This article on ‘Laws governing Refugees in India‘ was written by Monika Yadav, an intern at Legal Upanishad.
Refugees have lived in India for ages. Since practically the entire Zoroastrian population fled to India in order to escape the persecution that was experienced at the time in Iran due to their religion, India has occasionally continued to take in significant numbers of refugees from many nations, not only its immediate neighbours. The most important fact that should be noted is that except for the transboundary mobility of persons during the country’s partition in 1947, a refugee arriving from Indian territory has never happened once.
On the other hand, it has continuously become a nation that receives immigrants, strengthening its multi-ethnic and multi-cultural structure in the meantime. In accordance with its secular tenets, India has accepted refugees across all religions and sects. It is crucial to mention that after gaining its independence, India has taken in refugees from far-off nations as well, including Afghanistan, Iran, Iraq, Somalia, Sudan, and Uganda, in addition to some of its neighbours.
Refugees in India
The Indian legal system handles refugees on two levels. There are rules that govern their entry into India, as well as their stay, as well as a variety of complications. Individuals may be held liable for a variety of actions of commission and omission once they enter Indian territory, whether they are the complainant or the accused. There are several constitutional and statutory provisions that may be relevant to refugees depending on the circumstances.
Only a small number of Indian Constitutional Articles apply to refugees on Indian soil in the same manner as they do to Indian citizens.
The right to Life and Personal Liberty provided by Article 21 of the Indian Constitution applies to everyone, whether they are Indian citizens or foreigners, the Supreme Court has repeatedly ruled. The several High Courts in India have broadly applied the principles of natural justice to refugee issues and acknowledged the UN High Commissioner for Refugees (UNHCR) as having a significant role in refugee protection.
The Hon’ble High Court of Guwahati recognised the refugee issue in a number of rulings and gave refugees the right to request a decision on their refugee status from the UNHCR while deportation orders granted by the district court as well as administration have stayed.
In the cases of Gurunathan and others vs. Government of India and others and A.C.Mohd.Siddique vs. Government of India and others, the High Court of Madras indicated its opposition to any Sri Lankan refugees being forced to return to Sri Lanka against their will.
In P. Nedumaran v. Union of India, Sri Lankan refugees asked the Madras High Court for a writ of mandamus, ordering the Union of India and the State of Tamil Nadu to enable UNHCR officials to check on the voluntariness of the refugees’ return to Sri Lanka and to allow those who didn’t want to go back to continue living in the camps in India.
The Hon’ble Court was happy to decide that “it is not for Court to assess either consent is voluntary or not” because the UNHCR, a World Agency, was engaged in deciding if the refugees’ return to Sri Lanka is voluntary. The Court also recognised the UNHCR officials’ expertise and objectivity. Since the UNHCR, a World Agency was involved in determining whether the refugees’ return to Sri Lanka was voluntary, the Hon’ble Judge was pleased to rule that “it isn’t for the Court to determine if either consent has been voluntary or not.”
Additionally, the Court recognised the UNHCR officials’ professionalism and objectivity. There is no question of deporting the Iranian refugee to Iran, as he has been recognised as a refugee by UNHCR, the Bombay High Court ruled in the case of Syed Ata Mohammadi vs. Union of India. The refugee was also given permission by the honorable court to visit any nation of his choice. Such a directive complies with generally recognised norms regarding the “non-refoulment” of refugees to their homeland.
Maiwand’s Trust of Afghan Human Freedom v. State of Punjab is the case that comes to mind related to Refugee deportations that have been halted following an order from the Indian Supreme Court in Pancholi vs. State of Punjab & Others. The Supreme Court of India (SC) stayed the deportation of the Andaman Island Burmese refugees because “their claim for refugee status was undergoing adjudication and prima facie case is brought out for the award of refugee status.”
In the Chakma refugee case, the Supreme Court ruled that no one should be denied their life or freedom without following the law. The same point was emphasised in prior judgments by the SC in the cases of the State of Arunachal Pradesh vs. Khudiram Chakma and Luis De Raedt vs. UOI.
Judicial Protection for Refugees
The judiciary is crucial in defending refugees; numerous instances resulted in significant rulings on their behalf. With the ideas of PIL and Social Action Litigation, the judiciary has made it simple. There is always a risk of refoulment, repatriation, or expulsion when any refugees were detained or apprehended by Indian authorities. Refugees who are kept unlawfully under an administrative order after being arrested for an unauthorised stay may not face penalties. The Central Government has complete and unrestricted discretion to deport foreigners from India under the terms of the Foreigners Act.
In Hans Muller of Nuremburg v. Superintendent, Presidency, the Apex Court of India granted Government “full and unrestricted” authority to expel foreigners. In Louis De Raedt & Ors, the Supreme Court again upheld the decision. Union of India versus. The Court ruled that foreigners had a right to be heard during the same ruling.
According to the concept of non-refoulment, it is illegal to expulse a person who has been forced to from their country if doing so would endanger their life or freedom due to their color, faith, country, membership in a certain social class, or political beliefs, as per HC of Gujarat’s ruling in the case of Ktaer Abbas Habib Al Qutaifi v. Union of India. Its execution ensures that everyone, regardless of nationality, has the right to life and freedom.
Non-refoulement and the right to refugee status: In Malavika Karelkar v. Union of India, the Apex Court momentarily suspended the deportation order against 21 Burmese refugees, enabling them to submit an application for refugee status with the UNHCR.
Given the ongoing global effort to protect human rights, the legal void in Indian refugee legislation cannot be disregarded. Being a signatory to the UDHR, India should make an effort to comprehend the scope and nature of refugees from the neighbouring nation. It is crucial that the Indian legal system clearly distinguishes between the subjects of a foreigner, illegal immigrants, and refugees.
The discussion of the refugee situation is not new, and neither is the assertion that there is a specific legal structure in place to address this issue. However, today’s geopolitical landscape has undergone a significant transformation, and the Citizenship Amendment Act of 2019 has marked a significant turning point. Thus, relying on the Foreigners Act or the CAA would not be fair to the refugees and would simply continue to deny them a sufficient standard of living, especially in the case of those who were victims of war or genocide in their own country.
As has been noted, the judiciary’s interpretation of the facts in every case has enabled the issue to persist without destabilizing the situation, but the refugees’ security will be ensured through a proactive and comprehensive redressal procedure.
Additionally, a comprehensive system that takes into account the socioeconomic requirements of refugees must be put in place. The Refugee Convention of 1967 must be ratified as soon as possible in order to review the National Register of Citizens on the basis of identifying citizens. In addition to giving the refugees a sense of community and security, this action will enable them to apply for benefits, which will restore their trust in the system.
As a result, India’s legal system needs to be updated in accordance with international commitments to better defend the spirit of its Constitution and ensure that Indian citizenship is consistent with the human rights paradigm.
- Harshit Rai and Vaibhav Dwivedi, Constitutional provision regarding Refugee law in India. Available at: https://www.ijlmh.com/paper/constitutional-provision-regarding-refugee-law-in-india/ (Accessed: November 3, 2022).
- T. Ananthachari, Refugees in India: Legal framework, law enforcement, and Security. Available at: http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html (Accessed: November 4, 2022).
- Aarohi Bhalla, The need for Refugee law in India. Available at:https://www-barandbench-com.cdn.ampproject.org/v/s/www.barandbench.com/amp/story/columns/the-need-for-refugee-law-in-india-for-indian-citizens/ (Accessed: November 4, 2022)