India has a long tradition of upholding basic human rights of individuals. Indian Constitution is one of the most egalitarian document ever drafted, it not only affords protection of human rights of its own citizens but protects Individuals from other countries as well. Two of the three pillars of India’s rights regime namely Article 14 and Article 21 protect right to equality and right to life of individuals without making any distinction between a citizen and non-citizen.

The latest unrest in Myanmar is fast escalating into a humanitarian crises with Rohingya Muslims who are dubbed as World’s most persecuted minority facing a near genocide by the hands of Myanmar Army. Rohingyas are Muslims belonging to Myanmar’s Rakhine State. Rohingyas have not been recognized by Myanmar as their citizen, thus in effect leaving them to be stateless. The recent rise in violence against the Rohingyas has resulted in mass exodus into neighboring Bangladesh and India. Since the beginning of the influx there has been clamor to deport these refugees/asylum seekers from India. This gives rise to many questions regarding the International refugee law, its status in India, India’s position vis-à-vis customary International Law and also a moral question whether India would be right in deporting the Rohingyas.

This piece attempts to answer questions regarding International Refugee law, Refugee law in India and Constitutional position regarding refugee law:

1. Who is an asylum seeker?

An asylum seeker is an individual who has sought international protection and her claim to such protection has not yet been decided. These are the people who face persecution in their own state and seek sanctuary in some other state.[1]

 

2. What is the difference between an asylum seeker and a refugee?

Refugees are the people who are so recognized under Convention related to Status of Refugees 1951 (Refugee Convention) and 1967 protocol of the same convention. Refugees are also recognized as per the 1969 OAU Convention which governs the specific aspect of refugee problem in Africa. The difference lies in the finality of the decision regarding application of asylum seeker, if the application is approved asylum seeker is accorded the status of Refugee and the corresponding rights.

 

3. What is meant by principle of Non-Refoulment?

“The principle of Non-Refoulment is the cornerstone of asylum and international refugee law”[2]. The right to seek asylum has been recognized as a universal Human Right by Universal Declaration of Human Rights under Article 14[3]. Thus it is also an inalienable right available to everyone who is facing persecution in her own country. Non-Refoulment is a principle to achieve the ends of set out in the above mentioned article. It means that a refugee shall not be forcibly returned to the country where they are being persecuted. Article 33 of the Refugee Convention enshrines this principles and states the following:

  Article 33 – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.…

Thus it is clear that the intent of the convention is not to leave the refugees at the mercy of a regime which is persecuting them. The Article is a manifestation of minority rights which is already enshrined in Universal Deceleration on Human Rights.

 

4. Is Non- Refoulment part of Customary International Law?

Yes, this principle forms the part of Customary International Law. This principle has been a consistent state practice and the same has been held to have a normative character thus fulfilling both the criteria’s for recognition as Customary International Law. The recognition of the principle as Customary International Law, makes it binding upon the states.

 

5. Is India signatory to Refugee Convention or its protocol?

No.

 

6. What are the provisions under Indian Domestic law that govern the rights of refugees?

In India there exists no particular legislation that pertains to Refugees. In the extant legislative framework Refugees are dealt with, in the same manner as Alien (A Non- National). The prime legislation governing the Aliens is Foreigners Act, 1946. The word Alien also appears in the Constitution of India[4]. The problem with this non-distinction between a refugee and an Alien is that it may often result in further persecution of a refugee.

 

7. Can Indian Government Deport the Refugees?

Governments’ unfettered right to deport any non-national has been upheld by the Hon’ble Apex Court in Louis de Raedt v. Union of India[5]. The Supreme Court held “the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion… the executive Government has unrestricted right to expel a foreigner”. Thus legally there is no impediment on Government of India to expel Rohingyas if it wants to, but same cannot be arbitrary or capricious.

 

8. What are the Constitutional safeguards available to a refugee in India?

As mentioned in the introductory paras, India Constitution has certain provisions that are available to a person irrespective his nationality and status. Article 14, Article 20, Article 21 and Article 32 are available to citizens and non-citizens equally. Article 21 guarantees a refugee that her life and personal dignity cannot be taken away arbitrarily, and if it happens she has a right to move to the Apex Court under Article 32 of the Constitution. As such Article 21 is an umbrella right and encompasses within it various other rights viz. right against custodial violence etc, thus a refugee in present Constitutional set up has plethora of rights and also an avenue for their redressal in case the same are abridged or abrogated.

Another important Constitutional right available to a refugee is Freedom of Religion. Religious persecution is in fact one of the major factors as to why asylum is sought and the eventual refugee status. Thus non-availability of freedom of religion to a refugee would be fallacious and put a question mark on whole constitutional process available to a refugee.

 

9. In absence of express legislation for the refugees can reliance be placed on international conventions and treaties to safeguards refugee rights in India?

Yes, in absence of express legislation reliance can be placed on international conventions to safeguard a particular right. Anyways lack of legislation can never be an impediment for the Hon’ble Supreme Court to do justice. It is well within the competence of the Apex Court to safeguard the rights of refugees in light of various international conventions. This action to protect or incorporate an internationally recognized right by the Supreme Court, in absence of domestic legislation would certainly not the first one, as Supreme Court in Vishkha’s case[6] has held “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”.

Further Article 51 of the Constitution directs the state to endeavor to foster respect for international law and treaty obligations.[7] Though this falls within the no justiciable part IV of the Constitution it carries with it a great persuasive value.

Added further India is a signatory to Universal Declaration of Human Rights, which expressly recognizes Refugee rights.

Added Further since the practice is recognized as Customary International Law, the same is ought to followed by India, in light of Article 51 of the Constitution.

Rohingyas and their plight should not be treated as an unwanted trouble by the Government and lawmakers, rather it should be seen as an opportunity to pass a comprehensive legislation to take care of refugee rights. India has a great tradition of welcoming the persecuted and according them refugee status be it the Tibetans in 1950s or Chamkhs in 1970’s, a persecuted minority must be DE hyphenated from its religion and must be accorded Constitutional protection. At the time of opening their Country for the refugees Angela Merkel the Chancellor of Germany said “Wir Schaffen das” (We can do it), the same should be adopted by India in letter and spirit.

[1] http://www.unhcr.org/asylum-seekers.html Last Updated: Friday, 08 September 2017, 14:56 GMT

[2] http://www.refworld.org/docid/438c6d972.html Last Updated: Friday, 08 September 2017, 14:56 GMT

[3] Article 14

Everyone has the right to seek and to enjoy in other countries asylum from persecution.

[4] Article 22, Para 3 and Entry 17, List I, Schedule 7

[5] AIR 1991 SC 1886

[6] AIR 1997 SC 3011

[7] Article 51:

Promotion of international peace and security.- The State shall endeavour to

(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and