By Geetanjali Sharma
This article explores the influence of the existing ad hoc structure of the legal framework that controls refugees in India on the basic parameters of refugee treatment under Indian law and administrative practice. It examines India’s normative commitment to refugee protection, as well as judicial efforts to broaden refugee protection and administrative processes that regulate refugee living. It aims to make a case for the creation of a distinct legislative framework that specifies the legal status of refugees in India based on this discussion.
INTRODUCTION
A refugee is defined as a person who is outside of his or her place of nationality or habitual residence and is unable or unwilling to return because of a well-founded fear of persecution based on race, religion, nationality, political opinion, or participation in a certain social group. There are several elements of refugees that are extremely important to both India as a country and the refugees themselves, notably in terms of law enforcement.[1] Given the current security situation in the country, particularly as a result of the participation of some of the country’s Neighbours in this respect, a purely humanitarian issue like “refugees” has become impacted by national security concerns. It is a fact that we cannot afford to ignore this element of the situation in any dispassionate.
ISSUE
While the Indian Constitution makes law and orders a state issue, foreign relations and international orders are solely the responsibility of the Union government. As a result, a number of government entities, both federal and state, have been tasked with dealing with refugee issues related to law enforcement. Furthermore, the Union government sets all refugee policies, even if the effect of the refugee crisis as a whole must be borne by the state administration to a greater extent, if not entirely. Security personnel at international borders, immigration personnel at land checkpoints, international airports and seaports, as well as a slew of state police officers, are all involved in law enforcement that affects refugees in some manner. All of the aforementioned categories of individuals are charged with the onerous obligation of preserving the country’s national and internal security as their first and foremost charge, as the name “security” implies. They must ensure that the rules of the nation are followed when it comes to refugees, without disregarding or neutralizing security concerns.
However, it is also their job to ensure that the humanitarian undertones that are so closely linked with refugees, in general, are not overlooked. It is also generally recognized that any situation involving “refugees” has human rights implications. It goes without saying that law enforcement officers must take care of these as well. A thorough grasp of the circumstances surrounding unique refugee situations by the relevant law enforcement agency or even a single official would pave the path for taking care of both security and humane aspects—from both a humanitarian and human rights standpoint. Simultaneously, knowledge of the laws of the land and how security and enforcement personnel operate on the part of all those who deal with refugees, whether they are part of the government machinery or not (including international agencies, NGOs, and so on), would make looking after the refugees much easier.
JUDICIAL INTERPRETATION IN INDIA
The courts have played a critical role in ensuring the safety of refugees. Court decisions have addressed legal loopholes and, in many circumstances, provided refugees with humanitarian protection[2]. In addition, Indian courts have permitted refugees and intervening non-governmental organizations (NGOs) to bring lawsuits in their jurisdiction. In addition, the courts have interpreted constitutional principles, existing legislation, and, in the lack of municipal law, international law requirements to provide protection to refugees and asylum seekers. In a number of cases, Indian courts have ruled that refugees are entitled to the constitutional protection of life and liberty. The Supreme Court held that Article 21 of the Constitution, which protects the life and liberty of Indian citizens, is extended to all people, including aliens, and that the state is obligated to protect the life and liberty of all people.
The Imphal bench of the Gauhati High Court decided in Zothansangpuri vs State of Manipur[3] that refugees have the right not to be deported if their lives are in danger. The Supreme Court ruled in Dr. Malvika Karlekar vs Union of India[4] that authorities should evaluate whether refugee status should be given and that the petitioner should not be deported until that determination was reached. The Gauhati High Court, in Bogyi vs Union of India[5], not only ordered the interim release of a Burmese man from incarceration but also authorized his stay for two months so that he may seek refugee status with the UNHCR.
In the case of U Myat Kayew and Nayzan versus State of Manipur[6], the Gauhati High Court handed down a historic decision. It featured eight Burmese, ranging in age from 12 to 58, who were held for unlawful entrance in the Manipur central jail in Imphal. These Burmese pro-democracy activists willingly surrendered to Indian police and were apprehended. They were accused of unlawful entrance into India under section 14 of the Foreigners Act. They did, however, file a plea for their release in order to apply for refugee status with the UNHCR in New Delhi. Under Article 21, the Gauhati High Court held that asylum seekers who enter India unlawfully should be allowed to visit the UN High Commissioner for Refugees to seek refugee status.
In addition to the courts, the National Human Rights Commission has served as a watchful and effective monitor for refugees’ protection. The SC granted relief based on foreigners’ rights under articles 14 and 21 of the Constitution. The right of a refugee to leave the nation has also been supported by the courts. The courts decided in Nunag Maung Mye Nyan vs. Government of India[7] and Shar Aung vs. Government of India[8] that even those refugees facing charges of the unlawful entrance should be given departure permits to allow them to leave. However, because judicial interventions are case-specific by definition, every story of the invention has been mirrored by stories of apathy and non-interference. Consequently, while some rudimentary articulation of procedural rights for refugees, no particular acknowledgment of substantive rights has been made.
As a result of the foregoing discussion, India’s legal framework for refugee protection has been defined by an eclectic mix of administrative ad hocism and judicial assertion of constitutional rights. Certain fundamental rights are guaranteed by the Constitution to all people, including refugees. These constitutional principles have been bolstered by broad judicial interpretation. However, as the following section of this paper argues, the refugee community’s enjoyment of these rights has remained a pipe dream due to inconsistencies and arbitrary government policies driven more by political expediency than by legal imperatives.
CONCLUSION
Refugees in India are protected in a skewed and inadequate manner under Indian law and practice. In India, the law fails to recognize refugees as a unique group of people, instead of treating them like any other immigrant. As a result, it fails to recognize the unique circumstances under which a refugee departs his or her home country, as well as the resulting inconsistency in applying the general Foreigners Act regime’s conditions for legal travel. The lack of separate legislation on refugee protection, rights, and entitlements has resulted in a huge number of refugees being denied basic protection. This rejection is against the spirit of India’s international human rights commitments. The absence of a particular legal framework governing refugee status does not, however, imply that refugees do not get protection or aid.
The court and related organizations, like as the National Human Rights Commission, have attempted to address the refugee issue through inventive judicial interpretation, establishing various procedural rights and, in many circumstances, preventing forcible deportation. However, such interventions have been restricted to individual situations, with judicial decisions not being adopted across the board. This has arisen as a result of the lack of clear refugee legislation. Because of this, arbitrary executive actions and acts of discrimination have been difficult to address. This also implies that the decision to treat a person or a group of people as refugees or not is based on the facts and circumstances of the cases being considered, rather by political factors.
Due to the lack of national legislation governing refugee status, refugees are reliant on the generosity of the state rather than a rights regime to rebuild their lives with dignity. As a result, refugees are at the mercy of the state and have no remedy against the state’s systematic breaches of its legal responsibilities. As a result, a just, fair, and humane response to the issue of refugees in India, in accordance with India’s international and constitutional obligations, necessitates the immediate adoption of a definite statutory regime that clearly defines refugees as a distinct class of persons, spells out a fair procedure for determining refugee status, and outlines a due process for refining the status of refugees.
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[1] Saikal Amin (ed.) Refugees in the Modern World : A Reader (Canberra,1989); B.S. Chimni, International Refugee Law(New Delhi,2000); Gowllard Vera Debbas, The Problem of Refugees in the Light of Contemporary International Law Issues (London,1995); Guy S Goodwin Gill, The Refugee in International Law (Oxford, 1996);J.Hathaway, The Law of Refugee Status (Toronto,1987): Tim Dunne and Nicholas J.Wheeler, (ed.) Human Rights in Global Politics (Cambridge, 1999); Cornellis D.Jong de, “The Legal Framework: The Convention Relating to the Status of Refugees and the Development of Law Half a Century Later” International Journal of Refugee Law, vol.10(1998),pp.688-99.
[2] KSK Kumar, and J Parikh, Indian agriculture and climate sensitivity: Global Environmental Change, Part A: Human and Policy Dimensions [Global Environ. Change Pt. A: Human Policy Dimensions]. Vol. 11, no. 2, pp. 147-154. Jul 2001.
[3] Civil Rule No 981 of 1989.
[4] (Criminal) 583 of 1992 in writ petition.
[5] Civil Rule No 981 of 1989
[6] Civil Rule No 516 of 1991
[7] CWP No 5120/94.
[8] WP No 110 of 1998.
[9] Picture: Ashley Housing co
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