By Ms. Haripriya. B
“It is the obligation of every person born in a safer room to open the door when someone in danger knocks.”
— Dina Nayeri
A refugee is any person whose life is under constant threat or the living conditions are not conducive for his healthy survival and he runs for shelter to another nation. However, the exact definition is, any person who “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 unwilling to avail protection of that country”[i]. Though India is not a party to the Convention on the Status of Refugees, 1951 or its 1967 Protocol but it has acceded to a number of international human rights instruments, it continues to be the host country since times immemorial for a large number of refuges not only from neighboring countries but from other parts as well. The Indian judiciary has been playing a very important role through their decisions from time to time. In absence of domestic legislation the nature and extent of the international obligations, their applicability has been discussed by the courts, in the context of constitutional rights and human rights jurisprudence.
India has ratified a number of International human right treaties. Some of the principles of International law are part of Customary International Law which is binding on all states including India. Constitution of India also provides for the respect for international law and treaty obligations[ii]. It also empowers the parliament to enact laws for implementing the International Conventions and norms[iii]. It is not merely the life of a citizen of India which is guaranteed but everyone who inhabits the terrain of this country is being assured of protection to his life and liberty[iv]. There is the established principle of the rule of law in India that no person whether a citizen or an alien can be deprived of his life or personal liberty without the authority of law. Indian Constitution guarantees some of the fundamental rights to refugees, like equality before law which guarantees fair and just treatment for all refugees (Article 14), free access to courts for protection of life and personal liberty which may not be deprived except according to procedure established by law (Article 21), freedom to practice and propagate their own religion (Article 25), right to approach courts for issuance of writs in case of infringement/enforcement of fundamental rights (art. 32 & 226). In Louis De Raedt v. Union of India[v], the court held that even non- citizens have the fundamental right to life, liberty and dignity. Refugee’s right to life is followed by right against arrest and detention[vi]. The Court has always taken a liberal stance in interpreting the constitution in cases concerning the refugees.
3.SUPREME COURT ON RIGHTS OF REFUGEES:
No specific legislation has been passed in India which regulated the entry and status of refugees in India. This vacuum is filled by Indian Judiciary. It has been playing an active and creative role in interpreting and protecting human rights. Indian Judiciary recognized refugees and their rights through wide interpretation of constitution. In Louis De Raedt v. Union of India[vii] , the court held that even non- citizens have the fundamental right to life, liberty and dignity.
In the Chairman, Railway Board & Ors vs. Mrs. Chandrima Das[viii], it was held that, “even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to "Life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity, so also the State is under an obligation to protect the life of the persons who are not citizens..... Those rights will be available subject to such restrictions as may be imposed in the interest of the security of the State or other important considerations.”
In National Human Rights Commission vs. State of Arunachal Pradesh[ix], a PIL was filed by the NHRC on behalf of the “Chakma” refugees who hailed from Bangladesh way back in 1965 and were residing in Arunachal Pradesh.It’s been alleged that the State Government is acting in accordance with the AAPSU (All Arunachal Pradesh Students Union) and threatening Chakmas to leave the state by 30 September, 1975. The Supreme Court intervened with the liberal interpretation of law to suggest that refugees are the “class apart” from foreigners and they are to be protected under Article 21 of the Indian Constitution and they cannot be evicted from their domestic households. The court emphasized that the State is under an obligation to protect the life and personal liberty of every human being thus abiding the principle of non-refoulement. It further observed that, “We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise…it is duty- bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations….The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas.”
Further in the case of Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh vs. State Of Arunachal Pradesh[x], the Supreme Court directed “the Government of India and the State of Arunachal Pradesh has to finalize the conferment of citizenship rights on eligible Chakmas and Hajongs and also ensure compliance of directions in judicial decisions referred to in earlier part of this order for protection of their life and liberty and against their discrimination in any manner”.
Supreme Court of India has played a proactive role in safeguarding the rights of refugees. It has also widened the scope of Article 21 to a large extent. Though we do not have any specific legislation to protect the rights of refugees, judiciary has taken up a great responsibility in doing so. Court continues to decide cases favoring refugee protection; the situation is not getting any better because they are not being applied unanimously in all matters concerning refugees. Thus, it is important to ensure that the decisions are properly implemented.
[i] Convention Relating to the Status of Refugees, Jul. 28, 1951, art.1(A) (2). [ii] INDIA CONST. art.51, cl. c. [iii] Ibid, art.253. [iv] Ibid, art.21. [v] Louis De Raedt v. Union of India, A.I.R. 1981 S.C. 1886 (India). [vi] Tasleem Muradvs Government of A.P., 2002 (5) ALD 307 (India). [vii] Louis De Raedt v. Union of India, AIR 1981 S.C.1886 (India). [viii]The Chairman, Railway Board & Ors v. Mrs. Chandrima Das, (2000) 2 S.C.C.465 (India). [ix] National Human Rights Commission v. State of Arunachal Pradesh, (1996) S.C.C. 295 (India). [x] Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh v. State Of Arunachal Pradesh, (2016) 15 S.C.C. 540 (India).