ASHAY KAUSHIK

3rd Year, Vth Semester

14

PAPER ON ANALYSIS OF REFUGEE LAW AND EXIGENCY OF DOMESTIC

REFUGEE LAWS IN INDIA

“People floating like pollen in search of more fertile soil.” - Andrew Crofts.

Ashay Kaushik1

ABSTRACT:

Refugees are persons who are forced to leave there home land due to the well founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion. Nearly 1 person is forcibly displaced every two seconds, as a result of
conflict or persecution. The 1951 Convention on Refugees made an effort to recognize the
refugees and confer them a status along with a bundle of rights rendering them the protection in
jurisdictions they seek refuge. However the inability of the Convention and its 1967 Protocol to
distinguish refugees from that of an asylum seeker or Internally Displaced Persons lead to
creation of various regional instruments recognizing the other Population of concern.

This Paper makes an attempt to understand who are refugees and persons in refugee like
condition. An insight is provided with a consolidation of Conventions, Protocols, regional and
other instruments in place to protect the interests of the refugees and asylum seekers. Further a
brief analysis is made regarding the existing laws and policies in few major nations across the
globe. The Concluding part of the paper deals with an assertion as to the exigencies of a
domestic legislation for refugees in India. The Conclusion asserts that there is a ravishing need
of a domestic refugee regime in India in order to harmonise into legislation its long tradition and
experience in accommodating the inflow of refugees.

1
3rd Year Law student at Jamia Millia Islamia, New Delhi.
WHO ARE REFUGEES ?

The term Refugee has been derived from the French word refugie, meaning flee for safety.
Ordinarily, a refugee is referred to those persons who leave state in which they have permanent
residences to escape persecution or military action.2

Art. 1 a(2) of the Refugee Convention, 1951 defines refugees as :

“Owing to 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; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is unable
or, owing to such fear, is unwilling to return to it.”3

Around 68.5 million people around the world have been forced from home. Among them are
nearly 25.4 million refugees, over half of whom are under the age of 18. There are also an
estimated 10 million stateless people who have been denied a nationality and access to basic
rights such as education, healthcare, employment and freedom of movement and around 40
million Internally Displaced people and more than 3 million asylum seekers.4

Although the 1951 Convention lays down the dominant definition in conferring the status of
refugees, regional human rights treaties have modified the definition of a refugee in response to
displacement crises not covered by the 1951 Convention incorporating the internally displaced
persons (IDPs), asylum seekers and stateless persons to their charters. The UNCHR further
provided protection to IDPs and other population of concern.

UNCHR recognizes Asylum seekers as individuals who have sought international protection and
whose claims for refugee status have not yet been determined, irrespective of when they may
have been lodged.

2
Dr. H.O. Agarwal, International Law & Human Rights (Central Law Publications, 21st Edition, 2016).
3
Convention on Refugees, 1951.
4
UNHCR data, available at: http://www.unhcr.org/figures-at-a-glance.html (Visited on October 31, 2018.)
Internally displaced persons (IDPs) are people or groups of individuals who have been forced to
leave their homes or places of habitual residence, in particular as a result of, or in order to avoid
the effects of armed conflict, situations of generalized violence, violations of human rights, or
natural or man-made disasters, and who have not crossed an international border. For the
purposes of UNHCR's statistics, this population only includes conflict-generated IDPs to whom
the Office extends protection and/or assistance. Since 2007, the IDP population also includes
people in an IDP-like situation.

A stateless person is someone who is not a citizen of any country. Citizenship is the legal
bond between a government and an individual, and allows for certain political, economic,
social and other rights of the individual, as well as the responsibilities of both government and
citizen. A person can become stateless due to a variety of reasons, including sovereign, legal,
technical or administrative decisions or oversights.5

INSTRUMENTS IN PLACE

The most important international instrument drawn up relating to problems of refugees is the
convention relating to the status of refugees of 1951. The convention was narrow to confer the
status of refugee in sense that the Para 2 of Article 1 applied only to persons becoming
refugees before January 1, 1951. A protocol relating to the status for refugees was concluded
in 1967 in order to broaden the scope of the definition. 6 Although a few other international
instruments such as the Universal Declaration of Human Rights, the Covenant on Civil and
Political Rights and the Covenant on Economic, Social and Cultural Rights have made the
provisions affecting the status of refugees, the legal basis for the protection of refugees
presently is founded in the statute of the office of the UNCHR and the Refugee Convention of
1951 and its protocol of 1967. 7

Apart from the instruments providing general provisions for the protection of the Refugees
there are many other specific and regional instruments with regard to the refugees and people

5
UNCHR Population Data, available at: http://www.unhcr.org/figures-at-a-glance.html (Visited on October 31,
2018.)
6
Protocol under Para2 of Article 1 omitted the expression ‘as a result of events occurring before january1, 1951.
7
Dr. H.O. Agarwal, International Law & Human Rights 874 (Central Law Publications, 21st Edition, 2016).
in refugee like conditions. Some of those instruments are- American Declaration on the Rights
and Duties of Man (art. 27), American Convention on Human Rights (art. 22), Cartagena
Declaration on Refugees, Colloquium on the International Protection of Refugees in Central
America, Mexico and Panama, African (Banjul) Charter on Human and Peoples’ Rights (art. 12),
OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa, Arab
Charter on Human Rights (art. 28), Cairo Declaration on Human Rights in Islam (art. 12),
European Convention on Human Rights (arts. 2, 3, and 5), Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 3), African Union Convention
for the Protection and Assistance of Internally Displaced Persons in Africa, Convention on the
Rights of the Child (art. 22), the International Convention on the Elimination of all Forms of
Racial Discrimination (1965).
Along with the instruments providing with the provisions for the protection of the refugees there
are also Council regulations and directives which confirm to the status and standards to confer
the status of refugees to them. Council Regulation EC No 343/2003 of 18 February 2003
establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member States by a third country national.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection granted.

EXIGENCY OF DOMESTIC LEGISLATION IN INDIA:

India is a home a substantial population of asylum seekers and refugees, provided its disturbed
borders, however the domestic refugee policies seem to be ad-hoc and ambiguous. India
currently hosts 32,000 refugees fleeing war, violence and severe persecution in countries such
as Afghanistan, Myanmar, Somalia, Iraq, etc. This is in addition to the 175,000 long-staying
refugees from Tibet and Sri Lanka who have been given asylum over decades. 8 Internal
conflicts, terrorism, and civil war-like situations have often resulted in scores of people knocking

8
Refugees Hosted by India, available at: https://thewire.in/law/its-time-india-had-a-refugee-law (Visited on
October 31, 2018.)
on India’s doors in the last decade. India, with its ‘atithi devo bhava’ motto might not have
turned them away but has been reluctant in signing important conventions like the 1951 UN
Refugee Convention or its 1967 Protocol on the Status of Refugees. 9While India has historically
been humane and generous in its treatment of refugees, it is a matter of surprise that India is
yet to enact a coherent and uniform law addressing the issue of asylum. In fact, the term
“refugee” finds no mention under domestic law. 10
The reasons behind such state of affairs can be attributed to numerous conditions. Firstly, the
porous borders of India continually disturbed and inflicted with terrorism and civil war like
situations the state apprehends the misuse of any such specific regulation made for the protection
of refugees and asylum seekers by criminal elements and terrorists to stay in India legally. The
another major reason for such ignorance to domestic legislations in this regard is that the
drawing up legislations for refugees is not considered a priority for the government, given the
range of other crucial issues that have to be addressed by Parliament. Thirdly, any national
legislation for refugees shall enable courts to regularly intervene in the protection and
rehabilitation of refugees, thus preventing the State from using them as a tool in foreign policy
matters. Moreover there is considerable worry about the expenses that may have to be incurred
by the government when hosting refugees, in addition to the feeling that State authority may be
undermined when dealing with them. 11
Even though the international Covenants to which India is a signatory have not been enacted into
Indian law thus rendering them not enforceable in Indian Courts, nevertheless Courts in India
have always adopted a liberal approach in taking into account the international Covenants while
interpreting the statute law. The doctrine of incorporation is well recognized principle of Indian
Judiciary. The apex court in its Judgment clearly stated that -
“In the absence of domestic Law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the contents of
international conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity…. Any international
convention not inconsistent with the fundamental rights and in harmony with its spirit

9
Exigency of Domestic Refugee Legislation, available at: https://yourstory.com/2017/06/india-need-refugee-law
(Visited on October 31, 2018.)
10
Supra Note 9
11
Chimni, B.S. “Legal Condition of Refugees in India.” In Chimni B.S, Ed., International Refugee Law: A Reader,
7th ed., Sage Publications, 2008: 529.
 must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee.”12

Even though the doctrine of incorporation is accepted and applied by Indian courts, according to
which, rules of customary international law can be regarded and implemented as internal law
however, it can be done only if these are consistent with Acts of Parliament. Despite not being a
signatory to the International Law Conventions regarding the refugees it has acceded to the
Conventions which generally provides for protection of refugees and asylum seekers in the
national territory. For instance, the Convention on Torture, 1984, ratified by India has been
successful in compelling India to consider the principle of non-refoulement or no forcible
repatriation when formulating policies for refugee resettlement and rehabilitation. Yet, it is a fact
well established that Courts in India can enforce customary international law only if this is not in
conflict with the domestic laws and statutes.
It was observed by the Supreme Court in Gramophone Co. Of India v. Birendra Bahadur
Pandey,13 that-
“The Comity of Nations requires that Rules of International Law may be accommodated in the
Municipal Law even without expressive legislative sanction provided they do not run into
conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and
integrity of the Republic and the supremacy of the constituted legislatures in making the laws
may not be subjected to external rules except to the extent legitimately accepted by the
constituted legislatures themselves. The doctrine of incorporation also recognizes the position
that the rules of international law are incorporated into national law and considered to be part
of the national law, unless they are in conflict with an Act of Parliament. Comity of Nations or
no, Municipal Law must prevail in case of conflict.”

A limited mandate and the imposition of several restrictions by the Indian State have prevented
UNHCR from successfully improving the plight of the vast majority of refugees living in this
country. A National legislation for refugee protection will lead to the uniform and humane
treatment of refugee and asylum seeking groups, thereby enabling India to uphold its

12
Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
13
A.I.R 1984 SC 667, p 671.
International humanitarian commitments and successfully address its internal security concerns
at the same time.

CONCLUSION

While India has a human rights law regime, an effective National Human Rights Commission
and an innovative, creative and activist judiciary, yet now there is urgent need for a domestic
refugee law regime. India now needs to consolidate, streamline and harmonise into legislation its
long tradition and experience in accommodating the inflow of refugees, its faith in the principles
of non-refoulement and its commitment to uphold the principles of international human rights.