- India has no domestic law catering specifically to refugee issues.
- India is not party to the Geneva Convention, 1951.
- The Foreigners Act, 1956 defines the term ‘foreigner’.
- The Citizenship Act, 1955 is the primary legislation regarding nationality in India.
- The Illegal Migrants (Determination by Tribunals) (IMDT) Act, 1983 was struck down in Sarbananda Sonowal vs Union of India.
The refugee crisis and the lack of a legal framework around the issue have been one of the greatest problems faced by Independent India. India’s geographical location too has always made the country prone to conflicts related to ethnic violence perpetrated in the neighbouring countries. That has not stopped us from accepting refugees and migrants from these regions, such as the Partition refugees and migrants, Tibetan Buddhists in 1959, Bangladeshis from the Chakma community in the 1960s and other communities too in 1965 and 1971, Sri Lankan Tamilians in the 1980s, and recently, the Rohingyan Muslims. Despite not being a party to the 1951 Refugee Convention of the UN, or the 1967 Protocol Relating to Status of Refugees, India had reportedly been granting asylum to over 4,00,000 refugees, as of 1992. The protection of human rights of these refugees and the security, economic and demographic issues that come along with their influx have been dealt only by certain pre-existing constitutional provisions, court decisions, or legislative enactments. This article tries to look into these laws governing refugees and other categories of immigrants in India, and the need to fill this legislative gap.
Legislations and Constitutional provisions on refugee laws in India
India does not have a domestic legal framework supporting refugees and other asylum seekers. The only existing laws are the ones applicable to all kinds of foreigners. Whether a person or a group of them qualify to be treated as ‘refugees’ is decided based on these laws. Important provisions and legislations of them are the following.
Foreigners Act, 1946
This is a pre-independence era Act that gave the interim government that existed in India in 1946 the power to decide on matters relating to foreigners in India, including their deportation or expulsion. It defines the term ‘foreigner’ as any person who is not an Indian citizen. The burden of proof of proving one’s such status lies on the person in question, due to the absence of any procedures for identifying a foreigner. According to the Foreigners (Report to the police) Order, 2001, any person who identifies or accommodates a foreigner leading an unauthorised stay in India without valid documents, should report to the nearest police station within 24 hours of the foreigner’s presence. Other than penalties to be levied on contravening this Act, it also includes provisions regarding terms of imprisonment, fines and procedures to be followed if a person is found to enter any restricted area without a permit, using forged passports, changing name during the stay in India, and also on abetment to any such act. The Act is in addition to the other Acts applicable to foreigners in India, such as the Indian Passport Act, 1920 and the Registration of Foreigners Act, 1939.
Since the Act is especially for foreigners, and refugees are a special category of foreigners, the provisions included in it are inadequate for refugee status determination or any such necessities. Illegal migrants too are treated as foreigners under the provisions of this Act.
This Act is the primary legislation regarding nationality in India. It grants Indian citizenship to all persons born in India between 26 January 1950 and 1 July 1987 automatically by birth, regardless of the nationalities of their parents. The Act had been amended in 1986, 1992, 2003, 2005, 2015, and 2019. The Citizenship Amendment Bill,2019 was introduced in Lok Sabha on 9th December, 2019. After the passing of the Citizenship Amendment Act on 11th December, 2019, migrants from persecuted minority communities like Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, who came as refugees from neighbouring countries of Afghanistan, Bangladesh, and Pakistan before 31/12/2014 and are currently residing in India, were to be eligible for Indian citizenship. However, the Act faced nationwide protests for excluding Muslims, who make up the majority of the three countries. The amendment also relaxed requirements for residents to become eligible for citizenship from 11 years to 6 years.
This has been probably the first legislation of its kind that recognises the rights of refugees and is certainly a welcome change in India’s refugee policy. However, the singling out of Muslims from the list of ‘persecuted minorities’ was seen widely as an act of discrimination within the country, and even by the international community. There are many instances of communities among Muslims facing persecution such as the Ahmadiyyas in Pakistan, and the Rohingyas in Myanmar. It was also criticised for being discriminatory towards the Malaiha Tamils or people of Indian origin who fled to Tamil Nadu in 1983 following the communal holocaust. According to reports, there are over 30,000 of them across the state of Tamil Nadu who live in refugee camps to this day.
- Immigrants (Expulsion from Assam) Act, 1950
The Act was directed towards the expulsion of certain immigrant communities from Assam. It included provisions that empowered the Central Government to order any person, who is originally a non-resident of India but currently staying within Indian territory or the state of Assam to leave if convinced that their stay proves to be detrimental to the general public.
Illegal Migrants (Determination by Tribunals) (IMDT) Act, 1983
This Act was passed during the tenure of Indira Gandhi in order to detect illegal immigrants (from Bangladesh) and expel them from Assam. It was later struck down by the Supreme Court of India in 2005 in Sarbananda Sonowal vs Union of India[2007 (4) ALT 7 (SC)]. The Act laid the onus of proving whether a person was a foreigner or not on that person, while the proof of citizenship was to be provided by the police. A ration card was enough proof for any illegal migrant to prove his or her citizenship and after a decision was made on this by a Tribunal consisting of a group of judges, the question of deportation would be considered.
The Constitution has laid down certain provisions which apply not only to Indian citizens but also to persons who do not hold Indian citizenship. They have been the basis for several prominent judgments regarding the treatment of asylum seekers in India. These provisions are applied to non-citizens who have migrated to India by dividing them under three heads. They are explained below.
- National Treatment: Under this head, non-citizens belonging to the category of asylum seekers are treated the same as Indian citizens. That is, certain provisions such as rights under Article 14, which guarantees equal protection to law, freedom to practice under Article 25, right to life and personal liberty under Article 21, and the rights to social security and education, etc. apply to all persons.
- Treatment accorded to foreigners: Issues related to housing, movement, property, etc. come under this head. They include the right to employment or profession under Article 17, freedom of residence and movement under article 26, right to housing under article 21, and right to form an association under article 15.
- Special treatment: This treatment includes the identity and travel document under article 28, and exemption from penalties under article 3(1) of the 1951 Refugee Convention.
Important cases related to refugee issues
The judiciary plays a vital role in contributing to the existing framework of laws protecting refugees in India. Concepts of Public Interest Litigation and Social Action Litigation have made it easier. Judgements by various High Courts incorporated the concept of natural justice to arrive at landmark judgements on refugee issues. The Supreme Court too has passed judgements that respect statutes, treaties, and conventions regarding refugee rights in International Law.
There are instances in which the Supreme Court of India stayed the deportation of refugees such as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab [Crl. WP No.125 & 126 of 1986] and in N.D.Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987]. In the case of Malavika Karlekar vs. Union of India [Crl. WP No.243 of 1988], the Supreme Court stated that 21 Burmese refugees of the Andaman Islands who were in India cannot be deported considering that their claim for refugee status was still pending. In NHRC vs State of Arunachal Pradesh [1996 AIR 1234], better known as the Chakma refugee case, the Supreme Court declared that no one shall be deprived of his or her life or liberty without the due process of law. In the case of Ktaer Abbas Habib Al Qutaifi vs. Union of India [1999 CriLJ 919], the Gujarat High Court held that the principle of non-refoulment avoids ejection of a displaced person where his life or freedom would be undermined by his race, religion, nationality, enrolment of a specific social gathering or political conclusion. Application of this principle ensures life and freedom of any person irrespective of his or her nationality.
There are also cases in which the apex court upheld the authority of UNHCR as an international organisation, to grant refugee status and also the right all refugees had to approach the UNHCR. Such status was to be considered valid protection against detention or deportation. For example, in P. Nedumaran vs. Union of India [1993 (2) ALT 291], the need for voluntary nature of repatriation was emphasized and the Court held that the UNHCR, being a world agency, was to ascertain such voluntariness of the refugees and added that, it was not upon the Court to consider whether consent was voluntary.
In 1959, Jawaharlal Nehrulay out three principles underlying India’s refugee policy regarding the Tibetan refugee crisis of the time. They were, (1) refugees will be accorded a humane welcome; (2) the refugee issue in India is a bilateral issue; and (3) the refugees should return to their homeland once normalcy returns there. Though these principles went through several changes under subsequent governments, the essence of India’s refugee policy still tries to abide by these principles. In recent years due rise in trends of religious persecution towards minorities around the world, the international community is being largely concerned about legal frameworks protecting such persons. At such a point in time, India must enact a legislation strictly and solely towards the protection of the rights of displaced people, without any kind of bias in order to overcome the major setbacks of the existing laws.