Saroj Lalji Mehrotra Centre of Legal Studies

S.S. Khanna Girls’ Degree College, Prayagraj

SUBMITTED BY:

Akanksha Srivastava

Enrollment No. S2041006

[Link]. (HONS)

10th Semester.

“ SHADOWS OF STATELESSNESS : REFUGEES IN INDIA AND THE

LEGAL GAPS IN PROTECTION ”

_______________________________________________________
 INDEX

CHAPTER 1
___________________________________________________________________________
INTRODUCTION ……………………...........……….……...…....…………………...….1-12

❖ Refugee law……………………..........………………….……………...……….……....….…..3

❖ Refugee…………………………………………..........………………………....….....….........4

❖ Internally displaced person………………………....………………….........…….…....….........4

❖ Stateless person………………………………………………............………………....…...….6

❖ Migrants from neighbouring countries………………………………………….....…..........6

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CHAPTER 2

ISSUES RELATED TO REFUGEES IN INDIA…………………….…………...………....13-23

❖ Influx related to refugees in india : post independence……………………….........…..13

❖ Causes of influx of refugees in India: post independence…….....…………….….........17

❖ General issues faced by refugees ……….…………………....……………....…...…...17

❖ Issues faced by refugees recently, 2022…………………………....………..........…....20

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CHAPTER 3
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CONSTTUTION AND LEGAL FRAMEWORK IN INDIA ……………....………………..24-37

❖ Constitutional provisions of refugees in india………...……………….....…...........………….25

❖ Laws for refugees in India……….……….....………………………………...........….............26

❖ Rights and responsibilities of rerefugee in india………...................................……….….……31

❖ Initiatives by Indian Government …….…………….....…………………...….................35

___________________________________________________________________________
CHAPTER 4

JUDICIAL TRENDS RELATED TO REFUGEES IN INDIA ……….……….....…………38-53

❖ Response of judiciary toward refugees : lower court……….……………….………..38

❖ Response of judiciary toward refugees : high court ……….……………..…………..40

❖ Response of judiciary toward refugees : supreme court ……….…....……….…….....46

❖ Recent cases related to refugees in India ……….………………….……....................47

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CHAPTER 5

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FINDING, SUGGESTION & CONCLUSION……….……….……………..….....…….....54-68

❖ Critical review ……….……….……………………….....………...............................54

❖ Finding ……….……….………....………………………............................................58

❖ Suggestion & Recommendation ……….…....….…...……………………….….…....61

❖ Conclusion……….……….………………………………...........................................64

❖ Bibliography........……….……….……………………………..…..............................66
 TABLE OF CASES

‘D’

➢ Digvijay Mote v. Govt. Of India and Ors…………………………....…...............…...43

‘G’

➢ Gurunathan and Ors v. The Govt. Of India and Ors………………….…............……43

‘H’

➢ Hans Muller of Nuremburg vs. Superintendent Presidency .........................................46

➢ Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors....…38

‘I’

➢ In Mohammad Salimullah v Union of India ……………………...……….........……49

‘K’

➢ Khudiram Chakma v Union Territory of Arunchal Pradesh and Ors……….....….......41

➢ Ktaer Abbas Habib Al Qutaifi vs. Union of India ………………………...…......…...38

‘L’

➢ Louis De Raedt & Ors. Vs. Union of India.......…………………………......………..38

➢ Louis De Raedt & Ors. Vs. Union of India.......………………………................……46

‘M’

➢ Malavika Karelkar vs. Union of India ……………………………………......……....38

➢ Mohammad sadiq vs union of india. …………………………………….......…..…...42
‘N’

➢ Nandivata haksar v state of Manipur…………………………….....…………....…... 32

‘P’
➢ P. Nedumaran and Dr. Ramadoss v. UOI and Ors…………....………………….....…43

‘R’

➢ Radhika Thappeta v Union of India ……………………...…...............…...............…50

➢ Ramsingh v. State of Rajasthan……………………...………………………….….....43
➢ Rohingya Crisis ………………………………………...…………….........................44

S’

➢ Satish Kumar Singh and Ors v. UOI……………………………………...………..…44

➢ Smt. Shishuwala Pal and Anr v. UOI and Ors…………………….………………......44
➢ State v. Farid Ali Khan………………………………………….……….……...…….39
➢ State v. Montasir M. Gubara…………………………………………………...…......39
➢ State v. Huson Vilvaraj………………………………………………………....…......39
➢ State v. Eva Massar Musa Ahmed……………………………………………….........39
➢ State v. Thang Cin………………………………………………………………....….40
➢ State v. Mohd Riza Ali……………………………………………………….….........40
➢ Seyed Ata Mohamamd v. UOI and Ors……………………….………………....…....42
 [CHAPTER: 1]

INTRODUCTION

"The world can do better and be kinder to refugees. We are innocent. Refugees need homes,
jobs and education. Especially the children because education is our right. Without education,
our future is lost and we can't grow up to make the world better from what we've learned and
take care of other people and our families."

Bana Alabed, “The World Can Be Doing More for Refugees,” TIME 1

The popular interpretation of, A refugee is someone who must escape one’s current state of
living and seek sanctuary in another country. You have to understand no one put their children
in a boat unless the water is safer than the land. People become refugees because of
circumstances that are beyond that person's control. Often poignant. Where a person is left with
no possibility except to flee away from human rights violations, social economic, and political
insecurity, generalized violence, and civil war all of these lead to the fear of persecution.

___________________________________________________________________________

The Definition of a refugee is someone 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, owing to such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his former habitual residence, is
unable or, owing to such fear, is unwilling to return to it "2

The United Nations High Commission on Refugees (UNHCR) defines refugees as:

“People who have fled war, violence, conflict, or persecution and have crossed an
international border to find safety in another country.”3

1
[Link]
2
[Link]
3
UNHCR. “What is a Refugee?” [Link]

1
The 1951 Refugee Convention describes a refugee as:

“Someone who is unable or unwilling to return to their country of origin owing to a well-
founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group, or political opinion”.4
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While many may fit this definition, actually being accepted into a country as a refugee can be
a different story. However, just because someone has not yet been granted refugee status does
not mean they are not a refugee in practice. In fact, many refugees who have not been granted
asylum status or any type of residency find themselves in dire situations—being in a limbo of
not being able to work, not having full rights and protections, yet also not wanting to go back
to where their countries of origin due to concerns over safety or persecution.5

Since the past eras, India has become an Eden of refugees throughout its history going by the
core dicta of Indian culture - “treating guests as gods”. It is a host of almost 213000 refugees,
most hailing from Sri Lanka, Afghanistan, China, or Myanmar but does not have a uniform
policy or domestic legal framework for ensuring refugee rights and protection. India is not even
a signatory to the 1951 Refugee Convention. Nevertheless, through judicial pronouncements,
the application of Articles 14 and 21 was extended to be applied to the refugees as well. The
courts have continuously relied on principles of international human rights law to address the
gaps in refugee rights and protection. Even then the existing policies remain ad hoc and are not
applied uniformly to refugees of all nationalities.

Although, The government has recently come up with Long term Visa (LTV) proposal for
refugees which would enable them to look for economic opportunities in the private sector and
also to have access to tertiary education. The government also enacted The Right of Children
to Free and Compulsory Education Act in 2009 which guarantees free primary education to
refugee children. Therefore, because of the evolving laws and policies, there is a need to
understand the status of refugees and to protect them in all aspects, and a need for static non-
discriminating laws in India.

4
UNHCR. “Convention and Protocol Relating to the Status of Refugees.” [Link]
us/3b66c2aa10
5
[Link]

2
Consequently, a comparative and detailed analysis of refugee laws in India is needed.

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REFUGEE LAW: In the last six decades, refugee law, a new branch of law, has developed
both in the field of international law and of municipal law. There is an interrelation between
the two, as municipal laws and regulations are frequently designed to implement treaties to
which the states concerned are parties.

The main feature of refugee status is that refugees do not enjoy the protection of any
government, either because they are, as stateless persons, unable or, having a nationality,
unwilling for political reasons to avail themselves of the protection of their country of origin.

The link of nationality is either non-existent or is ineffective. Although one speaks of de jure
and de facto stateless persons, it would be more correct to speak of de jure and de facto
unprotected persons.

In customary international law, nationality provides the principal link between the individual
and the law of nations6. Refugees are commonly understood to be persons who have been
compelled to leave their homes on account of natural catastrophes or because of political
events; they may be inside or outside their country of origin.

The United Nations Refugee Agency (UNHCR) estimates that there are 51 million people who
have been displaced from their homes. Within this group, There are four different distinctions
to the “refugee umbrella” that the UNCHR uses.

6
Ph.D. (London), Dr. jr. (Vienna), honorary professor of the University of Vienna, former Director of the Legal
Division of the Office of the United Nations High Commissioner for Refugees, former lecturer in law of the
University of Zurich, Commander of the Order of the British Empire.

3
These include refugees, internally displaced persons (IDPs), asylum-seekers, and stateless
people. It is important to understand the differences in these definitions because it changes how
the crisis is addressed.

[Link]

__________________________________________________________________________

• REFUGEE: A refugee is someone who must escape one’s current state of living and seek
sanctuary in another country. Refugees often flee in large numbers across international waters
or into neighbouring countries to find safety. These situations are hard to manage because the
sudden surge in population is hard for the receiving countries to take on and it puts a stress on
their resources, and sometimes they do not have adequate resources to make it any safer. Unlike
other migrants, however, these groups are only considered true refugees when they fit within
this definition provided by the UNHCR:

"A refugee is someone who has been forced to flee his or her country because of persecution,
war, or violence. A refugee has a well-founded fear of persecution for reasons of race, religion,
nationality, political opinion or membership in a particular social group. Most likely, they
cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are
leading causes of refugees fleeing their countries."

__________________________________________________________________________

• INTERNALLY DISPLACED PERSON: An internally displaced person faces similar

danger that a refugee does, the only difference is that these groups have not crossed
international borders. While the displaced group does not put any direct stress on neighbouring
countries, it does not mean necessarily that they are able to find safety within a different part
of their country. Sometimes it means that their homes were destroyed and they were forced to
go elsewhere, yet still followed by the possibility of conflict and persecution. Refugees are

4
often discussed more because their crisis affects more than one country. However, there are
actually almost twice as many IDPs around the world. In 2013, there were 16.7 refugees and
33.3 million IDPs.

The UNHCR estimates that as of June 2022, there are 26.3 million refugees in the world, part
of a total of 101.1 million forcibly displaced people.3 A majority of these forcibly displaced
people are internally displaced people, suggesting that for many involved in a crisis, the
ability to leave their country may not even be an option: only a small proportion of people
affected by a crisis can cross international borders. However, this may also suggest that many
forcibly displaced people do not want to leave their home country (perhaps for cultural reasons)
and would instead prefer to move to safety within it.7

There is a clear relationship between the refugee problem and the issue of human rights.
Violations of human rights are not only among the major causes of mass exoduses but also rule
out the option of voluntary repatriation for as long as they persist. Violations of rights of
minorities and ethnic conflicts are increasingly at the source of both mass exoduses and internal
displacements.

Disregard for the minimum rights of refugees and internally displaced persons is another
dimension of the relationship between the two issues. During the process of seeking asylum, a
growing number of people. faced with restrictive measures which deny them access to safe
territories. In some instances asylum- seekers and refugees are detained or forcibly returned to
areas where their lives, liberty and security are threatened. Some are attacked by armed groups,
or recruited into armed forces and forced to fight for one side or the other in civil conflicts.
Asylum-seekers and refugees are also victims of racist aggression

Refugees have rights which should be respected prior to, during, and after the process of
seeking asylum. Respect for human rights is a necessary condition for both preventing and
resolving today's refugee flows. In the words of the United Nations High Commissioner for
Refugees, Sadako Ogata, "the refugee issue must be put to all governments and peoples as a
test of their commitment to human rights".8

__________________________________________________________________________

7
[Link]
8
[Link]

5
• STATELESS PEOPLE: Statelessness means to be without a nationality or a citizenship to
any country. It occurs when a government refuses to recognize an individual or group as
citizens. In reality, it means that they are unable to confirm their existence through any
documentation, which means they have no legitimate way to participate in society and make a
living for themselves. When there are a large number of refugees, IDPs, asylum seekers, and
stateless people, it can become a serious issue as few countries want to take the responsibility
of supporting them. It is understandable that a sudden surge of people, in the tens of thousands
range, can put a huge stress on health, food, and water resources, which is not an ideal situation
for any host country. But too often these groups are looked at as the “bad guys” when in reality
they’re victims. The stigma against migrants in general is very bad because of the perception
that most move to a country illegally and without proper documentation. But the reality is that
when most people flee to seek refuge elsewhere, it’s because they are in a life-threatening
situation

___________________________________________________________________________

• MIGRATION OF REFUGEES FROM THE NEIGHBOURING COUNTRIES TO

INDIA: Since 1947, 30-40 million people have crossed the borders of South Asian states in
search of refuge and almost every country has produced and/or received refugees." India has
been home to number of refugees hailing from the neighbouring countries and has adopted
various approaches to deal with the different refugee populations providing protection,
assistance and durable solutions to them. However there is disparity in the treatment of refugees
belonging from different states meted as much of it depends on the bilateral relations with the
nations they belong to. Therefore, a closer look at the advent and existing status of refugees is
necessary.

 Refugees from TIBET

Tibetan refugees came to India the late 1950s and early 1960s as asylum seekers owing
to a conflict that took place between the Chinese troops and the Tibetans. The Chinese
army had marched into Tibet to colonise the region which was formally recognised as
an independent country under a Peace Convention signed by Britain China and Tibet
headed by Dalai Lama and make it an integral part of China. In March 1959 a rebellion
began with the support of a good number of Tibetan Buddhist which resulted in a direct
armed conflict and violence among the Chinese military and a huge number of Tibetan

6
 populations. The Tibetan revolt were crushed by well armed Chinese People's
Liberation army, making about 85,000 refugees fleeing to India, Bhutan and Sikkim
which was then an independent state." About eighty percent of the total population
entered into India. Dalai Lama and his followers were accorded refugee status by the
Indian government soon. The Ministry of External Affairs of India arranged temporary
accommodation and other humanitarian assistance and issued valid registration
certificates to them. They were rehabilitated and provided with travel permits and
residence permits, which enable them to seek formal employment in India and are given
more rights than most other refugees in India. Indians and Tibetans generally co-exist
peacefully but there have been isolated due to anti-Tibetan violence. So far, there have
been no cases where any specific groups within the Tibetan Community have been
targeted.

 Refugees from SRI LANKA

Sri Lankan refugees were given refuge in India in the 1980's due to a long conflict
between the Sri Lankan army and the Liberation Tigers of Tamil Eelam (LTTE) who
were fighting for independence for the minority Tamil population. The Tamilians since
then have been fleeing their home country to India in order to escape torture, rape and
disappearances perpetrated by the security forces. These refugees remain largely in
Tamil Nadu and in refugee camps scattered across the state. The legal status of Sri
Lankan refugees in India is officially governed by the Foreigner's Act 1946 and India's
Citizenship Act 1955 which defines all non-citizens who enter without visas to be
illegal migrants, with no exception for refugees or asylum seekers. Sri Lankans who
are considered to be a threat to national security are deemed to be militants and detained
in 'special camps in Chenglepet or Velloreand. Nonetheless, in general the Government
of India recognizes Sri Lankans fleeing violence at home to be refugees and accordingly
grants them protection. In 1992 at the initiation of UNHCR, the repatriation process
was highly encouraged. After the end of the civil war in 2009, there have been efforts
to integrate the Tamils in the local population by the Sri Lankan government but the
refugees in Tamil Nadu continue to enjoy safe asylum in India.

7
 Refugees from PAKISTAN
Pakistan and India had a long history of inter communal tension between the Hindus
and Muslims communities since the creation of the two states. The Indo-Pak wars of
1965 and 1971 resulted in growing insecurity amongst Hindus, particularly with the
rise of right-wing Islamist groups in the country caused more Hindus to leave for India.
The Islamisation of the country under the dictatorship of Zia ul-Haq made life for
religious minorities in Pakistan difficult in the late 1970s and 1980s. After the
destruction of the Babri Masjid in Ayodhya in 1992, the backlash against the Hindu
population caused many more to flee to India. Roughly 115,000 people displace from
Pakistan have arrived in India since 1965 and most have settled in Rajasthan or Gujarat.
The Indian government does not recognize this group to be refugees and as a result,
they are unable to acquire residence permits and find it difficult to gain employment
The Indian Constitution and the Indian Citizenship Act 1955, however, make specific
provision for those who were born or whose parents were born in undivided India to
apply for Indian citizenship. The Citizenship Amendment Rules 2004 specifically
provide for Pakistanis to apply for citizenship in Gujarat and Rajasthan. The conditions
for citizenship are that the individual must have been continuously resident in India for
five years, rather than for 12 years as is the case with other foreigners applying for
citizenship, and intend to settle permanently in India. As a result of this legislation,
which dramatically sped up the application process, the Indian government awarded
13,000 Hindu Pakistanis Indian citizenship between 2005 and 2006. Once Pakistani
refugees have attained citizenship they are afforded the same rights as Indian citizens.
The amendment of the Citizenship Act in 2005, however, has drastically increased the
fee structure for citizenship. application. For the poorest Pakistanis these fees are
prohibitive, leaving them permanently disenfranchised.

 Refugees from BANGLADESH

The refugees of Bangladesh entered into India after a civil war that took place in 1971
between East Pakistan (now Bangladesh) and the central government of Pakistan over
the issues of regional autonomy and military rule. Following a period of intense
unsuccessful negotiations, a military crackdown began on East Pakistan. Consequently,
the people of East Pakistan, the Bengalis proclaimed independent Bangladesh on April
10, 1971 with the aid of Indian military force. Meanwhile, mass killings took place in

8
 Pakistan leading to a flow of refugees of 60,000 a day. All kinds of humanitarian
assistance were given by India to these refugees despite of her economic constraints.
After the new independent State of Bangladesh was created, the voluntary repatriation
was facilitated with the cooperation of the newly formed Bangladesh government and
the task was completed by March-April 1972. Although most of the refugees returned,
a million or so, mostly Hindus, stayed back creating fresh problems in the Indian States.
adjacent to Bangladesh that is in West Bengal, Tripura, Assam and Meghalaya.
Moreover, since after the independence, Bangladesh again turned into a refugee
producing country by producing huge number of Chakma refugees from Chittagong
Hill area. A huge number of illegal migrants mainly Hindus are reported regularly.
Government of India has sought assistance of UNHCR by allowing it to set up a
standing Inter Agency Consultation Unit of Geneva for the purpose of mobilizing and
securing international support and contributions and maintaining close relationship
with Government of India.

 Refugees from BHUTAN

In response to the ethnic conflict between the ruling Drupkas of Bhutan and the ethnic
Bhutanese of Nepali origin started in 1990, around 15000 Bhutanese refugees of ethnic
Nepali origin took shelter at Siliguri and Jalpaiguri of West Bengal and Kokhrajhar
districts of Assam. Under the 1949 Indo-Bhutan Friendship Treaty. India has permitted
these citizens of to move freely across the Indian border without any identity papers
making a reciprocal arrangement. As a result, the UNHCR does not carry out status
determination for them and also the Government of India

 Refugees from (BURMA) MYANMAR

The Burmese government in the year 1988 forced the refugees. comprising of pro-
democratic activists of Burma and the Chin refugees, a tribal chunk of Burma who were
opposing military dictatorship and pressing for autonomy in their Chin district of
Burma, and the Chin refugees, to cross the Indian border. The conflict was due to the
increased militarization under the State Peace and Development Council (SPDC)
through which the government perpetrated a wide range of human rights abuses such
as, torture, disappearances, forced labour, rape and extra-judicial killings. Most of these

9
 Burmese entered India northeast and very few asylum seekers who travelled to Delhi
am recognized as refugees by the UNHCR. The UNHCR in Delhi assists abon Burmese
refugees, the majority of whom are from Chin state. In addition to the Burmese who
are recognised refugees by the UNHCR, there are also a large number of Burmese
asylum.

 Refugees from AFGHANISTAN

Afghans began to migrate to other states as result of a fierce resistance to the Soviet
who attacked Afghanistan in 1979 by the United States-backed Mujahaedeen. After the
Soviet withdrew from Afghanistan, a civil war between the Talibans and the Najibullah
regime which lasted for four years forced the Afghans to flee their country. There are
over 9,000. recognised Afghan refugees in India and 90 percent of them belong to the
Hindu or Sikh faiths; religious minorities in Afghanistan who could not openly practice
their religions in their home country for fear of persecution. Most of the Afghan Sikh
and Hindu refugees in India sought asylum after 1992, with the fall of the Najibullah
regime. Following the events of 11 September 2001, the United States and the United
Kingdom, along with other NATO (North Atlantic Treaty Organization) supporters,
launched a military attack on Afghanistan. The Taliban withdrew to the Afghan-
Pakistani border where they continue their protracted campaign against the new Afghan
government. India does not officially recognize the Afghan community to be refugees
instead, they are recognised and protected under the UNHCR mandate. The Indian
government has issued most Afghan refugees with valid residence permits affording
them a degree of legal protection, which allows them to stay in the country despite not
having valid passports. Attaining residence permits has been more difficult for the
newer arrivals that arrived in India between 2004 and 2007. The UNHCR also runs
various assistance programmes through its implementing partners for the benefit of
Afghan refugees.
Since the Indian legal framework has no uniform law to deal with these huge refugee
population, it has not made any progress towards. Evolving one either, until then, it
chooses to treat incoming refugees based on their national origin and political
considerations, questioning the uniformity of rights and privileges granted to refugee
communities. This has resulted in grave violation of human rights and principles of
natural justice for the refugees. Lack of transparency in the policies of administration

10
 in granting asylum, facilities, grants ete, to certain refugees or refugee groups without
spelling out reasons for granting benefits to them and not to other refugees in the similar
circumstances are quite often and these have never been questioned.

[Link]

Controversy around the Citizenship Amendment Act was renewed in India Monday as the
government announced the implementation of the law passed in 2019 that opens a new path to
citizenship for past arrivals from Afghanistan, Bangladesh and Pakistan. The act has been
deemed anti-Muslim as it only applies to Hindu, Parsi, Sikh, Buddhist, Jain and Christian
refugees from the three Muslim-majority countries, but leaves out Muslim refugees. It also
does not take into account non-Muslim refugees from non-Muslim countries and only applies
to those who arrived in 2014 or earlier.

Protests against the act had turned violent in 2019 and 2020 and flared up again in some parts
of the country, including in major cities, in Kerala and in Assam in India’s Northern region that
hosts the most Muslims. Opposition-led West Bengal and Kerala announced that they would
not be implementing the law.

Upon its passage in 2019, the act was looking to cut the wait time to acquire citizenship for
those included down to a minimum of five years. Now, 2014 arrivals are already quite close to
the regular 11-year cutoff for the naturalization of foreigners in India. However, the act includes
another crucial exemption for the covered groups, the ability to apply for citizenship even
without being able to prove legal residence since arrival.

11
According to data from the UNHCR, the law is in fact ignoring the largest refugee groups in
India and if it is aiding the included groups, it would likely be those without documentation.
Only 12 refugees from Bangladesh and none from Pakistan were registered in India with the
official agency as of mid-2023. The largest groups of refugees and asylum-seekers in the
country come from Sri Lanka, the Muslim minority of Rohingyas in Myanmar and from China,
specifically Tibet. Afghanistan is the exception with more than 13,000 registered refugees and
asylum-seekers in India – however, due to the ongoing conflict affecting all population groups
in the country, these could be either Muslims (including of the persecuted Hazara ethnic group)
or members of the smaller Hindu, Sikh, Parsi and potentially Christian minorities of
Afghanistan.

Indian Census data shows that immigration waves from Pakistan as well as Bangladesh
happened before 1991, when almost 80 percent of those who were born in Pakistan or
Bangladesh and lived in India in 2011 immigrated. Between 2002 and 2011, only 6.5-7.5
percent of all immigrants from these two countries arrived in India.9

9
[Link]
common-countries-and-caa-countries-of-origin/

12
 [CHAPTER: 2]

ISSUES RELATED TO REFUGEES IN INDIA

India accounts for one of the largest refugee populations in the world. The influx of refugees
began in 1947 with the partition of the country and continues to date due to various geo-political
and domestic reasons. The location of the country, which is surrounded by countries reeling in
violence and underdevelopment, is the prime cause of the influx of refugees in India since
independence.

__________________________________________________________________________

Influx of Refugees in India: Post Independent

India hosts refugees mostly from the neighbouring states of South Asia. India attempts to solve
the problems of refugees in India by using a humanitarian mind-set, keeping in mind the
national security and the legal system angle.

COUNTRIES DETAILS

India-Pakistan  The newly formed Government of India faced an

Partition refugees unprecedented scale of problems related to refugees in the
in 1947 country. Monsoon flooding, which destroyed much of that
year’s harvest, exacerbated the refugee crisis.
 Mass religious migration was the immediate result of the
partition since the birth of Pakistan was done on the basis of
religious lines. Around 14 million people were displaced as a
result, and another one million were killed in the violence.
 The Indian government took steps for the rehabilitation of the
refugees, and civil societies came forward for help, which
eased the situation a bit.
 In 1950, the Delhi pact, or the Nehru-Liaquat Pact, was signed
by the former PM Nehru and Liaquat Ali Khan, which aimed

13
 at providing a framework for the treatment of minorities in the
two countries.
 This agreement was the outcome of a mutual necessity for
both governments to regulate the unchecked movement of
refugees across the border and guarantee the rights of
minorities in both countries after the Partition of India.

Bangladesh  Due to the conflict in Bangladesh in 1971, people started

Refugees flocking to India, fleeing the conflict between the Pakistani
army and the Bangladeshi forces whereby an estimated 10
million East Bengali refugees entered India during the early
months of the war.
 The Pakistani Army launched Operation Searchlight, which
turned out to be a kind of genocide for the Bengali population.
 When Indian states of West Bengal, Tripura, Meghalaya and
Assam were full with the influx of refugees, India adhered to
the basic principle of non-refoulement as envisaged in the
customary international law.
 Almost 9 million refugees in India were repatriated back by
February 1972 since the war ended, but around 1.5 million
stayed back of which some were sent back later.
 There were conflicts between refugees in India and the local
population and thus, the National Register of Citizens is a
proposed solution by the government of India which is
expected to stop future migrants from Bangladesh from
entering India illegally.

Sri Lankan  Around 60,000 Sri Lankan refugees are currently residing in
Refugees Tamil Nadu. Recently, due to the political turmoil in Sri
Lanka, many people from Sri Lanka fled to southern India
seeking refuge.

14
  The periodic migration of Sri Lankan Tamils to India has since
1950 been regularly fuelled by the ethnic based communal
antagonism and political rivalry between the Tamils and
Sinhalese.
 Waves of migration from Sri Lanka could be divided into 3
phases: one after the 1983 anti-Tamil violence; another in the
early 1990s as the Civil War intensified and further in 1995-
2002 as the Eelam War III raged; and then in the final stages
of the war in 2008-09.
 The reasons why Tamil Nadu is chosen as their destination is
that it is nearest to Sri Lanka and is culturally similar.
 Since the year 2012, India has not granted refugee status to
anyone arriving from Sri Lanka. But, this issue of refugees in
India has time and again strained India’s as well as Tamil
Nadu’s relations with Sri Lanka.

The Myanmar  In 2021, leader Aung San Suu Kyi and members of her
Crisis
National League for Democracy party were detained and the
Junta took over the governance in a coup.
 Prior to that, Myanmar saw ethnic cleansing of the Rohingya
population where a significant majority of Rohingya people
were displaced and became refugees.
 Due to the religious and ethnic tensions between the
Rohingya Muslims and the Rakhine Buddhists who form the
majority of the population in Myanmar, violence started
taking place.
 The Myanmar Government said that Rohingya people are not
Burmese citizens and started forcing them to leave the
country. Due to this turn of events, the Rohingyas started
flocking into neighboring countries including India for
asylum.

15
  As per the MHA data there were around 40,000 Rohingya in
India in 2017 but MHA stated that the exact number is not
known as many of them enter the country illegally.
 India cites the burden on the limited resources of the country
and possible security issues to deny refugee status to
Rohingyas.

Tibetan Refugees  Dalai Lama and his 1 lakh followers were granted asylum in
India when the Chinese authorities started persecuting them.

 In 1914, a peace Convention was signed by Britain, China

and Tibet that recognised Tibet as an independent country.
But, China invaded Tibet in 1949 and later, they forcibly
occupied Tibet which led to the influx of Tibetan people
outside the state.
 The number of Tibetan political refugees in India were
around 3000 in 1951 which swelled to about 43000 in 1961
and to 80000 immediately after 1971. Today, their numbers
stand at approximately 150000.
 The reason for choosing India as the destination of refuge
was the willingness of India to accept them as political
refugees and the compatibility of Tibetan and Indian culture.
 Tibetans who arrived in India in the late 1950s and the early
60s were accorded refugee status by the Government of
India. But, Sino-Indian relations took a major hit as a result
of this humanitarian response from India.

___________________________________________________________________________

16
 CAUSES of Refugee Influx in India: Post Independent

 Persecution: Refugees often face a grave threat of persecution in their native countries
that induces them to migrate to safer countries like India.
 Neighbouring countries instability: Due to various civil wars and ethnic cleansing in
the South Asian neighbour nations, refugees seek shelter in India.
 The accommodative approach of India: Despite being a non-signatory to the 1951
refugee convention, India has welcomed refugees since independence. This includes
Tibetans, Afghanis, Bangladeshis, etc.
 Diversity: The multi-religious, multicultural, and multi-ethnic diversity of India creates
social bonds with foreign nationals. For instance, the Tamils of South India form bonds
with Tamils from Sri Lanka, and the kinship bonds between the Manipur people and
Myanmar people are attracting Myanmar refugees to India.
 Favourable Agreements: The majority of refugees from Myanmar, etc, are crossing
borders due to the Free Movement Regime, as there is unrestricted access as per a pact
between the two countries.
 Open Borders: It facilitates movement towards India. People from Bangladesh, Sri
Lanka, Myanmar, etc, enter India this way.
 A deficiency of Personnel: The government’s order to curb the refugee influx from
Bangladesh and Myanmar was not implemented efficiently due to the shortage of
personnel from Assam Rifles and others.10

__________________________________________________________________________

GENERAL ISSUE FACED BY REFUGEES IN INDIA.

India has provided shelter to approximately 450,000 refugees, both from within and outside
the region. However, due to the absence of refugee law in the country, there is a lack of
consistency in how refugees are treated. The lack of a formal domestic refugee policy enables
the state to address refugee groups in an improvised and inconsistent manner. This approach is
guided not by international, humanitarian, or constitutional factors but rather by geopolitical
and diplomatic motivations, domestic electoral mandates, and local socio-cultural dynamics.

10
[Link]

17
Refugees in India face several challenges, including fear and insecurity, lack of basic amenities,
and inadequate legal and medical support.

 Fear and Insecurity: Refugees are not given much importance in society. They are not
treated well by the local residents and they develop a sense of fear and insecurity. They
are often exploited physically and emotionally by the local residents only on the
grounds of not being citizens of the same soil. And it’s also an obvious situation as
when a new person enters any place were always neglected by the other already existing
there one of the reason is trust over a new person that he’s a refugee or not as they are
suspicious and even by there out look anyone would doubt them as they themselves are
scared and insecure about the new place and people’s around them who they will treat
others and how others will treat them, how they will make place for themselves in the
new place, whether peoples will accept them or not, how they are going to earn and
where to get other basic necessities of life and so on.
 Deprived of Basic Amenities: They face the problem of getting basic life necessities
such as food, shelter and employment. They are forced to work at low wages with no
high status or privileges. As the reason they people overpower them because they are
in need as a old saying needy will do anything to survive and other people took
advantage of that that is the main reason why the are the one who have to word for there
basic necessity at low wage and there can be one more reason as it is hard to trust them
although they are innocent but it’s hard for general people to understand as everyone is
not capable of understanding what situation someone is going through
 Lack of Well-Defined Framework for their Protection: India's ad hoc administrative
policy on refugees has created an atmosphere of confusion. Lack of awareness and
misinformation cause insecurity and exclusiveness among the refugee communities.
 Time Consuming Process of Identification: United Nations High Commissioner for
Refugees issues a refugee card through the refugee status determination process, but
this process is time consuming and can take up to 20 months for evaluation. Within that
period of time if someone is caught by the police, they will be arrested, detained and
deported without even getting access to the UNHCR.
 Misidentified as Immigrants: Over the past few decades, many people from
neighbouring countries have illegally immigrated to India, not because of state
persecution, but to take advantage of better economic opportunities. For instance, 98%

18
 of all Mexican emigrants reside in the United States, which are more than 10.9 million
(documented and undocumented) migrants. It is true that much of the debate in the India
is about illegal immigrants, not refugees, but the two categories tend to get grouped
together11.
 Lockdown and its impact The Covid-19 has had a serious impact on the population
around the globe. The lockdown imposed by the Indian government was one of the
world’s largest and strictest ones, which has had a devastating impact on several groups
including the refugees and asylum seekers in northeast India. Though the lockdown has
impacted all citizens in different ways, the refugees and migrants remain among the
most impacted groups. A large number of refugees are a part of the unorganised working
sector, which had halted due to the nationwide lockdown imposed. This has led to
several refugees being in a vulnerable position due to the lack of work and earnings to
survive during the [Link] has also increased their restrictions from accessing
several public health care and essential services. However, despite these hardships
faced by the refugees, due to a lack of clarity around the legal status of the refugees in
India and any governmental policy, the plight of the refugees remains the same as their
concerns go unaddressed by the government.
 Absence of domestic legislation: In the absence of any specialized domestic law for
refugees, the government relies on the Foreigners Act of 1946 and the Registration of
Foreigners Act of 1939 to govern the stay, entry, and exit of foreigners in India. These
legislations lack the special humanitarian treatment that is accorded to refugees
internationally.
 The Citizenship Amendment Act, 2019: This Act provides certain persecuted religious
communities the option of durable and long-term solutions of stay, while this is not
accorded to the other communities.13
 Insufficient legal and medical support: is a common issue for detained migrants who
frequently traverse borders. Many of them lack the financial means to secure legal
representation, hindering their ability to prevent further arrests.

11
Refugee Crisis in India, [Link]
india
12
Reet Balmiki,International refugee law and human rights : a study of the status of refugees in
Northeast India, [Link]
northeast-india/
13
[Link]

19
  Refugee women and children face increased vulnerability: due to escalating housing
costs, leading to a higher likelihood of experiencing gender-based violence, particularly
when sharing residences with strangers. Concerns about child labour among refugees
and asylum seekers persist, posing a significant challenge to their protection.
 The risk of detention looms: for refugees upon unauthorized entry into India, especially
if authorities suspect contradictory claims or lack typical travel documents. Security
agencies may legitimately file cases under the IPC, Foreigners’ Act, etc., and detain
refugees before presenting them to a local jurisdiction court.
 Despite being unable to legally work, refugees often engage in the unregulated
labour market.: However, they are excluded from numerous social security programs
available to Indian nationals, leaving them more vulnerable to natural disasters and
economic fluctuations.

All individuals from abroad, whether they are undocumented immigrants, refugees/asylum
seekers, or those exceeding their visa permits, are classified under India’s Foreigners Act of
1946. Refugees lacking valid documents are labelled as “illegal immigrants” and are liable for
detention and deportation. Urgent attention is needed for India’s refugee crisis, necessitating
the establishment of appropriate institutional and legal frameworks to safeguard vulnerable
populations and enhance the government’s global credibility.14

__________________________________________________________________________

ISSUES FACED BY REFUGEES RECENTLY, 2022

There are more than 46,000 refugees and asylum-seekers are registered with UNHCR India.
The number of people on the move is expected to grow due to poverty, lack of security, lack of
access to basic services, conflict, environmental degradation and disasters.

Refugees and asylum-seekers in India primarily live in urban settings alongside host
communities. 46% of the refugees are women and girls, and 36% are children.

14
[Link]

20
__________________________________________________________________________

Health

Refugees and asylum seekers are a diverse group and have a variety of health needs, which
may differ from those of the host populations. Compared to the general population, far higher
numbers of refugees suffer from depression, PTSD, or schizophrenia, due to traumatic
experiences of war and systematic persecution.

Barriers are even greater for people with disabilities. Women and girls may find difficulty in
accessing sexual and gender-based violence protection and response services. Refugee and
migrant children, especially unaccompanied minors, are more likely to experience traumatic
events and stressful situations, such as exploitation and abuse, and may struggle to access
health care. The ability to access health services in humanitarian settings is usually
compromised and complicated by shortages of medicines and lack of healthcare facilities.

__________________________________________________________________________

Employment

Being non-citizens, the refugees and the asylum seekers face a lot of problems when it comes
to their adequate access to employment in government education and health care services..
Restricted movements on the side of the refugees, happens to be one of the major factors
contributing for the refugees occupying a vulnerable status in the society. Adverse effects have

21
been witnessed in their mental health too. They have been suffering both physically and
mentally.

__________________________________________________________________________

Education

Lack of documentation on the part of the refugees and asylum seekers and the absence of
authentic documents relating to their current residents, act as obstacles when it comes to the
enrolment of the children of refugees and asylum seekers, at the higher university level
education. There is a section of this very group of people who are protected by the UNHCR
who are not required to give additional documentation and are able to acquire education as
higher levels.

__________________________________________________________________________

Housing

The refugees and asylum seekers face a serious issue of lack of permanent shelter, thus in the
long run are subjected to daily struggles and are not able to access stable livelihoods The
women and children of the refugees and the asylum seekers happen to become the worst
sufferers.

__________________________________________________________________________

Women and Children in wake of the Pandemic

Refugee and asylum seeking women in particular lack access to maternal and sexual healthcare.
For many, the lockdown also means disrupted access to psycho-social support, psychiatric care
and medications.

Women refugees are inherently isolated from their traditional support systems of family, friends
and community, and the lockdown further bolstered isolation from support networks a boon to
abusers. In India, community engagement is dominated by men, and refugee women find
themselves alone in a foreign land without a voice. Many naturally harbour a deep mistrust of
authority, arising from their precarious legal status and fear of arrest and deportation, as well
as past experiences of persecution and displacement. This anxiety is aggravated by poor access
to news and information in languages they understand. All of these factors combine to severely
limit their access to essential public services.

22
A refugee or an asylum seeker has additional challenges. Their kids are growing up in a
completely different society. This puts them on a back foot as refugee or immigrant parents

find it challenging on how to navigate through different situations. The number of shared
instances keeps decreasing and the parent-child dynamic keeps changing as time goes by. If
they're being raised in an English-speaking country, the culture and mannerisms are completely
alien to them, but they're normal for the children as that is what they've seen their entire life.
In such cases, children receive no educational support from their refugee or migrant parents
and have to rely completely on schools and teachers.

__________________________________________________________________________

Language

Daily communication, getting a job, filling documentation or buying food, all of these require
knowledge of the English or Hindi language. For Instance the refugees moving from Myanmar
to Bangladesh, don't speak their language. This makes daily tasks more difficult for refugees.
Granted, one can learn a new language, but doing so is no piece of cake either. There's the
question of managing it along with surviving on a daily basis and taking care of your
dependents.

__________________________________________________________________________

Others

The recent Covid-19 pandemic has contributed a lot in creating a deplorable crisis of both the
refugees and asylum seekers. A complete shutdown in the entire world for more than a year has
proved to be a game changer basically for the vulnerable positions of the refugees and the
asylum seekers. A fear was created in their minds that they would be identified as illegal
because most of them did not have authentic documentation along with them to prove their
legal stay in the country. In the process they mostly would not reveal their identity and even
they were afraid to approach government hospitals for their treatment during the pandemic.
Hence, all these factors are what is creating a chaotic situation amidst the refugees and asylum
seekers in the country and a denial of at least the basic rights that must be guaranteed for them.

23
 [CHAPTER: 3]

CONSTITUTIONAL AND LEGAL FRAMEWORK RELATED TO

REFUGEE IN INDIA

The influx of refugees to India is not only a recent phenomenon. Refugees started flowing into
India during the partition in 194715. Though India is not a party to the 1951 Convention
Relating to the Status of Refugees (hereinafter 1951 Refugee Convention) and its 1967
Protocol, in the past the Indian Government has always tried to provide prompt relief and
rehabilitation to refugees entering India.16 The relief and rehabilitation process for refugees
during the partition of India was based on a very holistic approach and was organized at the
highest levels of the Indian Government. Thereafter, refugees started coming to independent
India from various neighbouring countries as well as the Middle East and Africa. However, the
assistance that was provided to refugees during partition, and the protection and rehabilitation
extended to the first refugee group in India after independence (namely Tibetans), was not
available to the refugees who came later, including those arriving today. It was expected that a
country influenced by a rich religious and cultural tradition of hospitality (Atithi Devo Bhava),
and governed by the rule of law, would be more proactive in ensuring the rights and protection
of refugees in this evolving world of international human rights and protection of vulnerable
people.

The United Nations High Commissioner for Refugees (UNHCR) estimates the number of
refugees currently present in India at around 205,764, of whom only 30,000 are registered with
the UNHCR in New Delhi 17. India chooses to deal with refugee protection through
discriminative administrative measures coupled with strict laws dealing with the expulsion of
foreigners. At the same time, there are several constitutional provisions which affirm the rights
of non-citizens in the country, along with India’s obligation to uphold international law through
various conventions, protocols, resolutions, declarations and so forth. The following sections

15
B.S. Chimni (ed), International Refugee Law: A Reader (SAGE, New Delhi 2000) 462
16
Ibid. 463; see generally Kanti B Pakrasi, The Uprooted: A Sociological Study of the Refugees of West Bengal,
India (Indian Statistical Institute, Calcutta 1971) 1.
17
UNHCR Subregional Operations Profile—South Asia (2015).

24
of this chapter reflect upon the constitutional provisions, national laws and administrative
measures, and international obligations pertaining to refugees in India.

__________________________________________________________________________

CONSTITUTIONAL PROVISION TO REFUGEES IN INDIA

Constitution of India are applicable to the refugees when they are in India. The most important
Article is Article 21 which deals with Right to Life and personal liberty, it applies to everyone
irrespective of whether they are a citizen of India. Many judgements have been given based on
Article 21 on refugees. Article 14 guarantees the person right to equality before the law.
Additionally, Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 also available for non-citizens
of India including Refugees.
__________________________________________________________________________
Treatment given to the Asylum people were divided into three heads

__________________________________________________________________________
1. National Treatment: The national treatment to the asylum people is same as the
citizens of India. There are certain Articles in the Constitution of India, which takes
care of the Fundamental Rights of all people in India. The rights such as equal
protection to law under article 14, religious freedom under article 25, the right to life
and personal liberty under article 21, right to social security and educational rights are
guaranteed in Part III of the Indian Constitution.
2. Treatment that is accorded to foreigners:– Under this head, there are rights which
are related to the housing problems, movements, etc. the rights which are provided
under this treatment are: right to employment or profession under article 17, freedom
of residence and movement under article 26, right to housing under article 21, right to

25
 form association under article 15 and right to property under article 13 of the 1951
Refugee Convention.
3. Special treatment: – This treatment includes the identity and travel document under
article 28, exemption from penalties under article 3(1) of the 1951 Refugee Convention.

In the case of Louis De Raedt vs. Union of India, the court held that the fundamental rights to
life, liberty, dignity are available to non-citizens of India. In the case of Visakha vs. State of
Rajasthan, the court has held that “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”.
__________________________________________________________________________

LAWS FOR REFUGEES IN INDIA

India does not have specific laws regarding to the Refugees. However, India does have
the Refugee and Asylum (Protection) Bill of 2009. But the main legislation that supports
Refugees and Asylum is the Foreigners Act of 1946.
The laws related to refugees are:
 Citizenship Act, 1955 (No.57 of 1955)
 Extradition Act, 1962 (No. 34 of 1962)
 Foreigners Act, 1946 (No.31 of 1946)
 Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
 India Penal Code Act, 1860 (No.45 of 1860)
 Passport (Entry into India) Act, 1920 (No.34 of 1920)
 Passport Act, 1967 (No.15 of 1967)
 Protection of Human Rights Act, 1993 (No.10 of 1994)
 Registration of Foreigners Act, 1939 (No.16 of 1939)
 Immigrants (Expulsion from Assam) Act, 1950
 Administration of Evacuee Property Act, 1950
__________________________________________________________________________

26
Constitutional Provisions Dealing with Rights of Non-Citizens:

In the fundamental rights chapter of the Indian Constitution, there are listed several rights
available to all persons on Indian soil irrespective of nationality. These rights are: equality
before the law (Article 14), protection in respect of conviction for offences (Article 20),
protection of life and personal liberty (Article 21), the right to education (Article 21A),
protection against arrest and detention in certain cases (Article 22), prohibition of traffic in
human beings and forced labor (Article 23), prohibition of employment of children in factories
(24), freedom of religious practice and so on (Articles 25–28). It is important to note that only
Article 1418 and Article 2119 from the above list have been emphasized in the protection of the
rights of refugees in India by the Supreme Court of India in various cases.

In the matter of refugee rights, “it can be argued that Article 21 encompasses the principle of
non-refoulement which requires that a State shall not expel or return 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.”20

__________________________________________________________________________

The Laws Dealing with Foreigners:

There are several pieces of legislation dealing with entry, stay and exit (or removal) of
foreigners in India. As there is no specific legislation that defines the term refugee or establishes
provisions for dealing with refugee protection, India relies on laws dealing with foreigners to
deal with refugees.

The first piece of legislation that should be mentioned is the Passport (Entry into India) Act,
192021. This Act mandates that every individual entering India by water, land or air shall be in
possession of a valid passport22. In case of contravention of the rules made under this Act,
there will be punishment of imprisonment—which may extend to three months—a fine or

18
Equality before law: The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India
19
Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except
according to procedure established by law
20
B.S. Chimni, ‘The Legal Condition of Refugees in India’ [SAGE, 1994] 7 Journal of Refugee Studies 378, 380
21
Act No. XXXIV of 1920 (India).
22
Ibid. Section 3(1).

27
both23. Under this Act, any police officer not below the rank of sub-inspector or any customs
officer empowered with the general or specific order of the Central Government can arrest
without warrant any person who has violated the rules or orders made, or of whom a reasonable
suspicion exists24. The Central Government also has exclusive power to make special or general
orders to remove any person from the territory of India in case of violation of the rules 25. To
deal with the provisions of this Act, the government also enacted the Passport (Entry into India)
Rules, 1950, which extend to the whole of India, requiring a proper visa in addition to a valid
passport to enter India26. The Registration of Foreigners Act, 1939 was enacted to provide for
the registration of foreigners entering, staying in and departing from India27. In this Act, for the
first time a foreigner is defined as a person who is not a citizen of India28. To operationalize the
provisions of the Act, the government further enacted the Registration of Foreigners Rules,
1939 and further restructured it in 1992. In general, this Act and the Rules require every
foreigner who enters and stays in India for more than 180 days to register as per the prescribed
format and in time with the Foreigners Registration Officer (FRO) of that jurisdiction, and each
time they change address or leave India, they must receive authorization from the FRO. In case
of contravention or attempts to contravene, or failure to comply with the provisions and rules
of this Act, there shall be punishment in the form of imprisonment for a term of up to one year,
a fine of up to one thousand rupees or both29

Another piece of legislation widely used in dealing with foreigners is the Foreigners Act,
194630. Under this Act, the Central Government is vested with the power to make rules and
order the prohibition, regulation or restriction of the entry, stay and departure of any foreigner
or class of foreigner in India31. With the power granted under Section 3 of this Act, the Central
Government enacted the Foreigners Order, 1948. In this Act, for the second time, a foreigner
was defined as any person who is not a citizen of India 32. The most important provisions
affecting the life and liberty of any refugee or stateless person under this Act are those related
to the determination of nationality. Under this Act, if any question arises about the nationality

23
Ibid. Section 3(3).
24
Ibid. Section 4.
25
Ibid. Section 5.
26
Passport (Entry into India) Rules, 1950, Rule 5.
27
Act No. XVI of 1939 (India).
28
Ibid. Section 2(a).
29
Section 5.
30
Act No. XXXI of 1946 (India).
31
Ibid. Section 3.
32
Ibid. Section 3(a).

28
of a foreigner, the determination of nationality depends on the decision of the concerned
authority as to which country the foreigner is connected with, and that decision cannot be
challenged in any court of law33. The penal provision of this Act is much stricter than that of
the other two Acts mentioned above, as any contravention of the provisions, rules or order
made under this Act is punishable by imprisonment of up to five years 34. Another provision
that makes this Act central to the regime of entry, stay and departure (or removal) of any
foreigner in India is that the provisions of this Act or the rules made under this Act shall be in
operation along with the provisions of the Passport (Entry into India) Act, 1920 and the
Registration of Foreigners Act, 193935.

Considering the inner meaning of the restrictive provisions of the laws dealing with foreigners
in India mentioned above, it is clear that the legal provisions that apply to every foreign national
should not apply to a person who is entering India as a refugee, as these laws at the first instance
treat that person as a violator of the laws and rules discussed above. As a consequence, the
refugee or is detained and prosecuted prima facie without the chance to put forward his or her
claim to refugee status. However, there are instances where the provisions and rules made under
these Acts have been modified, specifically to provide refuge to persons from Uganda and
minorities from Pakistan and Bangladesh in India. At the same time, it is true that Tibetan and
Sri Lankan refugees hold residence permits similar to those issued to other foreigners in India,
though any official notification or document is inaccessible to determine under which law they
have been provided with those residence permits. In addition, those persons granted refugee
status by the UNHCR in New Delhi receive similar residence permits from the governmental
authority along with the long-term visa (LTV) annexed therein.

__________________________________________________________________________

Administrative Measures: Notifications and Circulars:

The Foreigners from Uganda Order, 1972 was designed to safeguard individuals of Indian
origin resident in Uganda, who were persecuted by the regime of Idi Amin36. Under this Order,
any Ugandan citizen coming to India must register their name, place of residence and intended
duration of stay in India with the registration office. Persons from Uganda are exempted from

33
Ibid. Section 8.
34
Ibid. Section 14
35
Ibid. Section 12
36
The Gazette of India, Extraordinary, Part II, Section 3, Subsection I, No. 268, October 20, 1972

29
the provisions of other laws applicable to foreigners by this Order. In early 2010 the
Government of India issued a notification by which certain powers to determine visa issues
were delegated to the state governments/union territories concerned (now amended version
available up to September 16, 2014)37. This regulation, in paragraphs 48–50, described the
terms, conditions and eligibility of Pakistani and Bangladeshi nationals for the LTV in India to
acquire Indian citizenship. Four categories of persons are eligible for the LTV, of which three
are based on marriage. However, it is interesting to take note of the fourth category, that is,
“cases involving extreme compassion.” No definition of the term is given in the notification or
in any other texts issued by the Government of India. It can be presumed that the category
“cases involving extreme compassion” must include the refugees from these countries who fled
because of persecution. There is another notification from the Government of India that allows
Pakistani and Bangladeshi nationals who are staying in India on LTVs to take on employment
of a purely private nature, excluding government, semi-government and cooperative jobs,
which would enable them to earn their livelihood in India38.

In early 2013, the Election Commission of India declared that children of Tibetan refugees who
were born in India between January 26, 1950 and July 1, 1987 can register to vote in India.
This was based on a judicial decision by the Delhi High Court in 2010 39. However, the same
reasoning has not been applied to the children of any other refugee groups.

__________________________________________________________________________

International Obligations:

The protection of refugees in India is at times very generous and based on compassion, but
ultimately it is discriminatory on the basis of refugees’ country of origin, date of admission,
place of entry and so forth40. Though India is not a signatory to the 1951 Refugee Convention,
it has entered into various International human rights law agreements that put some constraints
on unequal treatment of non-citizens and refugees. There is a significant body of international
law that has elaborated the principle of non-discrimination as a non-derogable norm that

37
Delegation of powers to State Governments/UT Administrations/FRROs/FROs in Visa Matters (Ministry of
Home Affairs, 16 September 2014)
38
F. No. 14051/37/[Link], Ministry of Home Affairs, Govt. of India, 11 November, 2010 (On file).
39
Namgyal Dolkar vs. Govt. of India, Ministry of External Affairs, W.P.(C) 12179/2009, Decided on: December
22, 2010, Delhi High Court
40
Emphasis could be laid down on the policy towards Tibetans, Sri Lankans (before the assassination of Prime
Minister Rajiv Gandhi), and Bangladeshis during the 1971 war and the present policy towards the minorities of
Pakistan and Bangladesh

30
prohibits discrimination on the basis of race, ethnicity and other related criteria. India’s
accession to the International Covenant on Civil and Political Rights (ICCPR) 41, the
International Covenant on Economic, Social and Cultural Rights (ICESCR) 42 and the
Convention on the Rights of the Child (CRC) 43, and its ratification of the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 44 and the
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)45,
have excelled the quantum of protection From the idea of compassion to rights.

_____________________________________________

RIGHT AND RESPONSIBILITY OF REFUGEES IN INDIA

LEGAL STATUS AND RIGHTS OF REFUGEES IN INDIA : India currently lacks

specific legislation addressing the challenges posed by refugees and asylum seekers. Presently,
refugees receive similar treatment as that of foreigners, and the laws which were applicable to
were foreigners were also extended to Refugees. Unlike other countries, India hasn’t ratified
the 1951, Refugee Convention which states what refugee is and what their rights should be.
Even though India hasn’t adopted the 1951 Refugee Convention, it has signed various human
rights agreements that require the country to protect refugees if they fear persecution from their
government. “These agreements encompass the UN Declaration on Territorial Asylum 1967,
Universal Declaration of Human Rights 1948 (Article 14), International Convention on Civil

41
International Covenant on Civil and Political Rights (adopted and opened for signature, ratification and
accession by General Assembly Resolution 2200A (XXI) of December 16, 1966, entry into force March 23, 1976,
in accordance with Article 49). India acceded to the Convention on April 10, 1979.
42
International Covenant on Economic, Social and Cultural Rights (adopted and opened for signature,
ratification and accession by General Assembly Resolution 2200A (XXI) of December 16, 1966 entry into force
January 3, 1976, in accordance with Article 27). India acceded to the convention on April 10, 1979.
43
Convention on the Rights of the Child (adopted and opened for signature, ratification and accession by
General Assembly Resolution 44 (XXV) of November 20, 1989 entry into force September 2, 1990, in
accordance with Article 49). India acceded to the convention on December 11, 1992.
44
International Convention on the Elimination of All Forms of Racial Discrimination (adopted and opened for
signature and ratification by General Assembly Resolution 2106 (XX) of December 21, 1965 entry into force
January 4, 1969, in accordance with Article 19). India signed the convention on March 2, 1967 and ratified the
convention on December 3, 1968
45
Convention on the Elimination of All Forms of Discrimination against Women (adopted and opened for
signature, ratification and accession by General Assembly Resolution 34/180 of December 18, 1979 entry into
force September 3, 1981, in accordance with Article 27(1)). India signed the convention on July 30, 1980 and
ratified it on July 9, 1993 with reservations

31
and Political Rights (ICCPR Article 13), Convention on the Elimination of Discrimination
against Women (CEDAW), International Convention on Economic, Social and Cultural Rights
(ICESCR), and Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment (CAT)”. The lack of a distinct law to oversee refugees in India is offset by the
country’s ratification of human rights treaties, placing obligations to ensure protection for
refugees.
Refugees and asylum-seekers in India predominantly reside in urban areas alongside host
communities, and India has been accommodating diverse refugee groups for many years,
offering solutions for numerous forcibly displaced individuals. Nevertheless, the lack of a
particular law has resulted in an improvised administrative policy to grant protection to
refugees, giving rise to issues of human rights violations and discrimination within the refugee
community. The Indian judiciary has addressed refugee claims in alignment with international
law obligations, and proponents argue that by relying on international law, these challenges
can be overcome to ensure more substantial protection for refugees. Establishing a dedicated
refugee law in India is deemed essential to enhance the legal safeguarding of refugees and their
human rights.

__________________________________________________________________________

The legal standing of refugees and asylum seekers in India is ascertained by the Indian
Judiciary through certain domestic laws pertaining to foreigners and illegal migrants. Some of
these include:

1. Passport (Entry into India) Act, 1920 : This act governs the people entering and leaving
the country and requires the people entering into India to be in possession of a passport. It
empowers the Central government to frame rules for the same, using which the Central
government framed Passport (Entry into India) Rules, 1950. A person who is not in possession
of a passport is prohibited from entering into India. But this rule would not apply to refugees
because of the principle of 'non-refoulement'. In the case of Nandita Haksar v. State of Manipur,
it was held that Article 21 of the Constitution encompasses the principle of 'non-refoulement'.
Hence, they cannot be sent back to their country in case of absence of some travel documents
nor they can be prohibited from entering into India to seek protection. It was also held by the
Court that imposing domestic violations on these people who needs protection of their life is
"palpably inhuman

32
__________________________________________________________________________

2. Passport Act, 1967 : This act provides for issuance of passports and other travel documents
to citizens of India or others and regulates their departure from India. It defines various types
of passports issued to different kinds of people. It also sets out the provision for arrest of those
who try to provide their false information in order to get a passport. Article 20 of the act
empowers the Central government to issue passports to non-citizens of India if it is necessary
to do so in public interest. This provision allows the government to issue passports to refugees
and asylum seekers in the public interest, so that they can travel abroad without any trouble.

__________________________________________________________________________

3. Registration of Foreigners Act, 1939 : This act provides the registration of foreigners in
India. It empowers the Central government to make rules to require every foreigner to report
his/her arrival, presence, movements, departure, proof of identity, etc. to the prescribed
authority. Moreover, it also requires persons who are often in touch with foreigners, to report
about their activities. Section 4 of the act shifts the burden of proof to such a person, who is in
question whether he/she is a foreigner or not. This is the most troublesome section of this act,
when it is applied in the case of refugees and asylum seekers. These document requirements
and onus of proof tends to add more troubles for them. It was on the prescribed authorities to
verify the credibility of the applicants like refugees and asylum seekers, in consideration of
their conditions.

__________________________________________________________________________

4. Foreigners Act, 1946 : This act empowers the Central government in respect of foreigners.
The Central government can make orders for foreigners imposing various restrictions on them.
This power is so wide that they can make different orders for any particular kind of foreigners
or any prescribed class of them. Moreover, the empowered authorities were also given
unlimited power to even 'force' the compliance needed for such provisions and in the case of
non-compliance, their arrest and detention. The authorities were provided with rights like right
to expel4, right to enforce an order to expulsion and the right to use force, if necessary by the
various provisions of this act and also upheld by the Court. Hence, this legislation sometimes

33
brings heavy penalties on refugees and asylum seekers or they might be detained for long
durations.

__________________________________________________________________________

5. Foreigners Order, 1948 : This order was passed by the Central Government in exercise of
powers conferred by Section 3 of the Foreigners Act, 1946. It specifies the conditions for
granting or refusing entry into India. When applicable to refugees, they might be deemed as
illegal migrants and may be detained at transit areas. Authorities need to consider their situation
on compassionate grounds as their conditions were different.

__________________________________________________________________________

6. Article 21 of the Indian Constitution” mandates the state to actively promote adherence to
treaty obligations and international law in dealings with organized groups.

 Equality before the law and equal protection of laws (Article 14).
 Protection in respect of conviction for offences (Article 20).
 Protection of life and personal liberty (Article 21).
 Right to elementary education (Article 21A).
 Protection against arrest and detention in certain cases (Article 22).
 Prohibition of traffic in human beings and forced labour (Article 23).
 Prohibition of employment of children in factories etc., (Article 24).
 Freedom of conscience and free profession, practice and propagation of religion
(Article 25).
 Freedom to manage religious affairs (Article 26).
 Freedom from payment of taxes for promotion of any religion (Article 27).
 Freedom from attending religious instruction or worship in certain educational
institutions (Article 28).
__________________________________________________________________________

7. Under “the 1946 Foreigners Act”, Section 3 empowers the Central government to identify,
apprehend, and deport unauthorized foreign nationals.

34
__________________________________________________________________________

8. As per Section 5 of the Indian Passport (Entry) Act of 1920”, Article 258(1) of the Indian
Constitution allows for the compulsory removal of an unauthorized foreigner.
“The 1939 Registration of Foreigners Act” requires all foreign nationals (except Indian
residents living abroad) entering India with a long-term visa (beyond 180 days) to register with
a Registration Officer within 14 days of arrival.

__________________________________________________________________________

9. The “1955 Citizenship Act” incorporates provisions for renunciation, termination, and
citizenship deprivation.
__________________________________________________________________________

10. The 2019 Citizenship Amendment Act (CAA) is crafted with the explicit purpose of
providing citizenship to immigrants who have experienced persecution in Bangladesh,
Pakistan, or Afghanistan and are members of Hindu, Christian, Jain, Parsi, Sikh, or Buddhist
communities.46

__________________________________________________________________________

INITIATIVES BY INDIAN GOVERNMENT: The Indian Government despite its non-

committal policies towards refugees, has proposed eight schemes which are directed towards
certain refugee groups.

The following list provides the schemes.

i. Central Assistance for one-time settlement of displaced families from Pak Occupied
Jammu and Kashmir (PoJK) and Chhamb settled in the State of Jammu & Kashmir.
ii. Rehabilitation Package and up-gradation of infrastructure of the Bangladeshi
Enclaves and Cooch Behar District after transfer of enclaves between India and
Bangladesh under Land Boundary Agreement to benefit the 911 returnees from
erstwhile Indian enclaves in Bangladesh.

46
[Link]

35
 iii. Relief assistance to Sri Lankan refugees staying in camps in Tamil Nadu and
Odisha.
iv. Grant-in-Aid to Central Tibetan Relief Committee (CTRC) for five years for
administrative and social welfare expenses of Tibetan settlements.
v. Grant-in-Aid to Government of Tripura for maintenance of Brus lodged in relief
camps of Tripura.
vi. Rehabilitation of Bru/Reang families from Tripura to Mizoram.

___________________________________________________________________________

NGOs BASED IN INDIA

There are a few NGOs based in India that are recognised by the UNHCR and work in unison
with them. Some of them are listed below:

a. BOSCO, Delhi: Bosco Organisation for Social Concern and Operation is a Delhi based
NGO and is a part of the Don Bosco International Organisation dedicated to the service
of poor. This organisation along with the Don Bosco Ashalayam trains refugees by
running tuition for young children, housing for the homeless, vocational training like
tailoring and helps in forming various Sigs.
b. SLIC Delhi: Socio-Legal Information Centre in association with the Human Rights
Law network helps in arranging Legal Aid for the refugees.
c. ROHRingya, Delhi: Rohingya Human Rights Initiative conducts education
programmes and mainly focuses to defend the Human rights of the Rohingya Refugees
and expose the abuses they face.
d. OfeRR, Chennai: Organisation for Eelam Refugees and Rehabilitation provides relief
and rural development, free school shoes, spirulina training and tsunami rehabilitation
to the Eelam refugees in Tamil Nadu.
e. Self-Help Groups: Khalsa Diwan Welfare Society is one such SHG dedicated to the
support of their refugee community. KDWS is funded through membership fees, and
helps other Sikh and Hindu Afghan refugees (numbering around 15,000% in Delhi)
struggling to receive the assistance they need from the Indian government. It focuses
on education and skills development, including teaching devotional music, language
classes, stitching, and computer skills. More informally it offers reconciliation and
support for domestic disputes and grievances.

36
__________________________________________________________________________
INDIAN ASSISTANCE For Refugees.
The Indian government and various organizations have extended aid to refugees in India
through diverse initiatives. Notable examples include:

AUROVEDA FOUNDATION: Auroveda has been actively assisting refugees in India by

providing support in healthcare, education, nutrition, awareness programs, Long-term Visas
(LTV), and more. Through their Refugee Fundraising Campaign for Nemertean, they
successfully raised over $75,000 to aid refugees in rebuilding their lives with safety and
dignity.

UNHCR INDIA: The United Nations High Commissioner for Refugees (UNHCR) has
played a significant role in delivering humanitarian assistance to vulnerable individuals in
India, including refugees and asylum-seekers. In 2022, UNHCR India allocated over USD 13
million to address the humanitarian needs of refugees, offering basic assistance such as food,
cash, shelter support, and essential relief items. Collaborating with implementing partners,
UNHCR supported over 58,277 individuals in need.

37
 [ CHAPTER : 4 ]

JUDICIAL TRENDS RELATED TO REFUGEES IN INDIAN

Judiciary plays a vital role in protecting refugees, many cases gave landmark judgements
regarding refugees. The judiciary has made it easy with the concepts of Social Action Litigation
and Public Interest Litigation. When any of the refugees are detained or arrested by the Indian
authorities, there would always be a danger of refulgent, repatriate or deportation. Those
refugees who are arrested for the illegal stay can be detained illegally under administrative
order without charges. The Foreigners Act vests an absolute and unfettered discretion in the
Central Government to expel foreigners from India. The Supreme Court of India in Hans
Muller of Nuremburg vs. Superintendent Presidency gave “absolute and unfettered” power to
the Government to throw out foreigners. The said judgment was again upheld by the Supreme
Court in Louis De Raedt & Ors. Vs. Union of India. In the same judgment, Supreme Court also
held that foreigners have the right to be heard.

In the judgment of Ktaer Abbas Habib Al Qutaifi vs. Union of India the High Court of Gujarat
held that the principle of non-refoulment avoids ejection of a displaced person where his life
or freedom would be undermined by virtue of his race, religion, nationality, enrolment of a
specific social gathering or political conclusion. Its application ensures life and freedom of a
person irrespectively of his nationality.

Non-Refoulment and Right to refugee Status: In Malavika Karelkar vs. Union of India the
deportation order issued against 21 Burmese refugees were stayed by the SC and allowed them
to seek refugee status under UNHCR.

__________________________________________________________________________

RESPONSE OF JUDICIARY TOWARDS REFUGEES IN INDIA: (LOWER COURTS)

The legal conditions of refugees in India shows clearly that when a foreigner enters India
without the required travel documents, he/she will be prosecuted under the relevant laws unless

38
an exception is made by the rule-making power of the government. The same is true for
foreigners who have entered India to escape persecution or fear of persecution47.

In this part of the chapter, I focus on some unreported cases decided by the Indian Trial Courts
in matters related to refugees and the violation of the rules and orders under relevant laws48.

In the case of State v. Farid Ali Khan49, the accused was arrested under the Foreigners Act,
1946 for not being able to show a valid refugee certificate issued by the United Nations High
Commissioner for Refugees (UNHCR) and residence certificate issued by the government.
However, the accused has all the valid documents but was unable to show them at the time of
arrest, and the law allows the accused up to 24 h to produce the documents. No time was given
to the accused for this purpose, and on this finding the trial court discharged the accused.

However, in State v. Montasir M. Gubara,50 the accused is a refugee who is staying in India
with refugee status. At the time of his arrest he was not able to produce his refugee certificate
granted by UNHCR, which was placed before the court when trial started. Nevertheless, the
court sentenced him to rigorous imprisonment for 6 weeks along with a fine.

The case of State v. Huson Vilvaraj51 was registered under Section 14 of the Foreigners Act,
1946 against the accused, a Sri Lankan refugee. The accused was arrested by the Delhi police
as he was living in Delhi without travel documents. The court convicted the accused and
sentenced him to simple imprisonment for 6 months and a fine. The trial court also observed
that refugee status does not entitle a person to move about freely in another country, and that
the person is always subject to the laws of the country which has accorded him the refugee
status.

The case of State v. Eva Massar Musa Ahmed52 was registered under Section 14 of the
Foreigners Act, 1946. The accused is a Sudanese citizen who entered India with an expired
Sudanese passport and no travel authorization from the Indian Government. The accused was
held in custody for 10 days. She submitted before the court that she had been gang raped in

47
Veerabhadran Vijayakumar, ‘Judicial Response to Refugee Protection in India’ [2000] 12 International Journal
of Refugee Law 235; B.S. Chimni, ‘Legal Condition of Refugees in India’ [1994] 7 Journal of Refugee Studies 378,
380.
48
Ibid
49
Court of Metropolitan Magistrate, New Delhi, Decided on: November 1, 1995
50
Criminal Case No. 427/P/1994, Court of Additional Chief Metropolitan Magistrate, Mumbai, Decided on:
September 3, 1996.
51
Case No. 443/3 of 1997, Court Metropolitan Magistrate, New Delhi, Decided on: May 6, 1998.
52
FIR No. 278/95, Court of Metropolitan Magistrate, New Delhi, Decided on: October 26, 1995.

39
Sudan for converting from Islam to Christianity and subsequently granted refugee status by
UNHCR. The trial court, considering the situation of the accused, sentenced her to
imprisonment for the days already spent in custody and a small fine.

In the case of State v. Thang Cin53, the accused is a citizen of Myanmar who entered India
and applied for refugee status from UNHCR in New Delhi. He was arrested before receiving
refugee status and was held in judicial custody for about 9 months. Afterwards, the accused
received refugee status from UNHCR in New Delhi and the court took a lenient view on
convicting him under the Foreigners Act, 1946. The court sentenced him to the term already
spent in prison and set him free.

In State v. Mohd Riza Ali54, the accused was charged under various sections of the Indian
Penal Code for holding forged travel documents, as well as under the Foreigners Act. The
accused submitted a refugee certificate granted by UNHCR before the court and thus the court
released him from the charges under the Foreigners Act, but the trial continues for the offences
under the Penal Code.

__________________________________________________________________________

RESPONSE OF JUDICIARY TOWARD REFUGEES: ( HIGH COURT )

Decisions of High Courts and the Development of Precedence:

There are over one thousand cases initiated by refugees or related to refugees present in India
that have come in front of various High Courts of India. It is important to note that with the
exception of some sixty cases, all were against decisions of state or other parties under the Acts
which were enacted for rehabilitation of displaced persons during the partition of India55. There
are very few cases concerning refugees that have come to various High Courts of India under
the Acts which were enacted under Entries 14, 17, 18 and 19 of List One of Schedule 756. The
matters covered under these cases include rights of refugees against deportation and detention,
resettlement, repatriation, right of compensation, right to livelihood, acquisition of citizenship

53
FIR No. 330/01, Court of Metropolitan Magistrate, New Delhi, Decided on June 3, 2002.
54
FIR No. 414/93, Court of the Assistant Chief Metropolitan Magistrate, New Delhi, Decided July 7, 1995
55
Constitution of India, 1950, Concurrent List, Entry 27: Relief and rehabilitation of persons displaced from their
original place of residence by reason of the setting up of the Dominions of India and Pakistan
56
Constitution of India, 1950, Union List, Entry 14: Entering into treaties and agreements with foreign countries
and implementing of treaties, agreements and conventions with foreign countries; Entry 17: Citizenship,
naturalization and aliens; Entry 18: Extradition, Entry 19: Admission into, and emigration and expulsion and
passports and visas.

40
and so forth. After careful analysis of the judgments of these cases, some are discussed in the
following paragraphs under different categories. These cases reflect the protection of refugees
in India and show the extent of protection under humanitarian considerations and international
developments by defining the government’s power to deal with foreigners exclusively under
various central laws.

__________________________________________________________________________

SETTLEMENT/COMPENSATION:

In the case of Khudiram Chakma v. Union Territory of Arunachal Pradesh and Ors57, the
petitioner explained that he along with fifty-six Chakma families migrated from East Pakistan
(presently Bangladesh) on March 30, 1964 due to ethnic disturbances. They were first given
shelter in a government camp in Assam, thereafter taken to Bettiah of Bihar and finally taken
to Abhayapur Block, Tirap District, Arunachal Pradesh in 1966. These families were able to
negotiate with the local Raja about their situation, and the Raja gave them some land to
cultivate. In 1984 the Chakmas received an order from the state government to move from
Joypur village to the vacant lands of two other villages

On the first issue of this case, the court, after analyzing the provisions of the Constitution of
India and the Citizenship Act, 1955, came to the conclusion that the Chakmas are not citizens
of India, so they are foreigners 58. The second issue, of the state government directing the
Chakmas to move to another place, was also upheld by the court in connection with the
Foreigners Act, 1946 and the Foreigners Order, 1948. In this regard the court also relied on
Regulation 5 of 1873, Scheduled District Act 1974, that no person other than a native has any
right to acquire land or the product of land within the inner line59. On the third issue, the Court
decided that the decision taken by the government was in conformity with the provisions of the
Constitution of India and other laws dealing with foreigners 60. However, on humanitarian
grounds the court ordered the state government to compensate the Chakmas for the land they
had prepared for cultivation. The government also ordered that all arrangements be made for
the construction of housing and a water facility before shifting the Chakmas to the new place61.
However, this decision was challenged in the Supreme Court of India, which generated

57
High Court of Gauhati, AIR 1992 Gau 105, Decided on: April 30, 1992
58
Ibid. Para.16–18
59
Ibid. Para.19–22.
60
Ibid. Para.23–31
61
Ibid. Para.32–34.

41
additional litigation and finally resulted in the landmark judgment on refugee protection by the
Supreme Court of India.

__________________________________________________________________________

DEPORTATION:

The case of Seyed Ata Mohamamdi v. Union of India and Ors62 involved a petition to the
court not to deport the petitioner to his native country of Iran. During the hearing the petitioner
was granted refugee status by UNHCR. On the basis of the refugee certificate, the Government
of India made a statement that there was no question of deportation of the petitioner to Iran and
that he could travel to any country he wished under the resettlement program. As a result of
this statement, the court disposed of the petition.

In the case of Mohammad Sediq v. Union of India and Ors63, the petitioner was a refugee of
Afghan origin who received a refugee certificate from UNHCR in New Delhi in 1987. This
refugee certificate was extended on an annual basis until [Link] 1998 the petitioner received
the impugned order from the government under Section 3(2)(c) of the Foreigners Act, 1948 to
leave India on or before May 15, 1998 and not to re-enter India thereafter. The petitioner
contended that he had not been given any opportunity for a hearing before the order was issued,
and that due to the disturbances in Afghanistan he was not able to return there as he feared he
would suffer harm if he did so. The petitioner asked that the order be quashed as a violation of
the principles of natural justice, that he be allowed to reside in India as a refugee, and that a
direction be issued to exempt the petitioner and other such refugees, as a class or description
of foreigners, from the application of the Foreigners Act, 1946. The court observed that when
any refugee is asked to leave the country, he/she must be allowed an opportunity for a hearing;
however, the extent of the opportunity will depend on the facts and circumstances of each case.
Further, the court held that the order passed by the Foreigners Registration Officer, New Delhi
is a valid order on account of the activities of the petitioner, which is prejudicial to the security
of India and a reasonable opportunity of hearing has to be given to him.

__________________________________________________________________________

REPATRIATION AND RESETTLEMENT:

62
High Court of Bombay, A.D. 1458 of 1994.
63
High Court of Delhi, 1998 (47) DRJ 74, Decided on: August 21, 1998.

42
A petition to direct the government to stop the involuntary repatriation of Sri Lankan refugees
to their native place came before the court in the case of Gurunathan and Others v. The
Government of India and Others64. The Government of India came up with a plan to the
effect that Sri Lankan refugees would not be sent back to their native place against their will
and that there would be no force used in the process. Considering that as a guarantee, the court
disposed of the petition. The issue of involuntary repatriation again came before the Madras
High Court in P. Nedumaran and Dr. S. Ramadoss v. Union of India and Another65, in
which case the court disposed of the petition with a decision similar to that in the previous case.

__________________________________________________________________________

DETENTION:

The case of Ramsingh v. State of Rajasthan is a revision petition before the Court66. The
petitioner is a Pakistani citizen who came to India during the 1971 war and stayed at a refugee
camp. It is alleged by the state that the petitioner crossed the border back into Pakistan in 1972
and then re-entered Indian Territory in 1973, and thus he was charged under Section 14 of the
Foreigners Act, 1946 and Rule 3 of the Passports (Entry into India) Rules, 1950. The petitioner
was convicted and sentenced to rigorous imprisonment by the Chief Judicial Magistrate, which
decision was further affirmed by the Sessions Judge in 1977. In this case the court, after careful
examination of the records of the lower court, found no evidence to prove the petitioner had
left India in 1972. Finally the court held that the petitioner was entitled to the benefit of the
doubt and acquitted him of the charges67

__________________________________________________________________________

Service Matter and Livelihood:

The case of Digvijay Mote v. Government of India and Anr came before the court with a
request to direct the government to provide food for the children of Sri Lankan refugees who
are staying and studying in a residential school in Karnataka68. The Government of Karnataka
arranged for the supply of food, and thus the court disposed of the petition without discussing
its merit.

64
High Court of Madras, W.P. Nos. 6708 and 7916 of 1992
65
High Court of Madras, W.P. No. 12298 and 12343 of 1992, Decided on: August 27, 1992
66
High Court of Rajasthan, 1978 WLN (UC) 90, Decided on: March 15, 1978.
67
Ibid. Para.5 and 6
68
High Court of Karnataka at Bangalore, WAN No. 354 of 1994, Decided on: February 17, 1994.

43
In the case of Satish Kumar Singh and Ors v. Union of India (UOI) and Ors 69, the
petitioners requested a ruling that Tibetan nationals employed with the Central Tibetan Schools
Administration (CTSA) ought not to be regularized or given permanent employment because
CTSA is an organization governed by the Central Civil Services Rules. The CTSA was
established in 1961 for the education of the children of Tibetan refugees, and 236 Tibetan
refugees were given employment with the CTSA70. During the proceedings, the Government
of India issued a notification that a one-time exemption would be made to regularize the 236
Tibetan refugees then working with CTSA, and that no more Tibetan refugees would be
appointed to regular posts under CTSA in future71. After this notification the court found that
the issue had been resolved and dismissed the petition.

__________________________________________________________________________

ACQUISITION OF INDIAN CITIZENSHIP:

In the case of Smt. Shishuwala Pal and Anr v. Union of India and Ors72, came to India
during the 1971 war as refugees. They were rehabilitated in a refugee camp, but later moved
to their relative’s residence in Madhya Pradesh. The second petitioner studied up to Bachelor’s
level in India and was elected in the Panchayat election in 1983 from Madhya Pradesh. After
the said election, the petitioners were arrested by the police for deportation to Bangladesh. The
petitioners asked for a direction to restrain the respondents from treating them as foreign
nationals and from taking them into custody for deportation outside India. The court, after
considering the provisions of the Citizenship Act, 1955, held that the petitioners were not
citizens of India but were still foreigners. It was the domain of the Government of India to
decide whether they would be allowed to stay in India on humanitarian grounds, and the
petitioners had statutory remedy under the Citizenship Act, 1955. With these observations the
court dismissed the petition.

Considering the decisions of cases in various High Courts, it can be pointed out that there is a
compassionate regime of protection available to refugees in India in general, but only when the
refugees reach the higher courts to appeal the decisions of the government or trial courts. In
specific matters of compensation for resettlement, opportunity to seek refugee status,

69
High Court of Delhi, W.P. (C) Nos. 1006/2003 and 6161-63/06, Decided on: April 20, 2006.
70
Ibid. Para.11.
71
Ibid. Para.2, 3, 9, 10.
72
High Court of Madhya Pradesh, AIR 1989 MP 254, Decided on: October 31, 1988

44
repatriation and the right to Indian citizenship, the High Courts have shown courage in deciding
cases in favor of refugees, both on humanitarian grounds and based on law. It has been seen in
various High Court judgments that India’s international obligations to protect refugees were
discussed along with the humanitarian traditions of Indian culture. However, there have been
conflicting judgments in matters relating to detention and deportation. It is noteworthy that the
High Courts have based their decisions on the facts and circumstances of each case. For
instance, in cases concerning deportation, some decisions have affirmed deportation instantly,
while others have passed an interim order to restrict deportation for the time being. In all these
cases, importantly, national and other security reasons have played a very important role in
these decisions. In cases of detention, again, there has been much ambiguity in the decisions
of the same High Court (High Court of Madras) when the division benches were given different
judgments.

Finally, the right of the state to restrict the movement of a refugee is recognized as a sole right
that cannot be called detention. The following points are more clearly stated to clarify the stand
taken by the various High Courts:

1. Article 21 is available to protect a non-citizen within the Indian territory and it implies
by interpretation the principle of non-refoulement..
2. 2 However, this does not confer any right to reside or resettle in India, or to unrestricted
movement in India.
3. The power of the government to expel foreigners is absolute if their stay is contrary to
the security of the state.
4. In cases of repatriation of refugees, it should be voluntary in nature subject to the
security of the state.
5. Children of refugees are entitled to the right to Indian citizenship if they were born
between January 26, 1950 and July 1, 1987.
6. In matters involving respect for international legal principles, the court will apply these
principles in a harmonious manner.
7. The relevant international conventions and treaties are not binding unless made law by
the Parliament. However, the government has an obligation to respect them.
8. The government has an obligation to ensure the protection of refugees when they have
been granted refugee status by UNHCR.

__________________________________________________________________________

45
RESPONSE OF JUDICIARY TOWARD REFUGEES:( SUPREME OURT )

The Supreme Court in Refugee Protection:

Fresh cases in the Supreme Court are also very few in number. The general trend of justice
delivery could be described under these circumstances as: refugees are fined and sentenced
under relevant laws dealing with foreigners; sometimes, if they are lucky, they have the chance
to appeal that order before a higher court with the help of a compassionate lawyer or an NGO,
and often the case is decided in the refugee’s favor73. However, at the same time, judgments
on refugee protection are limited to individual cases and do not apply to all persons in the same
category or circumstance. Nevertheless, the way the Supreme Court of India has interpreted
the Constitution in its decisions to highlight the duty of the state to accord refugee protection
is phenomenal. In its several decisions, the Supreme Court has employed international human
rights law provisions to uphold the obligation of refugee protection.

In this section of the chapter, I analyze all the judgments of the Supreme Court of India on
matters related to refugees and their protection.

First, however, it is important to clarify the point that many court decisions on refugee matters
have taken as precedent two cases decided by the Supreme Court that restricted the rights of
refugees. In the case of Hans Muller of Nurenburg v. Superintendent, Presidency Jail,
Calcutta and Others74, the Supreme Court in 1955 declared that the Foreigners Act confers
on the central government the absolute and unfettered discretion to expel a foreigner from
India, and that there is no provision to limit this discretion in the Constitution.

In the case of Louis De Raedt v. Union of India and Others75, the Supreme Court observed
that the fundamental right of the foreigner is confined to Article 21 for life and liberty and does
not include the right to reside and settle in India as mentioned in Article 19(1)(e), which is
applicable only to citizens of India. These two cases dealt exclusively with the factual
circumstances of foreigners who entered India for a purpose other than to escape persecution.
The court decisions to restrict the rights of refugees that were made on the basis of these two
decisions failed to distinguish between two classes of persons—refugees and other foreigners.
This was the judicial trend for a long time, mostly in the High Courts, but recent decisions by

73
Ranabir Samaddar, ‘Introduction’ in Ranabir Samaddar (ed), Refugee and the State: Practices of Asylum and
Care in India 1947–2000 (SAGE, New Delhi 2003) 50.
74
Supreme Court of India, 1955 AIR 367, Decided on: February 23, 1955
75
Supreme Court of India, 1991 AIR 1886, Decided on: July 24, 1991.

46
the Supreme Court have shown the way towards this distinction in the Chakma cases. It can
also be argued that the observations made in the Chakma cases should become the standard of
law in distinguishing between refugees and other foreigners as different categories.

__________________________________________________________________________

RESENT CASES RELATED TO REFUGEES IN INDIA

The Rohingya Crisis

India, being a developing nation with the highest population globally, should prioritise its own
citizens, the Centre told the Supreme Court today while underscoring concerns regarding
national security due to the illegal entry and stay of Rohingya refugees. This declaration came
in response to a court petition urging the release of Rohingya refugees detained for alleged
violations of the Foreigners Act.

The Rohingya crisis is a humanitarian catastrophe that has drawn international attention due to
its magnitude and complexity. Originating from Myanmar, the Rohingya people have faced
decades of persecution and violence, leading to a mass exodus from their homeland.

The Rohingya, primarily Muslims, have fled ethnic conflict in predominantly Buddhist
Myanmar, seeking refuge in India, Bangladesh, and neighbouring countries.

__________________________________________________________________________

Who Are The Rohingya

The Rohingya are a Muslim ethnic minority group residing in predominantly Buddhist
Myanmar. According to the United Nations, despite living in the country for generations, they
have been systematically denied citizenship since 1982, rendering them stateless and without
basic rights. The term "Rohingya" emerged in the 1950s as a means for the community to assert
its collective identity and historical ties to the region.76

__________________________________________________________________________

Roots Of The Crisis

Decades of discrimination and marginalisation against the Rohingya by the Myanmar

government have laid the groundwork for the crisis, the UN's Human Rights Council said in a

76
[Link]
asylum-5281657

47
report. Restrictive citizenship laws, imposed limitations on marriage, family planning,
education, and freedom of movement have compounded the community's suffering.
Rakhine State, where most Rohingya reside, is Myanmar's least developed region, and a
constant flashpoint in tensions between the Rohingya and other ethnic groups. The state's
capital Sittwe is located nearly 650 kilometres from Myanmar's capital Napyidaw.

__________________________________________________________________________

Escalation Of Violence.

The crisis escalated dramatically in August 2017 when the Arakan Rohingya Salvation Army
(ARSA), a Rohingya insurgent group, launched attacks on Myanmar police and army posts in
Rakhine State. In response, Myanmar's military launched a brutal crackdown, characterised by
widespread violence, mass killings, and the torching of Rohingya villages. Hundreds of
thousands fled across the border into neighbouring Bangladesh to escape the atrocities.
The international community has condemned Myanmar's actions, with many labelling it as
ethnic cleansing and even genocide. The United Nations, human rights organisations, and
individual countries have called for accountability and justice for the Rohingya. Legal actions
have been pursued at international courts, including cases at the International Court of Justice
(ICJ) and the International Criminal Court (ICC). Sanctions have been imposed on Myanmar's
military leaders by various nations and organisations

__________________________________________________________________________

Refugee Crisis

The majority of Rohingya refugees have sought shelter in overcrowded camps in Cox's Bazaar
in Bangladesh. The living conditions in these camps are dire, often made worse by the annual
monsoon season, which brings flooding and landslides. Disease outbreaks and lack of access
to basic necessities pose significant challenges to the well-being of Rohingya refugees.

The Kutupalong camp In Cox's Bazaar is widely regarded as the world's largest refugee camp,
even bigger than the Um Rakuba camp in Sudan and the Za'atari camp in Jordan.

__________________________________________________________________________

Regional Dynamics And India's Stance

The Rohingya crisis has regional implications, with refugees seeking asylum in neighbouring
countries such as India, Malaysia and Thailand.

48
According to a 2019 report by the US think tank Council On Foreign Relations, approximately
18,000 Rohingya refugees have officially registered with the UN refugee agency, but Indian
authorities estimate that the total Rohingya population in the country stands at around 40,000.
The Indian government has been actively pursuing their repatriation. Since late 2018, India has
reportedly deported numerous refugees back to Myanmar.

Now, the Rohingya have also been cited in debates regarding the Centre's handling of the
Citizenship Amendment Act (CAA). The CAA aims to grant citizenship to migrants from
Bangladesh, Pakistan, and Afghanistan, excluding Muslims, who fled religious persecution and
entered India before 2015. Responding to criticism from the Opposition regarding national
security concerns related to the CAA, Union Home Minister Amit Shah has countered by
questioning why there is no opposition to the entry of Rohingya refugees.

The Centre has said that India has not ratified the 1951 Refugee Convention or its 1967
Protocol. Therefore, determining whether any group should be recognised as refugees is solely
a matter of policy.77

__________________________________________________________________________

The Supreme Court addressed the rights of two different classes of non-citizens this year.

The Court first considered the rights of Rohingya asylum seekers who fled Myanmar for fear
of violent persecution by the Government. Second, the Court began hearings on
whether Overseas Citizens of India (OCIs) could be legally restricted from the same
educational and employment opportunities as Indian citizens.

In Mohammad Salimullah v Union of India 78 , two Rohingya immigrants, Mohammad

Salimullah and Mohammad Shaqir, filed a petition challenging the Union Government’s
decision to reportedly deport Rohingya Muslim refugees back to Myanmar. They claimed that
the deportation would violate the Right to Equality and the Right to Life. They further argued
that the decision would violate the international law principle of ‘non-refoulement’. This
principle forbids countries from sending refugees back to a country where they would face
persecution. The Supreme Court admitted the case in September 2017.

77
[Link]
asylum-5281657
78
[Link]

49
In response to newspaper reports stating that Rohingya refugees had been detained and placed
in holding centres in Jammu, Mr. Salimullah and Mr. Shaqir filed an interim
application seeking their release and a stay on their deportation in January 2018. The
government denied these reports. The Court rejected the application for interim relief on March
7th, 2021, stating that the ‘right to not be deported’ was not guaranteed for non-citizens.

CJI Bobde reserved orders in the matter and closed the hearings in late March. The Court is yet
to deliver a verdict on the matter.

The rights of non-citizens are being addressed further in the case of Radhika Thappeta v
Union of India.

The Ministry of Home Affairs issued a notification under s 7D of the Citizenship Act,
1955 which restricted OCIs from seeking employment in certain fields without RBI
approval. In April, s 7D of the Act was challenged by a group of 80 OCIs in the SC and on
April 12th

a three-judge Bench comprising CJI Bobde and Justices Bopanna and Subramaniam issued
notice to the [Link] hearings on the main matter have not begun, a Bench
comprising Murari and Nazeer JJ is hearing a connected matter on whether OCIs must be
restricted to NRI quota seats as per the MHA notification. On September 30th, the Bench
delivered an interim order allowing OCIs to compete for General Category seats in 2021-22.79

__________________________________________________________________________

Rohingya Refugees File Petition Against Facebook in Indian Court:

Two Rohingya refugees in India have filed a public interest litigation [PIL] case with the Delhi
High Court seeking its intervention in curbing anti-Rohingya hate content on Facebook, and
now members of the community have said that India’s social media users have called them
"terrorists," "jihadists" and "illegal immigrants," among other derogatory terms, and sought
their expulsion from the country.

The petition became public last week, and it calls for India’s regulators to monitor Facebook
and remove "hate speech and harmful content that originates in India from its platform and is
directed toward the Rohingya community."

79
[Link]

50
"Both the internal documents from Facebook and external reports available have repeatedly
shown that misinformation, fake news, hate speech and politically divisive content [on the
platform, directed against the Rohingya community] have resulted in real-world violence, both
in India and abroad," the petition reads. On Tuesday, as the case came up for hearing, Colin
Gonsalves, a counsel representing the Rohingya petitioners, said that an "ecosystem" of the
platform "magnified hate speech through its algorithm" to enhance its business "The platform
was a propagator of hateful content targeting the Rohingya community, he said … Hate speech
is active propaganda," Gonsalves said. Arvind Datar, appearing before the court for Facebook,
opposed the petition and asserted the platform already had done a substantial amount of work
to prevent its abuse, following consultations with the federal government. "The offending posts
that the PIL mentions have already been taken down [by the Facebook authority]," Datar said.
“They are saying we are propagating hate. This is not true." Fleeing violence and persecution
in Buddhist majority Myanmar, the Muslim Rohingya for decades had been crossing over to
neighboring Bangladesh and other countries, including India. Although India views all
Rohingya refugees as "illegal immigrants" — having not signed the 1951 U.N. Refugee
Convention — the community mostly lived peacefully in the country for decades. 80

__________________________________________________________________________

HINDU NATIONALIST THREATS

The refugees began facing resistance in India after Prime Minister Narendra Modi’s Hindu
nationalist Bharatiya Janata Party, or BJP, came to power in 2014. Over the past six years, a
few hundred Rohingya have been arrested for illegal entry into India and dozens o them also
have been deported to Myanmar.

According to a factsheet released by the U.N. refugee agency the UNHCR in November 2022,
more than 21,000 Rohingya refugees are living in India. The refugees and rights activists say
that anti-Rohingya sentiment in Indian society has shot up and members of the community
have been violently targeted in the past few years, mostly because of hate posts and
misinformation about the community increasingly surfacing on social media. Activists also
note that the anti-Rohingya hate campaign in India is largely driven by activists and supporters
of Hindu right-wing groups.

80
[Link]
/[Link]

51
"The social media hate campaign using Facebook, X [formerly Twitter] and other online
platforms have criminalized the community in the eyes of many Indians, resulting in an
increased number of violent threats for us. Unfortunately, the Facebook authority has failed to
take down the hate content that promoted misinformation about our community," Sabber Kaw
Min, an India-based Rohingya refugee and founder-director of Rohingya Human Rights
Initiative, told VOA.

"Some years ago, an anti-Rohingya hate campaign by extremist Buddhists and the government
in Myanmar led to a brutal military crackdown against the community, forcing over 700,000
Rohingya to flee the country in 2017," Min said. "We fear being hounded out of India again
because of this ongoing social media hate campaign."

Activists point out that at least some of the outbreaks of fire in Rohingya colonies in India in
recent years apparently were hate attacks. After a blaze gutted a Rohingya colony in Delhi in
2018, a leader of the youth wing of the BJP boastfully said that his group was behind the arson.
"Yes, we burnt the houses of Rohingya terrorists," the BJP youth leader tweeted. In the petition,
the two refugees filed in the High Court, 39 anti-Rohingya posts and comments were cited.
Originating in India, they were in English, Hindi and Bengali.

__________________________________________________________________________
THREATS OF VIOLENCE

In one post, the Indian Army was requested to "wipe out all Bangladeshis and Rohingya from
the Indian soil." The petition also made note of a video in which T. Raja Singh, one politician
from Modi’s BJP, said that "Rohingya Muslims should be shot dead." Legal experts and
activists say the petition is especially relevant because the abhorrent posts on Facebook have
perpetuated hate against not only the Rohingya, but also other minorities in the country. Delhi-
based lawyer Kawalpreet Kaur, representing the Rohingya petitioners, said that the petition
was filed "keeping in view the role Facebook has been playing in India promoting divisive
content against minorities, especially the Rohingya community." "These posts are originating
in India and have tremendous potential for causing real-time violence," Kaur told VOA.

"We aim to hold entities like Facebook responsible so that they don't selectively apply their
community standards and not omit their responsibility when it comes to the protection of
minority communities." Executive Director of Australia-based Victim Advocates International
Eva Buzo, supporting the Rohingya community’s legal fight against Facebook, said certain

52
features of Facebook like feed ranking and "virality" promote "misinformation and harmful
content, by Facebook’s own admission."

"The petitioners are bravely standing up to a powerful American company that has caused
immeasurable damage around the world…" Buzo said, citing the virulent content proliferating
online against the Rohingya leading up to the 2017 violence. "The petitioners have seen what
Facebook is capable of when it is left unchecked," she said. "This petition is not seeking
protection only for the Rohingya, but asking the court to order Facebook to cease using these
features that are harmful to all minorities," Buzo said.81

81
[Link]
/[Link]

53
 [ CHAPTER : 5 ]

CRITICAL REVIEW, FINDING, SUGGESTS & CONCLUSION

CRITICAL REVIEW OF WHY INDIA NEEDS POLICY FOR REFUGEES AND

ASYLUM SEEKERS

Every year we are noticing increase in number of refugee in India at very high numbers. Most
of these refugees are from neighbouring countries such as Myanmar, Afghanistan, Sri Lanka,
Bangladesh, Nepal and Tibet.

Present data shows that there are nearly more than one million refugees residing in India alone
which is increasing every year. With such increasing population there comes challenges over
the states with respect to dealing with issues like protection of Women and children from their
exploration, providing health services, resistance, education, employment, and dealing with
crime rates and ensuring that refugee is granted asylum. For all such purposes there comes the
need for making policies for refugees and asylum seekers in India.

Our constitution ensures to provide protection to all human beings living in India, irrespective
of nationality and there are Articles 14, 20, and 21 of the constitution which ensures these rights
to all the people living within the territory of India.

The above mentioned problem and challenges cannot be dealt in an ad-hoc manner so there
comes need for having laws and policies for refugees for a systematic arrangements and
providing them resources, safety and security.

Refugee policies are laws and regulations that reflect a country's attitude toward non- citizens
who have arrived to flee persecution in their home country because of their race, religion,
nationality, participation in a specific social group, or political viewpoint. These policies do
away with arbitrary executive acts against refugees. The concern of refugees comes under the
United Nations' human rights framework, despite that fact, India has yet to implement a proper
legal spectrum to recognize and adjudicate the concerns of refugees.

While India had many justifiable grounds for not joining the 1951 Refugee Convention or its
1967 Protocol, there were several legal provisions that gave Indian refugees an advantage. The
lack of a formal refugee policy in India has resulted in a discretionary system in which the

54
Ministry of Home Affairs has the ultimate authority to determine whether a person may be
granted status as a refugee in India. There have been a few occasions when courts have
recognized the concept of non-refoulement, ie., a government's commitment not to return
refugees to their home country, and granted sanctuary to certain refugees, but these judgements
do not establish land law. In practice, India lacks a refugee policy or legislation and relies on
ad hoc notifications made by the Ministry of Home Affairs. Because there is no national
legislation governing the status of refugees, refugees have to rely on the state's mercy rather
than a rights system to rebuild their lives in dignity. 50 Nevertheless, it is important to note that
India has rules and enactments that give the Indian government the edge in dealing with a
foreigner, but India fails to treat refugees from a geostrategic standpoint. As a result, it goes
without saying that India urgently requires better refugee no national legislation governing the
status of refugees, refugees have to rely on the state's mercy rather than a rights system to
rebuild their lives in dignity. 30 Nevertheless, it is important to note that India has rules and
enactments that give the Indian government the edge in dealing with a foreigner, but India fails
to treat refugees from a geostrategic standpoint. As a result, it goes without saying that India
urgently requires better refugee legislation.

__________________________________________________________________________

Merits Due to inaccessible human rights and constant exploitations, it is certain that the
legislations in place for the displaced individuals highlight the underlying questionable
standards of living conditions,

1. The omnipresent reasons given behind nonexistence of refugee law by the

Indian delegation at multilateral international conferences has been refuted
thoroughly by watchdog agencies like that of UNHCR and NHRC. The
designation of a refugee status by the Indian government comes with a set of
benefits, however the questions of uniformity and equality remain unanswered.
There are numerous instances of preferential treatment and a huge involvement
of domestic or regional politics while consideration. Through a balanced and
sustainable refugee law such concerns receive a high probable chance of being
tackled to an extent.

55
 2. Another major objection was formulated on the foundation of threat to national
security mainly, particularly in reference to the complex south Asian geopolitics
and nature of the porous international borders. However, refugee law has an
advantageous side to it as the passage of refugee protection law will allow for
the establishment of a framework for determining refugee status based on
agreed-upon criteria for refugee status determination, protection, and treatment.

3. Additionally, it may also be claimed that enacting refugee protection legislation

will assist to avert tensions between the host nation and the refugees home
country. The act of providing refuge will thus be better perceived by other
governments as a peaceful, humanitarian, and lawful action under a judicial
system, rather than a hostile political gesture, if it is guided by law rather than
an ad hoc policy. In this scenario, India's decisions to admit or reject refugees
cannot be twisted to serve the political interests of the nation of origin or other
countries in the area. The main criticism appears to be that the Convention does
not 'adequately handle problems encountered by developing nations, as it is
primarily designed to discuss specific instances rather than situations of mass
inflow. Considering the disdain for the Convention, it is apparent that the
government must establish a legislation administered by a central authority in
order to placate the UNHCR, which is protesting the bad circumstances of
inhabitants in refugee camps.

4. The Government of India continues to be the primary political and legal

authority in addressing the country's refugee concerns. International
organizations, such as the UNHCR, have been increasingly proactive at all
levels of policy development across several nations, and it should incorporate
them into its policy framework as well. It must no longer delay on refugee
matters, and it must rethink its refugee policy gridlock in accordance with best
practices from throughout the world.

__________________________________________________________________________

There are some cons of having laws and policies for refugees and asylum seekers, some of
them are discussed briefly.

56
1. Security issues
With refugee influx there comes several threats and challenges to national
security. India also houses innumerable refugees who illegally entered in the
country regardless of being a non-signatory member of the 1951 UN Refugee
Convention. Through radicalization of refugee there are direct threats that
terrorist may enter from across the border. Indirectly refugee hampers the
national economy and resources that were available for the native [Link]
National Security Advisor reported that there were cases of Rohingya migrants
being used by the terror outfits like Lashkar-e-Taiba and Jaish-e-Mohammed in
J&K. These refugees being socially and economically insecure easily become
network with such terror organisation.

2. Economic Burden on host country

From the moment of arrival, refugees may compete with local citizens for
scarce resources such as water, food, housing and medical services. Their
presence increases the demands for education, health services, infrastructure
such as water supply, sanitation and transportation, and also in some cases, for
natural resources such as grazing and firewood.

3. Social impact of refugees on host country

Unrestrictive, integrative policy approach in hosting refugees gives them
increased rights of mobility, access to social services such as health and
education and opportunities for economic interactions with directly or
indirectly influence social life of the people in proximity of the areas where
refugees residing.

57
 FINDINGS

_____________________________________________
◇ In Most of the cases they leave their country because of the REASONS below:

 Fear of persecution.
 Save themselves from gross Human rights violation such as torture.
 Did not feel safe
 Felt they were being targeted.

__________________________________________________________________________

◇ And the reason why they CHOSE INDIA is mentioned below

 No asylum in countries such as Bangladesh, Thailand, Malaysia and Indonesia

 India was nearby
 Felt safe on Indian lands
 Better prospects for job and education
 Camps are situated in Delhi, Assam, West Bengal, Kerala, Jammu & Kashmir, Uttar
Pradesh and Andhra Pradesh.

58
__________________________________________________________________________

◇ EMPLOYMENT STATUS of refugees in india

 Figure indicates that (45%) of them worked in the waste segregation section of the
garbage dump.
 (10%) of them are vegetable sellers
 (10%) of them work in a nearby furniture factory
 (20%) of them are jobless currently
 (15%) are women who are homemakers.
 Major reason: They do not have Aadhar cards and thus, finding jobs is a tedious task

__________________________________________________________________________

◇ REFUGEE POPULATION in India 1989-2023

[Link]

59
In 2023, over 252 thousand refugees were residing in the South Asian country of India. This
was an increase from the previous year. Post 1990, the refugee population hit the lowest number
in 2005. Since then the population has steadily increased.82

82
[Link]

60
 SUGGESTIONS & RECOMMENDATIONS

__________________________________________________________________________

NEED FOR A DOMESTIC LAW

A domestic law is needed in India to ensure that all refugees are given basic protection. Without
that, refugee rights are not rights in the real sense, they are simply privileges at the hands of
the administration. A domestic law should also define refugees to include “internally displaced
people” due to natural calamities, terrorist activities. For instance, the Kashmiris were forced
to flee Kashmir due to the militant activities. Housing and employment can be ensured to
refugees so that they can become self reliant. A number of civil society organizations should
work in collaboration with the Govt. under this act to improve their living conditions.

A domestic legislation will overrule all the existing acts like the Passport act and the foreigner
act and will reduce the suffering of refugees by specifically dealing with their problems. And
make the procedure of granting refugee status simple, fair and transparent. It will also call for
greater accountability and checks on the power of the officials. It will abolish discrimination
which currently exists among refugees of different nationalities.

Special provisions guaranteeing protection to women and children should be made because in
the Indian society, crimes against women (rape) and children (child trafficking) is at its peak.
This will also be in consonance with India’s obligations under CEDAW and UNCRC.

NEED FOR A SOUTH ASIAN REFUGEE CONVENTION

India is a superpower in Asia, so it has a tendency to “dominate” over other nations. In such a
case drafting a South Asian Refugee convention will be of great significance to ensure refugee
protection. The convention can be drafted by experts from all countries highlighting their
specific issues relating to the refugees based on the understanding of each nation. In this way,
the convention will reflect the background of every country.

The definition of refugee should be broadened to incorporate people displaced due to of

environmental disasters, socially ostracized because of admitting openly of a different sexual
orientation and people fleeing because of threat caused by crimes against women and children.

61
This can ensure that there is no western intervention incase of dealing with refugees and at the
same time, maximum protection can be given.

The convention will book the violators of refugee rights for crimes against humanity. It can
also formulate a regional tribunal to handle cases of refugees- their rights, duties, trials and
repatriation. This will reduce tension between neighbouring countries and improve diplomatic
relations. It can be worded as, “providing refuge is a humanitarian act and shall not be
interpreted as infringement to the Sovereignity of the nation” 83. It may also state that the
Convention will not hold any state guilty as its only purpose is providing safe refuge to the
people seeking it. When both the Convention and the municipal law are in order, there is no
scope for deviation. It will be able to address all the problems and issues associated with
refugees in the most efficient manner. There will be lesser arbitrariness in procedures and still
if some official tries to deviate from his duty to give protection to the refugees, he will be held
liable. It is high time that we have a definite refugee mechanism here because refugees will
never stop coming to India for the reasons discussed above.

__________________________________________________________________________

Based on the findings of the paper, the following recommendations are set forth:-

i. Policy of voluntary repatriation must be encouraged both by the UNHCR & the
Government of India on a bilateral basis with the country of origin. (As exponential
growth is witnessed in the number of refugees repatriated to their native country).
ii. The government can make some provision through some statute or policy that would
provide them with temporary identity cards by Government, which enable them basic
facilities like health, rations, temporary tenancy, etc.
iii. Labor formulations should be modified by the government that would benefit the
vulnerable section and work for all round development of the refugees largely.
iv. Legal protection must be provided to the refugees & asylum seekers, keeping in mind
the pathetic condition of vulnerable refugee women & children.
v. The financial costs associated with CSR obligations should be reduced through
international cooperation.
vi. Creation of a distinct statutory body by introducing a law, intended to deal with matters
only pertaining to the refugees holistically.

83
Ranabir Samaddar(ed.), Refugees and the State. Practices of Asylum and care in India 1947-2000, (2003 edn.)
SAGE publications, UK, 2003. BS Chimni, “Status of Refugees in India, pp. 463

62
vii. The refugees must be allowed to take employment in the formal sector or a separate
mechanism must be introduced ensuring their right to work & livelihood.
viii. Effective policy system may be developed for resettlement of refugees within the
specific territory of India.
ix. Though it's an arduous task, efforts could be made for the social integration of the
refugees with the host community.
x. There must be an increase in opportunities in higher education programmes conducted
by UNHCR since at present a minimal percentage of the population are allowed to take
on that.
xi. Asylum seekers must be afforded the protection to certain extent in cases of dismissal
of their application for Refugee Status Determination (RSD).
xii. Government may encourage the NGOs to step in to assist the refugees by providing
incentives or benefits of similar nature to the refugees.
xiii. Natives of the host country must be sensitized towards the grief of the refugees &
asylum seekers in order to protect the women & children particularly from exploitation
and abuse by locals and authoritarianism.

63
 CONCLUSION

__________________________________________________________________________

Refugees, a homeless people are not the problem but the results of the problems. They broke
the ocean in half to be here and they meet nothing that wants them. India fails to recognize
refugees as a distinct category of persons and treats them at par with all other foreigners. Thus,
it fails to appreciate the special circumstances under which a refugee leaves his or her country
of origin and the consequent dichotomy in applying the requirements of valid travel that the
general Foreigners Act regime mandates. The absence of a special law on the protection, rights,
and entitlements of refugees has resulted in the denial of basic protection to a large number of
refugees. This denial runs against the spirit of India’s human rights commitment under
international law and its own Constitution.

The absence of a special legal regime on the status of refugees does not however mean that no
protection and assistance is offered to refugees. The judiciary and allied institutions like the
NHRC have tried to respond to the refugee question with innovative judicial interpretation to
establish several procedural rights and in many cases, have prevented forced deportation.
However, such interventions have been limited to specific cases and the judicial
pronouncements have not been implemented across a wide spectrum. This has been occasioned
due to the absence of definite refugee law. This absence has certainly meant that arbitrary
executive action and acts of discrimination are not easily remedied. This further means that the
decision to treat a person or a group of persons as refugees or not is taken on the merits and
circumstances of the cases coming before it as they are overshadowed by political
considerations

The dearth of a national law on the status of refugees has meant that refugees didn't get the
needs they seek as well they are dependent on the generosity of the state rather than on the
rights power to rebuild their lives with dignity. Thus, the refugees are left in the hope of light
at the end of the tunnel I.e. at the mercy of the state, and have no recourse against systemic
violations of their legal obligations by the state. Therefore, a just, fair, and humane response to
the question of refugees in India, in consonance with India’s international and constitutional
obligations requires, the adoption of a definite statutory regime that clearly defines refugees as
a distinct class of persons, spells out a fair procedure for determination of the status of refugees

64
and outlines a due process for refugee protection in consonance with the right to non-
refoulement and the right to a dignified life.

No one has an idea what it is like to lose a home at the risk of never finding a home at the risk
of never finding a home again that is the situation for refugees. They seek the need for life in
another way that they didn't get from one way and shall provide them without any self of
authority. The famous phrase one who gives is higher than one who seeks and in light of this
morality, no human should be let go of unjustness. Because no human is illegal it's just a matter
of circumstance and a need for a relief special law that considers them as all humans are legal

65
 BIBLIOGRAPHY

 [Link], INTERNATIONAL LAW & HUMAN RIGHTS, ( Central Law

Publication, 22th ed. 2019)
 MAHENDRA PAL SINGH, [Link]’S CONSTITUTION OF INDIA, (Eastern
Book Company, 12th ed. 2016
 Ananathachari, T., Refugees in India : Legal Framework, Law Enforcement and
Security, WorldII(2001).
 Bhattacharya, Saurabh, India Needs A Refugee Law, 43 E.P.W.71 (2008)
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