Who is a Refugee? What are the laws that govern Refugees in India?

refugee

How is one determined as refugee?

The meaning of refugee in daily parlance might mean a person fleeing away from his country due to the prevailing life threatening conditions. Under international law, “a refugee is a person who due the well-founded fear of being persecution for reason of race, religion , nationality, and is unable or owing to such fear , unwilling to avail himself of protection to that country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.”[1]

The above definition is rendered by the UN 1951 convention relating to the status of refugees and this definition was expanded by the Convention in African and the 1984 Cartagena Declaration in Latin America which included person arriving from a mass migration due violence such as civil war.

What are the conventions on refugee?

The 1951 Convention relating to the status of Refugee is an international instrument or a UN multilateral treaty on refugee law which defines refugee, its rights and protection to be provided by the countries who have rectified the convention. The Convention covers the problems of displaced persons and aims to protect the human rights around the globe.

It was adopted at United Nation conference on 28th July 1951 and came into force on 22nd April 1954. Before the second world war , its scope was limited to only European refugee but the advent of 1967 Protocol Relating to the Status of Refugee removed any such geographical limitation applied on refugees.

The Organization of African Unity (OUA) Convention Governing the Specific Aspects of Refugee Problems in Africa defined refugee as “any person compelled to leave his/her country owing to the external aggression, occupation, foreign domination or events seriously distribution public order in either part or the whole of his country of origin or nationality.”[2]

Both these definitions reflect different historic events where the latter is wake to the response of the European Totalitarian where refugee were a victim of persecution of organized predator states and former views that a persecution can cause a disruption even a normal bond between the citizen and the state.

The Cartagena Declaration provided more objectivity to the 1951 Convention refugee which states that “Person who flee their country because their lives, safety or freedom have been threatened by the generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstance which have seriously disturbed public order”. [3]

What are the responsibilities of the parties towards the refugee?

When a state is unable to protect its citizen from atrocities and threats prevailing in their country the government of the other country who have rectified the convention have to step forward and take the responsibility to protect those refugee who are seeing shelter in their territory and ensure that the basic human rights are provided to them.

Under the international law the general principle is that treaty is legally binding to the parties to the convention and shall enforce it’s performance in good faith (pact sunt servanda).[4] There shall be  an obligation to provide the reasonable protection and rights to the refugee in their jurisdiction. This is known as “international protection.” [5]

As per the principle of non-refoulment defined in article 33 of the 1951 Convention no refugee shall be returned to any country where he suffers from life threating situation due to his race, religion, particular social group or political opinion. This benefit is granted till they declared not to be refugee.

What are the refugee laws that govern refugee in India?

India has been receiving a large number of refugee since the first time the entire Zorastrian Community took refuge in India after fleeing away from persecution on religious grounds in Iraq. Refugee in India comes from various countries thus being a receiving country which in process has enlarged itself asmulti-cultural country.

In India there are various legal provisions which regulate the entry and stay of refugee.The India Penal Code is well applicable on refugee. The Constitution of India provides few Articles which is applicable upon refugee within Indian territory. One of them is Article 21 which states that no person shall be deprived of life and personal liberality except according to procedural law which means irrespective of the fact whether one is citizen of India or not, whosoever is living within Indian territory are entitled to right to life.

The Indian Courts have recognized the United Nation High Commissioner for Refugees for the protection and regulation of refugee laws through various judgements.

In case of A.C.Mohd.Siddique Vs. Government Of India And Others [6] held that the Sri Lankan refugee shall not be forced to returned to Sri Lankan against their will. Similarly, in case of P.Nedumaran vs. Union of India [7] a writ petition was made by Sri Lankan refugee to direct the Union Of India and UNHCR officials to considerthose refugee who voluntarily wants to return to their country.

The Bombay High Court in Syed Ata Mohammadvs. Union Of India[8] permitted the Iranian refugee to travel to which ever country they desire.

Apart from the penal code and constitutional provisions the government has taken various legal measures to ensure that the international obligations in respect of refugee. Some of them are as follows :-

1. The entry of refugee in Indian territory is not dependent on reasons of religion or any other form and shall be consistence with the principle of non-refoulment

2. India applies no restriction in cases of employment as well and nor does it has any concept of work permit thereby acknowledging the right to work as fundamental right.

3. Refugee are also provided the right to practice any religion of their choice, movement anywhere in the country and other basic human rights

4. The procedure of entry in Indian Territory involves a communication to be made to the respective check-post at border from which the refugee are likely to enter with legal travel document. In cases where the refugee does not carry the legal document they might have to face arrest or detention as per the laws of the land. This is done in order to verify the background of the refugee which is done with the aid of UNHCR.

5. As per the court’s direction the refugee shall receive the required medical attention which is mostly provided by NGO at local and international level.

Conclusion

There are various aspects of refugee which can perceive from the lenses of law enforcement. Every country exhibits it’s own security laws when it comes to refugee’s entry in their country with has to be made to due respect of the humanitarian laws.In India the law and order is regulated by the Indian Constitution.Since there is no specified laws pertaining to refugee the general procedural and substantive laws of India such Criminal Procedural Code, Indian Penal Code, etc. are applicable on refugee as well. The Constitutional provision plays a key role in providing the basic human rights to all refugees which is achieved by incorporating the spirit of UN conventions on refugee.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

1. The 1951 UN Convention on Statue of Refugees

2. United Nation High Commission for Refugee,https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html

3. United Nation High Commission for Refugee,https://www.unhcr.org/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html (last visited Jan 27th ,2020 , 5:30 PM)

4. article 26 of the 1969 Vienna Convention on the Law of Treaties

5.https://www.unhcr.org/excom/standcom/3ae68d054/note-international-protection.html

6. C.Mohd.Siddique Vs. Government Of India And Others 1998(47)DRJ(DB)p.74.

7.Neduram vs. Union Of India 1993 (2) ALT 291, 1993 (2) ALT Cri 188

8. Syed Ata Mohammad vs. Union Of India Criminal writ petition no.7504/1994

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I am Tosani Lal from Amity Law School, Noida. My interest in the field of law started when I had shifted to the Gulf at a very early age. There I observed how laws of different countries govern the conduct of its people and also have a great impact on them. At law school, when I read the Constitution Of India I was deeply impressed by it and realized that to bring the change in the system you have to be part of the system. I have a keen interest in the Human Rights of women and children and with the help of my knowledge in the legal field I want to contribute to improving the deteriorating situation of society to do my bit to bring a positive change in society.