LEGAL CONDITIONS OF REFUGEES IN INDIA

∗
Santhy.S.Pillai

Indian approach to refugee protection deserves special mentioning as it

holds within her boundary about 3,30,000 refugees without any formal
obligations based on international documents.1 But from the human
rights perspective the lack of specific refugee legislation or formal
recognition of 1951 Convention on Refugees or the 1967 Protocol has led
to varying treatment of different refugee groups within the territory. The
status of refugees in India is governed mainly by political and
administrative decisions rather than any codified model of conduct.2 Still
India is renowned as a refugee-receiving country than a refugee-
producing country.3

LEGAL FRAME WORK FOR THE PROTECTION OF REFUGEE IN

INDIA
The main approach adopted in India is to treat the refugees under
the laws applicable for all foreigners. But there exist a considerable
difference between a refugee and a foreigner. The 1951 Convention on
Refugee defines the group as those who have fled from their home
country owing to well-founded fear of persecution on race, religion,
nationality, membership of a particular social group or political opinion
and is unable or unwilling to return to his country because of that reason.


Advocate, Ashtamudi Law Chambers, Kollam.
1
India is neither party to the 1951 Convention on Refugees nor the 1967 Protocol
2
Human Rights Law Network, Report Refugee Populations in India 2007, available at www.ssrn.com
3
Tapan K. Bose, Protection of Refugees in South Asia: The Need for a Legal Frame Work (2000) as
quoted in Omar n. Chaudhary, Turning Back: An assessment of Non-Refoulement under Indian
law,www.ssrn.com

1
But ordinary foreigners are quite different category. They may include
temporary residents, tourists or travellers. They come to India for
specific purpose with the prior permission of Indian Government. They
may turn as refugees if during their stay in India the circumstances in
their homeland turned as equal to that of 1951. There is yet another
category like illegal economic migrants who intrude into our borders
solely to improve their economic prospects without any formal
authorisation from both the country of origin ad destination. Another
threatening group are that of criminals, spies, infiltrators, militants etc.
They will be dealt with Indian criminal laws or special laws even if they
have a valid travel document. If all these categories of people are
handled with the same legislation there is bound to be disparities and
injustices.
In the absence of a specific statute often the plight of the refugees
are decided based on the Foreigner’s Act drafted as early in 1946, the
Emigration Act, 1983 and the rules framed there under, the Passport Act
1967 and above all the Indian Constitution under Art 21. In India the
major law enforcing agencies which will deal with the refugees on the
first hand are the security personnel at the border, the immigration
personnel at land check post, international airport and the seaport, and the
State Police personnel. But till date it generally confirms to the
international documents for the protection of refugees. The status of
refugees in India is governed mainly by political and administrative
decisions rather than any codified model of conduct.4 The ad hoc nature
of the Government’s approach has led to varying treatment of different
refugee groups. Nowadays there has been stringent approach in dealing
with foreigners due to security concerns. This has resulted in genuine
refugees paying an unfortunate price in a country that otherwise has an
4
Human Rights Law Network, Report Refugee Populations in India 2007, available at www.ssrn.com

2
impressive history of protecting refugees.5 Through this paper I am
trying to evaluate the implications of each Act with reference to the
genuine refugee.

THE FOREIGNERS ACT AND ITS APPLICATION TO REFUGEES

The Foreigners Act is an archaic legislation that was enacted by a
colonial government in response to the needs of the Second World War.6
The Act primarily deals with the stay and exit of foreigners in India.7
Section 2(a) of the Act defines a ‘foreigner’ as “a person who is not
a citizen of India”, thus interpreted as covering all refugees within its
ambit. Through this Act the Central government is empowered to make
order for prohibiting, regulating and restricting entry of foreigners into
India, their departure there from and presence/ continued presence. The
types of possible restrictions are 1) no entry or departure 2) entry only at
such time only by such route only at such port/place. 3) Observance of
such conditions on arrival. There are a number of such Orders in force
that restrict the movement, activity and residence of foreigners; and,
require their proof of identity and regular appearance before the police.8
The Act invariably gives wide powers to the executive to refuse entry if
the foreigner do not fulfil the entry conditions and may resort to instant
deportation. This is often in contravention with the non-refoulement
which is practiced by members who are signatory to international

5
Bhairav Acharya, ‘The law, policy and practice of refugee protection in India’, available at
www.ssrn.com
6
See the Statement of Objects and Reasons of the Foreigners Act, 1946.
7
The preamble of the Act describes it as an Act to confer upon Central Government certain powers in
respect of foreigners’ Whereas it is expedient to provide for the exercise by the central government of
certain powers in respect of the entry of foreigners to India, their presence therein and their departure
therefrom.
8
See, for instance, the Foreigners (Restriction on Movements) Order, 1960; Foreigners
(Restriction on Activities) Order, 1962; Foreigners (Restrictions on Residence) Order,
1968; Foreigners (Proof on Identity) Order, 1986; and, Foreigners (Report to Police)
Order, 1971.

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documents and may seriously affect the rights of a genuine refugee. In
Hans Muller of Nuremberg9 the Supreme Court affirmed that
“The Foreigners Act confers the power to expel foreigners from
India. It vests the Central Government with absolute and unfettered
discretion and, as there is no provision fettering this discretion in
the Constitution, an unrestricted right to expel remains.”
Even after thirty five years the judiciary was reluctant to read
humanitarian principles into this approach and the situation continued in
Louis de Raedt v. Union of India10 and Sarbananda Sonowal’s case11.
Later some how the Court extended the Article 21 of Indian Constitution
to take hold of the non-refoulement principle which will be discussed
later. The other highlights of the Foreigners Act are 1)Section 5 prevents
foreigners from changing their name while in India 2) Section 6 requires
masters of ships and pilots of aircraft to maintain records of travelling
foreigners 3)Section 7 obliges hotel-keepers to maintain records of the
stay of foreigners 4) Section 9 places the burden of proving that a person
is not a foreigner on that person 5) Section 12 provides for the delegation
of these powers; and 6) Sections 14, 14A and 14B penalise foreigners
and abettors found in contravention of the Act or any Order made there
under.
The 175th Law commission report on the Foreigner’s Amendment
Bill 2000 put forth suggestions to harmonise the punishment provisions
in Foreigners Act and Passport Act. It suggested for the immediate
deportation of the foreigner and establishment of a grass root level
mechanism to monitor the entry of foreigners.

9
Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367 at p. 36.
10
(1991) 3 SCC 554 at pr. 13
11
(2005) 5SCC 665 at prs. 74-79.

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PRINCIPLE OF NON-REFOULEMENT UNDER INDIAN LAW
Refugee rights under the Convention and Protocol consist of two
primary components. First, the principle of non-refoulement, which
prevents the states from returning a refugee to his or her home country
where he has a well-founded fear of persecution. It is often considered as
the duty of the host state than as a right of the refugee. Second relates to
those rights available for the refugee which affects his day to day life in
the host country. These like the right to education, the right to hold
property, etc. The later rights arise only when the first principle is
exercised. The lack of a specific statute for dealing with refugees or
formal obligation under international documents gives an impression that
India is not under a formal duty to follow the principle of non-
refoulement. But there are three arguments which say that indirectly
Indian system provide a mechanism to retain the refugee on his arrival in
the Indian territory. One is the working of legal institutions like UNHCR
and the NHRC which prevent the return of valid refugees to their home
Countries.12 Another attempt is to read it under Art 21 by laying down
that the State shall not expel or return a refugee in any manner what so
ever to- the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion for it may turn out to be unfair
unjust and unreasonable. Another view is that the Constitution under
Article 51 automatically incorporates the international rule of non-
refoulement into India’s domestic laws.13

12
Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International
Journal of Refugee Law 238 (2000)
13
Veerabhadran Vijayakumar, Judicial Responses to Refugee Protection in India,. 12 International
Journal of Refugee Law 238 (2000)

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 CONSTITUTIONAL PROTECTION TO FOREIGNER’S

Foreigners are entitled to some degree of constitutional protection

while in India. These include the protection of the equality clause [Article
14] and the life, liberty and due process provisions [Article 21] of the
Indian Constitution. By the permissible classification criteria the
executive can very well classify among the different categories of
foreigners. Thus refugees are supposed to get preferential treatment from
the law enforcing agencies. The plight of a foreigner/refugee after he is
given a shelter is well taken care of by the various statutes applicable to
aliens and they very well confirm to the international standards. But the
major concern is his entry to the country on arrival at the border. In
1996, the Supreme Court in National Human Rights Commission v. State
of Arunachal Pradesh14 intervened with a liberal interpretation of the law
to suggest that refugees are a class apart from foreigners deserving of the
protection of Article 21 of the Constitution.15 To quote from the
judgment,
“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
14
(1996) 1 SCC 742
15
The case involved a dispute between Chakma refugees residing in Arunachal Pradesh and a group of
hostile locals(AAPSU). The Chakma people had been displaced in 1964 from erstwhile East Pakistan
(now Bangladesh) and moved from Assam to the current state of Arunachal Pradesh, a sparsely
populated area of India. Although many applied for citizenship, local officials prevented their
applications from reaching the federal government; despite living in India for over 30 years, some of
the Chakmas remained, officially speaking, non-citizens. As the Chakma population skyrocketed, the
AAPSU issued .quit orders,. demanding that the Chakma leave or suffer severe harm. Arunachal
Pradesh formulated plans to move the Chakmas to another state, even though some neighboring states
threatened to kill the Chakmas upon entry. Meanwhile the Ministry of Home Affairs was attempting to
confer blanket citizenship (but was continually foiled by the state, which refused to forward the
naturalization applications) and demanded that the state provide security at their present location.
Finally, the NHRC filed a petition in court demanding that Arunachal Pradesh halt the Chakmas. forced
migration and protect them from harm. Fortunately for the Chakmas, the Supreme Court ruled that they
could not be moved until the federal government had ruled on their citizenship, and that, in the
meanwhile, the state had an obligation to protect them from violence.

6
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.”16

In the above case Court was rather concerned about the substantive
and procedural aspect of Article 21 rather than the imperative right of the
refugee for a non-refoulement. In spite of this judgment it is a fact that
in the absence of an institutional framework one cannot fruitfully argue
that State is obliged to follow the principle of non-refoulement in its
dealings with refugees unless it is raised to the level of customary
international law as alleged by some academicians.17 . The argument is
based on the fact that the principle is extensively practiced by the 137
countries who are parties to the international convention for the
protection of refugees and is often advised to be followed by other
countries too. So by the time it has raised to the level of customary
international law as recognised by the majority international community.

EVIDENCE REQUIRED TO ESTABLISH A REFUGEE CLAIM

Since Indian law considers all non-citizen’s as aliens it is rather difficult
to prove the status of refugee if at all he is to get a better protection. He
should carry sufficient document to prove grounds for the fear of
persecution may be in the form of ID card of employment with some
governmental agency/ ID card indicating membership in a group. The
claimant must be able to establish all his statements to interviewing
authorities in a consistent manner without discrepancies. There will be
corroboration and confirmation of facts pertaining to persecution by the
16
(1996) 1 SCC 742 at para 20
17
H. Knox Thames, India’s Failure to Adequately Protect Refugees

7
authorities. The authorities will gather background details from the
government authorities or through the NGO’s.

INDIA’S INTERNATIONAL COMMITMENTS

Even though India lacks a specific legislation pertaining to refugee
protection it is a member to the Executive Committee of High
Commissioner’s Programme, 1995. EXCOM is the organization of UN
which approves and supervises the material assistance programme of
UNHCR. Membership in it indicates particular interest and greater
commitment to refugee matters. India is a signatory to the UN
Declaration on Territorial Asylum, 1967. There are contentions that India
has accepted the principle of non-refoulement as envisaged in the
Bangkok Principle 1966 which were formulated for guidance of member
states with respect to matters concerning status and treatment of refugees.

MAJOR REFUGEE CATEGORIES IN INDIA

The major categories of refugees existing in India may be explained
under three heads.
1) Those who receive full protection according to the standard set by
the Government of India eg. The Srilankan Tamil refugees and the
Jumma people from Bangladesh.
2) Whose presence in Indian territory is acknowledged by the
UNHCR and protected under the principles of non-refoulement eg.
Is that of Afgan, Somalian, Sudaneese, Burmeese etc.
3) Who have entered India and have assimilated into their
communities. Their presence is not acknowledged either by the
Indian Government or by UNHCR. Eg. Tribal refugees, Nagas
from Burma.
Conclusion

8
India often raises her concern of indefinite legal responsibility for not
signing the International Convention or the Protocol as the number of
persons seeking shelter has increased over a period of time. The
members are obliged to provide food clothing shelter and other basic life
amenities which involve the spending of a considerable portion of
country’s economy. This might be other reason for abstaining from the
international community in the matters of refugee protection. But it is an
immediate necessity to review the possibility of according the principle
of non-refoulement under the present legal system or a new procedural
legislation to meet the situation. Once India signs the International
document she has every chances of getting financial aid from the
international community. An international consensus on the policy is the
only way towards greater human rights approach.