancholi v. State of Punjab, W. P 243/88 – stayed

the deportation orders

i. Khy Htoon v. State of Manipur, W.P 515/90 - stayed the

deportation orders and allowed them to seek refugee
status from UNHCR in New Delhi

j. Maiwand’s Trust of Afghan Human Freedom v. State of

Punjab (S. C, Crl. WP No.125 & 126 of 1986) stayed
deportation of refugees.
 The Bombay High Court in Syed Ata
Mohammadi v. Union of India  (Criminal writ
petition no.7504/1994) directed that “there is
no question of deporting the Iranian refugee to
Iran, since he has been recognised as a
refugee by the UNHCR’. The High Court further
permitted the refugee to travel to whichever
country he desired. Such an order is in line with
the internationally accepted principles of ‘ non-
refoulement’ of refugees to their country of
origin.
 State v. Chandra Kumar, FIR 78/10 – Metropolitan
Magistrate (Spl.Court-2) Dwaraka Courts, New Delhi,
dt. 20.9.2011 – Judge Arul Varma
- IGI Airport – u/ss. 419, 420, 468, 471 / 120B of IPC
and u/s 14 of Foreigner’s Act, 1946
- Plea bargaining – admitted the offences –
- As for deportation is concerned, the court referred to
plethora of decisions of superior courts that evolved
‘humane and compassionate approach’ to redress
individual problems
- Judge observed that deportation would violate the
principles of Natural justice (based on the decisions of
the superior courts) and held that an order on
deportation should not form part of the order on
sentence
- para 90 – ‘the right against refoulement is an
important facet of human rights. The convict has a
right against non-refoulement as this right is owed to
him simply because he is a human
- para 91 – How can the court become a party to the
persecution of an individual?...the principle of non-
refoulement is a corner-stone of basic human rights
- para 93 – cited a poem by W. H. Auden on ‘Refugee
Blues’:
‘Say this city has a million souls,
Some live in mansions, some live in holes:
Yet there is no place for us,
My dear, there is no place for us,
Once we had a country and we thought it fair,
Look in the atlas and you will find it there:
We cannot go there now,
My dear, we cannot go there now’.
- para 95 - Considereing that the refugee lived in
camps over 20 years and has already been
incarcerated for about 6 months, has a family
comprising his wife and 2 sons, if an order of
deportation is made it would amount to ‘irreversible
fragmentation of this family… breaking a family unit
was never in the contemplation of the laws of our
land. As such Chandra Kumar shall not be deported
and is directed to report back to the Tahsildar, Sri
Lankan Refugee Camp, 62, Gummidipoondi Taluk,
Thiruvallur District of Tamil Nadu forthwith
- Para 96 – copy of this order be sent to Secretary,
Legislative Department, Ministry of Law and Justice,
GoI, to table a copy of the Refugee and Asylum
Seekers (Protection) Bill, 2006 before the Parliament
 Human Rights – legal protection
 Protection of Human Rights Act, 1993 defines
Human Rights u/s 2 (d) as the rights under the
two covenants like the rights of Life, Liberty,
Equality and Dignity and as interpreted and
protected by the courts in India [+amdt.]

 Role of NHRC in the protection of Refugees

 These rights do not mention or relate them

only with citizens. As such, these rights are
applicable to the refugees as well, subject to
certain limitations
 REFUGEES
 (A) DIRECTIONS ISSUED
 1. to state of Arunachal Pradesh - 1994- to
ensure safety of life and property of
‘chakmas’ and ‘hajongs’ & to ensure that
human rights of these people are not
violated

 2. to state of Mizoram - 1995 - not to forcibly

deport ‘chakmas’ till the complaint is
disposed by NHRC - another direction in
1996 to the state of Mizoram
 (a) ensure access to ‘chakmas’ for relief;

 (b) provide adequate protection

 (c) treat them fairly and objectively

 (d) adverse decision to be communicated to

the NHRC - not to give effect to such decisions
till it is brought to the notice of NHRC

 (e) continued access for ‘chakmas’ (NHRC)

 3. to the state of Tamil Nadu - 1994 - to
provide immediate medical treatment to
‘Sri Lankan’ refugees and provide periodic
medical check up to them in special camps
- it was the ‘obligation’ of the state to look
after the health of the refugees and make
provisions for treatment

 Karnataka - Sri Lankan refugees

 Individuals fearing forced repatriation

 4. To state of Tamil Nadu - 1996 -
intervention to release most of the ‘Sri
Lankan’ refugees from special camps

 5. To state of Tamil Nadu - 1994 - sought

a detailed report on (a) preventing access
to NGOs to refugee camps (136) and (b)
placing restrictions on the movement of
refugees
 B. MOVING THE SUPREME COURT OF INDIA

 U/S.18(2) - The Commission may take any of

the following steps upon the completion of an
inquiry held under this Act, namely …
‘approach the Supreme Court or High Court
concerned for such directions, orders or writs
as the court may deem necessary’

 Partially ineffective directions of NHRC to

protect the ‘Chakma’ refugees
 National Human Rights Commission v. State of
Arunachal Pradesh , (1996) 2 SCC 604.

 The S.C used Article 21 of the Constitution

 Issued the writ of Mandamus to the State

 To ensure that the life and personal liberty of each and every
‘Chakma’ protected

 To seek additional forces, if necessary

 Not to evict ‘Chakmas’ till citizenship applications are acted

upon by GOI.
 C. SEMINARS, CONFERENCES &
TRAINING

 With UNHCR, New Delhi - 30 May 1998 on

‘Refugees and Displaced Persons’ -
stressed the need for good governance
and ‘humane’ management of refugee
situations - Need for domestic legislation-
reduction of administrative discretion and
provide expeditious handling of asylum
requests-Avoid forced repatriation
 NHRC was represented by Virendra Dayal,
at the ‘Judicial Symposium on Refugee
Protection’ (UNHCR & International
Association of Refugee Law Judges) and
presented a paper - emphasized on
International HRs Mechanisms and
National Constitutions to protect the
refugees - role of courts and NHRC- Model
law and accession to CSR 1951/CSRP 1967
 Chairman, Justice M.N. Venkatachaliah
inaugurated two Teachers Training
Programs for the Law Teachers from
South Asia (Bangladesh, Nepal, Sri Lanka
and India) and organized at NLSIU during
1997 and 1998 on ‘Human Rights,
International Humanitarian Law and
Refugee Law’ - co-sponsored by ICRC and
UNHCR, New Delhi.
 D. TOWARDS ACCESSION -
CSR51/CSRP67 - The NHRC initiated a
dialogue on 2 Oct 1997 with senior
officers of the MEA requesting them to
examine afresh the possibility of India
becoming a party to CSR51/CSRP67- MEA
constituted a small group of experts - The
Foreign Secretary has an open mind and
has started a dialogue with other
ministries on this issue
 The Chairman Justice Verma in a public
statement made during May 1997
observed that ‘ In the absence of national
laws satisfying the need to protect
refugees, the provisions of CSR51/CSRP67
can be relied on when there is no conflict
with any provision in the municipal laws.’

 The visit of Sadako Ogata to NHRC on 4

May 2000paved way for meaningful
discussion-
 - On 5 May 2000, a lecture entitled ‘ On
the Humanitarian Frontlines’ by Ogata was
organized by NHRC and ICSSR in which
Justice Verma, Virendra Dayal and former
CJI Justice P.N.Bhagwati spoke on legal,
judicial and international HRs applicable in
India in protecting the refugees and need
for a specific national law on refugees
 Yet, these rights are respected only to a limited
extent
 Equality is the first victim when different groups
of refugees are treated differently under the
constitution
 Liberty is violated at the fall of the hat
 Dignity of refugees is the last priority for the
governments
 Life of the refugees is only as good as that of
animal existence to a large number
 These things happen as there is no specific
legislation to protect the refugees