HUMAN RIGHTS OF REFUGEES

IN INDIAN LEGAL REGIME

AND ROLE OF JUDICIARY

^^^^^^^^^^^^^^=
 CHAPTER - IV

"HUMAN RIGHTS OF REFUGEES IN INDIAN LEGAL REGIME

AND ROLE OF JUDICIARY"
PRELUDE
Although there are international institutions for the
protection of refugees as it is submitted earlier in chapter III,
still ultimately the protection of refugees depends on
individual sovereign states which have to follows their
respective national legislation. States have the responsibility
to protect refugees by reason of their accession to
international i n s t r u m e n t s , by reason of their own legislation,
by reason of their political and moral commitments, or by
reason of customary international law.i In its ninth session in
1954, the United Nations General Assembly recognized that
'the ultimate responsibility for the refugees within the mandate
of the High Commissioner fall in fact upon the countries of
residence".^

Despite the fact that currently there are 146 states

parties to the 1951 Convention or its 1967 Protocol,3 many
countries which do harbour large number of refugees, and are
vitally concerned with refugee problems are not parties to the
refugee conventions. The states of the Asian region lag
significantly behind those of other regions of the world. So far
in Asia only China, Iran, J a p a n and the Philippines (and Iran
Israel and Yemen) are states parties. Whereas states in other
regions of the world have adopted binding regional

1. Prof. Rahmutullah Khan as quoted in Manik Charkraborty, Human Rights and

Refugees-Problems, Law and Practices, 2 0 0 1 , p. 119.
2. hi'., at 120.
3. Dr. Nairn Ahmed, "Nurturing hope and lending a hand to the refugees, 1 1, p.
6, http://wwvv.thedailvstar.net/law, visited on 27.07.2009
 CHAPTER - IV

i n s t r u m e n t s for the protection of refugees. There is no such

instrument to protect the refugees of the Asian region.'*
Historically, South Asia h a s witnessed s u b s t a n t i a l intra-
regional movement and dislocation of regional groups fleeing
ethnic or religious persecution and political instability.
India's multiethnic, multilingual and relatively stable society
has often made it a n a t u r a l destination for people fleeing
persecution and instability in their own countries.^ This
phenomenon continues, today India is still a land of refuge.
India's s t a t u s as a preferred refugee haven is confirmed by
the steady flow of refugees from many of its sub- continental
neighbours as also from elsewhere. India continues to receive
them despite its own over-a-billion population with at least
six hundred million living in poverty with limited access to
basic amenities.6

Refugees in India

India mostly plays host to refugees from its neighouring

countries who are either forced to leave their countries of
origin due to internal or external conflict, political
persecution or h u m a n rights infringements. Tamil refugees
from Sri Lanka, J u m m a people from Bangladesh, Tibetan
refugees from Tibet and Chin and other tribal refugees from
Burma, Afghanistan, Iran and even Sudan today comprise the
bulk of India's refugee population.^ In modern times, the
movement of the refugees and displaced persons has seriously
affected India and other South Asian countries. The statistics

4. Patricia Hyndman, "Developing International Refugee Law in the Asian-

Pacific Region: Some Issues and Prognoses", Asian Year Book of
International Law, Vol. I. 1991, p. 26-27.
5. Isha Bothra, "The Law Policy and Practice of Refugee Protection in India", p.
1, http://www.legalserviceindia.com.. visited on 21.07.2009.
6. Arjun Nair, "National Refugee Law for India: Benefits and Road Blocks",
2007 p. 1 http://www.ipcs.org. visited on 16.07.2009.
7. Ibid.

227
 CHAPTER - IV

indicate that India has one of the largest refugee populations

in the world because of India's porous borders and
accommodative policies. It is estimated that India hosted
approximately 456,000 refugees in 2008,^ including about
96,000 Sri Lankans, about 73,300 stay in more than a
hundred camps but registered with the nearest police
stations. About 2,800 more entered in 2008.^ Some 110,000
Tibetans, about 80 percent of whom lived in camps or
scattered settlements, lived more freely in the country. 1°
About 100,000 ethnic Chin from Myanmar lived under the
most restricted conditions in the eastern state of Mizoram
with a few h u n d r e d in New Delhi.n An estimated 30,000
Afghans remained although only about 9,000 held UNHCR
mandate status. Around 25,000 Bhutanese refugees also
resided in India as more left Nepal for Indian states of West
Bengal, Sikkim, and Bihar and about 25,000 Nepalis
remained in fear of Maoists now in the Government of Nepal. 12
India also hosted some 600 Somali refugees, who began
fleeing their country after collapse of the government in 1991
and an unknown number of Iraqi and Iranian refugees and
about 200 Palestinians from Iraq also resided in India. i3 Some
65,000 ethnic Chakmas from Bangladesh remained mostly in
the states of Arunachal Pradesh, Mizoram and Assam. ^^ The
Supreme Court established their Indian nationality but the
actual naturalization process proceeded slowly.

8. World Refugee S u r v e y - I n d i a 2008, p . l , http://\vww.\vorldrefu gees survey, org

visited on 16.07.2009.
9. Ibid.
10. Ibid.
11. /(/., at 2
12. Ibid.
13. Ibid.
14. Ibid.

228
 CHAPTER - IV

Statistics for India

Item 2 0 0 8 Figures

Refugees 85 A s y l u m S e e k e r s 411,000

Sri L a n k a 120,000

China 110,000

Myanmar 100,000

Afghanistan 30,000

Bhutan 25,900

Nepal 25,200

New Asylum S e e k e r s 3,300

1951 C o n v e n t i o n No

1967 Protocol No

UNHCR E x e c u t i v e C o m m i t t e e Yes

Population 1.2 billion

GDP $ 1.2 trillion

GDP p e r C a p i t a $ 1,050
Source: World Refugee Survey, 2008

h t t p : / / w w w . w o r l d r e f u p e e s u r v e v . o r g / i n d e x . p h p ? t i t l e = i n d i a . v i s i t e d on 1 6 . 0 7 . 2 0 0 9

Legal Status of Refugees in India

In India there is no national legislation concerning
refugees, their legal s t a t u s and rights. They are treated as
aliens. In the absence of clear cut guidelines, refugees t h u s
fall u n d e r the purview of the legislative framework that
addresses all foreigners in India. Further India's refugee
policy is governed by certain administrative regulations.
There are three sets of laws that deal with foreigners in India.
They are: The Registration of Foreigners Act, 1939, dealing
with all the foreigners, the foreigners Act, 1946, empowering
 CHAPTER - IV

the state of regulates the entry, the presence and departure

of aliens in India and the foreigner's order 1948. Under
Section 2 of the Registration of Foreigners Act, the term
foreigner is defined as "a person who is not a citizen of India",
which can refer to aliens of any kind including immigrants,
refugees and tourists. The Foreigners Act of 1946 and the
foreigners' order of 1948 also uses this definition of a
foreigner.^^
The Indian government has the power to restrict
movement inside India, limit employment opportunities, and
control the opportunity to associate and the right to return
refugees to the country they have fled from. Further
Government has the power to either grant or refuse entry if a
person does not possess a valid passport.^^ The governments
can refoule refugees at the border, i'^

No c u r r e n t Indian law refers directly to refugees. The

current position is that they are dealt with under the existing
Indian Laws, both general and special, which are otherwise
applicable to all foreigners. In the absence of a legal process,
India's treatment of asylum seekers has always been a
political decision, a direct result of the country's relation
with the refugee's country of origin^^ hence the government of
India handles refugee matters administratively, according to

15. Tapan K. Bose, "India: Policies and Law's towards Refugees'", Asian Human Rights Commission
- Human Rights Solidarity, Vol. No. 10 Oct. 2000 http./. www.hrsolidarity.net Visited on
20.08.2009..
16. The Government may also order that any non-citizen of India "shall not enter
India or shall enter India only at such times and by such route and at such
port or place and subject to the observance of such conditions on arrival as
may be prescribed". I n d i a ' s citizenship Amendment Act of 2003 defines all
non-citizens who entered without visas as illegal migrants, with no exception
of refugees or asylum seekers.
17. Supra n. 6 at 6.
18. Devirupa Mitra, "India takes first steps to define refugee", April 29th (2008)
P. 6. http: /WWw.thaindian.com visited on 14.07.2009.

230
 CHAPTER - IV

internal domestic and bilateral political and humanitarian

consideration.
India is not a signatory to the 1951 convention relating to the
status of refugees or the 1967 protocol
India h a s never been a member of the 1951 International
Convention for Refugees and its 1967 Protocol, and even
though it is member of the UN High Commissioner for
Refugees (UNHCR) Executive Committee since 1996^9, but it
does not officially recognizes the work of the UN body in its
territory.20

India's reluctance to sign the Convention stems from its

position that it is Eurocentric, tailored to fit the refugee
movements after World War II and has not responded well to
mass migration.21 Another reason of not signing the UN
convention protecting refugees is that the signing convention
meant to be obligated to accept massive flows of refugees
from politically u n s t a b l e neighbors'. As mentioned earlier
India h a s a huge population over a billion people with at least
six h u n d r e d million living in poverty. Thus our own people
are living like refugees with limited access to basic
necessities. Signing convention implies taking on the
obligation to provide employment, food, housing, medical
care, education etc., to refugees.22 Despite not signing up, our
record to giving shelter has been very good.

India's International Commitments

India does not have on its s t a t u t e book a specific and
separate law to govern refugees. In the absence of such a

19. ExCom of the UNHCR approves and supervises the material assistance
programmes of the UNHCR.
20. Supra n. 18 at 7.
21. Ibid.
22. Palok Basu, Law Relating to Protection of Human Rights under the Indian
Constitution and Allied Laws, 2002, p. 527.
 CHAPTER - IV

specific law, all existing Indian laws like The Criminal

Procedure Code, The Indian Penal Code, and The Evidence Act
etc., apply to the refugees as well. Even though India is not a
signatory to the 1951 convention of Refugees and also the
1967 Protocol, India is a signatory to a n u m b e r of United
Nations and World Conventions on Human Rights, refugee
issues and related matters. India's obligations in regard to
refugees arise out of the later.23 India became a member o the
Executive Committee of the High Commissioner's Programme
(EXCOM) in 1995. Membership of the EXCOM indicates
particular interest and greater commitment to refugees
matters. India voted affirmatively to adopt the UN Declaration
of Human Rights which affirms rights for all persons, citizens
and non-citizens alike.24 India voted affirmatively to adopt the
UN Declaration of Territorial Asylum in 1967and also ratified
the International Covenant on Civil and Political Rights
(ICCPR) as well as the International Covenant on Economic,
Social and Cultural Rights (ICESCR) in 1976. India ratified
the UN Convention on the Rights of the Child in 1989. India
ratified the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) in 1974. Further
India accepted the principle of non-refoulment as envisaged
in the Bangkok-Principles, 1966, which were formulated for
the guidance of member states in respect of matters
concerning the s t a t u s and treatment of refugees. These
principles also contain provisions relating to the repatriation,
right to compensation, granting asylum and the minimum
s t a n d a r d of treatment in the state of asylum.25

23. T. Ananthachari, "Refugees in India: Legal Framework, Law Enforcement and Security", ISIL
Year Book of International Humanitarian and Refugee Law,
http: /w\vw.worldii.org/int/iournals IS1LYB1HRL7 2001, visited on 24.11.2007.
24. Ibid.
25. Ibid.
 CHAPTER - IV

A g e n e r a l s u r v e y of t h e law a n d policies of the India

s h o w s t h a t t h e c o u n t r y h a s followed m u s t of t h e p r o v i s i o n s of
I n t e r n a t i o n a l C o n v e n t i o n on Refugees in p r a c t i c e . T a k i n g t h i s
into a c c o u n t , it is clear t h a t India respects international
treaties on the treatment of refugees residing within its
t e r r i t o r y ; b u t it c h o o s e s to m a i n t a i n its own administrative
a r r a n g e m e n t of d e a l i n g with t e m p o r a r i l y or p e r m a n e n t s e t t l e d
refugee's c o m m u n i t i e s .

Indian Practice Regarding Refugee Protection

The p r a c t i c e of t h e I n d i a n G o v e r n m e n t h a s b e e n to deal
with refugees in t h r e e m a i n ways^^;

(a) Refugees in m a s s influx s i t u a t i o n s a r e received in c a m p s

and accorded temporary protection by the Indian
G o v e r n m e n t i n c l u d i n g , s o m e t i m e s , a c e r t a i n m e a s u r e s of
s o c i o - e c o n o m i c protection.27

(b) Asylum s e e k e r s from S o u t h Asian c o u n t r i e s or a n y o t h e r

country with which the government has a sensitive
relationship, apply to the government for political
a s y l u m w h i c h is u s u a l l y g r a n t e d w i t h o u t a n extensive
refugee status determination subject, of course, to
political exigencies;28

(c) C i t i z e n s of o t h e r c o u n t r i e s a p p l y to t h e office of the

United Nations High Commissioner for Refugees
(UNHCR) for i n d i v i d u a l refugee s t a t u s d e t e r m i n a t i o n in

26. Supra n. 5 at 2.
27. India has received and accommodated mass influx refugees from Tibet and
Sri Lanica in special camps with varying facilities for health, education and
employment, as cited in Isha Bothra, "'The Law, Policy and Practice of
Refugee Protection in India", 2007, p. 2, http://www, legal service india.com.
28. Asylum seekers who enter India individually after a mass influx has taken
place are granted asylum after a preliminary screening mechanism. This
process continues in the case of T i b e t a n ' s and Sri Lankans who enter India in
small number and must fulfill certain criteria before they are registered by
the Indian Government as cited in Isha Bothra, "The Law, Policy and Practice
of Refugee Protection in India",2007, p. 2, http:, /www .legalserviceindia.com.
 CHAPTER - IV

a c c o r d a n c e with t h e t e r m s of t h e UNHCR s t a t u t e a n d t h e
Refugee Convention.29

Indian Government has established fairly well

experienced bureaucratic machinery conversant with the
p r o b l e m s of refugee a d m i n i s t r a t i o n .

I n d i a h a s a t h r e e p r o n g e d s t r a t e g y to deal with refugee

problem:^^

(a) The Home M i n i s t r y d e a l s with the f o r m u l a t i o n of policies

of r e h a b i l i t a t i o n a n d s e t t l e m e n t of r e f u g e e s .

(b) The Ministry of E x t e r n a l Affairs is e m p o w e r e d with t h e

r e s p o n s i b i l i t y of b i l a t e r a l n e g o t i a t i o n a n d to deal with
the issues internationally.

(c) The State Governments are entrusted with the

responsibility of protection and maintenance of the
refugee c a m p s at t h e local level.

On t h e o t h e r h a n d , N a t i o n a l H u m a n R i g h t s C o m m i s s i o n ,
Minority C o m m i s s i o n a n d S t a t e H u m a n R i g h t s Commission
etc., are entrusted for ensuring overall human rights,
f u n d a m e n t a l freedom a n d e q u a l o p p o r t u n i t y to all, a t n a t i o n a l
level in t h e i r a r e a s .

Refugees and the Indian Legal Framework

I n d i a is h o m e to one of t h e l a r g e s t refugee populations

in t h e world. A l t h o u g h t h e I n d i a n g o v e r n m e n t claim t h a t its
policies conform to i n t e r n a t i o n a l s t a n d a r d s , no I n d i a n law
refers directly to refugees. The r e s u l t is t h a t refugees are

29. In 2003, the UNHCR handled, inter alia, 10283 refugees from Afghanistan
and 940 refugees from Myanmar. The UNHCR also handles refugees from
Iran, Sudan, Somalia and other countries etc as cited in Isha Bothra, "The
Law, Policy and Practice of Refugee Protection in India'",2007, p. 2,
h ttp: //\v w w. 1 e ga 1 se r V i c e i n d i a. com.
30. Manoj Kumar, "International Human Rights Law for Refugees-An Indian
Perspective", The Third Concept, an International Journal of Ideas, May
2 0 0 1 , p. 2 1 .

234
 CHAPTER - IV

treated under the law applicable to aliens. The Indian

government deals with the refugees at both the political and
administrative levels. Refugees encounter the Indian legal
system on two c o u n t s . There are laws which regulate their
entry into and stay in India. Once they are within the Indian
Territory, they are then liable to be subjected to the
provisions of the Indian penal laws for various commissions
and omissions under a variety of circumstances.^i There are
various constitutional and legal provisions with which
refugees may be concerned u n d e r varying circumstances.

(i) Constitutional Provisions

India is a country governed by the Rule of Law. Indian
Constitution is a living document in which the s t a t u s of
human rights is fairly high. Constitution confers certain
rights on every h u m a n being and certain other rights on
citizens. Every person is entitled to equality before law and
equal protection of the law. So also, no person can be
deprived of his life or personal liberty except according to
procedure established by law. Thus state is bound to protect
the life and liberty of every h u m a n being, be he a citizen or
otherwise.32 The Constitution of India expressly incorporates
the common law percept and the courts have gone further to
raise it to the s t a t u s as one of the basic features of the
Constitution which cannot be amended. The Constitution of
India reflects the international norms set out in the Universal
Declaration of Human Rights which, among other things,
affirm, the principle of non-discrimination and proclaim that
all h u m a n beings are born free and equal in dignity and
rights, and that everyone is entitled to all the rights and
freedoms set forth in the document without distinction of any

31. Supra n. 23 at 5.
32. Supra n. 22 at 529.

.Z33
 CHAPTER - IV

kind.33 Hence, in India, almost all the basic refugee rights

have got constitutional recognition. Chapter III of the
constitution, under Article 14-35, deals with a variety of
fundamental rights. However, all these fundamental rights
are not available to aliens and at the time of emergency, due
to war and external aggression, the enforceability of the
fundamental rights other t h a n right to life can be suspended
by the state.^^

The constitution of India provides following fundamental

h u m a n rights and fundamental freedoms to refugees, legally
admitted to India and so long as he is permitted by the
government to remain in this country:
(a) Equality before the Law or Equal Protection of the Law^^

The principle of 'equality before the law' is universally

recognized, and is to be found in almost all those written
Constitutions which guarantee fundamental rights. The
underlying principle of Article 14 is that all persons and
things similarly circumstanced should be treated alike both
in privileges conferred and liabilities imposed. Among equals,
the law should be equal and should be equally administered.
The like should be treated alike. What is prohibited is
discrimination between persons who are substantially in
similar circumstances or conditions.3^ Article 14 applies to
"any person" and is not limited to citizens alone. Both
individuals and juristic persons are entitled to the benefit of
Article 14.

33. V.D. Mahajan, Constitutional Law of India, 1984, p. I l l

34. Supra n. 30.
35. A r t i c l e 14 of the I n d i a n C o n s t i t u t i o n .
36. Supra n. 33 at 86.

236
 CHAPTER - IV

Article 14 provides: "The state shall not deny to any

person equality before the law or equal protection of laws
within the territory of India".
Why May Claim Article 14 Protection

The obligation imposed on the state by Article 14 is for

the benefit of all persons, within the territory of India. The
benefit of Article 14 is, therefore, not limited to citizens.
Every person whether n a t u r a l or artificial, whether he is a
citizen or an alien,37 is entitled to the protection of this
Article.38

So, as per the provision, even a foreigner will have the

right to invoke Article 14 and complain against the
discrimination if he is denied the equal protection of law
within the territory of India. The state would not discriminate
a refugee against other refugees of same class regarding any
benefit or rights they enjoy by virtue of their refugee s t a t u s .
It may however be noticed that an alien (a foreign national)
cannot claim equal rights under Article 14 with that of the
Indian nationals, so far as the grant of citizenship of India.

In Louis De Raedt Vs. Union of India,^^ the Supreme

Court had ruled that the fundamental rights of the foreigner
was confined to Article 21 and did not extend to a foreigner,
the right to reside and settle in India, as states in Article 19
(1) (e) Relying on the j u d g m e n t s and distinguishing the
decision of the Supreme Court in National Human Rights
Commission Vs. State of Arunachal Pradesh'^^ the Madras High
Court in David John Hopkins Vs. Union of India"^^, held that
foreign nationals did not have any fundamental right

37. NHRC Vs. State of Arunachal Pradesh, 1996, ISCC 295.

38 Narender Kumar, Constitutional Law of India, 2007, p. 105-106.
39. AIR 1991 SC 1886.
40. AIR 1996 SC 1234.
41. AIR 1997 Mad. 366.

:37
 CHAPTER - IV

guaranteed for the grant of citizenship of India, in which

m a t t e r s , the Government of India had got unrestricted power
under the citizenship Act, 1955, to refuse citizenship, without
assigning any reason whatsoever and that a foreign national
could not claim equal rights under Article 14 with that of the
Indian national.^^2

(b) Right to Life and Personal Liberty etc.^^

The Indian Constitution guarantees the right to life and

personal liberty to all persons. The protection of Article 21 of
the constitution is available to citizens as well as non-
citizen,^4 and they also have right to live, as long as they are
here, with h u m a n dignity.
Article 21 provides "No person shall be deprived of his
life or personal liberty except according to procedure
established by law". This right has been held to be the heart of
the constitution.'^^
Article 21 secures two rights:
(i) Right to life; and
(ii) Right to personal liberty
Article 21 prohibits the deprivation of the above rights
except according to procedure established by law.^s
Article 21 can be claimed only when a person is deprived
of his "life" or personal liberty by the "states" as defined by

42. Supra n. 38 at 106.

43. Article 21 of the Constitution of India.
44. The foreigners enjoy the protection of Article 21 in two ways:
(a) They are equally entitled to the right against deprivation of life or bodily
integrity and dignity (Louis De Raedt (1991) 3 SCC 554 at P. 13; Chandrima
Das 2000, 2 SCC 465 at P. 28, 32 and 34; Anwar (1971) 3 SCC 104 at p. 4;
and NHRC 1996, 1 SCC 742 at p. 20.
(b) To a certain extent, the right against executive action sans procedural due
process accrues to them. P. Mohammed Khan 1978, 1 1 APWR 208.
45. l.R. Coelho Vs. State of T.N., AIR 2007, SC 89 1.
46. Supra n. 38 at 289.

238
 CHAPTER - IV

Article 12. It not only refers to the necessity to comply with

procedural requirements, but also, substantive rights of
citizen.'^'^ Violation of the right by a private individual is not
within the purview of Article 21."^^
Who can claim the Protection of Article 21
The right secured by Article 21 is available to every
person, citizen or non-citizens. Thus, even a foreigner"^^ can
claim this right. However, Article 21 applies only to natural
person. It has no application to corporate bodies.^^
It is well settled that an alien can claim the protection
of Article 2 1 . It, however, does not include the right to reside
and settle in India, as mentioned in Article 19 (1) (e) which is
applicable to the citizens of the country.^i
In Cherchi Domenico Ferdinando V. Union of India^^, the
petitioner a foreigner who had come to India on tourist visa,
granted extension to stay in India on the ground of his
purported marriage with an Indian, which way, in fact, to
facilitate and carry out widespread trafficking in drugs by
foreign t o u r i s t s . Holding t h a t an alien had no right to reside
or settle in India, the Delhi High Court upheld his
deportation from India by an order of the Government.

J u s t as the state is under an obligation to protect the

life of every citizen in this country, so also the state is under
an obligation to protect the life of the persons who are not
citizens. Thus, the refugees can avail of the benefit under

47. Bombay Dyeing & Mfg. Co. Vs. By. E.A. Group 2006, 3 SCC 4 3 3 .
48. Supra n. 46.
49. A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27; NHRC Vs. State of
Arunachal Pradesh, AIR 1996 SC 1234; Louis De Raedt Vs. Union of India,
AIR 1991 SC 1886.
50. Supra n. 38 at 290.
51. Cherchi De Raedt Vs. Union of India, AIR 1991 SC 1886; Hans Muller of
Nuremburg Vs. Supdt. Presidency Jail, Calcutta AIR 1955 SC 367.
52. AIR 2004 Del. 147.
 CHAPTER - IV

Article 21 of the Constitution in the same way as the citizens

of India. They cannot be exposed to threat to life and
personal liberty. State being governed by the rule of law is
bond to protect the life and liberty of every h u m a n being, be
he a citizen or otherwise.
Article 21 is of the widest amplitude after the judgment of
Meneka Gandhi case^^ and it covers a variety of rights which
are provided to refugees' aliens and non-citizens in India:
(i) Right to live with human dignity^^

"It is the fundamental right of everyone in this country to

live with hum.an dignity free from, exploitation." This right to
live with h u m a n dignity enshrined in Article 2 1 .
(ii) Right to livelihoods^

"The right to life includes the right to livelihood." If the

right to livelihood is not treated as a part of the
Constitutional right to right to life, the easiest way of
depriving a person of his right to life would be to deprive him
of his means of livelihood to the point of abrogation. Deprive
a person of his right to livelihood means person is deprived
from his life.
(iii) Right to Shelter^^

The right to shelter has been held to be a fundamental

right which springs from the right to residence secured in
Article 19 (1) (e) and the right to life guaranteed by Article
21.

53. Menaka Gandhi Vs. Union of India, AIR 1978 SC 597.

54. Francis Coralie Vs. Union Territory of Delhi, AIR 1981 SC 746; also see,
Bandhua Mukti Morcha Vs. Union of India, 1984 SC 802.
55. Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 180; also see,
Narendra Kumar Chandla Vs. State of Haryana, AIR 1987, Bom. 406.
56. Chameli Singh Vs. Union of India, AIR 1996 SC 1051, also see, Prabhakaran
Nair Vs. State of T.N., AIR 1987 SC 21 17.

MO
 CHAPTER - IV

Right to shelter, includes adequate living space, safe

and decent structure, clean and decent surroundings,
sufficient light, pure air and water, electricity, sanitation and
other civic amenities like roads, etc. So as to have easy
access to his daily avocation. The right to shelter, does not
mean a mere right to a roof over one's head but "right to the
entire infrastructure necessary to enable him to live and
develop as a human being".
(iv) Right to Education^''

Right to education is fundamental right u n d e r Article 21

and "it directly flows from the right to life". The right is,
however, not an absolute right and that it's content and
parameters have to determine in the light of Article 41 and
45.
The Constitution (86^^ Am.endm.ent) Act, 2002 inserting a new
Article 21-A declaring right to education an independent
fundamental right.^^
(v) Right to Social Security and Protection of the Family^^

Right to life guaranteed u n d e r Article 21 includes within

its ambit "the right to social security and protection of the
family". Interpreting Article 39 (e) of the Constitution of India
vis-a-vis Article 25 (2) of the Universal Declaration of the
Human Right and Article 7 of the International Convention on
Economic, Social and Cultural rights, 1965, J.K. Ramaswamy
in Calcutta Electricity Supply Corporation (India) Limited Vs.
Subhas Chandra Bose^^, held that the right to social and

57. Uni Krishan Vs. State of A.P., AIR 1993 SC 2178, also see, Mohini Jain Vs.
State of Karnataka, AIR 1992 SC 1858.
58. Supra n. 38 at 303.
59. Calcutta Electricity Supply Corporation (India) Limited (CESC Limited) Vs.
Subhas Chandra Bose, AIR 1992 SC 573.
60. AIR 1992 SC 573 (Minority opinion)
 CHAPTER - IV

economic justice was a fundamental right. It is explained that

right to life and dignity of person and s t a t u s without means,
were cosmetic rights. "Socio-economic rights were, therefore,
basic aspirations for meaningful right to life and that the right
to social security and protection of the family were integral
part of the right to life".
In NHRC V. State of Arunachal Pradesh^^ the Supreme
Court said that the state was bound to protect the life and
liberty of every h u m a n being, be he a citizen or otherwise an
that the state could not tolerate or permit anybody or group
of persons to threaten other person or group of persons.
(vi) Right to Health and Medical Assistances^

The right to life guaranteed u n d e r Article 21 includes

within its ambit the right to health and medical care. It
includes the right to lead a healthy life so as to enjoy all
faculties of the h u m a n body.63

It is not merely a right enshrined under Article 21 but

an obligation cast on the state to provide this both under
Article 21 and u n d e r Article 47.^4

(vii) Right to Privacy^^

The Right to personal liberty and the right to move freely

and speech could be described as contributing to the right to
privacy. However, the right was not absolute and would
always be subjected to reasonable restrictions.<^6 The right

61. AIR 1996 SC 1234.

62. State of Punjab Vs. M.S. Chawla, AIR 1997 SC 1225; Paschim Banga Khet
Mazdoor Samity Vs. State of W.B., AIR 1996 SC 2426.
63. Mr. ' X ' Vs. Hospital ' Z ' , AIR 1999 SC 495.
64. State of Punjab Vs. Ram Lubhaya Bagga, AIR 1998 SC 1703; Surjit Singh Vs.
State of Punjab, AIR 1996 SC 1388.
65. R. Rajagopal Vs. State of Tamil Nadu, AIR 1995 SC 264; Mr. "X" Vs.
Hospital 'Z\ AIR 1999 SC 495.
66. Govind Vs. State of M.P., AIR 1975 SC 1378.

142
 CHAPTER - IV

would necessarily have to go through a process of case by

case development.
(viii) Right to Free Legal Aid and Right to Speedy Trial
The "right to free legal aid" at the cost of the state to an
accused, who could not afford legal services for reasons of
poverty, indigence or incommunicado situation, was part of
fair, j u s t and reasonable procedure implicit in Article 21.^'^
The "right to speedy trial", has been interpreted to be a part
of the fundamental right to life and personal liberty.^^ Article
21 requires that a person can be deprived of his liberty only
in accordance with procedure established by law which
should be a j u s t , fair and reasonable procedure.

(ix) Right against Inhuman Treatment

The Supreme Court in several cases, has taken a serious
note of the i n h u m a n treatment meted to the prisoners and
has issued appropriate directions to prison and police
authorities for safe guarding the right of the prisoners and
person in police lock-up, particularly of women and
children.69 So the i n h u m a n treatment by the police was
violation of Article 2 1 . As h u m a n dignity is a clear value of
our Constitution not to be parted away for mere apprehension
entertained by jail officials.'^o

(c) Protection against Arrest and Detention^^

The Indian Constitution guaranteed protection against

arrest and detention in certain cases. It embodies procedural

67. M.H. Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548.

68. Pratap Singh Vs. State of Jharkhand, 2005 (3) SCC 551, Hussainara Khatoon
(No. 1) Vs. Home Secretary, Bihar, AIR 1979 (1360); Meneka Gandhi Vs.
Union of India AIR 1978 SC 597.
69. Rama Murthy Vs. State of Karnataka, AIR 1997 SC 1739; Khedat Mazdoor
Chetna Sangath Vs. State of M.P., AIR 1995 SC 3 1 .
70. Supra n. 3 8 at 33 3.
71. Article 22 of the constitution.

M3
 CHAPTER - IV

s a f e g u a r d s a g a i n s t a r r e s t or d e t e n t i o n w h i c h a r e a v a i l a b l e in
t h e following two c a s e s :

A. Where t h e a r r e s t a d e t e n t i o n is m a d e u n d e r t h e o r d i n a r y
law r e l a t i n g to c o m m i s s i o n of offences.

B. Where t h e d e t e n t i o n is m a d e u n d e r a law p r o v i d i n g for

preventive detention.

Who can claim Article 22

The s a f e g u a r d c o n t a i n e d in Article 22 c a n be claimed by

every person whether a citizen or a n o n - c i t i z e n . Even a
foreigner can claim these safeguards. However, these
safeguards are not available to an enemy alien (i.e., a
n a t i o n a l of a c o u n t r y with w h o m I n d i a is at war)'^^ Article 22
lays down the four rights/safeguards against arrest or
detention made under ordinary law relating to the
c o m m i s s i o n of offences:'^^

(a) Right to be informed, a s soon a s may be, of t h e g r o u n d s

for a r r e s t or d e t e n t i o n .

(b) Right to consult and to be defended by a legal

p r a c t i t i o n e r of h i s c h o i c e .

(c) Right to be produced before the nearest Magistrate

w i t h i n 24 h o u r s of a r r e s t .

(d) Right n o t to be d e t a i n e d in c u s t o d y b e y o n d 24 hours

w i t h o u t t h e a u t h o r i t y of t h e M a g i s t r a t e .

Article 22 (1) a n d 22 (2) of t h e I n d i a n Constitution

reflect t h a t t h e r u l e s of n a t u r a l j u s t i c e in c o m m o n law s y s t e m
are e q u a l l y a p p l i c a b l e in I n d i a , even to refugees.

72. Supra n. 38 at 344.

73. See, Article 22 (1) & (2) of the Constitution of India.

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 CHAPTER - IV

(d) Protection in Respect of Conviction for Offences'^^

C o n s t i t u t i o n p r o v i d e s p r o t e c t i o n in r e s p e c t of c o n v i c t i o n
for offences. The protection contained in Article 20 is
a v a i l a b l e to all p e r s o n s , c i t i z e n s or n o n - c i t i z e n s . The term
"person" in Article 20 includes a corporation which is
a c c u s e d , p r o s e c u t e d , c o n v i c t e d or p u n i s h e d for a n offence.

So t h e foreigners or a l i e n s are also entitled to the

p r o t e c t i o n of t h e rights:'^^

(a) The r i g h t a g a i n s t p r o s e c u t i o n u n d e r r e t r o s p e c t i v e p e n a l
law;

(b) The r i g h t a g a i n s t d o u b l e j e o p a r d y ; a n d

(c) The r i g h t a g a i n s t s e l f - i n c r i m i n a t i o n .

(e) Right against Exploitation^^

The C o n s t i t u t i o n of I n d i a p r o v i d e s p r o t e c t i o n against
e x p l o i t a t i o n . T h i s r i g h t is s e c u r e d to every p e r s o n , whether
citizen, n o n - c i t i z e n on a l i e n . The p r o t e c t i o n c o n t a i n e d t h e r e i n
is a v a i l a b l e n o t only a g a i n s t s t a t e b u t also a g a i n s t private
individuals.'7'^

Prohibition of "Traffic in Human Beings' and Forced Labour

Article 2 3 of t h e C o n s t i t u t i o n p r o h i b i t s traffic in h u m a n
b e i n g a n d b e g g a r a n d o t h e r s i m i l a r forms of forced l a b o u r a n d
any contravention of this provision shall be an offence
punishable in a c c o r d a n c e with law.'^^ However it d o e s not
prohibit state to impose compulsory services for public
p u r p o s e s p r o v i d e d t h a t in m a k i n g so it s h a l l n o t m a k e a n y

74. Article 20 of the Constitution of India.

75. See, Article 20 (1), 20 (2) & 20 (3) of the Constitution of India
76. Article 23 and 24 of the constitution of India.
77. P e o p l e ' s Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1473.
78. Article 23 (1) of the Constitution of India.

245
 CHAPTER - IV

discrimination on grounds only of religion, race, caste or

class or any of them.'^^
So this right is available to citizens and refugees, and
non-citizens without any discrimination. The practice of
traffic in human being is condemned in almost every
international i n s t r u m e n t dealing with h u m a n rights.

Prohibition of employment of Children^^

Article 24 provides: "No child below the age of fourteen

years shall be employed to work in any factory or mine or
engaged in any other hazardous employment".
This provision read with the Directive Principles of State
Policy contained in Article 39 (e) and 39 (g), provides for the
protection of the health and strength of children below the
age of fourteen years.^i
The prohibition contained in Article 24 could be plainly
and indubitably enforced against everyone, whether state or
private individual.
(j) Right to Religious Freedom^^

"Secularism is the basic feature of the Constitution".^^ In

the matter of religion, the state is neutral and treats every
religion equally.
Constitution of India provides 'freedom, of religion', the
right is available to every person, citizens or non-citizens or
aliens.
Article 25 of the constitution of India provides: "Subject
to public order, m,orality and health and to the other provision

79. Article 23 (2) of the Constitution of India.

80. Article 24 of the Constitution of India.
81. P e o p l e ' s Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1473.
82. Article 25 (1) o f t h e Constitution o f l n d i a .
83. S.R. Bommai Vs. Union o f l n d i a , AIR 1994 SC 1918.

246
 CHAPTER - IV

of this part, all persons are equally entitled to freedom of

conscience and the right freely to profess, practice and
propagate religion".
Article 25, secures to every person:

• freedom of conscience; and

• the right to-

profess religion;
practice religion; and
propagate religion
The state has an obligation to guarantee this right to
all.
(g) Right to Constitutional Remedies^

Fundamental Human Rights are meaningless unless

there is effective machinery for the enforcement of these
rights. Violation of the fundamental rights by the state can be
challenged. Article 32 and 226 of the Constitution provided
an effective remedy for the enforcement of these rights. So
any person whether citizen or non-citizen or alien or refugee
aggrieved by the infringement of the fundamental rights
enshrined in part III of the constitution can directly approach
to the Supreme Court or High Courts for relief.^^ j ^ is one of
the 'highly cherished rights'^^ of the Constitution. This right
has been held to be "integral part of an important and the
basic structure of the constitution".^'^

84. Article 32 and 226 of the Constitution of India.

85. For detail, see Article 32 of the Constitution of India.
86. Fertilizer Corporation Kamgar Union Vs. Union o f l n d i a , AIR 1981 SC 344.
87. Ibid.

247
 CHAPTER - IV

Thus, the right to move the Supreme Court or High

Courts for the enforcement of the fundamental rights is itself
declared to be a fundamental right.
(h) Directive Principles of State Policy^^

Part IV of the Constitution relates to the Directive

Principles of State Policy. It sets forth the ideals and
objectives to be achieved by the state for setting up in India a
Social Welfare State. The basic aim of the Welfare State is the
attainment of substantial degree of social, economic and
political equalities, the assumption by community acting
through the State, as its responsibility, to provide the means,
whereby all its members can reach minimum s t a n d a r d of
economic security, civilized living, capacity to secure social
s t a t u s and culture to keep good health. ^9

Article 51(a) requires that "The State shall endeavour to

promote international peace and security" which stipulated
that government had a fundamental duty to show compassion
which is important for the recognition of refugees as h u m a n
beings.50

Further Article 51 (C) stipulates that "the State shall

endeavour to foster respect for international law and treaty
obligations in the dealings of organized people with another". ^^
Even without being a party to the 1951 Convention
relating to the s t a t u s of Refugees or the 1967 Protocol, in
India, the rights of refugees to this extent are protected by
the provisions made in Constitution.
As discussed earlier all the basic human rights of
refugees have got constitutional recognition in India, inspite

88. Part IV of the Constitution related to Directive Principles of State Policy.

89. Supra n. 38 at 447.
90. Supra n. 38 at 467.
91. Ibid

248
 CHAPTER - IV

of t h a t t h e p e r s o n s who g r a n t e d a s y l u m in I n d i a get some

s p e c i a l t r e a t m e n t a s long a s t h e y r e m a i n in t h e t e r r i t o r y .

SPECIAL TREATMENT

(i) Exemption from penalties

Article 3 (1) of t h e 1951 Refugee C o n v e n t i o n provides

that "the contracting state shall not impose penalties, on
account of their illegal entry or presence on refugees who
coming directly from a territory. Where their life or freedom.
was threatened enter or are present in their
territory without authorization, provided they present
themselves without delay to the authorities and show good
cause for their illegal entry or presence".^^

This is one a r e a w h e r e I n d i a is very a p a t h e t i c towards

refugees. U n d e r Section 14 of t h e F o r e i g n e r s Act, 1946 a
foreigner is liable to t h e p u n i s h m e n t w i t h i m p r i s o n m e n t for a
t e r m w h i c h may e x t e n d to five y e a r s a n d is a l s o liable to fine.
Due to lack of a p r o c e d u r e for c o n s i d e r i n g a s y l u m c l a i m s , all
i n d i v i d u a l a s y l u m s - s e e k e r s who e n t e r e d illegally or s t a y e d
in I n d i a w i t h o u t a u t h o r i z a t i o n were p e r s e c u t e d a n d p u n i s h e d
u n d e r t h i s s e c t i o n . However, in c a s e of large scale influx,
I n d i a h a s a l w a y s a c t e d a c c o r d i n g to t h e p r i n c i p l e laid down in
t h e Refugee C o n v e n t i o n a n d h a s n o t i m p o s e d p e n a l t i e s on t h e
refugees.53

(ii) Identity and travel documents

The 1951 C o n v e n t i o n on t h e S t a t u s of Refugee under

Article 28 p r o v i d e s t h a t :

"The contracting states shall issue to refugees lawfully

staying in their territory travel documents for the purpose of

92. Manik Chakarbarty, Human Rights and Refugee - problems, Laws and
Practices, 2 0 0 1 , pp.132 - 133.
93. \d., at 134.

M9
 CHAPTER - IV

travel outside their territory unless compelling reason of

national security or public order otherwise require". ^"^
In India, all refugees who are recognized so were given
identification certificates showing their refugee s t a t u s . But,
as regard to travel documents; no refugee has so far had a
privilege of getting travel documents except Tibetan refugees.
Tibetan refugees can even travel to foreign countries and
come back to India on the basis of such identification paper.^s

Statutory Provisions
In the absence of any refugee specific legal frame work,
the legal position is that they are treated as aliens. There are
some statutory provisions which are applicable to aliens as
well as to refugees. As mentioned earlier that India has no
general legislation on refugees and hence refugees are not
classified and treated differently from other aliens. They are
covered under the:

• Registration of Foreigners Act, 1939 (Central Act 16 of

1939) which is applicable to all foreigners.

• The Foreigners Act, 1946, which empowers the State to

regulate the entry, presence and departure of aliens in
India.

• The Passport (Entry into India) Act 1920.

• The Passport Act 1967.

(a) The Registration of Foreigners Act, 193996 (Act 16 of 1939)
The Government of India has enacted the Registration of
Foreigners Act, 1939, which received assent on 8*^ April
1939. This Act was to provide for the registration of

94. Ibid.
95. hi. at 135.
96. Act No. 16 of 1939, received assent on the 8 April 1939, published in Gazette
of India, 1939, extra, p. 59.

!5()
 CHAPTER - IV

Foreigners in India i.e. entering, being present in, and

d e p a r t i n g from I n d i a . In t h i s Act 'Foreigner' means a person
who is not a citizen of India. T h i s Act e x t e n d s to t h e whole of
India.

The r e l e v a n t s e c t i o n s of t h e Act to Refugees a r e Section

3 a n d 6.

Section 3-Powers to Make Rules

The Central Government may by notification in the

official g a z e t t e m a k e r u l e s with r e s p e c t to foreigners for a n y
or all of t h e following p u r p o s e s , t h a t is to say:

(a) For r e q u i r i n g a n y foreigner e n t e r i n g , or b e i n g p r e s e n t in

(India) to r e p o r t h i s p r e s e n c e to a p r e s c r i b e d authority
w i t h i n s u c h t i m e a n d in s u c h m a n n e r a n d with such
p a r t i c u l a r s a s m a y be p r e s c r i b e d ;

(b) For r e q u i r i n g a n y foreigner moving from one place to

a n o t h e r place in (India) to r e p o r t , on a r r i v a l at such
other place, his presence to a prescribed authority
within such time and such manner and with such
p a r t i c u l a r s a s m a y be p r e s c r i b e d ;

(c) For r e q u i r i n g a n y foreigner who is a b o u t to leave (India)

to r e p o r t t h e d a t e of h i s i n t e n d e d d e p a r t u r e a n d such
o t h e r p a r t i c u l a r s a s may be p r e s c r i b e d to s u c h a u t h o r i t y
and within such period before departure as may be
prescribed;

(d) For r e q u i r i n g a n y foreigner e n t e r i n g , being p r e s e n t in, or

departing from (India) to p r o d u c e , on demand by a
p r e s c r i b e d a u t h o r i t y , s u c h proof of h i s i d e n t i t y a s may
be p r e s c r i b e d ;

(e) For r e q u i r i n g a n y p e r s o n h a v i n g t h e m a n a g e m e n t of a n y
h o t e l , b o a r d i n g , h o u s e , s a r a i or any o t h e r p r e m i s e s of

251
 CHAPTER - IV

l i k e n a t u r e to r e p o r t t h e n a m e of a n y f o r e i g n e r residing
t h e r e i n for w h a t e v e r d u r a t i o n , to a p r e s c r i b e d authority
within such time and in s u c h manner and with such
p a r t i c u l a r s a s m a y be p r e s c r i b e d ;

(f) For requiring any person having the management or

control of any vessel or aircraft to furnish to a
prescribed authority such information as may be
p r e s c r i b e d r e g a r d i n g a n y f o r e i g n e r e n t e r i n g , or i n t e n d i n g
to d e p a r t f r o m ( I n d i a ) in s u c h v e s s e l or a i r c r a f t , a n d to
furnish to s u c h authority such assistance as may be
n e c e s s a r y o r p r e s c r i b e d for g i v i n g effect to t h i s A c t ;

(g) F o r p r o v i d i n g for s u c h o t h e r i n c i d e n t a l o r s u p p l e m e n t a r y
matters as may appear to the Central Government
n e c e s s a r y o r e x p e d i e n t for g i v i n g effect to t h i s A c t .

S e c t i o n 6: P o w e r s to e x e m p t from a p p l i c a t i o n of Act

T h e C e n t r a l G o v e r n m e n t m a y , by o r d e r d e c l a r e t h a t a n y
o r all of t h e p r o v i s i o n s of t h e r u l e s m a d e u n d e r t h i s Act s h a l l
not apply or shall apply only with such modifications or
subject to s u c h c o n d i t i o n s a s m a y be specified in t h e said
order, to or in r e l a t i o n to a n y individual foreigner or any
c l a s s o r d e s c r i p t i o n of f o r e i g n e r s .

P r o v i d e d t h a t a c o p y of e v e r y s u c h o r d e r , s h a l l b e p l a c e d
on the table of parliament as soon as may be after its
promulgation.

(b) The Foreigners Act, 1946^7 (Act 31 of 1946)

T h e G o v e r n m e n t of I n d i a h a s e n a c t e d t h e F o r e i g n e r s A c t ,
1 9 4 6 . T h i s Act c o n f e r s u p o n t h e C e n t r a l G o v e r n m e n t certain
p o w e r s in r e s p e c t of t h e e n t r y of f o r e i g n e r s i n t o I n d i a , their
p r e s e n c e t h e r e i n a n d t h e i r d e p a r t u r e t h e r e f r o m . In t h i s Act

97. Act No. 3 1 of 1946, received assent on 23"* Nov. 1946.

 CHAPTER - IV

"Foreigner" means a person who is not a citizen of India. This

Act e x t e n d s to t h e whole of I n d i a .

The r e l e v a n t s e c t i o n s of t h i s Act which a r e a p p l i c a b l e to

refugees are section 3 , 3A, 7 a n d 14 of t h e Act. These
sections read as under:

Section 3, Power to make orders

(1) The C e n t r a l G o v e r n m e n t may by o r d e r m a k e p r o v i s i o n ,

e i t h e r g e n e r a l l y or with r e s p e c t to all foreigners or with
r e s p e c t to a n y p a r t i c u l a r foreigner or a n y prescribed
class or description of foreigner, for prohibiting,
regulating or r e s t r i c t i n g the entry of f o r e i g n e r s into
I n d i a or t h e i r d e p a r t u r e t h e r e from or t h e i r p r e s e n c e or
continued presence therein.

(2) The p a r t i c u l a r a n d w i t h o u t p r e j u d i c e to t h e g e n e r a l i t y of
t h e foregoing powers orders made under this section
m a y provide t h a t t h e foreigner:

(a) S h a l l n o t e n t e r I n d i a or s h a l l e n t e r I n d i a only at s u c h
t i m e s a n d by s u c h r o u t e a n d at s u c h p o r t or place a n d
s u b j e c t to t h e o b s e r v a n c e of s u c h c o n d i t i o n s on a r r i v a l
a s m a y be p r e s c r i b e d ;

(b) S h a l l n o t d e p a r t from I n d i a or s h a l l d e p a r t only at s u c h

t i m e s a n d by s u c h r o u t e a n d from s u c h p o r t or place
and subject to t h e o b s e r v a n c e of s u c h c o n d i t i o n s on
d e p a r t u r e a s may be p r e s c r i b e d ;

(c) S h a l l n o t r e m a i n in I n d i a ; or in any p r e s c r i b e d area

therein;

(cc) S h a l l if he h a s b e e n r e q u i r e d by o r d e r u n d e r t h i s s e c t i o n
n o t to r e m a i n in I n d i a , m e e t from any r e s o u r c e s at h i s
d i s p o s a l t h e cost of h i s r e m o v a l from I n d i a a n d of h i s
m a i n t e n a n c e therein pending s u c h removal;

33
 CHAPTER - IV

(d) S h a l l remove himself to, a n d r e m a i n in, s u c h a r e a in

I n d i a a s may be p r e s c r i b e d ;

(e) S h a l l comply with s u c h c o n d i t i o n s a s m a y be p r e s c r i b e d

or specified:

(i) R e q u i r i n g him to r e s i d e in p a r t i c u l a r p l a c e ;

(ii) I m p o s i n g a n y r e s t r i c t i o n on h i s m o v e m e n t s ;

(iii) R e q u i r i n g him to f u r n i s h s u c h proof of h i s i d e n t i t y a n d

to r e p o r t s u c h p a r t i c u l a r s to s u c h a u t h o r i t y in such
manner and at such time and place as may be
p r e s c r i b e d or specified;

(iv) Requiring him to allow his photograph and finger

i m p r e s s i o n to be t a k e n a n d to f u r n i s h s p e c i m e n s of h i s
handwriting and signature to s u c h authority and at
s u c h time a n d place a s may be p r e s c r i b e d or specified;

(v) Requiring him to submit himself to such medical

e x a m i n a t i o n by s u c h a u t h o r i t y a n d a t s u c h time and
place a s may be p r e s c r i b e d or specified;

(vi) Prohibiting him from association with persons of a

p r e s c r i b e d or specified d e s c r i p t i o n ;

(vii) Prohibiting him from engaging in activities of a

p r e s c r i b e d or specified d e s c r i p t i o n ;

(viii) P r o h i b i t i n g h i m from u s i n g or p o s s e s s i n g p r e s c r i b e d or
specified a r t i c l e s ;

(ix) O t h e r w i s e r e g u l a t i n g h i s c o n d u c t in a n y s u c h p a r t i c u l a r
a s m a y be p r e s c r i b e d or specified;

(f) S h a l l e n t e r into a b o n d with or w i t h o u t s u r e t i e s for t h e

due observance of or as an alternative to the
enforcement of, any or prescribed or specified
r e s t r i c t i o n s or c o n d i t i o n s ;

254
 CHAPTER - IV

(g) s h a l l be a r r e s t e d and detained or confined; and may

m a k e p r o v i s i o n for any m a t t e r w h i c h is to be or m a y be
p r e s c r i b e d a n d for s u c h i n c i d e n t a l a n d supplementary
matters as may, in the opinion of the Central
G o v e r n m e n t , be e x p e d i e n t or n e c e s s a r y for giving effect
of t h i s Act.

(3) Any a u t h o r i t y p r e s c r i b e d in t h i s b e h a l f m a y with r e s p e c t

to any p a r t i c u l a r foreigner m a k e u n d e r c l a u s e (e) for
c l a u s e (f) of s u b - s e c t i o n (2).

Section 3-A Powers to exempt citizens of commonwealth countries

and other persons from application of Act in certain cases:
(1) The C e n t r a l G o v e r n m e n t m a y , by o r d e r , d e c l a r e t h a t all
or any of t h e provision of t h i s Act or of a n y o r d e r m a d e
t h e r e u n d e r s h a l l n o t apply or s h a l l a p p l y only in s u c h
c i r c u m s t a n c e s or with s u c h e x c e p t i o n s or m o d i f i c a t i o n s
or s u b j e c t to s u c h c o n d i t i o n s a s m a y be specified in t h e
o r d e r to or in r e l a t i o n to:

(a) The c i t i z e n s of a n y s u c h c o m m o n w e a l t h c o u n t r y a s m a y
be so specified; or

(b) Any o t h e r i n d i v i d u a l foreigner or c l a s s or d e s c r i p t i o n of

foreigners

(2) A copy of every o r d e r s m a d e u n d e r t h i s s e c t i o n s h a l l be

placed on t h e t a b l e of b o t h h o u s e s of p a r l i a m e n t a s soon
a s may be after it is m a d e .

Section 7: Obligation of hotel keepers and others to furnish

particulars:
(1) It s h a l l be t h e duty of t h e keeper of a n y premises
whether furnished or unfurnished where lodging or
sleeping accommodation is provided for reward, to
submit to such person and in such manner such
 CHAPTER - IV

i n f o r m a t i o n in r e s p e c t of f o r e i g n e r s ' a c c o m m o d a t i o n in
s u c h p r e m i s e s , a s m a y be p r e s c r i b e d .

Explanation: The i n f o r m a t i o n referred to in t h i s sub-

section may relate to all or any of the foreigners
a c c o m m o d a t e d at s u c h p r e m i s e d a n d m a y be r e q u i r e d to
be s u b m i t t e d periodically or at a n y specific times or
occasion.

(2) Every p e r s o n a c c o m m o d a t e d in a n y s u c h p r e m i s e s s h a l l
furnish to t h e k e e p e r thereof a statement containing
s u c h p a r t i c u l a r s a s may be r e q u i r e d by t h e k e e p e r for
t h e p u r p o s e of f u r n i s h i n g t h e i n f o r m a t i o n referred to in
s u b - s e c t i o n (1).

(3) The k e e p e r of every s u c h premises shall maintain a

record of t h e i n f o r m a t i o n f u r n i s h e d by him u n d e r s u b -
s e c t i o n (1) a n d of t h e i n f o r m a t i o n o b t a i n e d by him u n d e r
s e c - s e c t i o n (2) a n d s u c h r e c o r d s h a l l be m a i n t a i n e d in
s u c h m a n n e r a n d p r e s e r v e d for s u c h period a s m a y be
p r e s c r i b e d , a n d s h a l l at all t i m e s be o p e n to i n s p e c t i o n
by a n y police officer or by a p e r s o n a u t h o r i z e d in t h i s
behalf by t h e D i s t r i c t M a g i s t r a t e .

(4) If in a n y a r e a p r e s c r i b e d in t h i s behalf t h e p r e s c r i b e d
a u t h o r i t y by notice p u b l i s h e d in s u c h m a n n e r a s may be
in t h e opinion of t h e authority be b e s t adopted for
informing t h e p e r s o n s c o n c e r n e d so d i r e c t s , it s h a l l be
the d u t y of every p e r s o n o c c u p y i n g or h a v i n g u n d e r his
control any residential premises to submit to such
p e r s o n a n d in s u c h m a n n e r s u c h i n f o r m a t i o n in r e s p e c t
of foreigners a c c o m m o d a t e d in s u c h p r e m i s e s a s may be
specified; and the provisions of sub-section(2) shall
apply to every person accommodated in any such
premises.

256
 CHAPTER - IV

Section 14-Penalties

If any person contravenes the provisions of this Act or of

any order made there under, or any direction given in
p u r s u a n c e of this Act or such, he shall be punished with
imprisonment for a term which may extend to five years and
shall also be liable to fine; and if such person has entered
into a bond in p u r s u a n c e of clause (f) of sub-section (2) of
section 3, his bond shall be forfeited, and any person bound
there by shall pay the penalty thereof, or show cause to be
satisfaction of the conviction court why such penalty should
not be paid.^^

India relies on the Foreigners Act, (i.e. Registration of

Foreigners Act, 1939 (Act 16 of 1939) and the Foreigners Act,
1946 (Act 31 of 1946) to govern the entry, stay and exit of
foreigners in India. However, the Foreigners Act is an archaic
legislation that was enacted by a colonial government in
response of the Second World War. Section 2 (a) of the Act
defines a foreigner as a person who is not a citizen of India,
t h u s covering all refugees within its ambit as well. Without a
specialize governance regime for country of his former
habitual residence as a result of such extent is unable or,
owing to such fear, is unwilling to return to it.^^ The
unrestricted power of the executive to remove foreigners was
first confirmed by the Supreme Court in 1955,i^o where it
held 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

98. Mohd. Anwar Vs. State of Bihar, 1992, Cr. LJ 48.

99. Supra n. 5.
100. Hans Muller of Nuremberg AIR 1955 SC 367.
 CHAPTER - l \

this discretion in the constitution, an unrestricted right to expel

remains".

The untrammeled right of the executive to remove

foreigners from I n d i a h a s b e e n u p h e l d by the S u p r e m e C o u r t
in a n u m b e r of s u b s e q u e n t d e c i s i o n s . i ^ i

(c) The Passport (Entry into India) Act, 1920^02

The Government of India has enacted the Passport

(Entry into India) Act, 1 9 2 0 . In t h i s Act, "entry" means entry
by w a t e r , l a n d or air a n d "passport" m e a n s a p a s s p o r t for t h e
time being in force issued or renewed by a prescribed
a u t h o r i t y a n d satisfying t h e c o n d i t i o n s p r e s c r i b e d r e l a t i n g to
the class of p a s s p o r t to w h i c h it b e l o n g s . 1^3 This Act is
e x t e n d e d to t h e whole of I n d i a .

The r e l e v a n t s e c t i o n s of t h i s Act to refugees a r e Section

3 a n d 5, w h i c h r e a d a s u n d e r :

Section 3-Power to make rules

(1) The ( C e n t r a l G o v e r n m e n t ) ^ may m a k e rules't" r e q u i r i n g

t h a t p e r s o n s e n t e r i n g I n d i a s h a l l be in p o s s e s s i o n of
p a s s p o r t , a n d for all m a t t e r s a n c i l l a r y or i n c i d e n t a l to
that purpose.

(2) Without prejudice to the generality of t h e foregoing

power s u c h r u l e s may:

101. Louis De Raedt (1991) 3 SCC 554, Sarbananda Sonowal 2005, 5 SCC 665.
102. Act 34 of 1920, receive assent on 9th September, 1920, Published in Gazette
of India, Pt. V, P. 54.
103. Section 2 of the Passport (Entry into India) Act, 1920.
(a) Substituted for the word "Governor-General in Council", by A.D., 1937.
(b) For Indian Passport Rules, 1950, see Gazette of India, 1950, Pt. 1, S. I,
p . 9 1 , as amended by S.O. 1794 of 1960.
(c) Substituted for "The Provinces", by the Indian Passport (Amendment) Act.
1949 (36 of 1949) S. 4 (28.4.1949).

258
 CHAPTER - IV

(a) P r o h i b i t t h e e n t r y into (India)«= or a n y p a r t t h e r e of a n y

p e r s o n who h a s n o t in p o s s e s s i o n a p a s s p o r t i s s u e d to
him;

(b) P r e s c r i b e t h e a u t h o r i t i e s by w h o m p a s s p o r t m u s t h a v e
b e e n i s s u e d or r e n e w e d a n d t h e c o n d i t i o n s with w h i c h
t h e y m u s t comply, for t h e p u r p o s e of t h i s Act; a n d

(c) Provide for t h e e x e m p t i o n , e i t h e r a b s o l u t e l y or a n a n y

c o n d i t i o n , of a n y p e r s o n or c l a s s of p e r s o n from any
p r o v i s i o n of s u c h r u l e s .

(3) R u l e s m a d e u n d e r t h i s s e c t i o n may provide t h a t any

c o n t r a v e n t i o n t h e r e o f or of a n y o r d e r i s s u e d u n d e r t h e
authority of a n y such rule s h a l l be p u n i s h a b l e with
imprisonment for a t e r m w h i c h may e x t e n d to three
m o n t h s , or with fine or with b o t h .

(4) All r u l e s m a d e u n d e r t h i s s e c t i o n s h a l l be p u b l i s h e d in
t h e official g a z e t t e , a n d s h a l l t h e r e u p o n h a v e effect a s if
e n a c t e d in t h i s Act.

Section 5-Power of Removal

The ( C e n t r a l G o v e r n m e n t ) ^ may by g e n e r a l or special

o r d e r , d i r e c t t h e r e m o v a l of a n y p e r s o n from (India)*' w h o , in
c o n t r a v e n t i o n of a n y r u l e m a d e u n d e r Section 3 p r o h i b i t i n g
e n t r y into (India)^ w i t h o u t p a s s p o r t , h a s e n t e r e d t h e r e i n , a n d
thereupon any officer of the Government shall have all
r e a s o n a b l e p o w e r s n e c e s s a r y to enforce s u c h d i r e c t i o n .

259
 CHAPTER - IV

(d) The Passport Act, 1967^4

The Government of India has enacted the Passport Act,

196. This Act is to provide for the issue of passport and travel
documents to regulate the departure from India of citizens of
India and other persons and for matters incidental or
ancillary thereto. It extends to whole of India.
The passport Act is 'procedure established by law'
within the meaning of Article 21 of the constitution and it is
not u l t r a virus the Article. All the departure and entry of the
foreigners into India is not valid until they do not hold a valid
passport or travel document, los g u t no refugee has so far had
a privilege of getting travel document in India, except Tibetan
refugees. Tibetan refugees can even travel to foreign countries
and come back to India on the basis of their identification
papers and documents. 1°^

(e) The Extradition Act, 1962io7

The Government of India has enacted the Extradition

Act, 1962 in the thirteenth year of Republic of India. In this
Act, extradition is the surrender by one state to another of a
person desired to be dealt with for crimes of which he h a s
been accused or convicted and which are justifiable in the
Courts of the other state. Surrender of a person within the
state to another state, whether a citizen or an alien is a

(a) Substituted for the words "Governor-General in Council" by A.D., 1937.

(b) Substituted for "the Provinces" by the Indian Passport (Amendment) Act,
1949 (36 of 1 9 4 9 0 S. 4 (28.4.1949).
104. Act No. 15 of 1967, received assent on 24 June 1967, published in Gazette of
India, 29.5.1967, Pt. II, S.2. Ext. p. 372.
105. Section 3 of the Passport Act, 1967.
106. Supra n. 92 at 135.
107. Act No. 34 of 1962, received assent on 15th September, 1962, published in
Gazette of India, 19.6.1962, Pt. II, S. 2, Extra p. 418.

2C
 CHAPTER - IV

political act done in p u r s u a n c e of a treaty or an arrangement

a d - h o c . 108

(f) The Protection of Human Right Act, 199310^

The Government of India has enacted the Protection of

Human Rights Act 1993. The Act provided for the constitution
of a National Human Rights Commission (NHRC) State Human
Rights Commissions (SHRC) and Human Rights Courts (HRC)
for better protection of h u m a n rights and for matters
connected or incidental thereto. These recommendatory
bodies have powers to inquire into the violation of h u m a n
rights or abetment thereof. The Commission is not restricted
to investigating issues of concerns to citizens only and in fact
it also considers the matters relating to all h u m a n beings
including the rights of refugees in India, no

The National Human Rights Commission (NHRC) which

was established by the Protection of Human Rights Act, 1993
is the main body entrusted with promoting and protecting
h u m a n rights. The Human Rights Acts vests the NHRC with a
broad mandate but it only has the power to issue
recommendations and does not have any effective
enforcement mechanism at its disposal. The National Human
Rights Commission of India (NHRC) has functioned effectively
for the protection of refugee's h u m a n rights in India.

Enforcement of Human Rights of Refugees

It is true that a declaration of Fundamental Human

Rights is meaningless unless there is effective machinery for
the enforcement of these rights. India has been quite in the

108. For detail, see the Extradition Act, 1962.

109. Act No. iO of 1994, received assent on S"' January 1994, published in Gazette
of India. Part III, Sec. 1, dated 10th January, 1994, pp. 1-16.
110. The National Human Rights Commission filed a petition in the Supreme Court
on the threatened expulsion of Chakmas in Arunachal Pradesh.

^61
 CHAPTER - IV

line of respecting and enforcing the concepts which stand for

h u m a n rights.
As discussed earlier, the Part III of the Constitution of
India h a s given all people including non-citizens found on
Indian territories the 'freedom of religion'A^^ Personal
liberty^^^ and 'the right of equality'^^^ etc. further the right to
enforce these fundamental rights,^i"* itself has been made a
fundamental right. ^^ The Supreme Court of India has
described this unique provision in the Constitution as "the
corner stone of the democratic edifice" (Prem Chand Vs. Excise
Commissioner)^^^ and "the protector and guarantor of
fundamental rights" (Romesh Thaper Vs. State of Madras). ^^'^

In Indian Constitution the law enforcement provisions

ensure the full protection of the rights of refugees. So any
person, refugee or asylum seeker cannot be discriminated
against because of their non-citizens s t a t u s . A person whose
right have been violated has right to directly approach the
High Court (Under Article 226) and the Supreme Court (Under
Article 32) for judicial rectification, redressal of grievances
and enforcement of fundamental rights.^^^ Government has
also constituted a statutory National Human Right
Commission (NHRC), which acts like a watch dog for any
complaints of Human Rights violations, vide protection of
Human Rights Act, 1993. In acts sue moto also for the
protection of Human Rights.

Ill Article 25 of the Constitution of India.

112 Id.. Article 2 1 .
113 Id., Article 14.
114 Id.. Article 32.
115 U.N. Gupta, The Human Rights. Convention.^ and Indian Law, 2004, pp. 17-
18.
116 AIR 1963 SC 996.
117 AIR 1950 SC 124
Dr. S. Subramanian, Human Rights: International Challenges, Vol. 1, 1997 p.
321.

](i2
 CHAPTER - IV

Constitutional Remedies
The most significant aspect of Constitutionalism and
h u m a n rights is the exclusive and never to be denied the
right-to constitutional remedies. It is remedy which makes
the rights real. It was, therefore, our constitution-makers
having incorporated a long list of Fundamental Rights have
also provided for an effective remedy for the enforcement of
these rights under article 32 of the Constitution. Article 226
also empowers all the High Courts to issue the writs for the
enforcement of Fundamental Rights. ^^^

The significance of incorporating Article 32 in the

Constitution was explained by Dr. B.R. Ambedkar.120
"// I was asked to name any particular Article in this
constitution as the most im.portant-an Article without which
this constitution would be a nullity-I could not refer to any
other Article except this one i.e. Art. 32. It is the very soul of
the constitution and the very heart of it".
This right has been held to be an "important and integral
part of the basic structure of the constitution. ^^^
So any person, n a t u r a l or artificial whose fundamental
rights has been violated can invoke the jurisdiction of the
Supreme Court under Article 32 which g u a r a n t e e s the right to
move the Supreme Court by "appropriate proceedings" for the
enforcement of the fundamental rights conferred by Part III of
the Constitution. 122 Further this Article confers power on the
Supreme Court to issue appropriate directions or orders or

119. Dr. J.N. Pandey, Constitutional Law of India, 2004, p. 332.

120. CAD, Vol. VIII, pp. 950-953, as cited in Narender Kumar, "Constitutional
Law of India", 2004, p. 329, see also, J.N. Pandey. "Constitutional Law of
India'", 2004.
121. Fertilizers Corporation Kamgar Union Vs. Union of India, AIR 1981 SC 344.
122. Article 32 (1) o f t h e Constitution of India.
 CHAPTER - IV

writs,123 for t h e e n f o r c e m e n t of a n y of t h e r i g h t s conferred by

P a r t III of t h e constitutions.^24

U n d e r Article 3 2 , the S u p r e m e C o u r t ' s power to enforce

f u n d a m e n t a l r i g h t s is w i d e s t . T h e r e is no l i m i t a t i o n in r e g a r d
to t h e kind of p r o c e e d i n g s e n v i s a g e d in Article 32 e x c e p t t h a t
t h e p r o c e e d i n g m u s t be "appropriate". So w h e n e v e r , t h e r e is
violation of f u n d a m e n t a l r i g h t , a n y p e r s o n c a n move to the
c o u r t for a n a p p r o p r i a t e r e m e d y . Article 32 is not merely
p r e v e n t i n g t h e i n f r i n g e m e n t of f u n d a m e n t a l r i g h t s ; t h e C o u r t
held t h a t u n d e r Art. 32 it h a s power to g r a n t r e m e d i a l relief
which includes the power to grant compensation in
appropriate c a s e s . ^25 Where t h e f u n d a m e n t a l r i g h t s of the
poor a n d d i s a d v a n t a g e d p e r s o n a r e violated:

U n d e r Article 2 2 6 of t h e C o n s t i t u t i o n every High C o u r t

s h a l l have power, t h r o u g h o u t t h e t e r r i t o r i a l l i m i t s in r e l a t i o n
to which it e x e r c i s e s j u r i s d i c t i o n to i s s u e any person or
authority including the appropriate cases, any Government,
w i t h i n t h o s e t e r r i t o r i e s , d i r e c t i o n s , o r d e r s to w r i t s , i n c l u d i n g
w r i t s in t h e n a t u r e of h a b e a s c o r p u s , m a n d a m u s , p r o h i b i t i o n ,
q u o w a r r a n t s a n d c e r t i o r a r i or a n y of them-^^e

(a) for t h e e n f o r c e m e n t of f u n d a m e n t a l r i g h t s conferred by

P a r t III, a n d

(b) for a n y o t h e r p u r p o s e ' . ^27

It is well s e t t l e d t h a t it is n o t n e c e s s a r y to move t h e
High C o u r t u n d e r Article 2 2 6 before moving t h e Supreme

123. Writs in the nature of habeas corpus. Mandamus, prohibition, quo warranto
and certiorari.
124. Article 32 (2) of the Constitutional of India.
125. M.C. Mehta Vs. Union of India, AIR (1987) SC 1086; see also, Rudal Shah
Vs. State of Bihar, AIR 1983 SC 1086; Bhim Singh Vs. State of J.K. 1985, 4
sec 677.
126. Supra n. 119 at 528.
127. 'For any other purpose' meant for the enforcement of an statutory as well as
common law rights (Calcutta Gas Co. Vs. State of West Bengal, AIR 1962 SC
1044).

164
 CHAPTER - IV

Court u n d e r Article 32 of the Constitution. Many High Courts

have granted relief to refugees in exercise of powers under
Article 226 of the Constitution.
Under both these Article i.e. 32 and 226 of the
Constitution, violation of Fundamental Rights can be
challenged in the court of law and even a foreigner, alien or
refugee will have the right to invoke the jurisdiction of the
Supreme Courti28 and High Courtsi29 u n d e r Article 32 and 226
respectively for the enforcement of their fundamental rights
in the same way as citizens of India. Under Article 32 and
226 a refugee or alien or foreigner or non-citizen can
complain against discrimination, if he or she is denied the
fundamental rights, which are provided to them within the
territory of India.

Dynamic Approach-Public Interest Litigation (PIL)

The various aspects of human rights are deeply
ingrained in the Constitution of India. However, it is to the
credit of the Supreme Court of India that they have adopted
an activist approach in m a t t e r s of protecting and enforcing
human rights norms and over the years evolved several
judicial techniques such as 'Public Interest Litigation' to
effectuate remedial justice.^^^

The Concept of Public Interest Litigation in India was

initiated by Hon'ble J u s t i c e Krishna Iyer in 1976 in Mumbai

128. Khudi Ram Chakma Vs. Union of India (1994) Supp. (1) SCC 615.
129. M. Gurunathan and others Vs. Government of India, WP No. 6708 of 1992,
also see, A.C. Moh. Siddique Vs. Government of India and others, WP No.
7916 of 1992 as cited in T. Ananthachari, "Refugees in India: Legal
Framework, Law enforcement and security", ISIL year Book of International
Humanitarian and Refugee Law
http:/V\vww.vvoridii.org./int/iournals/lSILYBlHRIL7/2001 visited on
24.1 1.2009.
130. Sanjay Joshi, "'The Right to Equality, Life and Liberty under the Constitution
of India", (ed.) Abdulrahim, P. Abdulrahim Vijapur, Suresh Kumar,
Perspectives on Hitman Rights, 1999, p. 96.

265
 CHAPTER - IV

Kamgar Sabha V. Abdulbhai's Case^^^ J u s t i c e Iyer gave a

liberal expansion to the locus standi rule and observed:
Public interest is promoted by a spacious construction of
locus standi in our socio-economic circumstances
Representative actions, pro bono publico and like are in
keeping with the current assent of justice to the com.mon
manJ^^
In a series of decisions, the apex court h a s widened the
ambit of constitutional provisions to enforce the human
rights of citizens and h a s sought to bring the Indian law in
conformity with the global trends in human rights
j u r i s p r u d e n c e . 133 Public interest litigation is the most
important contribution of judicial activism.

Explaining the concept of public interest litigation (PIL)

in S.P. Gupta Vs Union of India^^'* the Supreme Court ruled
that "any mem.ber of the public or social group acting bonafide"
could invoke the writ jurisdiction of the High Courts or the
Supreme Court, seeking redressal against violation of legal or
constitutional rights of persons, who owing to their poverty or
social or economic or other disability, could not approach the
Court of relief".

The concept of public interest litigation also applies

where the state or public authority acts in violation of a
constitution or statutory obligation or fail to carry out such
obligations resulting in injury to public interest or whatever
may be conveniently term as public inquiry, according to
Supreme Court "The only way in which this can be done is by
entertaining writ petitions and even letters from public spirited

131. AIR 1976 SC, p. 1463.

132. Justice Krishna Iyer as cited in Narender Kumar, Constitutional Law of India,
2007, p. 422.
133. Supra n. 38 at. 422.
134. AIR 1982 SC 149

26(
 CHAPTER - IV

individual seeking judicial redress for the benefit of such

persons" J^^
So, public interest litigation is an opportunity to make
basic h u m a n rights meaningful to the deprived and
vulnerable sections of the community and to assure them
social and economic justice which is the signature tune of our
constitution. 136 7he Supreme Court has widened the scope of
public interest litigation or social interest litigation u n d e r
article 32 when it held that under article 32 Supreme Court
has power to grant remedial relief which includes the power
to grant compensation in appropriate cases where
fundamental rights of the poor and disadvantaged person are
violated. 137

Underlining the significance of public interest litigation

in protecting and promoting the h u m a n rights of the people of
India, the former chief justice of India, P.N. Bhagwati h a s
rightly observed that the "Supreme Court has developed
the innovative strategy of 'Public Interest Litigation' for the
purpose of making basic hum.an rights meaningful for the large
masses of people in the country and making it possible for
them to realize their social and economic entitlem.ents."^^^
In a landmark judgment in National Human Rights
Commission Vs. state of Arunachal Pradesh,^^'^ the Supreme
Court has held that state is bound to protect the life and
liberty of every h u m a n being whether he is a citizen or non-
citizen. In this case public interest litigation was filed by the

135. M.C. Mehta Vs. Union of India, AIR 1987 SC 1087

136. Bandhu Mukti Morcha Vs. Union of India, AIR 1984 SC 803
137. M.C. Mehta Vs. Union of India, AIR 1987, SC 1087, See also, Rudal Shah Vs.
State of Bihar, AIR 1982 SSC 1086, & Bhim Singh Vs. State of J.K. (1985) 4
SSC 677.
138. Ajay Kumar Singh, "'Role of Judiciary in the Protection and Promotion of
Human Rights-The Indian Experience'", (ed.) Abdulrahim, P. Vijapur, Suresh
Kumar, Perspectives on Human Rights, 1999 p. 74.
139. (1996) ISCC 742.

^67
 CHAPTER - IV

National Human Right Commission under Article 32 for

enforcing the rights under Article 21 of the constitution. The
apex court of India held that the state is bound to protect the
life and liberty of every being and it is the constitutional duty
of the state to safeguard the life, health and well being of
even aliens or refugees.
The landmark innovation of Public Interest Litigation
(PIL) is the most important contribution of Judicial Activism.
The judiciary h a s safeguarded the basic h u m a n rights of
people, with regard to -
(i) The prisoners' rights and prison administration, i^o
(ii) The protection of bonded contract and child labour, ^^i
{in] The protection of environment, i'^^

(iv) The widening of scope of the right to life and personal

l i b e r t y . 143

(v) The corruption and crime involving holders of high

political offices. 1"^"^
(vi) For activating the investigative process.I'^s
Thus the public interest litigation has today become a
byword for judicial involvement in social, political and

140. D.K. Basu Vs. State of W.B., AIR 1997 SC 610; See also Sheela Barse Vs.
Union of India, AIR 1986 SC 1773; Hussainara Khatoon Vs. State of Bihar,
AIR 1979 SC 1369.
141. Neerja Chaudhari Vs. State of M.P., AIR 1984 SC 1099; See also M.C. Mehta
Vs. State of T.N., AIR 1997 SC 699.
142. M.C. Mehta Vs. Union of India., AIR 2004 SC 1193; T.N. Godavarman
Thirumulkpad Vs. Union of India, AIR 1997 SC 1228, See also M.C. Mehta
Vs. Union of India AIR 1997 SC 734; Vellor Citizens welfare forum Vs.
Union of India, AIR 1996 SC 2715; M.C. Mehta Vs. Kamalnath, AIR 2000 SC
1997.
143. Chairman, Railway Board Vs. Chandrima, AIR 2000 SC 988; Vishaka V. State
of Rajasthan, AIR 1997 SC 301 1, See also People's Union for Civil Liberaties
V. union of India, AIR 1997 SC 1203.
144. Shiv Sagar Tiwari V. Union of India, AIR 1997 SC 2725; State of Bihar V.
Ranchi Zila Samta Party, AIR 1996 SC 1515.
145. Vineet Narain V. Union of India, AIR 1988 SC 889, Union of India Vs. Sushil
Kumar Modi, AIR 1997 SC 314.

^68
 CHAPTER - IV

economic affairs of the Indian society and state. Public

Interest Litigation helped the judiciary to exercise its power
in the most creative manner and devised new strategies to
ensure the protection of human rights to the people.
Statutory Remedies - Under the Protection of Human
Rights Act, 1993:
The Government of India has enacted the protection of
Human Rights Act, 1993 for the better protection and
promotion of h u m a n rights in India. This act was enacted in
the context of International Covenant on Civil and Political
rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR), 1966.146

The Human Rights Bill was introduced in the Lok Sabha

on 14 May, 1993. It was thoroughly discussed and debated in
both the houses with certain modifications. The president,
under Article 123 of the constitution, promulgated the
Protection of Human Rights Ordinance in 1993 on 28
September, 1993. The Protection of Human Rights Bill, 1993
was passed by both houses of Parliament and received a s s e n t
from the President on 8 J a n u a r y 1994. The Act came into
force with retrospective effect from 28 September 1993.i'*'^

The Act provide for the Constitution of a National

Human Rights Commission (Herein referred to as NHRC),
State Human Rights Commission in the states and the Human
Rights Courts at district level for the better protection of
h u m a n rights and the matter connected herewith or
incidental thereto, i^s

146. Dr. Sunil Deshta, "Indian Judicial Initiative to Curb Custodial Violence :
The Role of NHRC", Vol X, Issue 1, Journal of NALSA, Jan 2009, p. 11.
147. Arun Ray Mohapatra, NHRC of India : Formation. Functioning and Future
Prospects, (2001) P. 58, See also, O.P. Chauhan, Lalit Dadwal, Human Rights
Promotion and Protection, 2004, P. 56.
148. /hid. Also See, Dr. U. Chandra, Human Rights, 1999 p.295.

269
 CHAPTER - IV

National Human Rights Commission

The National Human Rights Commission came into

e x i s t e n c e on 12 O c t o b e r 1 9 9 3 , u n d e r t h e P r o t e c t i o n of H u m a n
R i g h t s Act, 1 9 9 3 , is s t a t u t o r y a u t o n o m o u s body a n d h a s t h e
authority to deal with the legal matters concerning the
h u m a n right cause.

The Ministry of Home Affairs, m e n t i o n e d t h r e e specific

objectives of t h e e s t a b l i s h m e n t of t h e N a t i o n a l H u m a n R i g h t s
C o m m i s s i o n : i^^

(a) To s t r e n g t h e n the institutional arrangements through

w h i c h h u m a n r i g h t s i s s u e s could be a d d r e s s e d in t h e i r
e n t i r e t y in a more focused m a n n e r ;

(b) To look into a l l e g a t i o n s of e x c e s s i n d e p e n d e n t l y of t h e

government in a manner that would underline the
G o v e r n m e n t ' s c o m m i t m e n t to p r o t e c t h u m a n r i g h t s ; a n d

(c) To c o m p l e m e n t and strengthen the efforts that has

a l r e a d y b e e n m a d e in t h i s d i r e c t i o n .

The National Human Rights Commission is fully an

a u t o n o m o u s body with p l u r a l i s t i c compositioni^o to h a v e a
C h a i r p e r s o n , who h a s b e e n the Chief J u s t i c e of I n d i a , and
four o t h e r m e m b e r s , one who is or h a s b e e n a j u d g e of t h e
S u p r e m e C o u r t , one who is or h a s b e e n t h e Chief J u s t i c e of a
High Court; and two o t h e r s to be a p p o i n t e d from among
p e r s o n s h a v i n g knowledge or p r a c t i c a l e x p e r i e n c e in m a t t e r s
r e l a t i n g to h u m a n r i g h t s . The c h a i r p e r s o n of t h e National
Commission for minorities, National Commission of
Scheduled Casts and Scheduled Tribe and National

149. V. Vijay Kumar, "The Working of the National Human Rights Commission -
A Perspective," (ed.) J. Nirmal Chiranjiv, Human Rights in India-Historical.
Social and Political perspectives, 2000, p. 219.
150. Dr. A. Subrahmanyam, M. Sarojnamma, "Human Rights: Indian Perspectives'",
(ed.) Dr. M. Pannaian, IPS, Dr. Panch Ramalingam, Mrs. Rani Ponnian,
Human Rights for the Third Millennium, 2 0 0 1 , p. 58..

270
 CHAPTER - IV

Commission for women are ex-officio members for the

d i s c h a r g e of c e r t a i n f u n c t i o n , i^i The Chief E x e c u t i v e of t h e
N a t i o n a l H u m a n Rights C o m m i s s i o n is t h e S e c r e t a r y - G e n e r a l ,
who exercises powers and discharge functions that the
commission d e l e g a t e s to him.1^2 The h e a d quarters of the
commission is at Delhi and Commission with the prior
a p p r o v a l of t h e c e n t r a l g o v e r n m e n t e s t a b l i s h offices at o t h e r
p l a c e s in I n d i a . ^^^

The C h a i r p e r s o n a n d m e m b e r s of t h e c o m m a s s i o n are
appointed by the president on the basis of the
recommendations of a committee comprising the Primie
M i n i s t e r a n d o t h e r six m e m b e r s . 1^4 The m e m b e r s s h a l l hold
office for a t e r m of five y e a r s , p r o v i d e d t h a t no m e m b e r s h a l l
hold office after he h a s a t t a i n e d t h e age of 70 y e a r s . i s s ^
Member m a y be r e a p p o i n t e d for a n o t h e r t e r m s of five y e a r
provided t h a t he h a s n o t a t t a i n e d t h e age of s e v e n t y y e a r s . i56
After their tenure, a chairperson or a member become
ineligible for f u r t h e r e m p l o y m e n t u n d e r t h e g o v e r n m e n t of
I n d i a or u n d e r t h e g o v e r n m e n t of a n y state.^57 On t h e e n q u i r y
of the Supreme Court, the President can remove the
c h a i r p e r s o n or a n y m e m b e r of t h e c o m m i s s i o n i n t o c h a r g e s of
m i s c o n d u c t or i n c a p a c i t y . They c a n also be r e m o v e d if:

a) he is a d j u d g e d a n i n s o l v e n t ; or

b) he is e n g a g e s d u r i n g h i s t e r m of office in a n y paid
e m p l o y m e n t o u t s i d e t h e d u t i e s of h i s office; or

151. Functions specified in clause (b) to (J) of Section 12.

152. The Protection of Human Rights Act, 1993, Section 3.
153. Section 3(5)
154. Section 4(1) of protection of Human Rights Act, 1993.
155. Section 6 (1)
156. Section 6 (2)
157. Section 6 (3)

271
 CHAPTER - IV

c) he has become unfit to c o n t i n u e his office by

r e a s o n of infirmity of m i n d or body; or

d) he has been declared by a competent court a

p e r s o n of u n s o u n d m i n d ; or

e) he has been convicted and sentenced to

i m p r i s o n m e n t for a n offence w h i c h in t h e opinion
of t h e p r e s i d e n t involves m o r a l t u r p i t u d e . i ^ s

The Act p r o v i d e s t h a t b e s i d e s Secretary General, the

C e n t r a l G o v e r n m e n t s h a l l m a k e a v a i l a b l e to t h e c o m m i s s i o n
s u c h police a n d i n v e s t i g a t i v e staff n o t below t h e r a n k of a
d i r e c t o r g e n e r a l of police a n d s u c h o t h e r officers a n d staff a s
may be necessary for the efficient performance of the
f u n c t i o n s of t h e c o m m i s s i o n . 1^9

Section 12 a n d 13 of t h e Act, p r o v i d e s for f u n c t i o n s to

be performed a n d p o w e r s to be e x e r c i s e d by t h e c o m m i s s i o n
and the Commission is also v e s t e d w i t h t h e wide-ranging
p o w e r s r e l a t i n g to i n q u i r i e s a n d i n v e s t i g a t i o n .

T h e r e a r e wide r a n g e s of f u n c t i o n s envisaged for the

C o m m i s s i o n u n d e r s e c t i o n 12 of t h e Act, all or a n y of which
a r e to be performed by it. T h e s e f u n c t i o n s a r e :

a) to inquire, on its own initiative or on a petition

p r e s e n t e d to it by a victim or a n y p e r s o n on h i s behalf,
into c o m p l a i n t s of -

(i) Violation of h u m a n r i g h t s or a b e t m e n t thereof; or.

(ii) Negligence in t h e preventing of s u c h violation, by a

public servant.

158. Section 5 of Protection of Human Rights Act, 1993.

159. Id.. Section 1 1.

-ly
 CHAPTER - IV

b) to i n t e r v e n e in a n y p r o c e e d i n g involving a n y a l l e g a t i o n
of violation of h u m a n r i g h t s p e n d i n g before a c o u r t , with
t h e a p p r o v a l of s u c h c o u r t ;

c) to visit, u n d e r i n t i m a t i o n of t h e s t a t e g o v e r n m e n t , any
jail or a n y o t h e r i n s t i t u t i o n u n d e r t h e c o n t r o l of t h e
s t a t e g o v e r n m e n t , w h e r e p e r s o n s a r e d e t a i n e d or lodged
for p u r p o s e s of t r e a t m e n t , r e f o r m a t i o n or p r o t e c t i o n to
s t u d y t h e living c o n d i t i o n s of t h e i n m a t e s a n d make
recommendations thereon;

d) to review the safeguards provided by or under the

c o n s t i t u t i o n or a n y law for t h e time b e i n g in force for
the protection of human rights, and, recommend
m e a s u r e s for t h e i r effective i m p l e m e n t a t i o n ,

e) to review t h e f a c t o r s , i n c l u d i n g a c t s of t e r r o r i s m , that
i n h i b i t t h e e n j o y m e n t of h u m a n r i g h t s a n d recommend
appropriate remedial measures;

f) to s t u d y t r e a t i e s a n d o t h e r i n t e r n a t i o n a l i n s t r u m e n t s on
human rights and make recommendations for their
effective i m p l e m e n t a t i o n ;

g) to u n d e r t a k e a n d p r o m o t e r e s e a r c h in t h e field of h u m a n
rights;

h) to s p r e a d h u m a n r i g h t s l i t e r a c y a m o n g v a r i o u s s e c t i o n s
of t h e society a n d p r o m o t e a w a r e n e s s of t h e s a f e g u a r d s
available for the protection of these rights through
publications, the media, seminars and other available
means;

i) to encourage the efforts of non-governmental

organizations a n d i n s t i t u t i o n s w o r k i n g in the field of
human rights; and
 CHAPTER - IV

j) to c a r r y o u t s u c h o t h e r f u n c t i o n s a s it may consider
n e c e s s a r y for t h e p r o m o t i o n a n d p r o t e c t i o n of h u m a n
rights.

Under Section 13: While i n q u i r i n g into c o m p l a i n t s u n d e r

t h e Act, t h e C o m m i s s i o n could e x e r c i s e all t h e p o w e r s of a
civil c o u r t t r y i n g a s u i t u n d e r the code of civil p r o c e d u r e ,
1 9 0 8 , a n d , in p a r t i c u l a r , in r e s p e c t of t h e following:-

a) s u m m o n i n g a n d enforcing t h e a t t e n d a n c e of w i t n e s s e s
a n d e x a m i n i n g t h e m on o a t h ;

b) discovery a n d p r o d u c t i o n of a n y d o c u m e n t ;

c) receiving e v i d e n c e on affidavits;

d) r e q u i s i t i o n i n g a n y p u b l i c r e c o r d or copy thereof from

a n y c o u r t or office;

e) i s s u i n g c o m m i s s i o n s for t h e e x a m i n a t i o n of w i t n e s s e s or
documents; and
f) Any o t h e r m a t t e r w h i c h m a y be prescribed.i^o

In addition commission has powers to require any

p e r s o n to f u r n i s h i n f o r m a t i o n on s u c h p o i n t s or m a t t e r s a s ,
in t h e o p i n i o n of t h e Commission, may be useful for or
r e l e v a n t to, t h e s u b j e c t m a t t e r of t h e i n q u i r y a n d a n y p e r s o n
so r e q u i r e d s h a l l be d e e m e d to be legally b o u n d to furnish
s u c h i n f o r m a t i o n w i t h i n t h e m e a n i n g of s e c t i o n 176 a n d 177
of t h e I n d i a n P e n a l code (45 of 1860).i^i The C o m m i s s i o n or
any G a z e t t e officers on t h e behalf of t h e C o m m i s s i o n can
seize a n y document or c o p i e s w h i c h is r e q u i r e d into the
i n q u i r y . 162

160. Section 13(1)

161. Section 13(2)
162. Section 13(3)

274
 CHAPTER - IV

After inquiry Commission may recommend to the

concerned government or authority the initiation of
proceedings or such other action as the commission may
deem fit against the concerned person for the violation of
h u m a n rights; or recommend the immediate interim relief to
the victim; or approach to the Supreme court or the High
Court for such directions, orders or writs as the court may
consider necessary. ^^^ Inquiry report with the
recommendation, sent to the concerned government or
authority and the concerned government or authority shall,
within a period of one month forward its comments on the
report, including the action taken or proposed to be taken
thereon. Commission published its inquiry with the comments
of the concerned government or authority. ^^"^
The National Human Rights Commission is an
institution which provides sharp focus on allegation of
violation of h u m a n rights and seeks to provide quicker
redressal. In the last 14 years, the commission received a
large number of complaints relating to various h u m a n rights
issues. The commission also takes suo moto cognizance in
same case on the basis of media reports etc.i^s

The number of complaints registered and disposed off

during last three years is as following:

163. Id.. Section 18(1) (2) (3)

164. Id., Section 18 (5) & (6)
165. NHRC-"India Paper for Universal Periodic Review.'"
http://lib.ohchr.org.visied on 27.07.2009.

;/?
 CHAPTER - IV

Fresh C a s e s as w e l l as c a s e s
Cases disposed
Years b r o u g h t f o r w a r d from p r e v i o u s
off
years

1 April 2 0 0 4 - 3 1
1,35,209 85,661
March 2005

1 April 2 0 0 5 - 3 1
1,23,992 80,923
March 2006

1 April 2 0 0 6 - 3 1
1,14,114 93,421
March 2007

Source: NHRC - I n d i a P a p e r for Universal Periodic Review h t t p : / / l i b . o h c h r c . o r g .

visited o n 2 7 . 0 7 . 2 0 0 9

The NHRC, which has earned the world-wide reputation

of being an effective and independent institution in
implementing h u m a n rights, has been actively considering the
problems of refugees. The commission acts as watch dogs as
far as refugee rights are concerned. The NHRC h a s submitted
n u m e r o u s reports urging the promulgation of a national law,
or at least, making changes or amendments to the outdated
foreigners Act (1946), which is the current law consulted by
authorities with regard to refugees and asylum seekers. 1^6 jYie
commission (NHRC) is of the view that it is essential that
India develops a national policy and possibly a national law,
fully in consonance with the 1951. UN Convention and the
1957 Protocol have been recounted in its earlier reports.^^"^
NHRC has made n u m e r o u s recommendations advising the
formulation of such law, (National law for refugees) but with
an Indo-centric n a t u r e and content.i^s it approaches to the
Supreme Court under Article 32 of the Constitution and
obtained protection for the Chakma refugees. 1^9 Relief was
granted on the basis of the rights of aliens. Thus in the
absence of a specific s t a t u t e , the role played by the superior

166. Supra n. 6
167. hi., at p. 4.
168. Id at p.8
169. NHRC Vs. State of Arunachal Pradesh, (1996) 1SCC295

!76
 CHAPTER - IV

courts and the Human Rights Commission in protecting

refugee rights h a s been exemplary. It is an important
mechanism to strengthen human rights protection and
promotion in India.
Comparative Analysis of the Human Rights of Refugees in the
International Documents and Indian Constitution
Although India is not a signatory to the 1951 refugee
Convention or the 1967 Protocol, it is party to a number of
international human rights instrumentsi'^° that create
protection obligation towards refugees. As India h a s no
specific law dealing with refugee, result is that the rights of
the refugees in India are those available to all aliens under
the Indian constitution, our constitution incorporate some
rights from international i n s t r u m e n t s . In India almost all the
basic refugee rights h a s got constitutional recognition. The
Fundamental Rights incorporated in the Indian Constitution
have a close similarity with the provisions in the United
Nations d o c u m e n t s / c o n v e n t i o n s .
The following table makes a comparative analysis of the
Human Rights of Refugees in the International documents
and Indian Constitution.

Human Rights of Provision in UN Constitutio Gift o f Provisions

R e f u g e e s Under International D o c u m e n t s n o f India
Indian
Constitution

Equality before All a r e equal before t h e law Article 14 State shall n o t deny
law, or equal a n d a r e entitled without a n j ' to any person
protection o[ law discrimination to equal equality before t h e
protection of the law l a w / e q u a l protection
of t h e law within t h e
[UN Declaration of H u m a n territory of India
Rights, 1948, Article 7(1);
ICCPR, Article (26)]

170. India is Signatory to the Universal Declaration of Human Rights, 1948,

international Covenant on Civil and Political Rights and International
Covenant on Economic, Social and Cultural Rights, which were adopted by
the General Assembly of United Nations on 16 December 1966, etc.

277
 CHAPTER - IV

Protection of Life No one shall be subjected to Article 21 No person shall be

and Personal arbitrary arrest, detention or deprived of his life
Liberty exile. Everyone h a s the right a n d personal liberty
to leave any country, except according to
including his own, a n d to procedure
return to his country. established by the
law
[UN declaration of H u m a n
rights, 1948, Article 9&13(2);
ICCPR, Articles 6 & 9]

Right against No one shall be subjected to Article No person who is

arbitrary or illegal arbitrary arrest, detention or 22(1)(2) arrested shall be
arrest exile detained in custody
without being
[[UN declaration of H u m a n informed, of the
rights, 1948, Article 6; ICCPR, ground of such
Articles 6(1) & (9)] arrest, nor shall be
denied the right to
c o n s u l t a n d to be
defended by a legal
practitioner of h i s
choice.

Right against No one shall be held in Article 2 3 Traffic in human

traffic in Human slavery or servitude, slavery being a n d beggary
being a n d the slave t r a d e shall be and other similar
prohibited in all their forms forms of forced
(UN Declaration of H u m a n l a b o u r are prohibited
Rights, 1948, Articles 4 & 5,
ICCPR, Article 7 &8

Right to religious Everyone h a s the right to Article 25(1) All persons are
freedom freedom of thought, equally entitled to
conscience a n d religion, this freedom of
right includes freedom to conscience a n d the
change his religious or belief, right freely to
a n d freedom, either alone or profess, practice a n d
in c o m m u n i t y with o t h e r s propagate religion.
a n d in public or private, to
manifest his religion or belief
in teaching, practice, worship
and observance (UN
Declaration of H u m a n Rights,
1948, Article 18; ICCPR
Article 18&27; Convention
relating to the s t a t u s of
refugees, 1 9 5 1 , Article 4)

Right to Privacy No one shall be subjected to Article 21 Right to privacy is

arbitrary interference with his (as implicit in the right
privacy, family, home or interpreted to life a n d personal
correspondence, nor to in Kharak liberty u n d e r Article
a t t a c k s u p o n his h o n o u r a n d Singh's 21
reputation. Everyone h a s the case, AIR
right to the protection of the 1963 SC
law against s u c h interference 1295; see
of a t t a c k s (UN Declaration of also
H u m a n Rights, 1948, Article
12; ICCPR, Article 17) R. Rajagopal
Vs.
State of
Tamil Nadu,

278
 CHAPTER - IV

AIR 1995 SC
264)

Right to Shelter Everyone h a s the right to be a Article 21 The right to shelter

s t a n d a r d of living a d e q u a t e (as h a s been held to be a
for the health a n d well-being interpreted f u n d a m e n t a l right.
of himself a n d of his family, in
including food, clothing,
h o u s i n g a n d medical care a n d Chameli
necessary social services. Singh
Vs.
Union of
India, AIR
1996 SC
1051)

Right to live with All h u m a n beings are born Article 21 The right to life
h u m a n dignity free a n d equal in dignity a n d (as includes the right to
rights (UN Declaration of interpreted live with human
H u m a n Rights, 1948, Article in people's dignity.
1; ICCPR, Article 10(1) Union for
democratic
Rights
Vs.
Union of
India, AIR
1982 SC
1473)

Right to education Everyone h a s the right to Article 21 The right to

education. Education shall be (as education flows
free in the elementary a n d interpreted directly from right to
fundamental stages (UN in life it is a
Declaration of H u m a n Rights, Unikrishnan f u n d a m e n t a l right.
1948, Article 26; ICESCR, Vs.
Articles 13 86 14; Convention
relating to the s t a t u s of State of A.P,
Refugees, 1 9 5 1 , Article 22) AIR 1993 SC
2178)

Right to free A refugee shall have free Article 21 The right to free legal
access to the access to the courts of law on (As services w a s clearly
Courts the territory of all contracting interpreted an essential
state (Convention relating to in ingredient of
the s t a t u s of Refugees, 1 9 5 1 , Hussainara reasonable, fair, a n d
Article 16(1) (India is not a Khatoon j u s t procedure for a
signatory state of this person accured of a n
convention b u t still there is a Vs. offence a n d t h a t it
provision of free access to the Home m u s t be held implicit
court of law for refugees of Secretary in the g u a r a n t e e of
law for refugees in Indian Bihar, AIR Article 2 1 .
constitution. 1979 SC
1365)

Right against No one shall be subjected to Article 21 H u m a n dignity is a

inhuman torture or to cruel, i n h u m a n (as clear value of our
treatment or degrading t r e a t m e n t or interpreted constitution a n d no
p u b i s h m e n t (Declaration of in person can be
H u m a Rights, 1948, Article 5; treated inhumanely
ICCPR Article 7 and Kishore u n d e r Article 21 of
Convention on the Rights of Singh the constitution.

279
 CHAPTER - IV

the Child, Article 37) Vs.

State of
Rajasthan,
AIR 1981
SC625)

Right to health Every one h a s the right to Article 21 The right to life
a n d timely medical enjoyment of the highest (as guaranteed under
aid attainable standard of interpreted Article 2 1 , includes
physical a n d mental health in state of within its a m b i t the
(ICESCR) Article 12 (1) (2) (d) Punjab right to health a n d
medical care
Vs.
M.S
Chawala,
AIR 1997 SC
1225)

Right To Remedies Everyone h a s the right to a n Article 32 & The rights to move
For The effective remedy by the 226 the S u p r e m e Court
Enforcement Of competent national t r i b u n a l s for the enforcement
H u m a n Rights for act violating the of fundamental
fundamental rights rights and under
g u a r a n t e e d to him by the article 226 High
Constitution or by the law. Courts are
(UN Declaration of H u m a n empowered for the
Rights, 1948, Article 8, enforcement of any
ICCPR, Article 14 (1) of the fundamental
rights.

Cooperation with United Nations High Commissioner for

Refugees (UNHCR) in the protection of Rights of Refugees in
India
Currently, the office of the United Nations High
Commissioner for Refugees (UNHCR) c a r e s for 25 million,
i n c l u d i n g a r e c o r d 14.4 million IDPS - u p from 13.7 million in
2 0 0 7 a n d 10.5 million r e f u g e e s . The office of UNHCR c a r e s for
10.5 million of refugees in 2 0 0 8 , down from 11.4 million in
2007.171 In I n d i a , t h e UNHCR is very a c t i v e , p l a y i n g one of
two r o l e s , d e p e n d i n g on t h e refugee p o p u l a t i o n in q u e s t i o n .
The I n d i a n g o v e r n m e n t h a s u n d e r t a k e n to a s s i s t t h e refugees
of Tibet a n d Sri L a n k a u n d e r its own a u s p i c e s with r e s p e c t to
t h e s e p o p u l a t i o n s t h e n , t h e UNHCR p l a y s only a ' w a t c h - d o g '
role m o n i t o r i n g c o n d i t i o n s a n d e n s u r i n g t h a t w h e n refugees

171, UNHCR annual report of 2008 at li11p:/.'www.unhcr.se/en news visited on

25.10.2009.

280
 CHAPTER - IV

return to their home country, their repatriation is voluntary.

UNHCR deals exclusively with the remaining refugee
population in India, comprising displaced nationals of
Afghanistan, Ethiopia, Iran, Iraq, Liberia, Myanmar, Somalia
and Sudan. With respect to these populations, UNHCR
performs the function of refugee s t a t u s determination in
addition to providing medical, educational, vocational and
financial assistance to those recognized as refugees. ^'^2

The Indian Government's position in relation to refugees

is reflected in the fact that different refugees groups have
been granted different rights and privileges, and also different
legal s t a t u s , accorded under domestic laws and regulations.
Though UNHCR Refugee Certificate are legally recognized by
the government, in practice the Ministry of Home Affairs, The
Foreigners Registration office, and the local police authorities
have taken cognizance of them and 'extended stay' h a s , to
date, normally been granted to UNHCR recognized refugees.^'^3

UNHCR's first involvement in the sub-continent was

with the Tibetan refugees in India. Then came the Bangladesh
crisis in 1971. Since the UNHCR h a s been involved with
almost all the refugee and displaced persons movements in
the sub-continent, in one way or other, except the
Bangladeshi hill tribe refugee groups in India which have
been dealt with on a bilateral basis.i'^"* As, India for the first
time, established its formal relationship with United Nations
High Commissioner for Refugees in 1969 for rehabilitating
Tibetan refugees in India and UNHCR branch office was

172. Christina Harrison, "UNHCR and the Protection of Refugees in India",

http:7vvww.unhcr.org/en visited on 12.01.2007.
173. Sarbani Sen, "Paradoxes of the international regime of care: The role of the
UNHCr in India", (ed.) Ranabir Samaddar, Refugees and the Stale: Practices
of Asylum and care in India, 1974 - 2000, 2003, p. 398.
174. Shamsul. Bari, UNHCR Director. Regional Bureau for CASWANAME,
"Inaugural statement" in fourth Informal consultation on Refugee and
Migratory Movement in South Asia, Dhaka, 10-1 1 November 1997, p.17.

281
 CHAPTER - IV

officially opened in Delhi on February 1,1996. In cooperation

with India, UNHCR undertook new projects and consolidated
old one in the fields of agricultural settlements, housing for
the aged Lamas, and medical facilities. Thus, a close working
relationship between UNHCR and India was established. By
the time India got involved in providing emergency relief to
Bangladesh refugees.I'^s i^ 1975 UNCHR suddenly wound up
its projects in India and closed its Delhi Branch office for no
reason, again in 1979 UNCHR requested, the Government of
India to reopen its Branch office in Delhi. India did not give
permission to t h a t effect, but agreed to allow a UNCHR
representative to functions as the "UNCHR component of the
United Nations Development Programme (UNDP)" in New Delhi.
However, in 1981 the Government of India allowed the
UNCHR to re-open its office in New Delhi after a significant
number of refugees had arrived from Afghanistan and Iran.
But it imposed that the UNCHR must function under the
banner of the United Nations Development Programme.i'^^

The UNCHR Delhi office works toward assisting the

refugees to become self-sufficient in India through a series of
assistance and income generating activities with non-
governmental organization p a r t n e r s . Over the last few years,
UNCHR, in cooperation with a number of institutions such as
international committee of the Red Cross (ICRC), the Indian
society of international law, the National Law School of India
University, non-Governmental Organizations (NGOs) and
other research institutions throughout India, have developed
a wide range of training, research and promotional

175. Supra n. 92 at 135.

176. Id. at 136

282
 CHAPTER - IV

activities.i'^'^ Although the UNCHR operates in India, the UN

Agency's work is sharply limited by the government. UNCHR's
main role in India is to make sure that refugees are not
forced to r e t u r n to the countries they have fled in order to
escape persecution and danger.
India's membership in the Executive Committee of the
High Commissioner's Programme (EXCOM), highest policy
making body of the UNCHR, obliged India both politically and
morally to provide h u m a n i t a r i a n assistance and protection of
refugees in India. So the role of UNCHR in not only important
but of highest value from ethical and h u m a n i t a r i a n point of
view.

Role of judiciary in the protection of human rights of refugees in

India
Only an impartial and independent judiciary can protect
the rights of the individual and provide equal justice without
fear or favoure. Every constitution institutionalizes the
judiciary as the principle instrumentality for enforcement of
h u m a n rights when invaded by the state or by any authority
under the state or by an individual. ^'^^ The s t a t u s of h u m a n
rights is fairly high under the India constitution which makes
provision for fundamental rights and empowers the judiciary
to enforce these rights, and the judiciary in India has done
matchless service in protecting the people's h u m a n rights, i'^^
In the exercise of its jurisdiction and power the judiciary has
devised new strategies, forged new tools and broadly
interpreted the letter of law to ensure the protection of

177. Ms. Irene Khan, Chief of Mission, UNHCR, New Delhi, "'Introduction Remark", in New Delhi
Workshop on International Refiigee Law, 20-21 February 1998, Indian Journal of International
Law, Vol. 39, No. 1, 1999, p. 3.
178. V.R Krishan Iyer Human rights and inhuman wrongs, 1999, p. 15
179. Jitender Narayan, "Judicial activism and protection of human rights in India",
Journal of Constitutional and Parliamentary Studies, Vol.xxv, No. 3-4 (July-
Dec. 2001)., p. 1 13

283
 CHAPTER - IV

h u m a n rights to the people. As a fearless watchdog of the

fundamental rights, the superior courts in India have
vigorously upheld the value of a liberal democracy and acted
as a catalytic agent of social control and successfully
hammered out h u m a n rights jurisprudence in the light of the
philosophy envisaged in our national charter, i^o x^g
judiciary has made their task easy by evolving the concept of
Social Action Litigation or Public Interest Litigation.
Judicial treatment provided to refugees
In the absence of specific law on refugees, the Indian
judiciary h a s played a very constructive role in protecting the
interest of the refugees. Courts orders have filled legislative
gaps and in many cases have provided a humanitarian
solution to the problems of refugees. Moreover, Indian courts
have allowed refugees and intervening non-governmental
organizations (NGOs) to file cases before them. Furthermore,
the courts have interpreted provisions of the Indian
constitution, existing laws and, in the absence of municipal
law, provisions of international law to offer protection to
refugees and asylum seekers, ^^i

The judicial opinion is that rules of international law

and municipal law should be cordial and harmonious, and
only when there is an inevitable conflict between these two
laws the municipal law should prevail over international law.
Against this backdrop when one examines the binding force of
international refugee law on and its relations with Indian
municipal law, one can conclude that as long as international
refugees law does not come in conflict with Indian legislations
or policies on the protection of refugees, international refugee

180. O.P. Chauhan, Lalit Dadwal," Human Rights Promotion and Protection, 2004,
p.98.
181. Supra n. 15 at 5, also see, Hindustan Times, 07.05.2000.

!84
 CHAPTER - IV

law is a part of the municipal law. i^^ Courts in India have

always adopted a liberal approach in taking into account the
international covenants, while interpreting the s t a t u t e law.
Indian courts, while generally strictly interpreting the
stringent legislation on foreigners by refusing to interfere
with the powers of the executive, have on occasion, evolved a
wider and more humane approach to protect the rights of
refugees in India. In 1996, the Supreme Court in N.H.R.C. Vs
state of Arunachal Pradesh^^^ intervened with a liberal
interpretation of the law to suggest that refugees are a class
apart from foreigner deserving of protection of article 21 of the
constitution, i^"*

Despite the fact that the Indian government has not

signed the Convention relating to the s t a t u s of refugee, 1951
and the Protocol of 1967, India cannot refuse asylum to
bonafide seekers of shelter from other countries, consistent
with India's commitment to human rights. The Indian
judiciary has consistently recognized the importance of
h u m a n rights and has been giving effect to the provisions of
the Universal Declaration of Human Rights, 1948, ^^5
International Covenant on Civil and Political Rights, 1966, ^^^
International Covenant on Econow.ic, Social and Cultural

182. Refugee protection in India (from the SAHRDC resource centre) (October
1997) p.3 http:// www.hrdc.net/sahrdc/resource/refugee protection visited on
01.12.2007.
183. (1996) ISCC 742.
184. Supra n. 5 at 2.
185. Universal Declaration of Human Right, 1948 Article 8- "Everyone has the
right to an effective remedy by the competent national tribunal for acts
violating the fundamental rights granted him by the constitution or by law."
Article 10 "Everyone is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him'"
186. International covenant on civil and political rights. 1966,
Article 14(1) "All persons shall be equal before the courts and tribunals. In
the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law.'"

185
 CHAPTER - IV

Rights, 1966. The Convention on the Rights of the Child,

1989,^^^ The Convention on the Elimination of all forms of
Discrimination against Women, 1981,^^^ etc. Which government
of India has been ratified, in addition, the Indian judiciary
has generally giving effect to principles of international
l a w . 185

India's Supreme Court has gone so far as to extend the

application of article 14 (right to equality) and article 21
(right to life and liberty) to everyone, including migrant and
refugees residing within the territory of India, and also basic
h u m a n rights as defined by the UN have been conferred upon
the refugees. In addition, India also affirms the principal of
non-refoulement which is integral to any law on refugees, i^o
The judiciary has sought to fulfill the void created by the
absence of domestic legislation by its land mark j u d g m e n t s in
the area of refugee protection. Refugees may not be citizen
but they are certainly persons, and hence , they too are
entitled to the protection of their basic h u m a n rights, ^^i

There are several decisions of the Supreme Court of

India and High Courts where refugees have given protection
by invoking article 14 and article 21 of the constitution.

187. Convention on the Rights of the Child, 1989.

Article 12(2) "The child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child,
either directly or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law"
188. Convention on the Elimination of all forms of Discrimination against women
Article 15(1) 'State party shall accord to women equality with men before the
law'
189. P.P. Rao, "'The role of the judiciary in providing refugee protection", in
"Report on Judicial Symposium on Refugee Protection", (13-14 November
1999, New Delhi), p. 111.
190. Supra n. 6 at p. 5.
191. B.C. Nirmal, "Refugees and Human Rights", ISIL year book of International
Humanitarian and Refugee Law. (2001). p. (11),
http./Vwww.Worldlii.Org/int/iournals ISILYBHRL visited on 01.08.2009, also
see Markandey Katju," India's Perception of Refugee Law", speech delivered
in October 2000 at the conference of International Association of Refugee
Law Judges at Beru, Switzerland, see AIR, 2002, Journal section, P. 14

286
 CHAPTER - IV

While the executive branch of the government of India does

not recognize refugees as such the positive and h u m a n i t a r i a n
steps initiated by the Indian judiciary has bridged the gap to
a considerable extent.
Judicial remedy available for refugees in India:

The Indian courts have made tremendous advancements

in promoting the interest of refugees. The role of judiciary,
particularly the Supreme Court of India, in interpreting the
Indian Constitution in a manner so as to expand the scope of
various provisions to include within their fold principles of
Universal Declaration of Human Rights, 1948, and thus
ensure effective protection of score of refugees. 1^2 Indian
Constitution not only guarantees some basic h u m a n rights to
aliens, non-citizens or refugees, but also confers remedy if
violations of right take place.i^^ Under article 32 of the
constitution, whenever there is a violation of fundamental
right any person can move the Supreme Court for an
appropriator remedy. Similarly, the right to move a high court
under article 226 for the enforcement of any such right or
other legal right is also available to citizens and non-citizens
alike. The activist role of the apex court has now dramatically
changed. A number of rights which, though are not specified
in part III of the Constitution by name as fundamental rights
have been regarded as fundamental by the Hon'ble Supreme
Court by enlarging the meaning and scope of named
fundamental rights. So Supreme Court has always been very,

192. A.M. Singhvi, ''Introduction Address," in "Roundtable wortcshop on refugees

in SAARC region: National Legislation on Refugees (30 April, 1999, New
Delhi), p.17
193. V. Vijay Kumar, "The Need for a National Legislation on Refugees." in
roundtable workshop on refugees in the SAARC region: National legislation
on refugees, 30 April 1999, New Delhi. P. 30

2<S7
 CHAPTER - IV

helpful in giving remedies against violation of h u m a n rights

of refugees, i^"*
Judicial interpretation: case law in India
In India, the judiciary h a s played a very important role
in protecting refugees. The refugees have reasonable access to
the Indian judiciary. The judicial opinion in India as
expressed in n u m e r o u s recent judgments of the Supreme
Court of India demonstrates that the rules of international
law and municipal law should be construed harmoniously,
and only when there is an inevitable conflict between these
two laws should municipal law prevail over international
lawi^s C.J. Verma, In Vishaka Vs. state of Rajasthan (1997)
6SCC 241, at 251). So the judiciary in India has played a
commendable role in the protection of h u m a n rights generally
and rights of refugees in particularly and the judiciary will
continue to do favour of protecting the rights and interest of
refugees in the absence of refugee specific laws in India.
Presented below are cases where the Indian courts have
provided protection to the refugees in the territory of India.

Judgments on various refugee issues

In Hans Muller of Nurenberg Vs. Supdt. Presidency jaiU^^
The court held that even if there is a requisition and a
good cause for extradition, the government is not bound to
accede to the request, because section 3(1) of the Extradition
Act gives the government discretionary power. The Extradition
takes place only under a treaty and person whose extradition
is demanded under the treaty are handed over to the
requesting state for prosecution and punishment. The

194. Ibid.
195. Sangeeta Chakravarty, "International Norms Influencing National Legal
System," 2007, http://\vw\v.refugeelawreader.org visited on 20.08.2009
196. AIR 1955 SC 367.

!,S<S
 CHAPTER - IV

procedure for extradition is laid down under the municipal

law. Despite the treaty, a state may refuse extradition.
Further, if the treaty does not enlist a particular offence
for which extradition was sought, but authorizes the Indian
government to grant extradition for some additional offences
by inserting a general clause to this effect, extradition may
still be granted, i^'^
In Dawood AH Vs. Deputy commission of police. ^^^

Court held that a passport by itself is not a conclusive

proof of nationality. But it is accepted as a proof of the fact,
by international agreement and the comity of nations,
whatever is the probative value of it, a person who has
deliberately applied for a passport affirming him to be a
Pakistan national cannot be heard to say that he did so under
false pretences.
Further, it was held that he acted with deliberation in
renouncing his Indian citizenship and accepting Pakistan
nationality, and was precluded from saying that he had no
intention of making Pakistan his abode or residence. By
accepting a Pakistan passport he caused the sovereign state
of Pakistan to accepting him as its citizens and to extend
protection and safety to him as a Pakistan citizen. Under
section 3 of the Foreigners Act the Central Government has
got the power to order foreigner to leave Indian Territory.

In state Vs. Ibrahim Nabiji^'^'^

The court decided that the respondent had not infringed
rule 7 of the foreigner's order. Because when he entered
India, he was not a foreigner and was by law not required to

197. See Rambabu Saxena Vs. State, AIR 1950 SC 155

198. AIR 1958 Calcutta 565.
199. AIR 1959 Bombay 525.

289
 CHAPTER - IV

o b t a i n a p e r m i t ; a n d by o v e r s t a y i n g t h e period p r e s c r i b e d by
t h e Visa, also did n o t infringe r u l e 7. The r e s p o n d e n t c o u l d
not be held otherwise guilty of the infringement of the
p r o v i s i o n of s e c t i o n 14 b e c a u s e t h e r e w a s no lawful d i r e c t i o n
issued against him requiring him under section 3, sub-
s e c t i o n (2) c l a s s (c) of the F o r e i g n e r ' s Act to leave I n d i a even
if t h e r e s p o n d e n t w a s a foreigner u n d e r t h e F o r e i g n e r ' s Act a s
a m e n d e d u n d e r t h e F o r e i g n e r ' s Law ( a m e n d m e n t ) a c t , 1 9 5 7 .

F u r t h e r u n d e r s e c t i o n 3 of t h e F o r e i g n e r s a c t , t h e power
to m a k e a n o r d e r e i t h e r a g a i n s t a n i n d i v i d u a l or a g a i n s t a
c l a s s g e n e r a l l y , is conferred upon the Central Government
a n d u n d e r s e c t i o n 12 of t h e F o r e i g n e r ' s Act t h e power to m a k e
orders u n d e r section 3 May be d e l e g a t e d to a s u b o r d i n a t e
authority. Therefore, the order passed by the district
superintendent of police, must be regarded as an
unauthorized and failure to carry out the requisition
c o n t a i n e d in t h a t o r d e r c a n n o t be p e n a l i z e d u n d e r s e c t i o n 14
of t h e F o r e i g n e r ' s Act.

In Mohd. Meah Vs. Secy. Political department Union Territory of

Tripura2<^o
It w a s d e c i d e d by t h e c o u r t t h a t t h e d i s t r i c t m a g i s t r a t e
of T r i p u r a h a d no power u n d e r s e c t i o n 3 , u n l e s s t h e r e w a s a
d e l e g a t i o n of a u t h o r i t y u n d e r s e c t i o n 3(3) a n d s e c t i o n (12) to
d e p o r t a foreigner or to i s s u e a notice to s u c h p e r s o n u n d e r
t h e f o r e i g n e r ' s a c t . It w a s held t h a t t h i s is n o t a c a s e of m e r e
i r r e g u l a r i t y b u t of total lack of j u r i s d i c t i o n for t h e district
m a g i s t r a t e to i s s u e a notice of d e p o r t a t i o n .

In Afjal AH Baig Vs. the state^^i

It w a s held t h a t t h o u g h a citizen of India t h e p e t i t i o n e r

lost h i s c i t i z e n s h i p by v i r t u e of article 7 of t h e C o n s t i t u t i o n

200. AIR 1961 Tripura 35

201. AIR 1961 Orissa 174

290
 CHAPTER - l \

when he went to East Pakistan and remained for a long

period. If after his return to India he wanted to acquire
Indian citizenship, it was open to him to apply to the
authorities concerned, under section 5 of the citizenship act.
Section 9 (i) of that act makes it clear that once a citizen of
India h a s acquired Pakistan citizenship between the 26^^
J a n u a r y 1950 and the date of commencement of the act he
ceased to be a citizen of India. He could not, therefore, claim
Indian citizenship unless the Central government after due
inquiry register him as a citizen of India u n d e r section 5 of
the citizenship act. 202

In A.H. Magermans Vs. S.K. Ghose^^^

It was decided by the court that the registration of

foreigners act, 1939, under which the Registration of
Foreigners rule, 1939 were framed by the central government,
is an act to provide for the registration of foreigners in India
and for no other purpose. Besides, Rule 7(3) of the Rules
provides that the certificate of registration would be valid so
long as the foreigner does not leave India. But it does not
provide for the converse proposition, namely that so long as a
foreigners held a certificate of registration he would have a
right to remain in India or that no order could be made
directing him to leave India. The proviso to Rule 13(1)
provides for cancellation of a certificate of registration.

Even assuming that the Certificate of Registration

conferred upon the party a right to remain in India, such a
right must be subject to the terms of the permit which was
issued to the foreigner under clause (7) of that order. So a

202. Also see, state Vs. Ibrahim Nabiji, AIR 1959 Bom. 525; 1959 Cr.LJ 1461,
Dawood Ali Vs. Dy. Commr. Of Police, AIR 1958 Cal. 565; Syed Shah
Mohammad Abdali Vs. State of Bihar. AIR 1960 Pat.98.
203. AIR 1966 Calcutta 552

291
 CHAPTER - IV

foreigner cannot claim to reside in this country unless a

residential permit h a s been obtained by him, merely because
he has obtained a certificate of registration under the
registration of Foreigners Rules, 1939.
The chief settlement commissioner Vs. Om Prakash. ^^

It was decided by the apex court that under our

Constitutional system the authority to make the law is vested
in Parliament and the State legislatures and other law making
bodies and whatever legislative power the executive
administration possesses must be derived directly from the
delegation of the legislature and exercised validly only within
the limits prescribed. Further court held that the notion of
inherent or autonomous law-making power in the executive
administration is a notion that must be emphatically rejected,
with all its defects, delays and inconveniences. Men have
discovered no technique for long preserving free government
except that the executive be under the law, and that the law
be made by parliamentary deliberations.

In our Constitutional system, the Central and most

characteristic feature is the concept of rule of law which
means in the present context, the authority of law courts to
test all administrative action by the s t a n d a r d of legality. The
administrative or executive action t h a t does not meet the
standard will be set aside if the aggrieved person brings the
appropriate action in the competent court. The court held
that the expression 'displaced person' or the word 'refugee'
h a s been used in the relevant e n a c t m e n t s with reference to a
person who h a s migrated to India as a result of d i s t u r b a n c e s
or fear of d i s t u r b a n c e s or the partition of the country.
Therefore, if a person had died before such migration, he

204. AIR 1969 SC 33

">9T
 CHAPTER - IV

could not come within the meaning of the expression

'displaced person' or the word 'refugee' under the relevant
statutory e n a c t m e n t s .
In Anwer Vs. State ofJ& K^os

The apex court held that when a foreigner enters India

illegally and is ordered to leave India but fails to do so, his
arrest for purposes of deportation does not fall under article
22. The foreigner concerned had no right to enter and remain
within India. The constitutional protection against illegal
deprivation of personal liberty construed in a practical way
cannot entitle non-citizens to remain in India contrary to the
law governing the foreigners. 206

Shishwala Pal Vs. Union of India^^^

In this petition under article 226 and 227 of the
constitution of India, the petitioner have prayed for a writ of
m a n d a m u s restraining the respondents from treating them as
foreign National of Bangladesh or their stay in India as
unauthorized.
It was held by the court that mere long stay which is
unauthorized does not confer citizenship rights. As
petitioners were permitted to enter India as refugees, it will
be deemed that they are foreigners. Moreover, they have not
shown any certificate of registration, except a solitary
document from the ministry of home affairs in respect of the
objection specifically taken up by the respondent.
It is not their case that they are Indian citizens during
the commencement of the Constitution of India etc, as
envisaged u n d e r article 5, 6 and 7 of the constitution of
205. AIR 1971 SC 337.
206. Also see. State of UP Vs. Abdul Sainmad, AIR 1962 SC 1506; 1962 SUPP.{3)
SCR 915
207. AIR 1989 MP 254

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 CHAPTER - IV

India. The expression 'foreigner' h a s been has been defined in

the foreigners act, 1946, which means 'a person who is not a
citizen of India.' Section 3 of the Foreigners Act, says that the
Central Government may by order make provisions either
generally or with respect to all foreigner or with respect to
any particular foreigners into India or their departure there
from or their presence or continued presence therein, and in
particular and without prejudice to the generality of the
foregoing power, inter-alia, may order, that a foreigner shall
not enter India or shall enter India only at such times and by
such route, subject to the conditions as prescribed and shall
remove himself to, and remain in, such area in India as may
be prescribed.

In Luis De Raedt Vs. Union of India^^^

The apex court held that the fundamental rights of the

foreigner is confined to article 21 for life and liberty and does
not include the right to reside and settle in India, as
mentioned in article 19(l){e), which is applicable only to the
citizens of this country.
It was held by the Constitution Bench in Hans Muller of
Nuremburg Vs. Supdt. Presidency jail, CaP^"^ that the executive
government has unrestricted right to expel a foreigner so far
the right to be heard is concerned there cannot be any hard
and fast rule about the manner in which a person concerned
h a s to be given an opportunity to place his case.
In State of Arunachal Pradesh Vs. Khudiram Chakma^io

The court held that foreigners also enjoy some

fundamental rights u n d e r the constitution of this country.

208. AIR 1991 (3) SC 554

209. (1955) ISCR 1284; AIR 1955 SC 367
210. 1994 (Supp) (1) sec 615; AIR 1994 SC 1461

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 CHAPTER - IV

The fundamental rights of the foreigner is confined to Article

21 for life and liberty and does not include the right to reside
and settle in this country, as mentioned in Article 19(1) (e),
which is applicable only to the citizens of this country. The
apex court held that as such Article 19(l)(d)and (e) are not
available to foreigners because those rights are conferred to
the citizens. Certainly, the machinery of Article 14 cannot be
invoked to obtain that fundamental right. Rights under
Article 19 (1) (d) and (e) are expressly withheld to foreigners.
It was stated in this case that the foreigners had no
right to seek a permanent place of abode in that area and
authority had every right requiring them to shift. It is true,
t h a t this court in Louis De Raedt^^^ took the view that even
foreigner has a fundamental right, but that fundamental right
is confined only to article 21 and does not in clued the right
to move freely throughout and to reside and stay in any part
of the territory of India. Further it was held by the court that
"It has long been recognized that persons who reside on the
territory of country of which they are not nationals possess a
special status under international law. State has traditionally
reserved the right to expel them from their territory and to
refuse to grant them certain rights which are enjoyed by their
own nationals. Nevertheless, once lawfully admitted to a
territory, they are entitled to a certain minimum rights
necessary to the enjoyment of ordinary life".

In National Human Rights Commission Vs. The State of

Arunachal Pradesh2i2
The Supreme Court reiterated the principle that
protection of life and liberty are guaranteed rights of even
aliens in Indian Territory. We are a country governed by the

211. 1991 AIR s e w 21 13

212. 1996 (1) Supreme 295; (1996) 1 SCC 742; AIR 1996 (1) SC 1235.

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 CHAPTER - IV

rule of law. Our Constitution confers certain rights on every

h u m a n being. Every person is entitled to equality before the
law and equal protection of the law. So also, no person can be
deprived of his life or personal liberty except according to the
procedure established by law. Thus the state is bound to
protect the life and liberty of every h u m a n being, be he a
citizen or otherwise, and it cannot permit anybody or group of
persons for example the Students Union of Arunachal
Pradesh, threaten the Chakmas to leave the state, failing
which they would be forced to do so.
No state government worth the name can tolerate such
t h r e a t s by one group of persons to another group of persons,
it is duty bound to protect the threatened group from such
a s s a u l t s and if it fails to do so, it will fail to perform its
constitutional as well as statutory obligations. It was further
stated that the state government must act impartially and
carry out its legal obligations to safeguard to life, health and
well-being of Chakma residing in the state without being
inhibited by local politics.

In Luis de Raedt Vs. Union India^^^ and Khudiram Chakma's'^^'^

Case the court held that foreigners are entitled to protection
of Article 21 of the constitution Again in this case court
asked the government to protect the refugees with all the
might at its command, against the imminent force threatened
by the local population.
In Chairman, Railway Board Vs. Chandrimadas & Other^is
The Supreme Court held that where a foreign national, a
Bangladeshi Woman was gang raped compensation can be
granted under public law (Constitution) for violation of

213. (1991) 3 sec 554

214. AIR 1994 SC 1461; (1994), Supp (1) SCC 614.
215. 2000 (2) SCC 465; AIR 2000 SC 988

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 CHAPTER - IV

fundamental right on the ground of domestic jurisdiction

based on constitutional provisions and Human Rights
j u r i s p r u d e n c e . The court said that "where public functionaries
are involved and that the matter relates to the violation of
fundamental rights or the enforcement of public duties the
remedy would be available under the public law, not
withstanding that a suit could be filed for damages under
private law". It was more so when it was not a mere violation
of an ordinary right of a person but the violation of
fundamental right was involved. As petitioner was a victim of
rape which is violation of the fundamental rights of a person
guaranteed u n d e r article 2 1 of the constitution.

As regards the question whether fundamental rights are

available to a foreign nationals, or not, the court held t h a t
the relief can be granted to the victim for two reasons-firstly
on ground of h u m a n rights j u r i s p r u d e n c e founded on the
Universal Declaration of Human Rights, provisions from
convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), and secondly our constitution
g u a r a n t e e s all the basic and fundamental h u m a n rights set
out in the Universal Declaration of Human Rights to its
citizens and other person.

This case may be called as a land mark in taking the

j u r i s p r u d e n c e of h u m a n rights on the highest level placing its
decision on protection of h u m a n dignity. Another important
feature of this judgment is that it opened the doors for Public
interest Litigation (PIL) in case of a foreign national. In this
case Supreme Court has set up a right precedent in
enforcement of h u m a n rights of the refugees.

Following are type of protection that the Indian Courts

have been provided to refugees.

297
 CHAPTER - IV

Physical Security
Indian Courts have decided in a number of cases that
the constitutional protection of life and liberty must be
provided to refugees. In the cases of Luis de Readt {(1991) 3
sec 554} and Khudiram (Nos. 1994) Supp. {1} SCC 615), The
Supreme Court held that Article 21 of the constitution of
India, which protects the life and liberty of India citizens, is
extended to all, including aliens:

The Supreme Court of India in the case of National

Human Rights Commission Vs. State of Arunachal Pradesh
restrained the forcible expulsion of Chakma refugees from, the
state (Civil WP No. 720: 1996 {1} Supreme 295). The Supreme
Court in its interim order on Nov.2, 1995, directed the state
government to ensure that the Chakmas situated in its
territory are not ousted by any coercive action not in
accordance with the law. The court directed the state
government to ensure that the life and personal liberty of
each and every Chakma residing within the state should be
protected. 216

Non-Refoulement and the Right of Refugee Status

In a number of cases, Indian courts have protected the
rights of refugees where there are s u b s t a n t i a l grounds to
believe that their life would be in danger. There are cases
where the courts have ordered the life of refugees who are in
danger to be safeguarded and have allowed them to be
granted refugees status by the United Nations High
Commissioner for Refugees (UNHCR).
In Zothansangpuri Vs. State of Manipur (Civil Rule No.
981 of 1989) The Gouhati-Imphal bench of the Gauhati High

216. Supra n. 15.

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 CHAPTER - IV

Court ruled that refugees have the right not to be deported if

their-life was in danger.2i7
In Dr. Malvika Karlekar Vs. Union of India (Criminal) 583
of 1992 In writ petition, the Supreme Court held that
authorities should consider whether refugee s t a t u s should be
granted; and until this decision was made, the petitioner
should not be deported.218

In Bogyi Vs. Union of India (Civil Rule No. 981 of 1989)

The Gouhati High Court not only ordered the temporary
release of a Burmese man from detention but approved his
stay for two months so that he could apply to UNHCR for
refugee s t a t u s (Civil Rule No. 1 9 4 7 / 8 9 Gauhati High Court)2i9
The case of U. Myat Kayew and Nayzan Vs. State of
Manipur (Civil Rule No. 516 of 1991) has contributed
substantially to India's refugee policy. It involved eight
Burmese people, aged 12 to 58 who were detained in the
Manipur Central jail in Imphal for illegal entry. These people
had participated in the democracy movement, had voluntarily
surrendered to the Indian authorities and were taken into
custody. The cases were registered u n d e r section 14 of the
Foreigners Act for illegal entry into India. They petitioned for
their release, however, to enable them to seek refugee s t a t u s
with UNHCR in New Delhi. The Gauhati High Court, under
Article 2 1 , ruled that asylum seekers, who enter India, even if
illegally, should be permitted to approach the office of the
U.N. high Commissioner to seek refugee status.220

In Seyed Mohammadi Vs Union of India WP (Criminal)

1450/1994. In this case where in, the petitioner granted

217. Ibid
218. Ibid
219. Jbld.
220. Ibid.

299
 CHAPTER - JV

refugee s t a t u s by the UNHCR and the court ruled that. "There

is no question of deporting the accused under the
circumstances".
The Supreme Court of India h a s in a number of cases
stayed deportation of refugees such as Maiwand's Trust of
Afghan Human Freedom. Vs. State of Punjab'^'^^ and N.D.
Pancholi Vs. State of Punjab & others.^'^^ The Supreme Court
judgment in the Chakma refuge case clearly declared that no
one shall be deprived of his or her life or liberty without the
due process of law. Earlier j u d g m e n t s of the Supreme Court
in Luis De Readt Vs. Union of India^^^ and also state of
Arunachal Pradesh Vs. Khudiram. Chakm.a^'^'^ had also stressed
the same point.

Right to Basic Amenities

In Digvijay Mote Vs. Governm.ent of India (V/rit Appeal No.
354 of 1994), The High Court of Karnataka in Bangalore,
considering the rights of 150 Sri Lankan refugee children,
ordered the state to make the necessary a r r a n g e m e n t s to
provide basic amenities to the refugee children in the camp
on h u m a n i t a r i a n grounds.^25

In Majid Ahmed Abdul Majid Mohd. Jad Al-Hak Vs. Union

of India (Crl. WP No. 60 of 1997) The court held that basic
necessities, like food and medical care, must be provided
while in detention.^26

221. WP (Crim) 125 & 126/1986 as cited in Supra n. 15.

222. WP (Crim) 43/1988 as cited in Supra n. 15.
223. AIR 1991 (3) SC 554.
224. 1994 (Supp) (1) SCC 615.
225. Supra n. 15.
226. Ibid.

300
 CHAPTER -lY

Forced Repatriation

In the matter Gurunathan and other Vs. Government of

India^^^ The High Court of Madras expressed its unwillingness
to allow any Sri Lankan refugees to be forced to return to Sri
Lanka against their will. The court stayed the repatriation
process as it was not voluntary. The court acknowledged the
'Competence and impartiality' of the UNHCR.228

In P. Neduraman and Dr. S. Ramadoss Vs. Union of India

& State of Tamil Nadu (1992)229 The m a d r a s High Court
emphasized the need to guarantee the voluntary character of
repatriation. The NHRC h a s also come to rescue of refugees
"approaching it with their complaints of violations of Human
Rights".

Deportation on Grounds of National Security and Criminal

Activities
The courts have ruled that refugees can be deported on
the grounds of national security. In Mohammed Siddique Vs.
Government of India (Civil Rule Writ No. 405/98), The court
allowed the deportation of refugees under the Foreigners Act
of 1946 if they were found indulging in activities undesirable
and prejudicial to the security of India.230
In Khadija Vs. Union of India (Crl. WP 658 of 1997), The
High Court of Delhi in New Delhi ruled that international law
and conventions cannot be applied to refugees indulging in
criminal activities, and consequently, they can be repatriated
or deported.231

227. W P Nos. 6708 and 7916 of 1992.

228. W M P 17372, 17424, 18085 and 18086 of 1992 in W P 12298, 12343 of 1992.
229. Supra n. 15.
230. Ibid.
231. Ibid.

301
 CHAPTER - IV

Right to leave (Return)

The court h a s upheld a refugee's right to leave the
country. In Nuang Muang Mye Nyant Vs. Government of India
(C.W.P. No. 5120/ 94) and Shar Aung Vs. Government of India
(GI. WP No. 110 of 1948),
The court ruled that even those refugees against whom
cases were pending for illegal entry should be provided exit
provided exit perniits to enable them to leave the country for
third-country resettlement.^32

Application of international laws for the protection of Refugees

In Ktaer Abbas Habib Al Qutafi Vs. Union of India (CA
3433 of 1998), The High Court of Gujarat in Ahmadabad
Summarized the principles that have emerged from Indian
judicial precedents. This included conformity with
international conventions and treaties. Although not
enforceable, the government is obliged to respect them, put
the power of the government to expel a foreigner is still
absolute. Meanwhile, Article 21 guarantees the right to life
for non-citizens International covenants and treaties which
effectuate these fundamental rights can be enforced. The
principal of non-refoulment is encompassed in Article 21 so
long as it is not prejudicial to national security. Under Article
51 (c) and 2 5 3 , international law and treaty obligations are to
be respected as long as they are consistent with domestic
law. 233

In the case of Khy Htoon and other Vs. State of

Manipuir,^^"^ The Imphal bench of the Guahati High Court

232. Ibid.
233. Ibid.
234. Civil Rule No. 515 of 1990.

302
 CHAPTER - IV

ruled t h a t refugees have fundamental rights under Article

14,21 and 22 of the Indian Constitution.
'Leave India' Notices: The administrative authorities vide
sec. 3 of the Foreigners Act, 1946 may issue Leave India
Notice to refugees who have failed to obtain extension of their
travel permits, or who are ordered to be deported by the
court. In the case of Gurinder Singh & Karamjit Singh Vs.
Union of India. WP (Criminal) 871/1994.
Afghan Sikhs of Indian origin, who had fled persecution
from Afghanistan, were registered as refugees with UNHCR in
New Delhi. They were issued Leave India Notices by the
Foreigners Regional Registration Office to leave India within 7
days of receipt of the notice. The only remedy u n d e r such
circumstances is through legal action in the appropriate
court. In this case criminal writ petition was filed in the
Punjab and Haryana High at Chandigarh and interim stay of
the leave India notice was obtained. ^35

Need for National Refugee Law in India

The Indian legal framework has no uniform law to deal
with its huge refugee population, and has not made may
progress towards evolving one either; until then, it chooses to
treat incoming refugees based on their national origin and
political considerations, based on their national origin and
political considerations, questioning the uniformity of rights
and privileges granted to refugee communities.236 Indeed, the
National Human rights Commission (NHRC) h a s submitted
n u m e r o u s reports urging the promulgation of a national law,
or at least, making changes or amendments to the outdated
Foreigners Act (1946), which is the current law consulted by

235. Supra n. 23 at 7.
236. Supra n. 6.

303
 CHAPTER - IV

authorities with regard to refugees and asylum seekers. So

the absence of a well defined national refugee law has created
a n u m b e r of anomalous situations.237
It is important to note that India is not a signatory to
the 1951 convention relating to the s t a t u s of refugees or its
1967 protocol. This makes India's international position in
terms of treatment of refugees, disputable. However, it is
equally important to note that India is a signatory to various
other international and regional treaties and conventions
relating to Universal Human Rights and refugees.^38 Taking
this into account, it is clear that India respect international
treaties on the treatment of people residing within its
territory. But, without having any refugee policy and any
separate national legislation on the treatment of refugees and
furthermore India's hesitation to sign any international
convention or even accept any regional or national framework
to deal with refugees as it is of the firm belief t h a t the issue
of accepting or rejecting refugees is a unilateral decision and,
therefore, there is no real need to pass an entirely new law to
consider multilateral and bilateral agreement, unnecessarily
t a r n i s h e s its image at the international level.^39

Although India's past efforts in dealing with mass

influxes h a s been commendable, its geopolitical position in
the subcontinent makes it a preferred destination for asylum
seekers and refugees. In India refugees, like all foreigners,
have free access to the court for the protection of their life
237. Ibid.
238. Such as the UN Declaration on Territorial Asylum (1967), The Universal
Declaration of Human Rights, and the International Convention on Civil and
Political Rights. India is also a member of Executive Committee (Ex Com) of
the UNHCR which approves and supervises the material assistance
programmes of the UNHCR, all this without actually supporting or
acknowledging the role of the UNHCR on its own territory.
239. Supra n. 6 at 7, also see B.C. Nirmal, "Refugee and Human Rights'" p. 1 1 at
http:.Vwww. vvorldiii.org/int/journalsiSlLYBlHRL6/2001 visited on
01.08.2009.

304
 CHAPTER - IV

and liberty. India does not discriminate between refugees on

the basis of race, political affiliation or religion all refugees
have the complete freedom to practice their religion. However,
in the absence of a specific municipal law incorporating and
protecting the rights of refugees, it is left to the courts to
read the provisions of the international human rights
i n s t r u m e n t s into the provisions of Article 14, 21 and 25 of
the constitution.2'^o x^g zeal of the Court to protect the rights
of refugees, though commendable, has its limitations. The
dangers of judge-centric solutions are that in many cases the
outcome of the case would depend on the outlook of a
particular judge to the issue before him. There indeed cannot
be any certainty or uniformity in judicial activism. There is
t h u s , an urgent need for a legal framework to provide for the
protection, rehabilitation and repatriation of refugees. No
doubt judicial creativity h a s , to some extent, minimized the
rigours of the refugees but legislation alone will provide an
effective and permanent solution.24i

As stated earlier, no c u r r e n t Indian law refers directly to

refugees. The primary documents dealing with the treatment
of foreigners/refugees in India are the Registration of
Foreigners Act, 1939, the Foreigners Act, 1939, The Foreigners
Act, 1946, and the Foreigners Order, 1948. Both the Act and
the Order affirmatively grant the Indian government powers to
restrict the movement of foreigners inside India, to mandate
medical examinations, to limit employment opportunities, and
to control the opportunity to associate, and the ability to
"refoul" or "return", refugees. The Refugees Convention

240. Anil Shrivastav, "Need for Domestic & Refugee Law", Halsbiiry's Law
Monthly http: "www.halsbui ys. in, needfordomestic html, p. 2, visited on
01.09.2009.
241. Ihid.

305
 CHAPTER - IV

however, bars all these actions.2^2 Therefore, the policy of

India toward refugees already matches international
s t a n d a r d s and is, consequently, not in need of any change is
not acceptable to watchdog agencies like the UNHCR and the
NHRC. NHRC is of the view that it is essential that India
develops a national policy and possibly a national law, fully
in consonance with the 1951 UN Convention and the 1967
Protocol.243

The need for a refugee law is immediate. The uniform

treatment of refugees is a must as long as India continues to
accept asylum seekers across its porous borders. The need for
a stable and secure guarantee of refugee protection in India
led to the establishment of an Eminent Persons Group (EPG),
chaired by former Chief J u s t i c e P.N. Bhagwati, to suggest a
model law for refugee protection. The draft of this proposed
law was adopted by the Fourth Annual Meeting of the
Regional Consultation at Dhaka in 1997. The India-specific
modal law was born out of this regional consultative process
to provide statutory protection to refugees in the diverse
south Asian region. Despite technical or specific misgivings
about the model law, there h a s been unanimity about its
necessity and widespread acceptance of its use as a
framework for future protection. But the bill was never tabled
in Parliament. 244

The restrictions and unequal treatment imposed on the

refugee population by the Indian government is
discriminatory and t a r n i s h e s its h u m a n rights record, which
is not outstanding in any case. There is an urgent need for

242. Supra n. 6 at 6 also see, V. Suryanarayan, "Need for National Refugee Law",
ISIL Year Book of International Humanitarian and Refugees Law, 2001 p. 4,
http: /ww\v.vvorldlii.org./int/ioui-nalsiSlLYBlHRL/2001/15 , visited on
15.08.2009.
243. Supra n. 6 at 4.
244. Supra n. 5 at 3.

3()()
 CHAPTER - IV

India to incorporate its various treaty obligations in the

domestic law of the land to make their obedience by the
executive enforceable directly. It is time now to provide for an
appropriate legal framework to process m a t t e r s in respect of
determination of refugee s t a t u s , protection from refoulment,
and treatment during their stay as refugees.245
Such a legal framework can make provisions for the
following:
• A person shall be excluded from refugee s t a t u s if he or she
is convicted for a crime against peace, a war crime, or a
crime against humanity;
• No refugee or asylum seeker shall be expelled or returned
to a place where there are reasons to believe his or her life
of freedom would be threatened;

• Where an application is made by an asylum seeker for the

determination of refugee status, pending such
determination, he shall not be deported or nor any
restrictions be imposed save and except those that are
necessary in the interests of sovereignty and integrity of
India or maintenance of public peace and order.

• The determination of refugee s t a t u s shall be by a Refugee

Committee to be prescribed over by the Commissioner of
Refugees who shall be a sitting or retired High Court judge.

• During the determination of his refugees status, the

asylum seeker shall be entitled to all a s s i s t a n c e including
that of an interpreter and legal practitioner; and

• An appeal shall lie against the order of the Refugee

Committee.246

245. Supra n. 240.

246. Ibid.

307
 CHAPTER - IV

While I n d i a h a s a human rights law r e g i m e , a n effective

National Human Rights Commission and an innovative,
c r e a t i v e a n d active j u d i c i a r y , yet now t h e r e is u r g e n t n e e d for
a domestic refugee law regime. India now needs to
consolidate, streamline and harmonize into l e g i s l a t i o n , its
long t r a d i t i o n a n d e x p e r i e n c e in a c c o m m o d a t i n g t h e inflow of
refugees, i t s faith in t h e p r i n c i p l e of n o n - r e f o u l m e n t , a n d its
c o m m i t m e n t to u p h o l d t h e p r i n c i p l e s of i n t e r n a t i o n a l h u m a n
rights.

Conclusion

India h a s so far dealt with situations of mass influx without

a refugee law but with a continuously enlarging population of
refugees and asylum seekers, a large section of who may not be
repatriated in the near future, a uniform law would allow the
government to maintain its huge non-citizen population with more
accountability and order, apart from allowing them to enjoy
uniform rights and privileges. No doubt India h a s done appreciable
work concerning refugees, but a lot more still required to be done
for realization and enforcement of h u m a n rights of refugees.
Although international legal regime have been accepted by Indian
Legal System to provide people better laws on h u m a n rights. These
norms are reflected in many decision of Indian Courts, further
India has ratified several international treaties on Human Rights.
Also appreciable is the role of Indian Judiciary, for interpreting
constitution of India with the principles of international law and
Human rights in protecting the basic rights of refugees. Further
United Nations High Commissioner for Refugees, being the main
agency to tackle the refugee matters h a s played a significant role
in the protection of refugees in India. The current watch dog of
India's refugee policy, the NHRC, h a s made numerous
recommendations advising the formulation of such a law, in
accordance with the articles of the convention, but with an Indo
centric n a t u r e and content so a national legislation on refugees,
combining the h u m a n i t a r i a n needs of the refugees with the
security interests of the state, should be enacted.

30(S