India has had an age old tradition of according humanitarian protection to refugees and asylum seekers. It has followed a very liberal refugee policy. However, the absence of a refugee specific legislation can be attributed to India’s volatile situation in South Asian politics and the threat of terrorism faced by it. [1] Even in such absence of a specific law, India has addressed the needs of refugees who have fled from their home country into its territory.

India hosted around 420,400 refugees, including some 110,000 from Tibet who fled since China's 1951 annexation. Another 102,300, mostly Tamil Sri Lankans, escaped fighting between the Liberation Tigers of Tamil Eelam and the Sri Lankan armed forces. There were about 36,000 Buddhist ethnic Chakmas and Hajongs from present-day Bangladesh who fled to Arunachal Pradesh after Muslim annexation of their land in 1964. [2] 

India has accorded differential treatment to refugees belonging to different countries. There were two major refugee flows from Bangladesh. The Chakmas were provided with inadequate facilities as confirmed by National Human Rights Commission (NHRC) and repatriated in 1988. Tibetan refugees received far better treatment in comparison to other refugee groups. With regard to Sri Lankan Tamil refugees, an official refugee determination process has been practiced and the principle of non-refoulement [3] has been complied with.

The International convention dealing with the issue of refugees is the 1951 Convention on Status of Refugees and the 1967 Protocol attached to it. The term 'refugee' is defined as -

"…a person 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, owing to such fear, is unwilling to avail himself of that protection of that country; or who, not having a nationality and being outside a country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it."

India is not a party to the 1951 Convention or the 1967 Protocol. An individual refugee is protected essentially under the Constitution of India since there has been no domestic legislation passed on the subject of refugees. But the provisions of these international treaties have now acquired the status of customary international law [4] and maybe regarded as incorporated into the domestic law to the extent of their consistency with the existing municipal laws and also when there is a void in the municipal laws [5] . Also, Article 51(c) of the Constitution of India advocates fostering respect for international law.

II. Legal framework in India

India has a federal set up and is described as a Union of States. This union is considered as a State in international law. The Union legislature, i.e., the Parliament alone is given the right to deal with the subject of citizenship, naturalization and aliens. India has not passed a refugee specific legislation which regulates the entry and status of refugees. It has handled the refugees under political and administrative levels. The result is that refugees are treated under the law applicable to aliens in India, unless a special provision is made as in the case of Ugandan refugees (of Indian origin) when it passed the Foreigners from Uganda Order, 1972. [6] 

In India refugees are considered under the ambit of the term ‘alien’. The word alien appears in the Constitution of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil Procedure Code, and in Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes. Enactments governing aliens in India are the Foreigners Act, 1946 under which the Central Government is empowered to regulate the entry of aliens into India, their presence and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen of India’. The Registration Act, 1939 deals with the registration of foreigners entering, being present in, and departing from India. Also, the Passport Act, 1920 and the Passport Act, 1967 deals with the powers of the government to impose conditions of passport for entry into India and to issue passport and travel documents to regulate departure from India of citizens of India.

Since these enactments do not make any distinction between genuine refugees and other categories of aliens, refugees run a risk of arrest by the immigration authorities and of their prosecution if they enter India without a valid passport/travel documents. [7] When a refugee is detained by customs, immigration or police authorities for commission of any of the offences under the earlier mentioned enactments, he is generally handed over to the police and a First Information Report is lodged against him. According to the provisions of these statutes the refugee may face forced deportation at the established sea ports, airports or the entry points at the international border, if he is detected without valid travel documents. He may also be detained and interrogated pending decision by the administrative authorities regarding his plea for refugee/asylum. A refugee also faces the prospects of prosecution for violation of the Registration of Foreigners Act, 1939and Rules [8] made thereunder and if he is found guilty of any offence under this Act he may be punished with imprisonment which may extend to one year or with a fine up to one thousand rupees or with both.

However, in many cases the courts have taken a lenient view in the matter of punishment for their illegal entry or illegal activities in India and also, by releasing detainees pending determination of refugee status, staying deportation and giving them an opportunity to approach the United Nations High Commissioner of Refugees (hereinafter referred to as UNHCR), refugees continue to run the risk of apprehension, detention and prosecution for the violation of the Foreigner’s Act, 1946 [9] and the Foreigners Order,1948. The Indian Supreme Court has also held that the government’s right to deport is absolute:

‘… 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.’ [10] 

The question that arises here is whether refugees as a special class of aliens posses any more rights than aliens in general?

III. Constitutional Framework for Protection of Refugees

The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to non-citizens, including refugees, as they are to citizens.

The constitutional rights protect the human rights of the refugee to live with dignity. The liberal interpretation that Article 21 has received now includes right against solitary confinement [11] , right against custodial violence [12] , right to medical assistance [13] and shelter [14] 

The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation to regulate and justify the stay of refugees in India. In NHRC v. State of Arunachal Pradesh [15] , the Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life, health and well-being of Chakmas residing in the State and that their application for citizenship should be forwarded to the authorities concerned and not withheld. In various other cases [16] it was held that refugees should not be subjected to detention or deportation and that they are entitled to approach the U.N High Commissioner for grant of refugee status. In P. Nedumaran v. Union of India [17] the need for voluntary nature of repatriation was emphasized upon and the Court held that the UNHCR, being a world agency, was to ascertain the voluntariness of the refugees and, hence, it was not upon the Court to consider whether consent was voluntary. Similarly, according to B. S. Chimni, the Supreme Court has erred in concluding in Louis de Raedt v Union of India that there is no provision in the Constitution fettering the absolute and unlimited power of the government to expel foreigners under the Foreigners Act of 1946. [18] 

In actuality Article 21 of the Indian Constitution does impose certain constraints: any action of the State which deprives an alien of his or her life and personal liberty without a procedure established by law would fall foul of it, and such action would certainly include the refoulement of refugees. Therefore, the author opined that the Court should have proceeded to test the validity of Foreigners Act as against Article 21.

IV. Incorporating International Law in Domestic Law

International law has accepted and defined refugees as a special class of aliens. Does this acceptance by International law import any legal consequence on the Indian Government in the absence of any legislation on the subject?

It is true that India has not ratified the 1951 Convention and the 1967 Protocol to it, however, it acceded to various Human Rights treaties and conventions that contain provisions relating to protection of refugees. [19] As a party to these treaties India is under a legal obligation to protect the human rights of refugees by taking appropriate legislative and administrative measures under Article 51(c) [20] and Article 253 [21] and also under the same laws it is under the obligation to uphold the principle of non-refoulement. India is a member of the Executive Committee of the office of United Nations High Commissioner for Refugees which puts a moral, if not legal obligation, on it to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee Convention [22] .

With regard to adopting international conventions in domestic laws, in Vishaka v. State of Rajasthan [23] , the Court observed that reliance can be placed in international laws. Therefore, the question that arises is whether India can refer to the 1951 Convention in interpreting the domestic legislation and whether it is really necessary to ratify these conventions. It is to be noted that merely ratifying the 1951 Convention does not ensure that the asylum seekers will not be kept out and also Article 42 of the same Convention permits reservations with respect to the rights of refugees which will defeat the purpose of ratifying the Convention.

The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and incorporate it into domestic law or enact a uniform legislation specifically for refugees so that it is not left to the discretion of the executive and the judiciary to decide their fate.