Refugees and Their Rights

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Refugees and Their Rights

        

WRITTEN BY

                                                            

SUKRITI

3RD YEAR – B.B.A.L.L.B

CHANDERPRABHU JAIN  SCHOOL OF LAW, GGSIPU


EDITED BY

                                                 

POOJITHA POLICHETTY

3RD YEAR – B.A.L.L.B(GEN)

DR. AMBEDKAR GLOBAL LAW INSTITUTE, TIRUPATHI.



Introduction

 

Most people in the world have the experience to leave their own country or the place where they grew up. Some may move near a place or village. So, some may move to another country forever every day, all over the world, people make one of the most difficult decisions to escape from their home country to another country for finding peace. Some people leave their own country for education or a job. But some leave their country to find peace, to flee from torture, persecution or violence, etc.

 

According to Article 1 of the United Nations Conventions, 1951, which is on the status of refugees, a refugee is an individual who is outside of their country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group[1]. India has one of the most refugee populations in the whole world. India provides various facilities and services to the various groups of a refugee like- Persians, Christians, Syrians, Afghans, etc. Even India is not the party to the refugee convention 1951 and also doesn't have specific domestic laws but still gives asylum (means an inviolable place of refugee and protection) to the refugees of the neighboring countries etc.

 

According to the Universal Declaration of Human rights (UNDHR), states must protect and respect the fundamental dignity of every human being with which refugees are also included. If the status is not protected by the government of India, refugees can get refugee status from the universal declaration of human rights (UNDHR). India has followed an unbiased policy of humanitarian protection of refugees. India is a country to a diverse group of refugees who come here and made it their home.

 

Refugees

 

Refugees are people who fled war, persecution, conflict, and violence and have crossed the international border to settle down in another country where they find safety, peace, and respect. Mostly, refugees ran off due to the fear of persecution for reasons of religion, nationality, race, and political opinion on membership in a particular social group. And they can’t prefer to go back to their home or nation due to fear. War, tribal, religious violence, and ethnic are the main reasons or causes for the refugee to flee their countries.

68% of those displaced across borders come from just five countries: Syria, Venezuela, Afghanistan, South Sudan, and Myanmar[2].

 

Refugees are considered an ‘alien’ in some terms in India. Those terms are given under Article 22 of the constitution of India, 1959, Sec. 83 of the Indian civil procedure code, 1908, Sec. 3(2)(b) of the Indian citizenship act,1955 as well as some other provisions.

 



Constitutional Provisions regarding refugees

 

The constitution of India, 1949 is also applicable to the refugees when they are in India. As, article 21 is one of the most important articles that talks about the right to life and personal liberty, as applies to the citizen as well as a non-citizen of India. Many judgments are given based on Article 21 applicable to refugees. As, article 5,6,7,8,9,10,11,12,14,20,22,25-28,32,226 also includes refugees.

#Treatment given to asylum seekers was divided into 3 parts: -

  1. National treatment
  2. Treatment also for foreigners
  3. Special treatment

 

(1) National treatment

The national treatment of asylum seekers is same as well as of citizens of India. The right such as article 14 equal protection to law, Article 25 religious freedom, article 21 as the right to life and personal liberty, right to social security, and educational rights are guaranteed in part III of the Indian constitution.

 

(2) Treatment also for foreigners

Under this head, there are rights related to movements, housing, profession, etc. the rights are article 17 as the right to employment or profession, article 26 as freedom of residence and movement, Article 21 as the right to housing, and article 15 as the right to form an association.

 

(3) 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[3].

 



Case Law:- Louis de raedt V. UOI, 1991 SCR (3) 149

In this case, it was held that the fundamental rights to life, dignity, and liberty are available to non-citizens also.

 

Rights of refugees in India

 

  1. Entry into India

                                The govt. of India has followed a fairly liberal policy to allow refugees of different groups through some groups that have been recognized and some have not been, often keeping in mind the security of the nation. India has allowed refugees to Buddhist Tibetans, Christians, and Hindus from Sri Lanka, Sikhs and Muslims from Afghanistan, Hindus, and Muslims from Pakistan and Hindus, Muslims, Buddhists and Christians from Bangladesh, etc.

 

  1. Work permits

                                There is no concept of taking permission from that country to take a job. Refugees who are granted residence in the country, he has the right to find employment in the informal sector without facing any objection from the administration. Like, Sri Lankan Tamils have been granted freedom of movement within the camp area, etc.

 

  1. Freedoms

                       Refugees have the absolute right to freedom regarding movement, residence, and practice of religion. For those refugees who enter India on a legal basis, the administration of India has only limited interference but those who enter India on an illegal basis and overstay beyond permission then have strict restrictions upon them following the statutes of refugees i.e. Passport act, etc.

 

  1. Right to contract legal practitioner

                        If any refugee enters India on an illegal basis and detains under police custody because enter on an illegal basis i.e. without showing or having travel documents, etc., and not able to say the valid reason for illegal trespass then the refugee will be presented in the court and he/she has a right to hire his/her legal practitioner, if due to any reason i.e. disability, fear, etc. can’t able or not in a position to hire the legal practitioner, then the court may request UNHCR to provide help to the refugee to seek legal assistance.

 

  1. Right to medical aid in detention

 If any refugee is in detention of any police custody etc. and not in good health condition then the authority has to provide them medical help and refugee have a right to demand the same.

 


In the case of a Palestinian refugee who was detained at the international airport in New Delhi consequent to a deportation order pending against him, a writ petition was filed to obtain the Delhi High Court’s order that the refugee is provided at least the necessities like food and medical care[4].

 

 

Refugee laws in India

 

India has no specific domestic law on refugees but there is the refugee and asylum (protection) Bill,2009. The main legislation supporting refugees and asylum is the foreigners' act, of 1946.

 

Laws that are related to refugees:-

 

  1. Administration of Evacuee Property Act, 1950
  2. Citizenship Act, 1955
  3. Extradition Act, 1962
  4. Foreigners Act, 1946
  5. Illegal Migrant (Determination by Tribunals) Act, 1983
  6. India Penal Code Act, 1860
  7. Immigrants (Expulsion from Assam) Act, 1950
  8. Passport (Entry into India) Act, 1920
  9. Passport Act, 1967
  10. . Protection of Human Rights Act, 1993
  11. Registration of Foreigners Act, 1939

 

Conclusion

In the whole world, there are several laws and provisions for refugees but still, there are lots of problems faced by refugees. India is the country for many refugees. But India didn’t have only specific domestic laws. So, there is a need for specific domestic laws for refugees. If India has laws, then refugees will be handled equally, and easily and granting refugee status easier. It will help to end the discrimination between refugees in India and help or protect them in all ways possible for their development. Many judgments in India support asylum and refugees. India has done good work towards refugees' protection, safety, and giving a peaceful life. Rohingya refugees living in India are receiving support, but India is planning to take them back to their own country.

And the side there is a continuously growing up of population of refugees. So, there should be domestic laws for the refugees to handle. Sometimes, it is difficult to find out who is a refugee or not. While the Indian government deals with a refugee from Tibet and Sri Lanka and the other side UNHCR’s office, New Delhi deals the refugee from other countries. So, there is also a need for good coordination between NHRC and UNDHCR.

 

[1] (“Asylum & the Rights of Refugees – International Justice Resource Center”, n.d.)

[2] (“What is a Refugee? Definition and Meaning”, n.d.)

[3] ( “Constitutional Provision Regarding Refugee Law in India”, n.d. )    

[4] (“Refugees In India: Legal Framework, Law Enforcement And Security - [2001] ISILYBIHRL 7”, n.d.)

All India Human Rights Association (AIHRA)

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