Human Rights and Refugee Problem in India

Introduction:
The dictionary meaning of the term “refugee” refers to a person who has been
forced to leave his or her country, home etc. for political or religious reasons or
because there is a war or shortage of food etc.
Large scale movements of refugees and other forced migrants have become a
defining characteristic of the contemporary world. The recent history is marked by
large numbers of people in many parts of the globe who have been compelled to
leave their own countries and communities to seek safety elsewhere. This mass
population displacement has attracted and appealed to the soul of the United
Nations and its member states. The legal framework for the protection of refugees
requires provisions to be made for their protection during their status as refugees,
to find solution for their problems, to enable to return to their home countries,
provisions to implement the principle of non-refoulment i.e. protection against
compulsion to return to their home country while the threat for persecution
continues.
Considering the magnitude of the problem, the meaning of the term refugee
requires a fixed, certain and uniform definition and to enact domestic laws relating
to the rights and status of refugee and further to make such rights enforceable in
the national courts. It becomes all the more a necessity, when cases of forced
migrants have become an alarming situation pervading the whole globe. It is also
equally important to look at how the refugee problems can be interpreted in the
light of the corresponding developments in the field of human rights. So this lesson
shall confine to the Indian scenario relating to refugee problem.
The Indian Scenario:
The refugee problem has not spared India as since 1947 tens of millions of persons
have crossed international borders in South Asia. Almost every country in the sub-
continent of India is either a producer or recipient of refugees and in some cases
both for instance, the partition of India in 1947 led to millions being displaced and
absorbed by India. The next decades show the start of refugee flows from Tibet.
The birth of Bangladesh caused the movement of some 10 million people into
India and partly back. Since the year 1983, many tens of thousands of Sri Lankans
escaping civil strife in their country, have sought refuge in South India. The
Chakmas who are Buddhist tribals of Chittagong Hill Tracts in Bangladesh, have
been fighting for development autonomy since British period. The discontentment
was heightened by the Kaptic Dam Project in the sixties in which one lakh tribal
people lost their arable lands as submerged by the Dam. As a result some 40,000
Chakmas left for India and settled in many parts of North East region including
Tripura and Arunachal Pradesh. This was a major environmental displacement.
There is an estimated 25 lakhs refugees in India including Tibetans, Sri Lankans,
Chakmas, Afghans and other categories assisted by the United Nations High
Commissions for refugees. It is confirmed that refugees will not disappear from
this country. The major challenge before India is how to manage refugee
movements in the sub-continent and balancing the rights of refugees and the
interest of the states, in a just and humane manner.
India has always been a host of refugees coming from many corners of the world
including the Vietnamese, Ethiopian and Somalian. It has been in the centre state
of South Asian refugee management. A question may be posed as to why India
does not produce refugees in spite of the fact that there is mass exodus of
internationally or internally displaced people movement across the globe. India is
also not the less violent-prone states in South Asia. India had to go through variety
of violent movements like that are seen in the West Bengal, Bihar, Telengana;
caste and communal tussle in the North East in Assam, Nagaland, Mizoram and the
violent turmoil in Manipur.
Despite the severity of the long drawn violence, there has been no noticeable
fleeing of the people to any of the neighbouring countries from India. It is
obviously because of large size of the country with accommodative structure where
the neighbouring states have more accommodative space. An example may be
cited, the atrocities against the Kashmiri Pandits in Jammu and Kashmir by the
militants have led to large scale exodus of this community from Kashmir but, most
of them have been accommodated and absorbed by the neighbouring states like
Delhi and unaffected region like Ladakh. Similarly during the height of Assam
agitation in the beginning of 1980s most of the fleeing immigrants were given
shelter in North Bengal which remains totally unaffected despite its close physical
proximity to Assam. Thus, the displaced people in India have always found the
possibility of taking shelter in the neighbouring states. However, India produces
large scale internally displaced people who are scattered in many corners of the
country depending upon the nature, magnitude and place of violence.
Status of Refugees in India :
India is not a party to the refugee convention of 1951 and the 1967 protocol, which
relates to the status of refugees in some way or the other. India acceded in March
1979 to the two Covenants of 1966 on Civil and Political Rights and Economic,
Social and Cultural Rights. Many of the provisions are relevant to the refugees.
However, it should be noted that India has reserved her right to apply her own
municipal law in relation to the expulsion of the foreigners. Moreover, since the
Covenants are not enacted into Indian Law, they do not have the force of law in
India and are therefore not enforceable in the Indian Courts. But, Courts may take
them into account while interpreting the statute law.
The Union legislature of India has sole jurisdiction over the subject of citizenship,
naturalization and aliens. India has not passed refugee specific legislation to
regulate the entry and status of refugees, rather she has been handling the influx of
refugees at the political and administrative levels. The result is that refugees are
treated under the law applicable to the aliens. Then a question may be posed here
as to what rights do foreigners or aliens possess in the territory of India? The view
of the Supreme Court may be quoted. In Louis De Raedt vs. Union of India (1991)
3 SCC 554, the Supreme Court observed that the fundamental right of the foreigner
is contained and confined to Article 21 for life and personal liberty and does not
include the right to reside and settle in this country as mentioned in Article 19 (c),
which is applicable only to the citizens of this country.
In the context of the refugee rights, it can be argued that Article 21 encompasses
the principle of non-refoulment which requires that a state shall not expel or return
a refugee in any manner whatever to the frontiers of the territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion. It is also equally
important to refer to the customary international law which imposes on the Indian
Judicial System for every state whether a member of 1951 Convention has
respected the principle of non-refoulment which is the Customary norm of
international law. However, this customary rule cannot override an express statute
like the Foreigners Act, 1946, under which the Indian government has absolute and
unfettered right to expel a foreigner. But, in some cases, it is well illustrated that
the Indian Courts have granted to the aliens and have been helpful when
approached in respect to individual cases, which may be illustrated by reference to
some decided cases.
Some illustrative cases:
In India, Articles 14, 21 and 25 of the Constitution guarantee the right to equality,
the right to life and liberty and freedom of religion to everyone. These provisions
are not merely for the benefit of the citizens but are also applicable to aliens. In
addition, the Directive Principles of state policy in Article 51 (c) requires that the
state shall endeavour to foster respect for international law and treaty obligations.
Even without being a party to the 1951 refugee Convention relating to status of
refugees or 1967 Protocol in India, the rights of the refugees to this extent are
protected by the provisions which are made in the Constitution.
In practice, the Indian Courts have been generally helpful when approached with
respect to individual cases where Courts have stayed the deportation of individuals
when an application for the determination of refugee status is pending with the
United Nations High Commissions for refugees in Delhi on some cases, the
detainees have been granted leave to travel to New Delhi where the office of the
United Nations High Commissioner for refugees is located, in order to seek
determination of refugee status.
In Dr. Malvia Karlolker vs Union of India Writ Petition (civil) No. 583 of 1992,
twenty one persons are likely to be deported from Andaman Islands to Myanmar
the next day. The applications of those twenty-one persons were pending for
determination of their refugee status before the UNHCR, Delhi. The Supreme
Court ordered that they should not be deported till the question of their status can
be determined. The Court further ordered that if any further relief is to be sought, it
may be sought from the Calentha High Court. The Court hinted to the authorities to
check whether their statements are true that the refugee status claimed by them is
pending for determination and whether a prima facie case is made out for the grant
of refugee status and further that their presence will not pose any danger or threat
to the security of India.
In Khy-Htoon and 7 others vs. the State of Manipur Civil Rule No. 515 of 1990,
Gauhati Hight Court, the matter was the detention of 8 Myanmar’s refugees in
Manipur Central Jail, Imphal who claimed their right to life as refugees under the
Indian Constitution. Their claim was the right of protection against deportation
under the international law read with the fundamental rights guaranteed under
Articles 14, 21 and 22 of the Constitution. After hearing, the Gauhati High Court
gave direction that the petitioners shall be released on interim bail for a period of 3
months on furnishing personal bond of Rs. 5000/- to the satisfaction of the Chief
Judicial Magistrate Imphal to enable them to go to Delhi for obtaining orders of
refugee status from the UNHCR Delhi. It was further ordered that immediately
after their arrival at Delhi, they shall report to the Officer-in-charge of the
Parliament street police station, New Delhi.
The sympathetic attitude of the Court to stay deportation order is seen in the case
of 8 Srilankan nationals who filed case before the High Court of Judicature at
Madras in Gurunathan and 7 others vs The Government of India W.P. No. 6708
and 7916 of 1992. These two writ petitions’ relate to Srilankan refugees as they
have apprehensions that they will be forced to go to their native place against their
will. The Government of India has undertaken in the case that those Srilankan
refugees will not be sent back to their native place against their will and there will
be no force in that process. The Court ordered accordingly to relive the refugees.
Refugees during the time when they are under trial prisoners and at the time when
they are convicted under the Foreigners Act of India had approached the Courts in
India to get some relief against deportation to their natives land and had sought the
relief successfully. This is well illustrated in Mr. Bogi vs. Union of India Civil
Rule No. 1847/89 of the Gauhati High Court. In this case, the petitioner
apprehends that on expiry of the detention if he is deported to Myanmar, his life
would be in danger. The petitioner, prayed for allowing him to go to Delhi to seek
political asylum from the United Nations High Commissions of Refugees. The
High Court allowed the petitioners to go to Delhi for making necessary
arrangements, by granting interim bail for a period of 2 months.
Foreigners were compelled to enter into this country along with others as a result
of terror let loose by the military authorities in Myanmar. A woman was
prosecuted and Convicted by the Chief Judicial Magistrate, Chandel in Manipur
State and as a result she served the sentence. An application was filed before the
Gauhati High Court being Ms Zothansangpuli vs the State of Manipur Civil Rule
No. 881 of 1989. The petitions apprehend that in view of the circumstances under
which she had to come to this country, her life would be in danger, if she is
deported to Burma. The Court gave her relief by ordering that she may not be
deported after her release for a period of one month to enable her to go to Delhi to
seek political system from the office of UNHCR.
Sympathetic and lenient treatment by the Court towards the refugees is seen not
only by the Supreme Court but also by the Court of Magistrates which can be
illustrated by reference to a case decided by the Judicial Magistrate first class
cantonment Court Pune in RCC No. 162/1994. The prosecution case was that the
accused Mustafa Jame Ahmad was found overstaying at Pune without any
extension in Visa which led to prosecution under the Foreigners Act. The accused
voluntarily pleaded guilty to the charge framed against him. On the point of
sentence the Court found that he had been in India for his education. In view of the
notification of the government of India, he is refugee from Somalia. He also filed
on record a certificate issued by the United Nations High Commissions for
Refugees. The Court considered that he is a student and aged 27 years and also has
pleaded guilty. If he is sent to jail that may spoil his future. The Court took a
lenient view and sentenced to suffer simple imprisonment and to pay a fine of Rs.
500/-.
The refugee status issued by the office of UNHCR Delhi cannot be used as a
blanket to remain in India for good. In Mr. Sayed Ala Mahmadi vs Union of India
before the High Court of Judicature at Bombay in AD(Cril) No. 48 of 1994, the
petitioner an Iranian official had the fear of forcible deportation. He has been
declared to be a refugee by the UNHCR Delhi. The Court ordered for not deporting
to Iran and allowed him to travel to whichever country he desires. But, he cannot
stay for further period in India for the want of valid Visa.
Conclusion:
The rights accruing to the refugees in India are those that are available to all under
the Indian Constitution namely the right to equality (Article 14); the right to life
and liberty (Article 21); and freedom to practice and propagate their own religion
(Article 25). Any violation of these rights can be remedied by enforcement of these
fundamental rights in the Supreme Court under Article 32 and in the High Court’s
under Article 226 of the Constitution.
The National Human Rights Commission in India has functioned effectively as a
watch dog for the protection of refugees. It approached the Supreme Court under
Article 32 of the Constitution and obtained protection of the Chakma refugees
living in the North-East frontier states when their expulsion was threatened by an
activist students union. Relief was granted on the basis of the rights of aliens under
Articles 14 and 21 in cases National Human Rights Commission vs. Union of India
(1996) 1 SCC 295 and Khuiram Chakma vs. Union of India (1994) Supplement 1
SCC 614.
The readiness to protect refugees and to prevent their deportation by means of
activist approach of the Courts, National Human Rights Commission and the
NGOs, has limitations. There is need for enactment of clear laws to provide for
refugees to give certainly in the field. The legal framework is needed to provide for
the protection, rehabilitation and repatriation of the refugees with a clear definition
of the term ‘refugee’.
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