The Refugee Law Vacuum In India And The Principle of Non-Refoulement

Introduction

The refugee crisis has been a prominent topic in international human rights discourse for decades, exacerbated by conflicts in different regions of the world. Article 1 of the United Nations Convention on Status of Refugees defines a refugee as “owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country.”. [1] Thus, there are well defined grounds which must be fulfilled for a person to qualify as a “refugee”, the fear of persecution, political insecurity, civil war constitute conditions beyond the control of the refugee compelling them to seek asylum.

India has been a culturally diverse and pluralistic country that has been home to refugees for many decades. At the time of independence, the partition between India and Pakistan caused one of the major refugee crises. 1971 saw a mass influx of migrants into India from East Pakistan, and during the 1980s, India received refugees from Sri Lanka and Myanmar. Though india has accommodated diverse groups on humanitarian grounds and ensured protection, the lack of a legal framework has proved the management of such crises difficult. [2]

The Refugee Convention of 1951 is considered the basis for establishing international refugee law and setting guidelines for states in developing their domestic refugee frameworks. The convention is monumental for its emphasis on the principle that a refugee cannot be forced to return to a place where his life is at risk. A refugee may not be expelled for any reason other than maintaining public order and national security, according to the convention. India is not a signatory to the convention but has retained aspects from the convention, the protocol and international human rights to ensure relief for refugees while prioritising national security concerns. Central to the protection of refugees under international human rights law is the principle of non-refoulement, the obligation not to return individuals to a place where they face persecution or a threat to their life.

India has dealt with issues of refugees from countries such as Sri Lanka, Bangladesh and Myanmar with alacrity interwining consitituonal liberties, judicial reasoning, international principles and domestic statue. However, the absence of a dedicated refugee law in the country has led to a legal vacuum, with an overreliance on other frameworks, such as the Foreigners Act, and judicial interpretation of constitutional and international principles. The case-by-case approach to refugee issues results in inconsistent and ambiguous standards in matters of status determination, safety, and appeals for non-refoulement.

International Legal Framework:

The principle of non-refoulement has evolved into the primary protection net under international refugee law. With its substantial reasoning asserting that the returnee shall face the risk of violence and persecution in case returned, the principle of non-refoulement operates in the absolute sense and not circumstantially[3]. As a state operating within international law, India is not a signatory to the Refugee Convention of 1951 nor its 1967 protocol, both of which have laid out the groundwork for refugee policies regionally. Yet, India is a signatory to the International Covenant on Civil and Political Rights, which states in article 7

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Article 13:

“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” [4]

Though india has expressed reservations on Article 13 of the ICCPR, it is still legally obligated to pursue actions in consonance. Moreover, India also signed the Convention against Torture under which, “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Regardless of india not signing the Refugee Convention or Protocol, the legal boundaries established by both ICCPR and CAT provide some clarity on India’s refugee policy on the international level, at least in the context of the discourse on international human rights protection. So, if india is nonetheless bound by some degree of restraint in exercising its domestic refugee policy, why didn’t we just sign the Refugee Convention altogether?.

None of the successive governments has delivered an official response on India’s reluctance to sign the Refugee Convention. But a few arguments can be assigned to its position. Bhairav

Acharya holds that there are four main grounds on which India refused to sign the Refugee Convention:

1. The Eurocentric nature of the treaty and its drafting process. The drafts of the convention ignored non-European displacement and experiences of post-colonial countries, especially India, in dealing with mass migrations across its borders post-independence. The brutal history of partition forced the displacement of 15 million people and the deaths of thousands, yet the refugees of partition did not gain relief in the Refugee Convention.
2. Refugee individualism- in a mass influx, individuals may only be able to prove persecution concerning a constituent group or identity. The inability to provide individual proof can lead to deportation, especially during times of conflict when larger groups flee across borders, making individual-specific refugee status determination difficult. This is a concern the refugee convention did not deal with, which remains relevant to India’s unique socio-political and regional history..
3. Need for stronger burden sharing mechanisms- Since the nations of the Global South, which accommodate the majority of the world’s refugees, had no input in the creation of the Convention, and because the Convention’s creators from the Global North implemented measures to block refugees from entering their borders, no expectations should be placed on how host countries in the South implement the Convention’s essential principles, unless the North shares the burden of these expectations. This argument is particularly relevant in India, given its experience of hosting about 10 million refugees in 1971 with minimal outside assistance. [5]

Indian legal framework

Since India does not have a codified refugee law, the legal courses of action are normally determined by the Foreigners Act, 1946 and constitutional provisions, specifically articles 14 and 21. The Foreigners Act is used to regulate the entry and stay of foreign nationals in the country and restrict their movement, including provisions on their expulsion and deportation. Though the act does not differentiate between refugees and foreigners, it is the only act that applies to refugees and asylum seekers.

Under the Foreigners Act, Section 2(a) defines a foreigner as a person who is not a citizen of India, and Section 3 imposes restrictions on the movement of foreigners within India, specifically Section 3(e) whereby a foreigner may be asked to remain confined to a specific area or be prohibited from moving to other parts. [6]

While the Indian constitution doesn’t explicitly deal with refugees in any section, Articles 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27 and 28 are available to both citizens and foreigners. The most significant one remains Article 21, which guarantees protection of life and dignity for foreigners residing in the country. The Supreme Court of India has granted protection to refugees fleeing persecution on multiple accounts, citing Article 21.

This article provides relief from some concerns reflected in the Foreigners Act. Article 14 reserves clauses for differential treatment, but prohibits unfair and arbitrary treatment of refugees. The Indian Charter’s Article 51(c) states that the state must work to promote respect for international law and treaty obligations in the interactions between organised peoples. The Indian parliament has the authority to enact regulations for the entirety or any portion of India’s territory following Article 253 of the charter, to enforce any treaties, agreements, or conferences. [7]

Judicial interpretation of Non-refoulement and refugee policy in India

In the absence of codified refugee law, Indian courts have addressed concerns of deportation, refugee status, and refoulement on a case-by-case basis. Analysing the specific situations of each migrant group, their classification as a refugee, the established threat of persecution and the case for non-refoulement, the judiciary has interpreted articles 14 and 21 along with provisions of the Foreigners Act and international conventions. In cases demanding relief, the courts have granted protection to refugees on the basis of the principle of non-refoulement.

In the landmark judgment from the National Human Rights Commission vs the State of Arunachal Pradesh, the court granted relief to the Chakmas who migrated from East Pakistan and settled in parts of Assam and Arunachal Pradesh in the 1960s, and were being forcefully driven out by AAPSU. The fear of eviction was violative of Article 21, guaranteeing them protection of their personal life and liberty, which is available to both foreigners and citizens of india. [8]

In Ktaer Abbas Al Qutaifi vs Union of India, the court applied the principle of non-refoulement in granting two Iraqi nationals release from detention and being handed over to the United Nations Human Rights Commission over being deported back to Iraq, where they faced state persecution and were granted relief. The court categorically asserted that non-refoulement prohibits deportation and eviction in cases of a threat to the life and liberty of individuals, including refugees. The Supreme Court also halted the deportation of Burmese from the Andaman Islands in Malvika Karlekar vs Union of India in accordance with the principle of non-refoulement, allowing them time to receive their refugee status. [9]

In Dongh Lian Kham v. Union of India (2015), the Guwahati High Court took cognisance of the petitioners’ UNHCR-recognised refugee status and directed the FRRO to coordinate with UNHCR to explore third-country resettlement, while restraining deportation to Myanmar in the interim. Although the judgment did not explicitly invoke the principle of non-refoulement, it reflects a cautious judicial approach rooted in humanitarian considerations. [10].

Considered together, the Indian judiciary has taken cognisance of the principle of non-refoulement based on humanitarian grounds and granted relief to refugees under Articles 14 and, particularly, Article 21. However, in the absence of specified legislation, the courts have exercised discretion in recognising the gravity of the threat and giving adequate protection. Yet, over multiple judgments given in different cases, the judiciary hasn’t linearly applied constitutional protections but instead has shown deviance from established principle and consideration of executive authority.

Critical Evaluation and Recent Developments

Although the indian judiciary has significantly expanded upon the definition of Article 21 in granting relief to refugees against a threat to life on the grounds of risk of persecution on deportation, the judgments have remained inconsistent, given unique circumstances and in some cases, empowered executive discretion. Moreover, the process of refugee status determination is vague and confusing, divided between the Ministry of Home Affairs and the United Nations High Commission for Refugees in India. Refugee status determination for asylum seekers from non-neighbouring countries is conducted by UNHCR according to its internal guidelines and the Refugee Convention of 1951. But, determination for migrants claiming refugee status from neighbouring countries with sensitive foreign relations is dealt with directly by the Ministry of Home Affairs based on self-devised criteria. [11]

The UNHCR is allowed to operate separately in matters concerning RSD, but, as held by the Supreme Court in Dongh Lian Kham vs Union of India, the refugee status granted by UNHCR cannot guarantee protection against refoulement since the Government of India reserves the right to expel foreigners from India if their presence constitutes a threat to national security or they’ve come to adverse notice. Thus, executive supremacy is sustained in matters concerning deportation and non-refoulement. This prioritises government dictate in circumstantial cases and is confusing since there is no single common principle that can be applied equally to all matters concerning confusion. The final call rests with judicial interpretation and executive intervention.

While recognising the significance of non-refoulement in international human rights and refugee law, the application of the principle is uneven by judicial arms. The court upheld non-refoulement on grounds of protection of life and liberty of all persons under Article 21 in Kfaer Abbas Al Qutaifi vs Union of India, but in Mohammad Salimullah vs Union Of India [14] refused to grant relief to Rohingya refugees against deportation to Myanmar on basis of Article 19(1) (e) stating that the right to reside is available to citizens alone, without referencing non-refoulement. This creates judicial obscurity and muddles the understanding of international law against constitutional principles. If the basis for claiming non-refoulement remains unclear, it leads to both legal and legislative gaps while jeopardising the lives of refugees claiming protection on humanitarian grounds. Even though international law doesn’t recognise status determination as an essential requirement for non-refoulement, India, being a non-signatory to the 1951 Convention and upholds Article 51 (c), which allows the government to overrule international convention to foster relations and protect national interests. [12]

To fill the legislative gap concerning asylum seekers and non-refoulement, Member of Parliament Shashi Tharoor introduced the private members’ bill called- The Asylum Bill in 2021 to incorporate the current refugee policy, constitutional principles and international obligations. [13]. The bill was an attempt to clarify the ambiguity of different executive actions and judicial interpretations to build a single legal framework to address concerns of refugee status, a threat to existence and clauses for non-refoulement. To ensure that the rights of refugees are safeguarded, the bill provided definitions on pertinent terms such as “refugee”, “foreigner” and “asylum-seeker”, principles of refugee status, division of power in dealing with mass influx of migrants and ensured categorical and equal application of the principle of non-refoulement.

Suggestions and Way forward

Countries across the world are able to deal with issues concerning refugee influx and application of non-refoulemnt given structured, codified refugee laws that allow them to follow international law while securing domestic concerns. Even though India has stepped up to secure refugee rights in cases of Tibetan and Sri Lankan refugees, recent reports on the Rohingya refugee crisis suggest the need for a comprehensive, updated and uniform system safeguarding the rights of those fleeing persecution and allowing the executive to ensure security of the nation.

A codified refugee law can tackle multiple issues:

• As the largest democracy in the world and a culturally diverse nation, a concise legal framework allows India to manage its foreign relations better and build a strong example in securing the rights of refugees fearing persecution and ensuring non-refoulemnt as part of international law.
• A codified law will ensure efficiency and fairness in decision-making across FRROs, immigration offices and the Ministry of Home Affairs.
• A strict legal framework with unambiguous guidelines better assures national security since all individuals and groups can be assessed with due process by authorities.

The government, with a robust refugee status determination mechanism in place, can ensure timely, adequate relief for asylum seekers. A methodical RSD framework can be worked out between the government and UNHCR to fast-track the process and ensure compliance with international conventions.

A law with specific definitions of a refugee, criteria for determination, grounds for asylum and guidelines for non-refoulemnt avoids judicial obscurity and leaves the process in the hands of the executive and other organisations.

Conclusion

Legal precedents such as Ktaer Abbas, Usha Ramesh and NHRC vs State of Arunachal Pradesh prove India’s capacity to deal with refugee problems. However, the lack of a defined and dedicated legislation delays justice and partial application of non-refoulement. Executive discretion and judicial intervention haven’t been consistent in delivering adequate protection to refugees and asylum seekers. India’s refusal to sign the Refugee Convention of 1951 must not be used as an excuse to consider refugee claims arbitrarily. To uphold constitutional principles and cement its position as a global champion for human rights, India must codify its refugee law to systematise non-refoulement and procedural status determination as legal necessities and humanitarian imperatives.

Reference(S):

1. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1945 https://www.unhcr.org/media/1951-refugee-convention-and-1967-protocol-relating-st atus-refugees
2. Shraddha Tiwari, ‘Constitutional Provision Regarding Refugee Law in India’ (2023) International Journal of Legal Management and Humanities 6(2) 2949 https://ijlmh.com/paper/constitutional-provision-regarding-refugee-law-in-india/
3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-to rture-and-other-cruel-inhuman-or-degrading
4. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant -civil-and-political-rights
5. Bhairav Acharya, ‘The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals’ (2016) 9(3) NUJS https://nujslawreview.org/wp-content/uploads/2017/01/2016-9-3-4-Bhairav-Acharya The-Future-of-Asylum-in-India_-Four-Principles-to-Appraise-Recent-Legislative-Pro posals.pdf
6. Foreigners Act 1946 (India)https://www.indiacode.nic.in/bitstream/123456789/2259/3/A1946-31.pdf
7. ‘Refugee Rights and State Security: A Constitutional Perspective’ (2024) Law JournalsNetworkhttps://www.lawjournals.net/assets/archives/2024/vol6issue2/6043.p df
8. National Human Rights Commission v State of Arunachal Pradesh [1996] 1 SCC 742 https://indiankanoon.org/doc/767216/
9. Ktaer Abbas Habib Al Qutaifi v Union of India [1999] AIR (Guj) 213 https://indiankanoon.org/doc/1593094/
10. Dongh Lian Kham v Union of India [2015] SCC OnLine Gau 472 https://indiankanoon.org/doc/168154907/
11. Shanker Vijayaraghavan, ‘India’s Refugee Protection Framework: Addressing Legal Gaps in Mass Influx Situations’ (2024) Forced Migration Reviewhttps://www.fmreview.org/recognising-refugees/shanker-vijayaraghavan/
12. Megha Purohit and Mayank Purohit, ‘An Analysis of Non-refoulement in Indian Legal Framework Manupatra Newslinehttps://docs.manupatra.in/newsline/articles/Upload/45325657-78F6-45C2-90 B5-BB0D35BA56BC.%20Megha%20Purohit%20&%20Mayank%20Purohit_Civil.p df
13. Asylum Seekers (Protection) Bill 2021, Bill No 45 of 2021 (India, Lok Sabha) https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/45%20of%202021%20 As%20(PDF).pdf?source=legislation
14. Mohd Salimullah v Union of India [2021] Writ Petition https://indiankanoon.org/doc/10486034/