There has been a great deal of romanticization within national policy circles of the fundamental right to life and personal liberty which is a guaranteed fundamental right under Article 21 of the Constitution of India and its subsequent extension towards the safety and protection of refugees, with an increase in public perception of the same, notwithstanding the repudiating complexities of national security.
Though the original purview of the 1951 Convention on the Status of Refugees was limited to that of European Refugees, however the 1967 Optional Protocol to the Refugee Convention extended this scope to include refugees worldwide. For this specific reason, many Asian countries have refused to sign the 1951 Refugee Convention which is perceived as a western import to impose non-derogable obligations on developing nations to protect refugees in the post Second World War era at a time when most Asian Nations were struggling to restore economic and political order. Since the Asian subcontinent is home to many developing and underdeveloped nations, this irrefutable obligation was seen as an additional unjust burden.
Asia is host to one of the world’s largest refugee communities notably from the nations of Afghanistan and Myanmar. The vast majority of Asian nations have ratified the principal International Human Rights Instruments. However, it still has no well-established Refugee Law Framework as there was large-scale reclusion to ratify any International refugee convention or make provisions for the incorporation of the same into the domestic legal structures. India like its Asian peers is not a party to the 1951 Refugee Convention or its 1967 Optional Protocol. However, unlike China, South Korea, the Philippines, or Japan who have ratified the Refugee Convention but have an extremely low acceptance rate of refugees by virtue of their deep-rooted inclination towards the repudiation of cultural diversification. India being a country with a rich cultural heritage has never shied away from diversification, having opened its gates for refugees, which has emerged as a notable defining characteristic of the welfare state of the Republic of India. Although India has treated separate categories of refugees disparately, India’s overall approach has been one of compassion and understanding.
Setting the focal point around the stringent immigration laws in the country, the author explores the various contested concepts circumambient to the recognition and the ensuing protection of refugees and the engagement of India with the same, which has influenced its foreign policy. The existing constitutional and the legislative framework in India, embodying significant statutory provisions which have been further reinforced through subsequent judicial pronouncements and its overarching effects have also been closely examined. Concomitantly, this article also sheds light on some of the ample instances of human rights violations that could have been alleviated with the removal of radical mechanisms that propose strict national immigration policies into the country.
India has harbored waves of refugees, fleeing war and armed conflict from its neighboring nations in the decades since it became an independent nation. This humongous mass migration of people in human history can be traced back to the Indian Partition itself, where people were forced to flee through the newly demarcated territories of India and Pakistan. Refugee camps throughout India, especially in North India, housed thousands who fled Pakistan, uncertain of what their future in this fledgling nation entailed. The issue of national security was not questioned when dealing with the partition of refugees insofar as their automatic conferral of the nationality was concerned. However, the emerging state had its hands full with various other issues in regards to the partition’s refugees, such as food supply, shelter, clothing, for a very long time.
At this juncture in history, the only International law on Refugee Protection was the 1951 Convention Relating to the Status of Refugees. However, the Convention’s protection could not be accorded to the refugees of the partition given the fact that they were not displaced as a result of ‘State-Sponsored persecution’. In an effort to include internally-displaced persons or socially-displaced persons within the ambit of the 1951 Refugee Convention, both India and Pakistan expressed considerable interest at the international level only to have their claims rejected. This culminated in the subsequent refusal of the Indian Government to sign the Refugee Convention or its 1967 Optional Protocol.
Much to the chagrin of the Chinese Government, India’s next major engagement with refugees came in 1951 when the Dalai Lama and over 100,000 refugees escaped from Tibet to seek political asylum in India. The seat of Dalai Lama, Tibet’s spiritual and political leader has been established in Dharamshala, Himachal Pradesh subsequently.
In 1971, the local population to refugee ratio was significantly aggravated by the mass exodus of about 10 million refugees from the erstwhile province of East- Pakistan, currently the Republic of Bangladesh. The military crackdown followed by grave violence, had rendered millions homeless who escaped barely alive fleeing for their lives. India as a new state had a bare minimum of resources to sustain its current population and overwhelmed with this current development sought help from the UNHCR.
Although the United Nations High Commissioner for Refugees in India declined to accept the complete financial burden, in 1971, 1973 and 1974, it assisted India’s reparation operations. The United Nations High Commissioner for Refugees has a stringent institutional mandate since 1981, to help Indian refugees and asylum seekers. This amalgamation with the UNHCR and the East-Pakistani refugees has significantly shaped Indian Refugee law and Policy.
Simultaneously, there are many Sri Lankan Tamil refugees living in India who have fled following the 1983 Black July Riots and the subsequent civil war in Sri Lanka. India is also home to a significant Afghan refugee population, which sought shelter in India after the Soviet invasion in 1979. The Afghan, Hindu and Sikh communities which sought protection in India until the early 1900s were granted citizenship status by India. Indian Citizenship has also been extended to Chakma and Hajong groups hailing from Southeastern Bangladesh’s Chittagong hills, in compliance with the 2015 Supreme Court order. The Bangladeshi and Sri Lankan Refugees are treated as a security risk in India, unlike their Tibetan counterparts. On a similar note, while Afghan Hindus and Sikhs are welcomed in India, the same treatment is not extended to Afghan Muslims.
However, in its interaction with the Myanmar Rohingya Refugees, India’s most important and challenging endeavor with a refugee group has arisen. In India, the UNHCR has registered some 18,000 Rohingya refugees and asylum seekers. They are spread across the states of Jammu, Hyderabad, New Delhi, Mizoram and Meghalaya and West Bengal. While the country is known for its humane approach to refugees, its policy towards Rohingya, especially under the government headed by N.D.A, is extremely strict. Two explanations can be related to this: the Muslim identity of these refugees; and, the ethnic backgrounds of those refugees to Bangladesh. The Government has often viewed the Rohingya in light of their Bangladeshi counterparts and determined their status as a security menace. The fate of the community will be determined in the Supreme Court case of Mohammad Salimullah, which is yet to be decided.
Constitutional Provisions Towards The Protection Of Refugees In India
Indian legal philosophies, adopted Western liberal ideology to make it very progressive. In compliance with this sacrosanct principle, the framers of the Indian Constitution established the foundation of the Constitution of India on the universal principle of ‘respect for the dignity of the individual’ and included the same in the preamble to the Constitution. The provision for the respect of the dignity of the individual has been conceptualized in Part III of the Constitution which provides for various fundamental rights which are guaranteed to all people without discrimination. There has been a great deal of romanticization within national policy circles of the fundamental right to life and personal liberty which is a guaranteed fundamental right under Article 21 of the Constitution of India and its subsequent extension towards the safety and protection of refugees, with an increase in public perception of the same, notwithstanding the repudiating complexities of national security.
The meaning of ‘life’ under Article 21 has been expanded over the years and Article 21 has come to be regarded as ‘the mini constitution’ in itself. The Supreme Court of India held in the case of Maneka Gandhi v. Union of India, that the right to ‘life’ is not confined to mere animal existence but includes within its ambit the right to live with human dignity. This view has been further reiterated in the cases of Francis Coralie v. Union Territory of Delhi, Olga Tellis v. Bombay Municipal Corporation & Ors , and subsequent judicial pronouncements. While hearing the petition of Mohammad Salimullah, it remains to be seen how the Supreme Court’s attempt to extend the guarantee of life and liberty under Article 21 to protect refugees against refoulement. The other fundamental right in question, in this case, is the Right to Equality under Article 14.
The Indian Constitution ensures compliance with the principles of International law through Article 51. Article 51(c) provides that, “the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration.” A combined reading of Article 51(c) with Part III of the Constitution has paved the way for judicial activism in the fields of human rights and environmental law in India.
In light of the volatile situation in India surrounding the Citizenship Amendment Act of 2019 and the proposed all-around implementation of the National Register of Citizens in India by 2021, the Madras High Court’s decision in Ulaganathan v. Ministry of External Affairs has significant political implications. In this judgment, the Madras High Court held that “Article 21 applies to all persons, citizens and non-citizens alike. It would apply to refugees and asylum seekers. And most certainly to the petitioners who are genealogically rooted to this soil and who speak our language and who belong to our culture.” This has substantially alienated various communities seeking citizenship in India.
Legislative Intent With Respect to Humanitarian Assistance To Refugees
Upon perusing the detailed written documentation of India’s history with refugees, it can be confirmed safely that although humanitarian aid and political conduct have enabled humane refugee treatment in India, refugee status in India has very little to do with these two considerations. Although India’s approach to refugees has been relatively liberal, the absence of a country-wide refugee law can be attributed to the volatile politics in South Asia and the threat of terrorism.
Pressing political interests determine how various Central Governments handle refugees, at that given time. Minority politics and electoral vote bank practices play a very crucial role in this context. It has been noted that during elections, politicians have succumbed to gambling on these illegal immigrants to gain a foothold in their respective constituencies. In India, the state governments of the state of West Bengal and Assam have often been accused of granting illegal ration cards and voter identity cards to the Bangladeshi Refugees and monopolizing on their votes to stay in power.
This was one of the reasons that the N.D.A.-led Central Government proposed to mete out a 12 digit unique identification number known as the AADHAR for all the residents of India. Although, concerns about the right to privacy under Article 21 of the Constitution of India has limited the application of AADHAR and the K.S Puttaswamy Judgement, a bench of Justices B.S. Chauhan, J. Chelameswar and M. Y. Eqbal, while assessing the advantages of Aadhaar cards from a national security perspective observed, “As on date, illegal migration to India continues unabated. By collecting personal details for AADHAR cards, at least there can be some basis to identify an illegal immigrant.”
The provisions of the Foreigners Act of 1946, regulates the safeguards in place in India, apropos of the rights of refugees and asylum seekers. Simultaneously, India has numerous statutes in place which have placed immigrants at considerable risk of deportation. Such stringent policies on national immigration pose a major risk to those who leave their own countries in fear of losing their lives and livelihood. The 1950 Immigrants (Expulsion from Assam) Act, empowers the central government to order such immigrants to be expelled. This Act provides the central government with the duty of unilaterally removing any immigrant or immigrants from Assam as they see fit. The 2000 Immigration (Carriers Liability) Act, on the other hand, allows the central government to impose a fine of up to Rs. 1 Lakh on anyone found to have brought these immigrants to India. Such powers to order the deportation of immigrants and penalization of carriers allow brazen human rights abuses of an already vulnerable segment of the population, many of whom are women and children looking for shelter and protection.
To further streamline illegal immigrants in the country, the Central Government has sought to extend the application of the National Register of Citizens to the whole of India and subsequently adopted the Citizenship Amendment Act in 2019, thus, amending the Citizenship Act of 1955. The Act paves the way towards the attainment of Indian Citizenship to various illegal immigrants hailing from the Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities of Pakistan, Bangladesh, and Afghanistan, before December 2014. The right to citizenship has been denied to their Muslim counterparts which is in sync with the majoritarian tendency of crushing secularism gradually by the Government.
This Act has been severely criticized by the international community for its incitement towards religious discrimination in national legislation for the first time in India. It has been marked with a series of violent protests across the nation, only to be temporarily thwarted by the entrenchment of the novel coronavirus around the globe. While India has maintained its stance that the CAA is an internal matter, the United Nations High Commissioner for Refugees, Michelle Bachelet Jeria, has sought intervention as amicus curiae over this issue in the Supreme Court of India. Whether the application is entertained in the Apex Court or not remains to be seen.
In the concluding section of this article, the author reaffirms that refugees in their host country may be subject to various biases, from obstacles in obtaining the required documents for making persecution claims, to denial of a fair trial and access to legal aid. In these situations, the role of the judiciary in balancing the scales is extremely significant. The judiciary is under the constitutional duty to ensure that all authorities – legislative, political, administrative, judicial, and quasi-judicial – are kept within the check in any legal struggle between the wealthy and the poor, powerful and weak, without fear or favour.
The judiciary equalizes incongruities between the Legislative intent and the statutory content by reading into them liberal principles. This is evident in various cases of confrontation with matters that have not been stated before in statutory or legislative enactments in India. The Vishaka guidelines for sexual harassment at workplace promulgated in the high-profile case of Vishaka v. State of Rajasthan., by the Supreme Court of India, provides an important example. The author proposes that the courts should in accordance with their position as the guardian of the Constitution proactively extend these fundamental human rights protections to refugees in India and uphold their right to non-refoulement in accordance with the principles of international law.
The author also emphasizes the importance of the rule of law for the establishment of refugee rights-respecting legal structure in the States of origin and host countries. The rule of law as a type of interventionist reform across developed economies is proactively hounded after by international financial institutions such as the World Bank, the International Monetary Fund, and other government-based donor bodies. The specification has been made concerning the maintenance and improvement of the rule of law by a mandate from donor agencies, international financial agencies, and foreign organizations, including the United Nations. The rule of law has now become an answer to all the global concerns and problems as is apparent through its promotion as a solution to various policy challenges. It has, in particular, emerged as a tool to promote economic growth. The mission of the UNHCR is to contribute to the establishment and strengthening of the rule of law in institutional structures across developing nations. Nationality and institutional processes are fundamental elements of the rule of law and essential for dealing with the root causes of conflict in accordance with widely recognized standards of human rights. Host nations can temporarily assist refugees through the promotion of self-reliance in the absence of a lasting long-term solution by means of permanent resettlement.
Whilst acknowledging Asian regional sentiments and counter western policy inclinations as a part of Asian culture and tradition, the author emphasizes that the administrative and legislative policy of India has been substantially dictated by India’s colonial history. In contrast to most Asian nations, India should take a page out of its colonial predecessors’ books and seek to provide more lasting solutions through the resettlement, as opposed to only temporary “humanitarian” assistance. The issue of South Asian states having a more equitable share in solutions to the global problem of refugees in need of protection should be taken up in the SAARC.
The United Nations Convention Relating to the Status of Refugees, 1951, art.1(2).
United Nations High Commissioner For Refugees, Press Release(2019), available at https://www.unhcr.org/news/press/2019/1/5c2f2a374/unhcr-seeking-clarification-india-returns-rohingya.html (last visited on Oct.22, 2020).
Mohammad Salimullah v. Union of India, WP (C) 793/2017.
The Constitution of India, 1950, art. 21.
Maneka Gandhi v. Union of India, AIR 1981 SC 746.
Francis Coralie v. Union Territory of Delhi, AIR 1978 SC 597.
Olga Tellis and others v. Bombay Municipal Corporation and others, AIR 1986 SC 180.
Mohammad Salimullah v. Union of India, WP (C) 793/2017.
The Constitution of India, 1950, art.14.
The Constitution of India, 1950, art.51.
The Constitution of India, 1950, art. 51(c).
 Ulaganathan v. Ministry of External Affairs, WP (MD) 5253 /2009 (2019).
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
The Times New Network, “Aadhaar can be used to identify illegal migrants: SC” The Times of India, Feb.5,2014, available at: https://timesofindia.indiatimes.com/india/Aadhaar-can-be-used-to-identify-illegal-migrants-SC/articleshow/29874774.cms (last visited on Oct. 27, 2020).
 The Immigrants (Expulsion from Assam) Act, 1950, sec. 2.
 The Immigration (Carriers Liability) Act 2000, sec.3.
Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241.
BY- SUDIPTA ROY CHOUDHWRY | AMITY UNIVERSITY, NOIDA