The researcher in this this article has focused on Human Rights pertaining to refugee law legislation in India. From partition till now India has evidenced mass cross-border movement of refugees from many countries. In generic term refugee means “a person who has been forced to leave his country in order to escape war, persecution or natural calamity”. However, Article 1 of the UN Convention as modified by Protocol in 1967 defines refugees as a person “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself protection of that country”. however,
It is important to note that India has not signed the1951 Convention relating to the status of refugees or the 1967 Protocol. This makes India’s international position in terms of treatment of refugees, disputable. At present refugees are dealt in India with the same laws by which
foreigners are governed such as The Passport Act 1967, the Foreigners Act 1946, the Foreigners order 1948 and the National Security Act 1980.These laws however does not guarantee adequate remedy as they are entitled in present international refugee laws. Albeit some fundamental rights of Indian Constitution provides rights to non-citizens as well, Article14,20,21,21A,22,23,24,25,26,27 and 28 but these are not adequate for them. In present
refugees are of great concern in India when refoulment of rohingyas ordered by Government where judiciary took a step ahead when petition was filed regarding the same and such expulsion on ground of violation of Human Rights was suspended.
Keywords: Constitution, Human Rights, Refugees, Rohingyas, United Nations
1 HISTORY OF REFUGEES IN INDIA
It is fascinating to note that despite the fact that India is neither a signatory to the 1951 Convention nor the 1967 protocol, the nation has still filled in as a home to the biggest exile populace in South Asia. In India refugees are crossing borders from the time of independence itself due to the threat of being persecuted and with the passing of the time it turned into a haven for refugees. Not only from neighboring countries but also from other countries as well refugees are entering into India in search of safety.
1.1 THE DISPLACED PERSON OF PARTITION
In spite of the fact that individuals who traversed the recently framed borders amongst India and Pakistan by decision or persuasively did not lose their nationalities, they were as yet compelled to experience the lives of a displaced person. Exile camps crosswise over north India filled in as homes for the individuals who had borne the brunt of Sec.. Since these evacuees were naturally the natives of recently autonomous India, the subject of a risk to national security because their status was not enough trustworthy. Be that as it may, at this point, when the youngster state was simply attempting to remain on its feet and attempting to give these exiles fundamental conveniences like nourishment, garments, and safe house, the 1948 war with Pakistan broke out.
The national capital of Delhi, specifically, saw a colossal flood of evacuees. The numbers were with the end goal that a whole city Faridabad must be worked to restore displaced people who were living in horrifying conditions in different camps. The size of the issue was an uncommon test for the youthful government, and it was just through the endeavors of many social reformers that the recovery of the Sec. displaced people could be done.
1.2 THE TIBETAN REFUGEES
The following real development of evacuees towards India happened very nearly 10 years after Partition, in 1959, when the Dalai Lama, alongside in excess of 100,000 devotees, fled Tibet and came to India looking for political shelter. Providing shelter to them on philanthropic grounds demonstrated exorbitant to India, gained the wrath of the Chinese government.
Subsequently, Sino-Indian relations took a noteworthy hit. Fringe issues between the two nations and Chinese infringement on Indian domain started to manifest with more prominent recurrence in the wake of New Delhi's choice to give an asylum to these escaping Tibetans. The 1962 war with China, specifically, proved expensive to India. There were numerous reasons that prompted the war: however, the conceding of political haven to Tibetans was unquestionably one of the triggers.
The Tibetan exiles settled crosswise over northern and north-eastern Indian states and the seat of the Dalai Lama, the otherworldly and the political pioneer of the Tibetan people group was set up in Dharamshala, Himachal Pradesh. The Tibetan government in a state of banishment works from that point right up till the present time. The Tibetan exiles keep on living amicably with other nearby Indian gatherings and as a network they are largely seen as 'serene'.
1.3 THE BANGLADESHI REFUGEES
The emergency occurred amid Bangladesh's war of freedom in 1971, when many evacuees relocated from the nation to India, significantly displaced person escaping the rivalry between the Pakistani armed force and Bangladeshi powers. This prompted a sudden spike in the populace in states flanked by Bangladesh, and it turned out to be progressively troublesome for the legislature of India to guarantee nourishment security. As per a few assessments, in excess of 10 million Bangladeshi displaced people got away in 1971 and took protection in India.
Indeed, even today, the issue of unlawful Bangladeshi settlers is utilized by political gatherings to earn votes in each race cycle. Not at all like the Tibetan exiles, often viewed as a security risk. Moreover, the steady tussle between the nearby networks and Bangladeshi displaced people today regularly start brutality, coming about very frequently in passing. The contention is fiercest in various north-eastern states, for example, Assam, Tripura, and Manipur. The neighborhood networks and inborn gatherings have claimed that evacuees from Bangladesh and the ceaseless stream of unlawful settlers have prompted an adjustment in the social demography of that zone, consequently making local people a minority in their own particular country. This was one of the essential purposes for the Kokrajhar revolts in Assam in 2012, which saw the death of nearly 80 individuals.
1.4 THE SRI LANKAN TAMIL REFUGEES
Another sizeable gathering of evacuees in India contains Sri Lankan Tamils who surrendered the island country in the wake of dynamic prejudicial arrangements by progressive Sri Lankan governments, occasions like the Dark July Uproars of 1983, and the wicked Sri Lankan common war. For the most part, these outcasts, who number over a million, settled in the State of Tamil Nadu as it is closest to Sri Lanka and since it was less demanding for them, as Tamils, to acclimate to life there.
"In excess of 1.34 Lakh, Sri Lankan Tamils crossed the Palk Strait to India in the vicinity of 1983 and 1987 amid the first in the stream. In three more stages, numerous more displaced people entered India. The war-torn Sri Lankans looked for shelter in southern India with in excess of 60,000 displaced people as of now remaining in 109 camps in Tamil Nadu alone," as per a report in India Today.
An extensive number of Sri Lankan Tamils still live in what started as stopgap evacuee camps decades sooner, regardless of the finish of the common war about nine years prior. India's contribution in the Sri Lankan strife most broadly brought about the death of previous PM Rajiv Gandhi and the exiles remains a touchy issue, which has on numerous occasions stressed India's and Tamil Nadu's relations with Sri Lanka.
1.5 THE AFGHAN REFUGEES
While not one of the major groups of displaced person bunches in the nation, various Afghans additionally took protect in India after the Soviet attack on Afghanistan in 1979. Little gatherings of Afghan displaced people continued coming to India in consequent years. These displaced people are for the most part moved in and around Delhi and generally have settled spaces for themselves.
Likewise, as indicated by the site of the UNHCR, a considerable lot of the Hindu and Sikh Afghans who came to India subsequent to escaping battling in their nation of origin in the mid1990s have been allowed citizenship over the previous decade. Both the World Bank and UNHCR reports propose that as of now India has in excess of 300,000 Afghan displaced people living in its domain.
1.6 THE ROHINGYA REFUGEES
The level-headed discussion over exiles increased national noticeable quality once more a year ago after 40,000 Rohingya Muslims got away from Myanmar to take shield in India. The workplace of the UNHCR has issued character cards to around 16,500 Rohingya in India, which it says counteracts "provocation, discretionary captures, confinement and expulsion" of displaced People.
Be that as it may, India has treated the Rohingya as illicit outsiders and a security danger, agreeing with the Burmese government. The Indian government has expressed that the guideline of non-refoulement or of not driving displaced people to go back to their nation of the cause, does not make a difference to India essentially as it's anything but a signatory to the 1951 exiles tradition. The Indian government has, truth must be told, engaged Myanmar to reclaim the Rohingya outcasts.
Nonetheless, a report in The Indian Express notes, "India's claim to send the Rohingyas back to Myanmar lays on the thought that the displaced people are of Burmese stock. Be that as it may, the current issue is that the Burmese don't consider the Rohingyas as their residents and view them as outsiders who have acquired from Bangladesh amid the English colonies rules the situation. Further, Bangladesh, which remains the most loved goal for the Rohingyas confronting barbarities in Myanmar, is of the sentiment that they are locals of the Burmese state and ought to be ensured there.
1.7 THE CHAKMA AND HEJONG REFUGEES
The Chakma and Hajong people group—who once lived in the Chittagong slope tracts, a large portion of which are situated in Bangladesh—have been living as outcasts in India for over five decades, for the most part in the North-East and West Bengal. As indicated by the 2011 enumeration, 47,471 Chakmas live in Arunachal Pradesh alone.
In 2015, the Supreme Court of India had guided the Local government to offer citizenship to both Chakma and Hajong evacuees. In September a year ago, the legislature of India chose to give citizenship to these gatherings, in spite of restriction from numerous gatherings in Arunachal Pradesh, where these outcasts are concentrated.
2 CONSTITUTIONAL SAFEGUARDS FOR REFUGEES IN INDIA
In India, in the absence of any legislation which it deprives refugees with many essential rights but due to adherence to the Constitution of India it provides some rights which are applicable to foreigners are available for refugees as well and can be enjoyed by them. India is a country where ‘rule of law’ prevails and it only allows doing ‘intelligible differentia’ between people residing in the territory. In the ordinary circumstances the laws applicable to the foreigners also prevails over refugees living in the territory of India because no law in India distinguish refugees from foreigners.
The Constitution of India provides for some of the human rights and freedoms to refugees as long as they are living in the territory of India.
Equality before the law or Equal protection of laws, Art. 14 provides equality before the law or equal protection of law. The idea of equality underlies the idea of equality among equals which means persons living under the similar circumstances will be considered on the same level of equality.
It provides that "The state shall not deny to any person equality before the law or equal protection of laws within the territory of India"
It clearly implies that it is available for any person residing in the territory of India without any discrimination, the state has an obligation for the equal protection of refugees as well and in the breach they can invoke the provision of Art. 14.
In Louis De Raedt Vs. Union of India , the Supreme Court had ruled that the fundamental rights of the foreigner was confined to Art. 21 and did not extend to a foreigner, the right to reside and settle in India, as states in Art. 19 (1) (e) Relying on the judgments 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 guaranteed for the grant of citizenship of India, in which matters, 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 can not claim equal rights under Art. 14 of the Constitution.
Right to life and Personal Liberty, Art. 21 provides the right to life and personal liberty irrespective of citizenship and entitled for right to live with human dignity in the territory of India in the same circumstances as aliens living in India.
It provides: "No person shall be deprived of his life or personal liberty except according to procedure established by law". Art. 21 is of the widest amplitude after the judgment of Maneka 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 human dignity free from, exploitation. It was held in Francis Coralie Vs. Union Territory of Delhi. This right to live with human dignity is enshrined in Art. 21 as laid down by Courts in India.
(ii) Right to livelihood
If the right to livelihood is not treated as a part of the Constitutional 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. Depriving a person of his right to livelihood means a person is deprived from his life itslef
(iii) Right to Shelter
The right to shelter has been held to be a fundamental right which springs from the right to residence, secured under Art. 19 (1) (e) and the right to life guaranteed by Art. 21. 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. The right to shelter, does not mean a mere right to a roof over one's head but "right to the entire infrastructure is necessary to enable him to live and develop as a human being".
(iv) Right to Education
In the beginning Right to education was considered as the fundamental right under Art. 21 which directly flows from the right to life. But the right was however, not an absolute right and that it’s content and parameters have to be determined in the light of Art. 41 and 45. The Constitution (86 Amendment) Act, 2002 inserting a new Art. 21-A declaring right to education an independent fundamental right which makes its application broader in comparison to earlier situation.
(v) Right to Social Security and Protection of the Family
Right to life guaranteed under Art. 21 includes within its ambit "the right to social security and protection of the family". Interpreting Art. 39 (e) of the Constitution of India vis-a-vis Art. 25 (2) of the UDHR and Art. 7 of the ICESCR 1965, J.K. Ramaswamy in Calcutta Electricity Supply Corporation (India) Limited Vs. Subhas Chandra Bose held that the right to social and economic justice was a fundamental right. It was explained that right to life and dignity of person and status 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 human being, be he a citizen or otherwise and that the state cannot 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 under Art. 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 human body. It is not merely a right enshrined under Art. 21 but an obligation cast on the state to provide this both under Art. 21 and under Art.
(vii) Right to Privacy
The Right to personal liberty and the right to move freely and freedom of 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. Recently in 2017 SC overruled the earlier two significant judgments of MP Sharma v. Satish Chandra and Khrarak Singh v. State of UP, on right to privacy in K. S. Puttuswamy (Retd.) & ors. v. UOI & ors.44 and declared right to privacy as a fundamental right which was previously not granted in earlier two cases.
(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 like situations, was part of fair, just and reasonable procedure implicit in Art. 21. The "right to speedy trial", has been interpreted to be a part of the fundamental right to life and personal liberty. Art. 21 requires that a person can be deprived of his liberty only in accordance with procedure established by law which should be a just, fair and reasonable procedure.
(ix) Right against Inhuman Treatment
The Supreme Court in several cases, has taken a serious note of the inhuman 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. So the inhuman treatment by the police was violation of Art. 21. As human dignity is a clear value of our Constitution not to be parted away for mere apprehension entertained by jail officials.
The Indian Constitution guaranteed protection against arrest and detention in certain cases. It embodies safety from illegal detention and prescribes certain procedure to be followed in case of any detention of a person.
Art. 22 (1) & (2) Provides:
“(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
It lays down the four rights/safeguards against arrest or detention made under ordinary law relating to the commission of offences.
(a) Right to be informed, as soon as may be, of the grounds for arrest or detention.
(b) Right to consult and to be defended by a legal practitioner of his choice.
(c) Right to be produced before the nearest Magistrate within 24 hours of arrest.
(d) Right not to be detained in custody beyond 24 hours without the authority of the Magistrate
Art. 22 (1) and 22 (2) of the Indian Constitution reflect that the rules of natural justice in common law system are equally applicable in India, even to refugees.
The constitution provides protection in respect of conviction for offences. The protection contained in Art. 20 is available to all persons, citizens or non-citizens. The term "person" in Art. 20 includes a corporation which is accused, prosecuted, convicted or punished for an offence.
Art. 20 Provides:
“(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.”
The Constitution of India provides protection against exploitation. This right is secured to every person, whether citizen, non-citizen on alien. The protection contained therein is available not only against state but also against private individuals.
Art. 23 of the Constitution prohibits traffic in human being and beggar and other similar forms of forced labor and any contravention of this provision shall be an offence punishable in accordance with law. However it does not prohibit state to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
It Prohibits of Traffic in Human Beings and Forced Labor. The practice of traffic in human being is condemned in almost every international instrument dealing with human rights. Art. 24 also provide right against exploitation. It 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 DPSP contained in Art. 39 (e) and 39 (g), provides for the protection of the health and strength of children below the age of fourteen years.54 The prohibition contained in Art. 24 could be plainly and indubitably enforced against everyone, whether state or private individual.
Secularism is the basic feature of the Constitution.55 In the matter of religion, the state should be neutral and treat every religion equally. Constitution of India provides 'freedom, of religion', the right is available to every person, citizens or non-citizens or aliens. Art. 25 of the constitution of India provides: "Subject to public order, morality and health and to the other provision of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion".
3. NHRC
The Legislature of India has adopted the Protection of Human Rights Act 1993. The legislation accommodated the constitution of NHRC, SHRC and HRC for better assurance of human rights and for issues associated or accidental thereto. These recommendatory bodies have power to ask into the infringement of human rights or abetment thereof. The Commission isn't confined to researching issues of worries to subjects just and indeed it likewise considers the issues identifying with every single individual counting the privileges of refugees in India . The NHRC which was set up by the Protection of Human Rights Act, 1993 is the fundamental body endowed with advancing and ensuring human rights. The Protection of Human Rights Acts vests the NHRC with a expansive order, However it just has the ability to propose recommendations and does not have any powerful requirement component available to it. NHRC has worked successfully for the insurance of displaced person's human rights in India.
3.1 POWER AND FUNCTIONS OF NHRC: The Protection of Human Rights Act 1993 gives power to the Commission to inquire suo-motu or a petition presented to it by a victim or any other person on his behalf or on a direction or order of any court, into complaint of violation of human rights or abetment thereof or negligence in the prevention of such violation by public servant, review the safeguards provided by the constitution or any law for protection of human rights and recommend measures thereto for effective implementation, awareness of human rights in public, encouraging NGO’s and other institutions for working in the field of human rights or any other function as it may consider necessary for protection of human rights. Also the body has all the powers of civil court while inquiring into complaints under this Act. After inquiry if violation or abetment thereof by public servant is disclosed, Commission may recommend making compensation or damages, initiation of proceedings or any other which it may deem fit, it can approach Supreme Court or the high Court for such direction or may file writs in the concerned court.
By virtue of these powers and functions, so far NHRC has prominently secured rights of the refugees at different times. In the matter of Chakmas which became the landmark case on the matter of refugees. PUCL notifies NHRC that the violation of the right to life and personal liberty is endangered of Chakmas in Arunachal Pradesh. NHRC after fulfilling the requisite of inquiry for a period of one year, approached to the SC. NHRC contended that Chakmas life is not safeguarded by the local government and it is a mean to create political pressure on them to leave Arunachal Pradesh. The SC considered the arguments by NHRC to be true in character and by way of writ of mandamus filed by NHRC, directions to the state of Arunachal Pradesh were issued: where every Chakma life will be protected, not to be evicted except in accordance with law. The Applications for the citizenship has to be forwarded to the central government by the collector and no evacuation of refugees where such application is in pending.
Also in the matter of Rohingyas where government issued order for the eviction of the Rohingyas in 2017, then the NHRC on the principle ground of violation of human rights contended against government to give reasons and grounds of the evacuation of refugees. Though it did not interfere in the matter in respect to evacuation of ‘illegal migrants’ because even the principle of non-refoulement is subject to an exception of the national security.
4 Other Laws dealing with refugees
In India cross border movements of refugees are evident from past decades but still India does not distinguish between refugees and foreigners, which is depriving refugees from claiming exemptions under certain circumstances, such as in case of travelling document. Under factual circumstances, the status of refugee is quite dissimilar from the status of foreigners because the main element of threat of persecution lacks in the case of foreigners. Who may came to India for many different purposes, such as in case of attending marriage, work permit or any other temporal reason. But the idea behind entering into India by refugees is only in search of safe place of resident, where they flee from their home country in threat of being persecuted.
4.1 DISTINCTION BETWEEN REFUGEES AND FOREIGNERS
4.1.1 Economic Migrant:
a person may leave his/her country in search of better living standards without falling under the ambit of the term ‘refugee’ as defined under Convention on the Status of Refugees. Those migrants enter India on an invalid ground to be called as refugees and hence refugees should not be seen with the same lens. In deciding the status of refugees discretion lies in favor of government which must take into consideration humanitarian aspect of fleeing from their home countries by refugees.
4.1.2 Internally Displaced Persons: Although in this category threat of persecution is present in the region of their country, but they are distinct from refugees because they do not cross their borders, which mean their fundamental rights can be safeguarded by taking help fromgovernment itself. But such rights are not available in the case of refugees. They are much exposed to denial of even basic human rights.
4.1.3 Temporary Residents, Tourists and Travelers, unlike other two categories, temporary residents, tourists and travelers may came to India for any specific purpose, having valid authorization from their respective governments. They are foreigners ab initio present in the territory of India but they may turn into refugees, if at later stage they fulfill the requisites of Convention on the Status of Refugees 1951.
4.2 SOME SPECIFIC LAWS DEALING WITH REFUGEES, EVACUEES AND DISPLACED PERSONS
In India there were certain laws before and after the independence which specifically deals with the displaced persons, though with the passage of time, some of them have become unoperational. These laws somehow were in relation to the refugee status.
Later after adoption of Constitution of India further below Acts were enacted.
4.3 THE FOREIGNERS ACT 1946
This Act deals with foreigners and refugees in the same category without any difference, which causes problem to refugees because their character lacks any permit by the government except authorization of status by the UNHCR as refugees. India's ad-hoc refugee framework is made conceivable by the wide powers offered solely to the Centre to act with free attentiveness with respect to refugees.
In the nineteenth century, India's pioneer government established the Foreigners Act, 1864, the main statute to boycott, keep, and remove outsiders. The statute was cumbersome, having been intended to advance the frontier control and keep up social control. But when the Second World War broke out, the government found even the 1864 statute excessively merciful for the outright powers it requested, so it was supplanted by the Foreigners Act, 1940. After the war finished, and in the midst of the extensive changes that took after, the 1940 wartime enactment was additionally solidified as the Foreigners Act, 1946. The Foreigners Act is completely without subtlety since it does not separate between individuals on clear criteria, for example, their motivation for entering India. It thus fails as a people government law. For occasion, vacationers, voyagers, ostracize laborers, outlaws, evacuees, and transients have broadly disparate explanations behind entering and remaining in India. However the Foreigners Act treats them consistently under a solid regime.
The Centre has utilized the Foreigners Act to constrain outsiders to demonstrate their identities: introduce themselves at police stations: control their movements, activities, residences: restrict them in internment camps in India. The sheer expansiveness of the law's expulsion control, which has empowered the legislature to accomplish expulsions without even significant legal audit, is revealing. In 1955, the Supreme Court favored this position and in the interceding 61 years, it has not quite recently repeated the unrestricted expulsion power, it has likewise eased the Centre of the necessity of following due process while affecting deportations. This power of expulsion has been appointed and sub-assigned to such a degree, to the point that, in numerous states, a mid-level cop can order a refugee to leave India without having to give any reason.
The inefficacy of the Act for providing refugees with minimal standards of human rights cause severe detriment to them, for that they took help with the intervention of local courts.
In view of the judgment in State v. Farid Ali Khan, where the charged was captured under the Foreigners Act, 1946 for not having the capacity to demonstrate a substantial exile endorsement issued by the Unified Countries High Magistrate for Exiles (UNHCR) and habitation declaration issued by the government. In any case, the charged has all the substantial reports however was not able show them at the season of capture and the law permits the denounced up to 24 h to deliver the records. No time was given to the blamed person for this reason, and on this finding, the preliminary court released the denounced.
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