DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SEMESTER - VII

HUMAN RIGHTS LAW

Project on

HUMANITARIAN OBLIGATION AND RIGHTS OF REFUGEES WITH SPECIAL

REFERENCE TO INDIA

SUBMITTED TO:

Dr. Aparna Singh

ASSISTANT PROFESSOR

SUBMITTED BY:

Goutam Mishra

Enrol. No.- 190101056

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my professor Dr. Aparna Singh who
gave me the golden opportunity to do this wonderful project on the topic “Humanitarian
Obligation and Rights of Refugees with Special Reference to India”, which also helped me in
a lot of Research and knowing so many new things in relation to it. I am really thankful to her.
Also, I would also like to thank my parents and friends who helped me a lot in finishing this
project within the limited time.
 TABLE OF CONTENTS
CHAPTER 1 ................................................................................................................................ 6

CHAPTER 2 ................................................................................................................................ 7

THE RIGHTS OF INDIVIDUALS WHO HAVE OBTAINED REFUGEE STATUS .................................... 7

I. Right to Protection Against Refoulement ................................................................... 7

(II) Right to Seek Asylum ................................................................................................ 8

(III) Right to Equality and Non-Discrimination ........................................................... 9

(IV) Right to Life and Personal Security ..................................................................... 10

(V) Right to Return ........................................................................................................ 11

(VI) The Right to Remain .............................................................................................. 11

CHAPTER 3 .............................................................................................................................. 12

HUMANITARIAN OBLIGATION PRINCIPLES ON RIGHTS OF REFUGEES PROTECTION

MECHANISMS ..................................................................................................................................................... 12

CHAPTER 4 .............................................................................................................................. 13

RIGHTS OF REFUGEES IN INDIA ................................................................................................................. 13

LAWS FOR REFUGEES IN INDIA ............................................................................ 14

PROBLEMS FACED BY REFUGEES IN INDIA ..................................................... 14

CHAPTER 5 .............................................................................................................................. 15

ROLE OF JUDICIARY FOR THE PROTECTION OF REFUGEES ........................................................... 15

CONCLUSION ......................................................................................................................................................... 17

RECOMMENDATIONS .......................................................................................................................................... 17

BIBLIOGRAPHY ..................................................................................................................................................... 19
INTRODUCTION

Refugees are civilians who no longer receive protection from their government. International
Humanitarian law interprets the notion of refugees more widely, also taking into consideration
population displacements caused by conflicts. This does not mean that refugees must
automatically be granted that status under national laws, but it does establish their right to
receive International Protection and assistance while the conflict lasts. These guarantees
include provisions, for instance, that individuals may not be considered enemies simply
because of their nationality, even if their nationality is that of an adverse party to the conflict.
If they find themselves in territory that is suddenly occupied by the State they originally fled,
the occupying power may not arrest, prosecute, convict, or deport them for acts committed
before the outbreak of hostilities. They must be granted the same protection as civilians.
Today’s refugee problem is global and world at large in nature and concerns not only
individuals in their relations with states but also states in their relations with one another, we
need a law which is not only a law relating to the legal status and protection of refugees but
also encompasses the refugee problem as a whole, a law which is solution oriented and imposes
collectivized responsibility on all states. It is believed that a humanitarian obligation
perspective of the rights of refugee problem will be helpful in restructuring the present
mechanisms of refugee law on these lines.

OBJECTIVES OF THE STUDY

The main objectives of the study are as following:
(i) To study the world at large scenario concept of humanitarian rights and obligation of
refugees.
(ii) To study the criteria for the determination of refugees and protection of refugee rights in
large scale influx situations.
(iii) To study the strategies to combat refugee problem and the role played by the United
Nations High Commissioner and India.
(iv) To study the unresolved legal questions as to the determination of refugee status at national
as well as international legal frameworks.
(v) To suggest durable solutions which are essential and desirable for improving the existing
legal framework for protection and promotion of rights of refugees.
HYPOTHESES
Hypothesis is a tentative generalization the validity of which has to be tested. It provides a
direction to the inquiry, aids in establishing a link between theory and practice and delimit the
field of inquiry fry singling out the pertinent facts on which to concentrate. The researcher has
endeavoured hard to find answers to the following hypotheses:
(ii) Whether the Human Rights violations are a major factor in causing the plight of refugees
as well as an obstacle to their safe and voluntary return home.
(iii) Whether the existing legal framework national as well as international, governing human
rights of refugees need modification in order to overcome drawbacks and defects.
(iv) Whether the human rights of refugees have progressively emerged as the new norms of
customary international law.
(v) Whether India has notably adhered to the international standards of protection of refugees
as its humanitarian obligation.
(vi) Whether the role of Indian judiciary in recognition and enforcement of the human rights
of the refugees has been commendable and there remains still to be done more
METHODOLOGY
The study is purely exploratory in nature. The details of the tool of research for collection of
secondary data includes: Collection of and consultation of all available records and literature,
including projects, reports, decisions of the courts.
 CHAPTER 1
According to Article 1(a) (2) of the United Nations Convention Relating to the Status of
Refugees 1951 the term ‘refugee’ shall apply to “any persons 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, is unwilling to avail himself of the protection of that country The Statute of the
Office of the UNHCR 1950,extends the competence of the High Commissioner for the
protection of refugees defined in Article 6(a) (1) in terms similar to Article 1(a) (2) of the 1951
Refugee Convention. The OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa, 1969, extended the definition in the 1951 Refugee Convention to include
in the term ‘refugee’ also every person who, owing to external aggression, occupation, foreign
domination, or events seriously disturbing public order in either part or the whole of his country
of origin or nationality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality.
Safeguarding human rights in countries of origin is of critical importance not only to the
prevention of refugee problems but also for their solutions. “If conditions have fundamentally
changed in the country of origin promoting and monitoring the safety of their voluntary return
allows refugees to re-establish themselves in their own community and to enjoy their basic
human rights”. Respect for human rights is also essential for the protection of refugees in
countries where they are integrated locally or re-settled. Although in the past human rights
issues were virtually not allowed to enter the global discourse on refugees under the erroneous
assumption that the refugee problem, as a humanitarian problem is quite distinct from a human
rights problem, the current trend is towards integration of the human rights law and
humanitarian law with refugee law. The growing realization that given the number, size and
complexity of the problem of refugees the limited approach to the problem which was devised
in the context of the post-second world war refugees and which placed greater reliance on
safety and welfare, rather than solutions to the problem and virtually relieved the refugee-
producing countries from their responsibilities towards their nationals living in asylum
countries. It is now increasingly recognized that such an approach is not only useful in
reinforcing and supplementing the existing refugee law and securing the compliance with its
provisions through quasi-judicial rights of Refugees implementing bodies, but can also make
it more humane and effective.
 CHAPTER 2
THE RIGHTS OF INDIVIDUALS WHO HAVE OBTAINED REFUGEE STATUS
Once Refugees case has been examined, the individuals who come under obtain a juridical
status that usually gives them rights similar to those of the citizens of the State in question. The
legal status thus obtained—recognition of the person’s refugee status in a territory of asylum—
is defined by the national laws of the country in question. The Refugee Convention1 enumerates
the main rights that must be granted to refugees by the national laws of each country (Arts. 12–
34).
I. Right to Protection Against Refoulement
No State is permitted to expel or return (refouler) a refugee, in any manner whatsoever, toward
the frontiers of territories where his or her life or freedom would be threatened on account of
his or her race, religion, nationality, membership in a particular social group, or political
opinion. Hence, individuals whose requests have been dismissed may nevertheless benefit from
temporary asylum since they cannot be sent back to their State of origin because of the dangers
they would incur. They must also benefit from the minimum standards of protection attached
to this temporary asylum When a person is compelled to flee his country of origin or nationality
his immediate concern is protection against refoulement. Such protection is necessary and at
times, the only means of preventing further human rights violations. As his forcible return to a
country where he or she has reason to fear persecution may endanger his life, security and
integrity, the international community has recognized the principle of non-refoulement,2 which
prohibits both rejection of a refugee at the frontier and expulsion after entry. Legal basis for
protection against forced return of refugees to countries where they apprehend danger to their
lives, safety, security and dignity can also be found in the law relating to the prohibition of
torture and cruel or inhuman treatment.3Thus Article 7 of the ICCPR which prohibits torture
and cruel, inhuman or degrading treatment casts a duty on state parties not to expose individuals
to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return
‘to another country by way of their extradition, expulsion or refoulement’.4 forcible return of
an individual to a country where he or she runs the risk of violation of the right to life is
prohibited by international human rights law.5 Indeed, as the European Court of Human Rights

1
The definition of the 1951 Refugee Convention.
2
The 1951 Refugee Convention (Art. 33(1)), UNHCR, Basic Legal Documents on Refugees (1999), 8-37; Article
3, United Nations Declaration on Territorial Asylum, Art. VIII of the Asian- African Legal Consultative
Committee, Bangkok Principles, Art. II (3), OAU Convention 1969, Article 22(8), American Convention on
Human Rights Convention, 1969.
3
Universal Declaration of Human Rights, Article 5; UNHCR, Basic Legal documents, pp.43-47; and Convention
Against Torture, Articles 2 and 6. Article 7 of the ICCPR (1966).
4
HRC General comment No. 20, para 9.
5
Ibid., paras 14.1 and 15.3.
has held, the decision of a state to extradite, expel or deport a person “may give rise to an issue
under Article 3 (European Convention of Human Rights), and hence engage the responsibility
of that state under the Convention, where substantial grounds have been shown for believing
that the person concerned, if extradited, faces a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the requesting country”.6 The act of handing
an individual over to his torturers, murderers or executioners constitutes a violation of the
obligation to protect individuals against torture and unlawful deprivation of life. In this regard
it is the liability of the state which handed over persons to the actual perpetrators of torture or
prescribed ill treatment, and not of the receiving state.7Thus the principle of non-refoulement
is well entrenched in conventional and customary international law. Despite this, of late
governments everywhere are adopting unilateral restrictive practices to prevent the entry of
refugees and other forcibly displaced persons into their territories.8 Refugees are interdicted on
the High Seas9 Penalties have been imposed against airlines or shipping companies carrying
suspected passengers.
(II) Right to Seek Asylum
To ensure that a person fleeing his or her country can submit a request for asylum to the
authorities of a foreign State, the 1951 Refugee Convention reaffirms certain fundamental
rights of individuals whose life or freedom is threatened.
(a) The Right to Seek Asylum in Another Country
This reflects the fact that individuals have the right to flee their country by any means, and to
enter the territory of another State, even illegally. States party to the Convention may not
impose penalties on refugees on account of their illegal entry or presence, if, having come
directly from a territory where their life or freedom was threatened, they enter or are present in
that State’s territory without authorization. This provision applies as long as the refugees
present themselves without delay to the authorities and show good cause for their illegal entry
or presence (Art. 31 of Refugee Convention).
(b) The Right to Submit a Request for Asylum before the Appropriate Authorities
This means that States must not impede refugees’ access to the competent national authorities
and, in fact, must facilitate this access. Furthermore, UNHCR must be allowed to assist

6
Cruz Varas Case, Judgment of 20 March 1991; Quoted in UNHCR, International Legal Standards Applicable to
the Protection of Internally Displaced Persons: A Reference Manual for UNHCR Staff, (Geneva, 1996), p.65.
7
Cruz Varas Case, note 12. Series A no. 161. Para 91.
8
Amnesty International, ‘The Barriers are Going up’, Refugee (Spring 1998), 19; B.S. Chimni, ‘Refugees in
International Law’, Seminar n.463, (March 1998), pp.18-22; James Hathaway, ‘Crisis in International Law’,
Indian Journal of International Law, vol. 39 (1999), pp. 9-11.
9
In an unfortunate decision Sale v. Haitian Centres Council C1/3 Set 2549 (1993), the U.S. Supreme Court
decided that such action is not violative of Art. 33 of the Refugee Convention.
individuals with these formalities. Hence, refugees no longer receive administrative assistance
from their State of origin to validate their rights. Other States are therefore under the obligation
to provide the necessary administrative services, either directly or through an international
authority—namely, UNHCR. As a result, UNHCR or the State in whose territory a refugee is
residing commit to delivering or ensuring the delivery of documents or certifications that would
normally be delivered to aliens by or through their national authorities (Art. 25 of Refugee
Convention)
(c) The Right of Refugees to Have Their Request Examined by the Appropriate National
Authorities
The examination of their file must be in conformity with the rules established by the Refugee
Convention and must be carried out under the supervision of UNHCR (Art. 8(a) of UNHCR
statute). Once a person fleeing persecution enters a state other than that of his origin or
nationality, what he needs most is asylum. “Asylum is the protection which a State grants on
its territory or in some other place under the control of certain of its organs, to a person who
comes to seek it”.10
(III) Right to Equality and Non-Discrimination
A refugee is entitled to be treated with humanity by the state of asylum. The obligations of the
State of refuge on this count are derived from the rules and principles, which enjoin respect
and protection of fundamental human rights, general international law and elementary
considerations of humanity and are founded on the international community’s interest in and
concern for refugees. Refugees under the Refugee Convention are entitled to relatively higher
standards of treatment11 than those belonging to B status category or mandate refugees. Since
as a general rule, the rights and freedoms recognized by international human rights law apply
to everyone, including refugees, the latter are also entitled to respect for, and protection of their
basic human rights like nationals of the state of refuge. Of crucial importance to the protection
of human rights and fundamental freedoms of refugees is the rule of non-discrimination laid
down in several global and regional human rights instruments,12 The right to equality before
the law, equal protection of the law and non-discrimination which form a cornerstone of

10
Article 1 of the Resolution adopted by the Institute of International Law in Sept. 1950, American Journal of
International Law, vol. 50, Supplement (1951), p 15.
11
The Refugee Convention contains certain rights provisions- protection from refoulement, protection against
unlawful expulsion or detention, the right to employment and education, access to the courts, and freedom of
movement. In respect of many of these rights, refugees are supposed to receive the same treatment as nationals in
the country of residence.
12
ICCPR, Art. 2(1) ILM., vol. 6 (1967), p. 3687; ICESCR, Article 2 (2), ILM., vol.9 (1970), p.360, U.N. Charter,
Arts. 1 (3), 13 (1) (b), 55(c) and 76 (c); Universal Declaration of Human Rights, Art. 2; European Convention,
Article 14 213 UNTS 221; American Convention, Articles. 1 and 24; African Charter, Articles 2, 13, 18 (3)-
ILM.,vol. 21 (1982),p. 58.
international human rights law appear to ban discrimination against refugees based on their
status as such. In addition, such provisions would prohibit discriminatory conduct based on
grounds commonly related to situations of refugees, such as race, religion, national or social
origin, and lack of property.13 In addition, all guarantees providing protection against specific
categories of discrimination such as race and gender specific discrimination are also applicable
to refugees14.
(IV) Right to Life and Personal Security
Refugees as a group are the most endangered people in the world. Most of their basic human
rights are threatened during flight and upon their relocation in camps in the sanctuary state and
finally during their return to their countries of origin or nationality. In the initial and most
desperate phase they often lose all their belongings, their basic security, family and often their
own lives. For majority of refugees, life in exile is as bad or worse than the conditions in their
own country which compelled them to flee. In view of the foregoing the provisions of human
rights law guaranteeing the right to life15 and protection against genocide,16 which is a grave
form of violation of the right to life, are of direct relevance and far-reaching importance to
refugees.
In protecting against ‘arbitrary deprivation of life’, State Parties should take measures not only
to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing
by their own security forces.17 In the context of loss of life from war and other acts of violence
it has been stated that “States have the supreme duty to prevent wars, acts of genocide and other
acts of mass violence causing arbitrary loss of life”.18 Since the right to life is a non-derogable
universal right, refugees are protected from arbitrary deprivation of life The human rights
regime guaranteeing freedom from torture and cruel, inhuman or degrading treatment or
punishment19 is of paramount importance to refugees, particularly women and girls who may
be compelled to suffer violence or ill treatment during flight and upon their relocation in camps.

13
UNHCR, International Legal Standards, note 12 at p. 18.
14
Relevant instruments include the U.N. Declaration and the International Convention on the Elimination of All
forms of Racial Discrimination (CERD), 60 UNTS 195; The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), I.L.M., vol. 19 (1980), p. 33, the UNESCO Convention against
Discrimination in Education, 1960; The Declaration on the Elimination of All Forms of Intolerance and of
Discrimination based on Religion or Belief, 1981; The UNESCO Declaration on Race and Racial Prejudice, 1978;
The Declaration on the Elimination of Discrimination against Women (G.A. res. 2263 (XXII) of 7 Nov. 1967).
15
Universal Declaration of Human Rights, Article 3; ICCPR, Article 6(1), American Declaration, Art. 1;
American Convention, Art. 4 (1); European Convention, Art. 2 (1); African Charter, Article 4; CRC., Articles 6
(1) and 19.
16
Article II, Genocide Convention, 1948
17
Views of the Human Rights Committee on Communication No. 45/1979 (Suarez de Guerrero v. Colombia),
Paras, 13.2 and 13.3.
18
H.R.C. General Comments, , No. 86, paras 2,3 and 5.
19
Universal Declaration, Article 5; ICCPR, Art. 7; CRC, Art. 37 (a); American Convention, Art. 5 (2); European
Convention, Art. 3; African Charter, Art. 5.
(V) Right to Return
Refugees need to be guaranteed the right to return voluntarily and in safety to their countries
of origin or nationality. They also need protection against forced return to territories in which
their lives, safety and dignity would be endangered. Human rights law recognizes the right of
an individual, outside of national territory, to return to his or her country.20 The U.N. Security
Council has also affirmed “the right of refugees and displaced persons to return to their homes.
The right of a refugee to return to his country of origin also arises from the rules of traditional
international law which stress the duty of the State of origin to receive back its citizen when
the latter is expelled by the admitting state and to extend its diplomatic protection to him.
Besides, the social fact of attachment, together with the genuine connection between a national
and his state, his sentiments, and emotional ties with his motherland give rise to the above-
mentioned obligations of the State of origin.21
(VI) The Right to Remain
Recently, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities
has affirmed “the right of persons to remain in peace in their own homes, on their own lands
and in their own countries”. 22
The Turku/Abo Declaration on Minimum Humanitarian
Standards23 also provides in Article 7: 1 “All persons have right to remain in peace in their
homes and their places of residence.” Article 7 runs: “No person shall be compelled to leave
their own country”. This right which is also known as ‘the right not to be refugees’ has provided
the jurisprudential basis for the concept of ‘preventive protection.

20
Universal Declaration, Article 13 (2); African Charter, Article 12 (2); CERD, Art. 5d (ii). Art. 12 (4) of the
ICCPR, Art. 22 (5) of the American Convention; Art. 3 (2) of the Fourth Protocol to the European Convention
prohibits the deprivation of the right to enter the territory of the state of which a person is a national. The African
Charter limits restrictions to those provided for by law for the protection of national security, law and order, public
health or morality. Article 12 (2).
21
Nottebohm Case, ICJ Reports (1955), 23. See also Ammoun’s separate opinion in the Western Sahara case, ICJ
Reports (1975), 12 at pp.85-6. The learned Judge observed; “The ancestral tie between the land and the man who
was born there from, remains attached thereto, and must one day return there to be united with his ancestors. This
link is the basis of the ownership of the soil”.
22
Sub-Commission resolution 1994/94, para, 1, UN Doc. E/KN.4/ Sub.2/1994/56, 28 Oct. 1994 at 67. See also,
resolution 1995/13, para 1, Report of the Sub-Commission on its Forty Seventh Session, Geneva 31 July-25
August 1995.
23
Reprinted in American Journal of International Law, vol. 89 (1995), pp. 218-23.
 CHAPTER 3
HUMANITARIAN OBLIGATION PRINCIPLES ON RIGHTS OF REFUGEES PROTECTION
MECHANISMS

Humanitarian Obligation and response is carried out more as an act of benevolence than as part
of the humanitarian assignment that entails guaranteeing the rights of the Refugees to life with
dignity, assistance, as well as protection and livelihood security There is need for better
cooperation between the UNHCR and the U.N. High Commissioner for Human Rights. NGOs
should also be knit together more closely than in the past. In recent years UNHCR has
incorporated a number of human rights principles in its working e.g. legal rehabilitation,
institution building, law reform and enforcement of the rule of law, humanitarian assistance to
internally displaced persons and given due importance to the establishment of increased
cooperation with international and regional human rights mechanisms.24
Another important positive development has been the concerns expressed by the Human Rights
Committee, the Committee on the Rights of the Child, and the Committee Against Torture over
the treatment of refugees by state parties to the respective conventions.25 For example, in 1997,
the Human Rights Committee recommended that the definition of ‘persecution’ be broadened
to include not only state harassment but also persecution by non-state actors.26It further said
that a country ignored its obligations by detaining a refugee and without allowing for a regular
review of the detention.27 The Committee against Torture reviewed the situation of many
asylum seekers and concluded that several states had threatened to return those people to their
home country in violation of their international obligations.28As part of the efforts to prevent
refugee flows, the U.N. and others, especially NGOs are engaged in providing technical
assistance to states within a general human rights framework. Since refugee protection has now
come to be recognized as a part of the U.N. agenda for human rights, the possibility of the use
of the current structure of international human rights treaty obligations and the mechanisms
established by the Commission on Human Rights for analysing the problems and proposing
remedial action have greatly increased

24
Brian Gorlick, “Refugee and Human Rights”, Seminar (1998 Spring), p. 19.
25
Gil Loescher, “Refugees, A Global Human Rights and Security Crises’ in Dunne and Wheel, Human Rights in
Global Politics, (1999), p. 245.
26
“The Barriers are Going Up”, Refugees: (1998 spring), p. 19.
27
Ibid.
28
Ibid.
 CHAPTER 4
RIGHTS OF REFUGEES IN INDIA

India has one of the largest refugee populations in the world. Regardless of the fact that India
serves to the diverse group of refugees, example: – Syrians, Afghans, Palestinians, Persians,
Ethiopians and Christians, etc., the country do not have specific domestic laws and policies for
the refugees. “The United Nations 1951 Convention relating to the Status of Refugees (Refugee
Convention) defines a refugee 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,
is unwilling to avail himself of the protection of that country.”29 Although India is not the party
to the 1951 Refugee Convention or its 1967 protocol, even do not have a national refugee
protection framework, but still it continues to give asylums to refugees of the neighbouring
countries. Asylum seekers can get the refugee status from UNHCR if the status is not protected
by the Indian Government. “Under Indian law, the term “foreigner” is the only reference to
aliens of any kind; this places refugees, immigrants, and tourists in the same broad
category.” 30 All persons who flee their homelands have invariably been provided refuge,
irrespective of the reasons of their flight.31 Taking a broader view of the concept of ‘refugees’
which somewhat resembles the one found in the 1969 OAU Convention, rather than the narrow
definition provided in 1951 Refugee Convention, the Government of India recognizes Tibetans,
Chakmas, Sri Lankan Tamils and Afghans and thousands of people of other nationalities from
Iran, Iraq, Somalia, Sudan and Myanmar as refugees. However, 50,000 refugees are not
recognized as refugees but foreign nationals temporarily residing in India. These persons are
assisted by the UNHCR and provided international protection and assistance under its mandate.
Its policies are discriminatory and inequitable, even to members of the same group. Thus, it
granted substantially less assistance to the Tibetan refugees arriving after 1980 than to the
Tibetans who arrived here prior to 1980. 32 In the absence of accession to the Refugee
Convention by India and any national legislation on protection of refugee the legal status of
individuals recognized as refugees by the Government of India is not clear.47 Also not clear is

29
Retrieved on https://www.wcl.american.edu/hrbrief/v7i1/india.htm.
30
Retrieved on http://www.alnap.org/pool/files/protection-of-refugess-a-humanitarian-crisis-in-india.pdf.
31
J.N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of International Law, vol. 26 (1986),
p. 501.
32
H. Knox Thames, “India’s Failure to Adequately Protect Refugees”, Human Rights Brief, (Issue I, 1999), p.7;
(Centre for Human Rights and Humanitarian Law, Washington College of Law), p.20.
the relationship between refugee status granted by the Government and corresponding laws
governing the entry and stay of foreigners (i.e. Foreigners Act, 1946).

LAWS FOR REFUGEES IN INDIA

Once the Constitution of India came into operation, the following acts were passed relating to
refugees, evacuees and displaced persons. “Article 51 states that the state shall endeavour to
foster respect for international law and treaty obligations in the dealings of organized people
with one another.33Article 51 of the Constitution is the Directive Principles of State Policy
demonstrating the spirit in which India approaches her international relations and
obligations.”34Article 253 of the Indian Constitution states that “Parliament has the power to
make any law for the whole or any part of the territory of India for implementing any treaty,
agreement, or convention with any country or countries or any decision made at any
international conference, association or other body.”35Further Entry 14 of the Union List of the
seventh schedule states that “Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries.36
Article 253 read with Entry 14 makes it clear that the power conferred by Parliament to enter
into treaties carries the right to encroach on the state list to enable the union to implement a
treaty with it.37 Therefore, any law made in accordance with this Article that gives effect to an
international convention shall not be invalidated on the ground that it contains provisions
relating to the state subjects.38

PROBLEMS FACED BY REFUGEES IN INDIA

Various countries protect their refugees by enacting refugee legislation based on international
recognized principle. Although India has not signed the convention but are providing protection
to the refugees. “However, consistency in the procedure for determining refugees is still
lacking.”39 Since India has no uniform code for determining refugee status, there is no central
body that deals with the refugees. After so many years also, there are various gaps that exist in
the mechanism for dealing with refugees’ policy. Due to the several problems faced by the
refugees and no proper legislation has not been passed the legal status of the refugees is
miserable.

33
Retrieved on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2129225.
34
Ibid.
35
Ibid.
36
Retrieved on http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(35).pdf.
37
Supra 7.
38
Supra 7.
39
Supra 7.
 CHAPTER 5
ROLE OF JUDICIARY FOR THE PROTECTION OF REFUGEES
When any of the refugees are detained or arrested by the Indian authorities, there would always
be a danger of refoulement, repatriate or deportation. Those refugees who are arrested for the
illegal stay can be detained illegally under administrative order without charges. The
Foreigners Act vests an absolute and unfettered discretion in the Central Government to expel
foreigners from India. The Supreme Court of India in “Hans Muller of Nurenburg vs
Superintendent, Presidency”40gave “absolute and unfettered” power to the Government to
throw out foreigners. The said judgment was again upheld by the Supreme Court in “Mr. Louis
De Raedt & Ors vs Union of India.”41In the same judgment, Supreme Court also held that
foreigners have the right to be heard. n the judgment of “Ktaer Abbas Habib Al Qutaifi vs
Union of India”42 the High Court of Gujarat held that the principle of non-refoulment avoids
ejection of a displaced person where his life or freedom would be undermined by virtue of his
race, religion, nationality, enrolment of a specific social gathering or political conclusion. Its
application ensures life and freedom of a person irrespectively of his nationality.43As Justice
J.S. Verma, former Chairman of the National Human Rights Commission observed, “the
provisions of the (1951) Refugee Convention and its Protocol can be relied on when there is
no conflict with any provisions in the municipal laws”. 44
The Madras High Court in P.
Neduraman and Dr. S. Ramadoss v. Union of India and the State of Tamil Nadu (1992)
emphasized the need to guarantee the voluntary character of repatriation. The National Human
Rights Commission has also come to the rescue of refugees ‘approaching it with their
complaints of violations of human rights.’
While India’s record with respect to protection of human rights of refugees has been generally
satisfactory, the Human Rights Committee recently expressed concern at reports of forcible
repatriation of asylum seekers including those from Myanmar (Chins), the Chittagong Hills
and the Chakmas. It recommended that in the process of repatriation of asylum seekers or
refugees, due attention be paid to the provisions of the Covenant and other applicable norms.45
Indeed, as already noted there are many states in the South which starve refugees out, imprison
them behind barbed wire, and otherwise make their lives miserable.

40
1955 SCR (1)1284.
41
1991 SCR (3) 149.
42
1999 CriLJ 919.
43
Supra 15.
44
Mr. Verma made this observation at the SAARCLAW and UNHCR Seminar on Refugees in the SAARC Region
held in New Delhi on 2 May 1997. This reasoning has been recognized in Visakha v. State of Rajasthan, AIR 13
August 1997.
45
National Human Rights Commission v. State of Arunachal Pradesh and another, (1996) 1 SCC.295;
Khudiram Chakma v. Union of India (1994) Supp. 1 SCC 614.
India has not become a party to the convention relating to the status of refugees, 1951, yet two
basic principles of the convention namely (i) non-discrimination as far as possible between
national and refugees and (ii) no discrimination based on race, religion or country or origin
amongst refugees this conclusion is based on the provisions of Part-III of the Constitution.
Once the refugee is lawfully in India, he/she gets several protections enshrined in Part-III of
the Constitution. Article 14 provides that the state shall not deny to any person equality before
the law or equal protection of law within the territory of India. Further Article 21 provides that
no person shall be deprived of his life or personal liberty except according to procedural
established by law. Besides this, Article 22 provides protection against arrest and detention in
certain cases. Article 25 (1) provides that all persons are equally entitled to freedom of consign
and right to freely profess, practice and propagate religion. A glaring example of refugees living
with honor is that of Dalai Lama and his Tibetan followers. India granted asylum to Dalai Lama
and his followers.
In this context China resented it and made a great hue and cry over it and alleged that India was
interfering in the internal affairs of China. For the protection of refuge in India and India as a
Sovereign State was within her right to grant asylum to Dalai Lama and his followers. Yet
another example of refugees coming to India was that of the influx of refugees from Bangladesh
that is Chakma refugees, in the matter of the National Human Right Commission vs. State of
Arunachal Pradesh (1996) ISSC-742, where in the Supreme Court has laid down that the state
of Arunachal Pradesh was under Constitutional Obligation to protect and safe -guard the life,
health, and well-being of the Chakmas. The Court directed the state to take all necessary
measure for ensuring the life and personal liberty of the Chakmas. It may be noted that a large
number of Chakma migrants had crossed the Bangladesh borders and entered into the Assam,
Tripura and in Arunachal Pradesh46.
In 2015, the Supreme Court directed the Centre to grant citizenship to Chakma and Hajongs
who had migrated from Bangladesh in 1964-69. The order was passed while hearing a plea by
the Committee for Citizenship Rights of the Chakmas. Following this, the Centre introduced
amendments to the Citizenship Act, 1955. The Bill is yet to be passed, as the opposition says
the Bill makes illegal migrants eligible for citizenship on the basis of religion, which is a
violation of Article 14 of the Constitution. The Union Home Ministry on Wednesday cleared
the citizenship for over one lakh Chakma-Hajongs. However, they will not have any land
ownership rights in Arunachal Pradesh and will have to apply for Inner Line Permits to reside
in the State.47

46
Ibid.
47
The Hindu, September 14, 2017.
 CONCLUSION
Understanding efforts to protect refugees around the world depends on grasping many issues,
from the meaning of "protection," to the complexities of aid distribution. This understanding
requires thinking through the actions and motivations of governments, aid workers, academics,
and the media. Complicated as they are, attempts to shed light on all of these topics are vital to
the hands-on work ahead, to achieving public understanding of these problems, and to
formulating better policies. Now is the time for a progressive development of a global approach
to the refugee problem, an approach which takes due cognizance of the basic human rights of
refugees and interests of the asylum countries and the international community, and secures
the cooperation of all parties in seeking a solution to the problem. Given the close link between
refugees and human rights, international humanitarian rights standards are powerful
ammunitions for enhancing and complementing the existing refugee protection regime and
giving it proper orientation and direction. Since the refugee problem is an important aspect of
human rights protection, human rights groups, humanitarian obligation organisations, the
UNHCR, Governments and U.N. human rights agencies should take a hard look at their
respective roles and make coordinated efforts for elimination of human rights abuses and
protection of the rights of refugees.

RECOMMENDATIONS
The challenges that the international refugee protection regime faces today are immense, but
are not insurmountable. What is needed now is to put our collective resources and capacities to
their most effective use. This article has made numerous recommendations regarding how to
accomplish this goal, including the following:
1. Commit to share responsibility for refugees:
Support the proposed Global Compact on Responsibility Sharing for Refugees, as set out in the
UN secretary general’s report. Agree upon responsibility-sharing arrangements, defining when
they would be needed, measures that would be taken, and a framework for states to contribute
in line with their capacities and to receive support according to their levels of need.
2. Uphold obligations to protect refugees:
Institute new forms of group determination and the strategic use of refugee status
determination, combined with community-based protection and other measures, to ensure an
appropriate legal status while at the same time identifying specific protection needs. Develop
wider and more consistent applications of refugee protection principles through accessions and
lifting reservations to the relevant refugee instruments. Use protection strategies to inform
frameworks for governing migration and meeting the needs of the most vulnerable migrants.
Implement “protection sensitive” border procedures and systems for receiving individuals who
arrive in mixed movements to ensure the security of both refugees and host communities.
3. Ensure protection through more effective assistance:
Fund national health care, education, and social assistance systems to also serve refugees and
ensure refugee access to rights and services. Expand cash-based programming, alongside, as
relevant, in-kind assistance, vouchers, and services, to help identify and address protection and
social welfare needs, build livelihoods, and facilitate longer-term solutions, such as voluntary
repatriation and reintegration.
4. Realize protection through solutions:
Enhance self-reliance in countries of asylum, for example by including refugees in
development planning and facilitating their right to work. Create opportunities for safe, regular
admission to third countries through, for example, resettlement, humanitarian admission,
labour mobility, family reunification, medical evacuation, and student visas and scholarships,
as well as easing or lifting legal barriers or administrative requirements for admission. Taken
together these recommendations not only will ameliorate the existing hardships experienced by
refugees, but also will provide the building blocks for achieving longer-term solutions, which
remain, as ever, the ultimate aspiration of the international refugee protection regime.

SUGGESTION
The global solution to a global refugee crisis needs following methods:
1. Reform must address the circumstances of all states, not just the powerful few.
2. Plan for, rather than simply react to, refugee movements
3. Embrace common but differentiated state responsibility.
4. Shift away from national, and towards international, administration of refugee protection.
5. Protection for duration of risk, not necessarily permanent immigration.
 BIBLIOGRAPHY

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