DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

REFUGEES IN INDIA

SUBJECT

SOCIOLOGY-2

NAME OF THE FACULTY

Prof. M. Lakshmipathi Raju

Name of the Candidate

Roll No.
Semester

Shaik Javvad Ur Rahaman

Roll No: - 2017083
2ND Semester

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 TABLE OF CONTENTS

1) ACKNOWLEDGEMENT…………………………………………...………….……….2
2) ABSTRACT…………………………………………………………...………………….4
3) INTRODUCTION………………………………………………………………………..5
4) Refugees from Greater Iran……………………………………………………………..6
5) Tibetan refugees………………………………………………………………………….7
6) REGIONAL TREATY UNDER THE SAARC………………………………………..10
7) A NEW BILL FOR REFUGEES IN INDIA……………………………………………12
8) Status of Refugees under International Law…………………………………………...16
9) State Implementation of the International NoDDS of Refugee Law………………….19
10) Indian Practice of International Refugee Law…………………………………………23
11) LEGISLATION………………………………………………………………………….25
12) CASE LAWS…………………………………………………………………………….26
13) BIBLIOGRAPHY……………………………………………………………………….30

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 ACKNOWLEDGEMENT

I want to express my special thanks to my teacher Prof. M. Lakshmipathi Raju Sir, who gave me this golden
opportunity to do this wonderful project on the topic ‘REFUGEES IN INDIA’, which also helped me in doing a
lot of research and I came to know about a lot of things.

Secondly, I also thank DSNLU for providing me with all the necessary materials required for the completion
of the project.

Shaik Javvad Ur Rahaman

2ND Semester

Regd. No.-2017083

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 Abstract
Title of the Project: REFUGEES IN INDIA

Selection of the Topic: REFUGEES IN INDIA

Research Problems:

 REFUGEES IN INIDA ARE INCREASING

 DECREASING OF RESOURCES DUE TO INCREASE OF REFUGEES

Research Design: The research methodology is doctrinal type.

Identification Of Variables:

Dependent Variable: REFUGEES IN INDIA

Independent Variable: Cause and effects of REFUGEES IN INDIA

Hypothesis:
The refugee situation in India remains complicated but the government’s move to grant
citizenship to the Chakma and Hajong community has come as a welcome signal. The government
announced that Chakma and Hajong refugees numbering nearly 100,000 and staying in the upper
reaches of Arunachal Pradesh for around half a century now will get Indian citizenship.

The number of these refugees has increased from about 5,000 in 1964-69 to at least one lakh.
Chakmas are Buddhists by faith, while Hajongs are Hindus. Both communities hail from the
Chittagong Hill Tracts of the erstwhile East Pakistan. They fled after their land was submerged by
the Kaptai dam in the 1960s and after facing religious persecution. Both refugee communities didn’t
enjoy citizenship rights or the right to own land and lived on basic services provided by the state.

My main hypothesis is to prove whether the laws are effective or not in eradicating the Refugees in
India
Collection Of data: Books generals, maxims, internet source, websites, library, teachers etc.

Analysis of data:

The problem of refugees in India started after the partition and was followed by a series of
issues, ranging from basic needs such as food, shelter, medicine, sanitation and to the emotional
turmoil of losing one’s homeland. This also created a feeling of animosity among the refugees on
both sides of the borders, who considered the people of the other nation being responsible for their
loss.All these issues are discussed.
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Conclusion:
Here the researcher wants to suggest is that the laws which are following there in india are
not very effective.Being homeless, initially they had to settle on the roadsides, in the camps set up by
the government, for ex – in Kurukshetra, and rehabilitation centres, in Jalandhar. Here the basic
needs of the refugees were taken care of by the Government of India.

INTRODUCTION

Who is a refugee?
Article 1 Para 2 of the 1951 United Nations Conventions defines a refugee as “a person who owing
to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, unwilling to avail himself of the protection of that country”.
They are individuals that are recognised under the 1951 convention relating to the Status of
Refugees, the 1967 Protocol relating to the Convention, the OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa, 1969, and those people that are recognised as per
the statutes of the United Nations High Commissioner for Refugees (UNHCR). Refugees are also
those individuals who have been provided complementary forms of protection (permanent or
temporary). After 2007, the people living in refugee-like situations are also included in the refugee
population.1
How many refugees are there in India?
According to the office of the United Nations High Commissioner for Refugees (UNHCR), India had
a refugee population of just over 2 lakh by end of 2015. India has given shelter to Tibetans, Chakmas
from Bangladesh, and refugees from Afghanistan, Sri Lanka etc.2
What is the legal status of refugees in India?
India is not a signatory of several international laws and conventions that govern the inflow, status
and treatment of refugees like the 1951 United Nations Refugee Convention on the Status of
Refugees or its 1967 Protocol – the latter lays down the rights and services that the host country is
stipulated to provide refugees. India, meanwhile, deals with refugees and asylum seekers and
refugees on an ad hoc basis, consulting a basic refugee policy and administrative laws like The
Passport (Entry of India) Act, 1920, The Passport Act 1967, The Registration of Foreigners Act,
1939, The Foreigners Act, 1946, and the Foreigners Order, 1948.

1
http://www.unhcr.org/india.html
2
http://indianexpress.com/article/india/rohingya-muslims-refugee-myanmar-india-bangladesh-4843379/

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Refugees from Greater Iran

According to Zoroastrian legend (see Qissa-i Sanjan), a few centuries after the conquest of

the Sassanid Empire and the subsequent collapse of Zoroastrianism as a state-sponsored religion, at
least one group of Zoroastrians eventually migrated to what is now the Indian state of Gujarat to
maintain their Zoroastrian religious tradition.[1] Although this 16th/17th century legend is taken at
face value by the majority of the Parsis, persecution was not yet a significant issue at the time of
migration (11th century at the latest). Given that the same legend observes that they migrated
from Sanjan (in present-day Turkmenistan), the decline of silk road trade in favour of sea-route trade
makes it equally likely that their immigration was economically motivated. For details, see Parsi
history.3

Although isolated groups of zoroastrians may be presumed to have immigrated between the 12th and
16th centuries, due to persecution (for instance, the Mughal emperor Akbarencouraged relocation of
skilled Iranians—irrespective of their religion). Immigration of Zoroastrians for socio-religious
reasons is only again documented during Iran's Qajar era (1794–1925) when persecution of non-
Muslims was rampant and by which time the Indian Zoroastrians had established special funds to
assist their Iranian co-religionists. The descendants of these newer immigrants are known as Iranis.4

Partition of 1947

Massive population exchanges occurred between the two newly formed nations in the months
immediately following Partition. Once the lines were established, about 14.5 million people crossed
the borders to what they hoped was the relative safety of religious majority. Based on 1951 Census
of displaced persons, 7.226 million Muslims went to Pakistan from India while 7.249 million
Hindus, Sikhs and Muslims were forced to move to India from Pakistan immediately after partition.
About 11.2 million or 78% of the population transfer was on the west, with Punjab accounting for
most of it; 5.3 million Muslims moved from India to West Punjab in Pakistan, 3.4 million Hindus
and Sikhs were moved from Pakistan to East Punjab in India; elsewhere in the west 1.2 million
moved in each direction to and from Sind. The initial population transfer on the east involved 3.5
million Hindus moving from East Bengal to India and only 0.7 million Muslims moving the other
way.

3
http://www.thehindu.com/news/national/dont-want-india-to-become-the-refugee-capital-of-the-world-govt-to-
sc/article22608096.ece
4
https://www.ozy.com/provocateurs/why-this-rohingya-refugee-is-taking-on-indias-government/82487

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Tibetan refugees

An independent state before 1950, Tibet was attacked by China under Mao Zedong’s leadership.
China took control of Lhasa – the capital city of Tibet – by 1950. A year later, the Tibetan
government was forced into signing a 17-point agreement with China that recognised China’s
sovereignty over Tibet. After an 8-year long uprising against China’s violation of terms of the
agreement and state-inflicted violence against Tibetans, destruction of thousands of monasteries, the
14th Dalai Lama and tens of thousands of his followers fled Tibet to take refuge in India in 1959.
Now, the Dalai Lama lives in his abode at Dharamsala from where the small Tibetan government-in-
exile operate. Every year, hundreds, if not thousands of Tibetans register in India as refugees.
The Tibetans are now spread across the country in around 35 designated settlements and other
places. According to a Delhi High Court ruling in September 2016, Tibetans born between January
26, 1950, to July 1, 1987 are considered Indians by birth and can apply for passports. However, they
have to forfeit any privileges or benefits from the Central Tibetan Administration for that. They will
also have to leave designated Tibetan settlements if they are residing in them. They will also have to
forfeit subsidies that come with a refugee certificate (RC) which is renewed on a yearly basis. The
RC allows all the rights to Tibetans that are enjoyed by any Indian citizen except for the right to vote
and right to government employment. Far reaching consequences include difficulties in obtaining
licenses, inability to own land, difficulties in getting bank loans and other financial aid, or starting
a business enterprise.5

Following in the footsteps of the 14th Dalai Lama more than 150,000 Tibetan refugees have fled to
India during the past 50 years. He left with his initial entourage following the abortive 1959 Tibetan
uprising. He was followed by about 80,000 Tibetan refugees. Jawaharlal Nehru agreed to provide all
assistance to the Tibetan refugees to settle in India until their eventual return). 120,000 refugees
remain in India today. The Tibetan diaspora maintains a government in exile in Himachal Pradesh,
which coordinates political activities for Tibetans in India. The Tibetan government-in-exile
functions from McLeod Ganj, a suburb of Dharamshala.

In 1960, the Government of Mysore (as Karnataka was called at that time) allotted nearly 3,000 acres
(12 km2) of land at Bylakuppe in Mysore district in Karnataka and the first ever Tibetan exile
settlement, Lugsung Samdupling came into existence in 1961. A few years later another
settlement, Tibetan Dickey Larsoe, also called TDL, was established. This was followed by the
establishment of three more settlements in Karnataka state making it the state with the largest

5
http://www.greaterkashmir.com/news/opinion/different-kind-of-refugees/260888.html

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Tibetan refugee population. Rabgayling settlement was created in Gurupura village near
Hunsur, Dhondenling was established at Oderapalya near Kollegal and Doeguling settlement came
into being at Mundgod in Uttara Kannadadistrict, all in Karnataka. The Bir Tibetan Colony was
established in Bir, Himachal Pradesh. Other states have provided land for Tibetan refugees.Jeerango
located at Gajapati district in Odisha has a large Tibetan Community and also has South Asia's
largest Buddhist monastery.6

The Government of India built special schools for Tibetans that provide free education, health care
and scholarships for those students who excel in school. There are a few medical and civil
engineering seats reserved for Tibetans. Tibetans live in India with a stay permit which is processed
through a document called Registration Certificate (RC). It is renewed every year, or half-year in
some areas. Every Tibetan refugee above the age of 16 must register for the stay permit. RCs are not
issued to new arrival refugees. The Indian Government also issues "Yellow Books" after one years'
processing with a RC, which allow Tibetans to travel abroad which is an Identity Certificate.

Refugees from Bangladesh

During the Bangladesh Liberation War, the Bangladesh-India border was opened to allow Bengalis
fleeing genocide by the Pakistan Army's SSG units to render safe shelter in India. The state
governments of India, such as West Bengal, Assam, Meghalaya and Tripura established refugee
camps along the border. As the massacres in Bangladesh escalated an estimated 10 million refugees
fled to India causing financial hardship and instability in Bangladesh due to 1971 Bangladesh
genocides and as well as regional conflicts in the north-eastern states.7

Some of the people from East Bengal, mainly Hindus, migrated to West Bengal during the Partition
of India in 1947. These refugees were sometimes referred to as Bangals by the native population of
West Bengal. Hindus made up 30% of the total population of East Bengal in 1947. However, after
the partition, the Hindu population went down to 19% in 1961.[2] On 1991, it was down to
10.5%[3] and on 2001 census, it was 9.2% which is estimated to be further down to 8% at 2008. [4] The
Bengal region turned Muslim majority in 1931 which was 52% Hindu majority in 1921 census.
Later, in 1941 census on whose basis, Partition was made showed 45.5% Hindus & now 28% in
entire Bengal region comprising West Bengal & Islamic Bangladesh. The Muslim population in the
neighbouring West Bengal has increased from 9% in 1951 (down from 19% in 1941 due to influx of
Hindu Refugees from Bangladesh) to thriving 28% in 2001 according to Census of India.

6
https://www.quora.com/What-are-the-different-types-of-refugees
7
https://blog.ipleaders.in/legal-status-refugees-india/

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In 2001 it was reported that many Bangladeshi Hindu families have crossed the border into India to
escape repression in Bangladesh.

Refugees from Pakistan

There are almost 400 Pakistani Hindu refugee settlements in Indian cities, some cities being
Ahmedabad and Surat in Gujarat and Jodhpur, Jaisalmer, Bikaner and Jaipur in Rajasthan. [8] In 2015
the Indian government granted citizenship to 4,300 Hindu and Sikh refugees from Pakistan and
Afghanistan.

Afghan refugees

More than 60,000 Afghan refugees came to India in the years following the 1979 to 1989 Soviet–
Afghan War. The Indian government does not officially recognise them as refugees, but has allowed
the UNHCR India to operate a programme for them.

Sri Lankan Tamil people

There are more than 100,000 Sri Lankan Tamils in India, most of whom migrated during the rise of
militancy in Sri Lanka. Most Sri Lankans are settled only in the southern states of Tamil
Nadu (in Chennai, Tiruchirappalli, Coimbatore), Karnataka (in Bangalore) and Kerala which have
significant Sri Lankan Tamil populations.

Rohingyas
An ethnic Muslim community belonging to the Rakhine state of Myanmar, Rohingyas have been
recognised as one of the most persecuted ethnic groups in the world. Even though they belong to
Myanmar, Burmese authorities refuse to recognise them as citizens. Bangladesh and India, where
they have sought refuge now, have said they can’t keep them permanently. In effect, Rohingyas are
stateless people.
The Rohingyas are facing violence arguably to the extent of genocide in Rakhine with many calling
it an act or attempt at ethnic cleansing. In recent months, Rohingyas have settled in places like Delhi,
Hyderabad, Kashmir, West Bengal and the northeastern states. However, the government has refused
to recognise Rohingyas as refugees. UNHCR is, meanwhile, running a support program for them in
India.
The uncertainty over their citizenship is an ever continuing cause for worry. Former Tamil Nadu
chief minister J Jayalalithaa had promised dual citizenship to the refugees while the Opposition
DMK was skeptical and opposed to the idea. The proposal has not been moved yet.
Presently, India doesn’t have any law dealing with refugees. An utterly humanitarian matter like the
‘refugees’ has come to be influenced by considerations of national security or relations between
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countries. In the past five years, three separate private member bills seeking amendments to the
citizenship law have been introduced in the Parliament but none of them have seen the light of the
day.8

REGIONAL TREATY UNDER THE SAARC

The current bill is unconstitutional as it must include the religion of Islam along with other faiths in
its ambit, or it must have a religion-free migrant or refugee definition.

India could redefine a model of global standing for refugee issues in the world if only it chooses a
different path. For example, it could use the auspices of the South Asian Association for Regional
Cooperation to consider the 2004 South Asian Declaration on Refugees and the Eminent Persons
Group’s  proposed National Model Law, which formulated an ideal law on refugees with global
human rights standards.9

This law is based on international conventions and the 1984 Cartagena Declaration on Refugees. The
key elements are the expanded definition of a refugee, the refugee determination test, the inclusion of
ethnicity and sex criterion, and dual citizenship. Moreover, India could evolve a regional approach to
enunciate the rules and regulations for protecting the refugees in South Asia.10

The absence of national legislation on refugees has placed refugee rights in a vacuum, and such
rights are regarded as privileges that can only be claimed by those refugees who are politically
advantageous for the power structures in the host country. The UN Refugee Convention could be
considered as the basis of domestic refugee law, but India may have its modifications and changes in
tune with its national requirements wedded with the principles of constitutionality. Therefore, India
has to go for a refugee law for maintaining territorial integrity; for securing the porous borders; for
ensuring homeland security; for evading international pressure in the name of refugee rights; and for
establishing its high benchmarks of respecting international human rights.

The views expressed in this article are the author’s own and do not necessarily reflect Fair
Observer’s editorial policy.

8
https://blog.ipleaders.in/legal-status-refugees-india/
9
http://www.thehindu.com/opinion/interview/indias-refugee-policy-is-an-example-for-the-rest-of-the-world-to-
follow/article4269430.ece
10
https://blog.ipleaders.in/legal-status-refugees-india/

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WHO IS A REFUGEE IN INDIA?

The new bill deliberately uses the term “migrant” to deprive these refugees in the sense
of international refugee law, which is enunciated in the 1951 UN Refugee Convention with its
Additional Protocol of 1967. The bill also infringes upon the right to equality, which is guaranteed
under Article 14 of the Constitution of India that prohibits discrimination on the grounds of race,
religion, caste, creed, sex or place of birth, and other fundamental freedoms with reasonable
restrictions that are equally available to refugees.

India has still not signed the international refugee law based on the UN Refugee Convention with its
1967 Additional Protocol. While India respects the various human rights UN treaties consisting of
nine core human rights treaties, it deals with refugee status without any uniformity of law and policy.
For example, India grants full protection and assistance to asylum seekers and refugees (non-
Muslims) from Sri Lanka and Tibet, helping them to get documents with a range of legal benefits.
On the other hand, refugees from Myanmar, Palestine and Somalia get very little aid and assistance
from the UNHCR.

However, the UNHCR estimated in September 2014 that there are 109,000 Tibetan refugees, 65,700
Sri Lankan, 14,300 Rohingyas, 10,400 Afghan, 746 Somali and 918 other refugees who are
registered with the agency in India. As of 2015, only 39 Syrian refugees and 20 asylum seekers were
registered.

These refugees have been living in unauthorized makeshift camps and rented houses in and around
New Delhi. They bear the hostile behaviour of the local police and population, and the government
in many cases deports them against their will. The Indian government does not officially recognize
these refugees, but it allows the UNHCR to extend de facto protection to those who do not receive
recognition under Indian law, including Muslim refugees.11

NO SPACE FOR MUSLIM REFUGEES

The proposed bill, pushed by the right-wing Bharatiya Janata Party government, seems to forget that
Muslim populations are also seeking asylum in India. For instance, Ahmadiyya Muslims who follow
a 19th-century prophet, Mirza Ghulam Ahmad, face persecution in Pakistan and Bangladesh as they
contest the official sect of Sunni Islam. Similarly, Hazara refugees, who are mainly found in
Afghanistan and Pakistan, are persecuted for being Shia. In Myanmar, Rohingya Muslims face the
11
http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.rtf

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wrath of right-wing Buddhist extremists and the military. In Sri Lanka, Tamil Muslims are also
discriminated against by hardliners who want to impose Buddhist supremacy.

All of these communities have taken refuge in India. But according to the new bill, they will not be
granted refugee status.

India has been actively holding talks with Bangladesh and Myanmar to deport around 40,000
Rohingya refugees presently residing in India illegally, and state governments have been asked to
constitute a task force for the purpose. There are around 14,000 Rohingyas who have registered with
the UNHCR in India, making the rest of their population illegal and liable to be deported to
Myanmar.

A NEW BILL FOR REFUGEES IN INDIA

The Indian government has developed various strategies to offset these new surges of refugees. One
of them is to amend the existing Citizenship Act, 1955 and the proposed Citizenship (Amendment)
Bill, 2016, which is awaiting further deliberations without any deadline as of now. In a positive
move on refugee policy in India, the bill aims to extend citizenship by fast-tracking the naturalization
process to individuals belonging to Buddhism, Christianity, Hinduism, Jainism, Zoroastrianism and
Sikhism, which are considered minority religions in their countries of origins such as Afghanistan,
Bangladesh and Pakistan.

India hosts around 9,200 refugees from Afghanistan, out of which 8,500 are Hindus. There are also
more than 400 Pakistani Hindu refugee settlements in Indian cities, mainly in the states of Gujarat
and Rajasthan. Other groups who have received refugee status comprise indigenous tribes such
as Buddhist Chakmas and Hindu Hajongs from Bangladesh.

The bill fits with the government’s move to make religious persecution as the principal ground to
confer citizenship. But the same proposal does not apply to other refugees or migrants belonging to
Muslim communities in these countries.12

Why India can't afford Rohingya refugees

12
https://www.informationvine.com/index?qsrc=999&qo=semQuery&ad=semD&o=758655&l=sem&askid=1a080198-
5b15-4e86-a7e7-7f08e4297fc6-0-iv_gsm&q=types%20of%20refugees&dqi=&am=modifiedbroad&an=google_s

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George Bush once quipped that India lived in a very dangerous neighbourhood. He failed to add that
moral ambiguity was consequently built into its foreign policy. The Rohingya refugee crisis is only
the latest example of this inescapable reality.

Not that Rohingya 'crisis' is new. The Rohingyas are 100 per cent Bengali and speak a Chittagong
dialect. Most were forcibly settled in Burma by the British in an attempt to more easily control the
Arakan, today known as the Rakhine State in Myanmar. Ne Win evacuated out the Rohingyas from
much of Burma in 1962 but those in Arakan, remained. Efforts have continued since to move out the
rest. Thus, Burman Buddhists displaced 200,000 Rohingyas in 1978, 250,000 in 1991, 14000 in 2012
and are at it again. Unofficial figures now put the refugees at 600,000.

The Burman have fortified this ethnic cleansing through the Burma Citizenship Law of 1982, which
recognizes only eight 'national races' but not the Rohingyas. This puts the Rogingyas in the
impossible position of being required to "conclusively establish" that their ancestors settled in Burma
before 1948. As you can imagine, farmers dwelling in forest clearings in mud huts are not very good
at storing written records to prove where their ancestors lived seventy years ago.

In August 2017, the Rakhine Commission was established by the government to recommend
'solutions' to the ethnic conflict. It recommended measures to improve security for the Rohingyas.
These measures had the effect of pushing them across the border to the north! By September 2017,
the flow into India was out of control.

The Union Ministry of Home affairs responded to the security challenge on August 8th, 2017. It
empowered the States and UTs to identify and deport illegal aliens. To be fair, India is not a
signatory to any international convention on refugees. The NHRC did not like this, observing that
"refugees are no doubt foreign nationals but they are human beings and have a fear of persecution
once they are pushed back to their native country". It was only a matter of time before two
Rohingyas - Mohammad Salimullah and Mohammad Shaqir - filed a petition on this subject before
the Supreme Court.

It's a simple case. Article 14 of our constitution requires India to "not deny to any person equality
before the law or the equal protection of the laws within the territory of India."  Article 21 prevents
the state from allowing any person to be "deprived of his life or personal liberty except according to
procedure established by law."  What else does a foreigner need to obtain basic shelter in India?

There's more too. Article 51(c), a Directive Principle of State Policy, enjoins the state to foster
respect for International law. Deportation surely is against the widely recognized principle of non-
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refoulement (i.e. expel or return a refugee if his life or freedom is threatened on account of his race,
religion, nationality, social grouping or political opinion). India has ratified, or is a signatory to,
several Conventions affirming the 'Principle of Non-Refoulement'.

Seen purely as a legal issue, it's all quite straight forward. The Delhi High Court has held in Dongh
Lian Kham v. Union of India [226(2016) DLT 208] that the principle of non-refoulement is part of
the guarantee under Article 21 of the Constitution of India irrespective of nationality. The Supreme
Court has held in NHRC vs Arunachal Pradesh [AIR 1996 SC 1234] that, the state is bound to
protect the life and liberty of every human being, citizen or otherwise. Where is the doubt on what
India needs to do?

But then, is anything ever so simple? Alternative narratives demand equal hearing. J&K has a
famously xenophobic law, which prevents practically any Indian from owning property there. It's so
tight that many refugees, who crossed over during partition, when Pakistan was created in 1947
(such as the Mirpuria Sikhs) and have been in Jammu ever since still don't have state subject
certificates. Yet, 30,000 Rohingyas have been permitted to settle in and around Jammu city.

Jammu Hindus see this as a conspiracy to alter the demographic character of the area. Such is the
composition of the state government that key decision making posts are largely dominated by those
from the Vale of Kashmir, making it possible for them to issue residence certificates to 30,000
Rohingyas even as they deny certificates to refugee Sikhs dating back to 1947.

The Rohingyas rubbish these conspiracy theories. They claim that they were helped to board trains in
Bengal and told to get off at the last station, which turned out to be Jammu. How they got residence
certificates remains unexplained. To round out the rival narrative, the incontrovertible fact of the
matter remains that these guys are illiterate, unskilled, do not speak the local lingo and basically hang
around markets aggressively harassing visitors for handouts. Their nocturnal activities are also the
subject of much complaint. Last I was in Jammu, a very smelly lady in rags practically crawled
through the car window demanding money as I waited for my wife to finish her grocery shopping in
Gole Market. The human dimension of the tragedy is as heart breaking as the absurdity of being
required by the mandate of common decency to become the world's garbage pit. The absurdity cuts
deeper when we realize the J&K has its own constitution (Article 370, remember?).

No law requires J&K to take in refugees. If we cannot settle refugee Kashmiri Pundits back into the
valley, who can resist the compelling logic of a conspiracy theory when 30,000 Muslim Rohingyas
have ended up 'settled' in Jammu?

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This brings me to the humanitarian argument, the best elucidation of which I probably heard on a
Mayo college Whatsapp group! The Rohingyas are Chittagong Bongs. They have a historical right to
return to Bangladesh. We got plenty of Bangladeshi maids and their rickshaw puller husbands all
over India. The 2001 census disclosed that an estimated 3.1 million Bangladeshis lived in India.
They are not alone. We can't be sure but some 4 million Nepalis live here too.  

Decency (and dare I say, equal treatment?) requires that we let in the Rohingyas too. Would we be
equally aggravated if the Rohingyas had been Hindus? The problem with this argument is that the
additional unwashed million carry a long term economic cost. If we can do nothing about the poverty
of our own landscape, do we have the financial and administrative bandwidth to allow ourselves the
luxury of being "crazy for phoreign?" This is where idealism confronts economic common sense.
Regrettably, as we know, never the twain shall mate!

As I ponder this vexed issue, I hasten to recall that Insurance companies don't like to provide 100%
cover on a car crash. They want car owner to pay for the first Rs. 10,000/- of damage. There is logic
to this. It's called Moral Hazard. A Moral Hazard is a situation that alters behaviour such that a
person takes an otherwise unacceptable risk because someone else bears the burden when things go
wrong. If you know someone will pay for the damage caused, how carefully will you drive a car?
Insurance companies think this is why youngsters financially dependent on their parents crash cars
more often than employed youngsters.

You see such moral hazard everywhere. My colony has several dog lovers who will feed the meanest
of street mutts. They know that these mutts maul toddlers around neighbouring construction sites
while their mothers haul bricks up rickety bamboo ladders. Would these dog lovers still feed the
street mutts if the animals routinely entered their plush bungalows and mauled their own infant
children? Is this why dog lovers aren't also mosquito lovers? That said, in feeding the dogs, the
cynophilist are at least paying for the food. That's not true for the refugee-lovers.

As I think through this issue, images of starving refugee toddlers, their bellies distended, flies
buzzing around their noses and lips, refuses to leave me. At the same time, I think of all the starving
toddlers who are inescapably Indian. It seems to me that this is a classic case of Moral Hazard. Who
would I like to see helped first? And so a thought emerges. We should put our money where our
mouth is. I would feel far more comfortable if each of us who argue in favour of the Rohingyas
assign at least one bedroom in their sprawling mansions to house these refugees and pay for the food

15 | P a g e
themselves in some sort of sponsored scheme. Till that day comes to pass, I must shake my head and
say, "I know we should, but boss, we can't afford it". And that's that.13

Status of Refugees under International Law :Before taking up the legal aspects of the refugee
problems in India, it may be apropriate to briefly review the evolution of the international law of
refugees as well as recent development on the subject, including the conventions, declarations and
principles adopted relating thereto by the United Nations and in the different regions of the world.
The legal framework within which the refugee is located remains characterised, on the one hand, by
the principle of state sovereignty and the related principles of territorial supremacy and self-
preservation, and, on the other hand, by competing humanitarian principles deriving from general
international law and 7 from treaty • Refugees are for the most part victims of hliTlan rights abuses.
And more often than not, the great majority of toda~ refugees are likely to suffer a double violation:
the initial violation in their own country of origin which will usually underlie their flight to another
country; and the denial of a full guarantee of their fundamental rights and freedoms in the receiving
state. The international legal regime for the protection of refugees, whose basis is provided by the
1951 UN Convention Relating to the Satus of Refugees and the 1967 Protocol, attempts to guarantee
against such violations. Or, at any rate, these conventions prescribe duties and obligations which are
incumbent upon States in their treatment of asylum-seekers and refugees.

International guarantees for the protection of refugees, of course, are in themselves largely without
much effect unless supported by parallel guarantees within the domestic structures of the various
states which comprise the international coomtmity. This suggests the need for a certain concordance
between international law, on the one hand, and municipal law, on the other. This need is an
acknowledgement of the fact that, international refugee law largely, if not wholly, depends for its
effectiveness on the willingness of States to respect and apply t_o the individuals concerned. Thus,
realistically, the protection enshrined in the provisions of international refugee conventions may only
be enjoyed by the refugees through provisions in the municipal laws enacted by the host or receiving
State.

The formal instruments on refugees are three : ( i) the Statute of the Office of the United Nations
High Commissioner for Refugees, adopted by the United Nations General Assembly in 1950 ( ii) the
Convention relating to the Status of Refugees, 1951 ; and (iii) Protocol relating to the Status of
Refugees, 19613. The Statute of the Office of the High Coomissioner for Refugees is an important
instrument, sometimes overlooked because it is not in treaty form. It invests the High Commissioner
13
https://www.zapmeta.ws/ws?q=different%20types%20of
%20refugees&asid=ws_gc21_05&mt=b&nw=s&de=c&ap=1t2

16 | P a g e
with the function of protection of refugees. These functions include the promoting measures to
improve the situation of refugees by special agreements with governnents, assisting governmental
and private efforts to promote voltmtary repatriation or assimilation within new national
communities, promoting the admission of refugees, facilitating the welfare and improvement of
conditions of refugees, and maintaining liaison with governments in all mattersconcerning refugee
questions. The High Commissioner is assisted by the advice of the Executive Committee of the High
Commissioner' s Prograrrme, which in tern established, in 1975, a Sub-committee of the Whole on
International Protection.

Indeed, the principal legal instrument concerning refugees is the COnvention Relating to the Status
of Refugees of 1951 which has been described as the Magna Carta - the Great Charter - of refugees.
Although it does not go back as far in history as the memorable proclamation of rights and freedoms
conceded in 1215 by the King of England to his subjects, the COnvention is the ,veteran of many
battles it has helped to win by providing a unified code of rights and duties for refugees, which still
today protects them from arbitrary treatment by 9 states

. The 1951 Convention is a comprehensive charter of the rights which signatory countries agree to
confer upon refugees. These rights range from the simplest to the most elaborate, and it is provided
that there shall be no discrimination for reasons of race, nationality or religion. They include the right
to practise a religion, to have access to wage-earning or self-ernpl0yment and to the liberal
professions, to housing and pubUc education, and to hold movable and irrmovable property. The
refugee shall also have access to courts of law, to public relief and to social security. He shall be
granted freedom of movement, and shall be entitled to identity papers and a travel docunent. He shall
also have the right to cease to be a refugee, that is the right to seek and acquire the citizenship of the
adopted country. Regarding the application of these rights, the Cbnvention often refers to treatment
at least as favourable as that accorded to other aliens in the same circunstances, and recorrmends that
refugees shall benefit from the most favourable treatment possible. However, the most notable
omission from the Cbnvention is any statement of obligation on the part of contracting States to
admit a person qualifying as a refugee under its terms. But it is also true that in 1951, the events of
the preceding years seemed unlikely to be repeated, and the Convention was seen as achieving its
primary objective of resettlement and integration of dislocated persons without the need for any
obligation of admission of refugees. This expectation proved, of course, to be wrong. Here it is
interesting to note that the term "asylun" does not appear in any of the instnments discussed above
relating to refugees. Bu't asylum (meaning territorial and not diplomatic asylun) aptly describes the

17 | P a g e
status of a person accorded refugee status and permanent settlement in a State other than that of his
nationality.

The status of refugee and of enjoyment of asylum are thus largely, but not exactly, cotenninous. For
asylum is a wider notion embracing in addition protection for reasons other than those particular
grounds of persecution set out in the 1951 CDnvention. Also, the notion of asylum connotes a
decision by the host State to grant the asylee permanent, or at least indefinite~ residence, Whereas
refugee status can be granted without such an assurance of residence; an obligation is assumed only
against expulsion and refoulement.14

Article 33 of the 1951 Convention also lays down the principle of non-refoulemen t by stating
that

1) No contracting state shall expel or return a refugee in any manner Whatsoever to the frontiers of
territories where his life or freedan would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.

2) The benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, or who,
having been convicted by a final judgement of a particularly serious crime, constitutes a danger to
the cormruni t y of that country. The Corrmittee ·on the Enforcement of Human Rights Law of the
International law Association - in its report for the Buenos Aires Conference held in August 1994
stated, inter alia, that despite widespread acceptance of the 1951 Convention on the Status of
Refugees and the 1967 Protocol thereto, the right set forth in Art. 14 of the Universal Declaration has
not been identified by corrmentators or states 'as falling within custanary international law'; however,
returning a person to a country where he would be tortured might well violate a developing
customary norm against the refoulernent of refugees1215

• So, the central problem to be addressed is the legal status of the right to seek and enjoy asylum in
general and the principle of non-refoulement in particular. The international cormrunity has reacted
to the asylum crisis inter alia by trying alternative methods of improving the lega 1 framework of
territorial asylt.m. Within United Nations this has been done mainly through the Executive Carmittee
of the High Commissioner's Programme. The UNHCR Executive Committee has adopted significant
conclusions on asylum and non-refoulement, particularly at its twenty-eighth, thirtieth and thirty-first
sessions in October 1977, 1979 and 1980 respectively. One of the conclusions "reaffirms the
14
http://www.answers.com/Q/How_many_different_types_of_refugees_are_there
15
https://www.unrefugees.org/refugee-facts/what-is-a-refugee/

18 | P a g e
fundamental importance of the principle of non-refoulement both at the border and within the
territory of a state of persons who may be subjected to persecution if returned to their country of
origin irrespective of whether or not they have been fonnally recognized as 13 refugees" .

Article 28 of the 1951 Convention provides that no

The Contracting states shall issue to refugees lawfully staying in their territory travel documents for
the purposes of travel outside their territory unless compelling reasons of national security or public
order otherwise require, and the provisions of the schedule to this convention shall apply with respect
to such docunents. The Contracting States may . issue such a travel document to any other refugee in
their territory; they shall in particular give sympathetic consideration to the issue of such a travel
document ·to refugees in their terrotory who are unable to obtain a trave 1 document from the
country of their lawful residence. 2. Travel doctiiients issued to refugees under previous international
agreements by parties thereto shall be recognized and treated by the Contracting States in the same
way as if they had been issued pursuant to this article." An obligation to issue travel doctlllents in
accordance with this article is also asstllled by States upon becoming parties to the 196 7 Protocol
relating to the Status of Refugees~ 0 Here it may be sul::rnitted that an exception to the requirement
that contracting states issue travel docunents to refugees lawfully staying in their territory is to be
found in the words "unless compelling reasons of national security or public order otherwise
require". So, not every case which would ordinarily fall under the latter concept would therefore
justify a refusal of a trave 1 doct.nnent, but only reasons of a very serious charactei1

• In the 1969 OAU Convention, there are no provisions relating directly to the rights of refugees
granted lawful residence. This was because, as the preamble to the convention makes clear, the 1951
Cbnvention constitutes "the basic and universal instrunen t relating to the Status of refugees". As the
1969 OAU Convention was designed to complernen t and supplernen t the 1951 Convention, it was
not considered necessary to add to the 1969 OAU Convention provisions relating to the rights of
refugees granted lawfu 1 residence.

State Implementation of the International NoDDS of Refugee Law :

Although there are international institutions for the protection of refugees, still, ultimately the
protection of refugees depends on individual sovereign states who have to follow their respective
national legislation. Essentially, the refugee has no nationality so that he has no national protection
and therefore needs international protection. The legal basis for this international protection may
either be customary international law or conventional international law, but the problem here is how

19 | P a g e
to translate this international law to national legislation. As regards customary international law, the
general practice of most states is to consider this as "part of the law of the land". Some states
however would require a specific act of incorporation into the national legislation; while other states
would require that such customary rule be not inconsistent with national legislation. But these states
are in the minority; and the general rule is that customary international law, i.e., generally accepted
practices and principles of international law, are deemed part of national legislation and should
prevail in case of conflict with municipal law. But here, many times, there is difficulty in
ascertaining with certainty the c.ustanary international law, so that judicial application and
interpretation comes in.16

States have the responsibility to protect refugees by reason of their accession to international
instn.nnents, by reason of their own national legislation, by reason of their political and moral
commitments, or by reason of customary international law. By the exercise of their soverign
authority to control borders, states may take responsibility for refugees; from Which action certain
rights flow. By the exercise of their authority to legislate and enforce, states may extend asylum to
those Who have been given refugee status, committing themselves to ensure refugees' safety and
security. Already in its ninth session in 1954, the United Nations General Assembly recognised that
'While the ultimate responsibility for the refugees within the mandate of the High Coomissioner falls
in fact upon the countries of residence'. As regards international protection of refugees, it is
submitted that the basic customary international law applicable to them are those pertinent
fundamental h1.111an rights found in the International Bill of Human Rights25

• Hence it is submitted that all states should protect the fundamental human rights of refugees under
customary international law. As regards conventional States have the responsibility to protect
refugees by reason of their accession to international instn.nnents, by reason of their own national
legislation, by reason of their political and moral commitments, or by reason of customary
international law. By the exercise of their soverign authority to control borders, states may take
responsibility for refugees; from Which action certain rights flow. By the exercise of their authority
to legislate and enforce, states may extend asylum to those Who have been given refugee status,
committing themselves to ensure refugees' safety and security. Already in its ninth session in 1954,
the United Nations General Assembly recognised that 'While the ultimate responsibility for the
refugees within the mandate of the High Coomissioner falls in fact upon the countries of residence'.
As regards international protection of refugees, it is submitted that the basic customary international

16
https://www.cnbc.com/2017/09/20/myanmars-refugee-crisis-is-a-test-for-india-and-narendra-modi.html

20 | P a g e
law applicable to them are those pertinent fundamental h1.111an rights found in the International
Bill of Human Rights25

• Hence it is submitted that all states should protect the fundamental human rights of refugees under
customary international law. As regards conventional international law, this is generally law only
between the states which are parties to it under the principle of "Pacta tertiis ~ nocent nee prasunt".
But to the parties - states, this law is binding on them and must be performed by them under the
principle of "Pacta Sunt Servanda". The basic conventional international law for the protection of
refugees is the Cbnvention relating to the Status of Refugees of 1951 and its Protocol of 1967. More
than hundred and twenty States have already acceded to this Refugee Convention but it still has a
long way to go before it attains the status of a general practice accepted as law" under Article 38 of
the Statute of the International Court of Justice, so as to be applicable to all States. However, states
parties to the 1951 Convention and the 1967 Protocol have not only assuned Cbligations concerning
the status and treatment of refugees but have also undertaken to implement these instruments
effectively and in good faith. Legislation is but one way in which compliance with international
obligations may be assured. Proper fulfiLment of this undertaking often becomes a function of
political will and government policy, which in turn can be influenced by perceptions of the national
interest and problems of a geopolitical nature.17

In reviewing their own policy, certain states consider that their territory may act as a "pull factor". In
other states there is the belief that full enjoyment of rights might work against voluntary repatriation
which they regard as the best durable solution. Curtailment of rights in certain of these countries is
also adopted as a deterrence measure to dissuade further arrivals. Practices such as detention of
asylum-seekers may also have a policy base in deterrence. In many countries, such measures are
permitted or required by law, although in effect they penalize refugees for their illegal entry, despite
the prohibitions in this regrd contained in Article 31 of the 1951 Convention. Here it may further be
sul:mitted that, inspite of widespread international recognition that the grant of asylum is a peaceful
and humanitarian act which should, therefore, not be the cause of tension among states, preservation
of friendly relations with the neighbouring countries also often plays a significant role in many
decisions taken by States as to what rights refugees should enjoy. In many instances there are serious
bureaucratic impediments to full implementation. As Prof. L.C. Green rightly observes26 :

"Unfortunately, one is bound to recognise that whatever be the international law on this aspect of the
refugee problem, states will in fact condition their policies by their ideology. They may even
17
https://www.brookings.edu/opinions/indias-traditional-refugee-policy-shows-why-its-unlikely-to-give-rohingyas-
sanctuary/

21 | P a g e
acknowledge the existence of the international legal rule just mentioned, while at the same time
finding excuses, such as the need to support freedom or combat Gbmrnunism or fight colonialism in
the name of self-determination, to justify contrary behaviour". 177 Indeed, as a rule, the Rufugee
Convention is self-executing, particularly regarding those provisions granting equal treatment as
aliens to refugees, so that no subsequent national legislation is needed. And here, the general rule is
that prior or subsequent national legislation can not prevail in case of conflict with provisions of self-
executing - international instruments. However, as regards those provisions which are not self-
executing, such as those calling for expenditure of public funds, then the necessary national
legislation must be duly enacted. In the event that a state does not want to enforce the Refugee
COnvention, in whole or in part, although it is a party to it, and this it can do for it is a sovereign
state; still, the Refugee Convention subsists as an international obligation, and the international
institutions relative to the protection of refugees should act towards its enforcement.

As regards those States not paties to the Refugee Convention or any international instrument
concerning refugees; then they are bound by customary international law to provide certain minimun
standards of treatment which should at least respect the fundamental human rights of the refugee, and
this is usually found in national legislation, both in the Gonstitution such as in the Bill of Rights or in
the municipal law such as the Alien or Lmmigration laws. So, the states which are not paties to these
international instruments relating to refugees, should fully enforce and implement the generally
accepted practices and rules regarding refugees, particularly the minimum standards of treatment to
which they are entitled, under customary international law, likewise by proper and appropriate
national legislation; and if those customary rules still are vague or uncertain, then national courts
should give an authentic interpretation. It is subnitted that customary and conventional international
law takes priority over all prior or subsequent national legislation, including administrative action;
and national courts should be authorized to declare them valid.

Indian Practice of International Refugee Law

As discussed earlier - India is one of the countries in Asia which has received millions of refugees
during the last 4 7 years since its independence. As Prof. Rahmutullah Khan observecf "Indian
experience with the problem of refugees has been rich and rewarding, in the sense that no country in
Asia had suffered such massive migration of peoples and had faced such stupendons tasks of relief
and resettlement of refugees and had come out comparatively so successful"

At the end of 1992 as stated earlier, India hosted approximately 400,000 refugees along with at least
2,000,000 (mostly Bangladeshi) migrants and some 237,000 internally displaced persons. The most

22 | P a g e
significant refugee groups were Tibetans, Bangladeshi Chakrnas, Sri Lankan Tamils and Afghans.
There were also considerable numbers of Bhutanese of Nepali origin and Burmese. Truly speaking -
the root causes of these influxes may be traced in two factors - political and social. Politically,
dictatorships or undemocratic form of govertTnents in its vicinity offten created political upheavals
and thereby forced their people to leave their countries for a new shelter; and socially, the people in
the neighbouring countries share coornon roots in patterns of socia 1 behaviour, ethnicity and
religion. These similarities tended to encourage many amongst the persecuted in these neighbouring
countries to seek asylt.un or refuge in India.

Here it is most important to note that India, like the majority of Asian states, is not a party to the
1951 Refugee Convention or the 1967 Protocol, and is, therefore, under no treaty obligation to admit
the activity intended for the international protection of refugees. Of course, India, being a sovereign
nation, has the absolute right either to grant asylum or to refuse to achni t an alien. fut, at the same
time India, like any member of the International Society, has to respect its international obligations.
At least, India is bound by customary international law to provide certain minimum standards of
treatment which should respect the fundamental human rights of the refugees. In spite of the fact that
India faced many times in the past and is still facing acute refugee problems there is no specific
legislation to deal with the problem. It has handled the issue at the political and administrative levels,
with the single exception at the time of partition in 1947. The Rehabilitation Finance Administration
Act was passed in the year 1948 to cope with the massive migration of people from Pakistan. The
other relevant documents and legislations are - The Constitution of India, The Foreigners Act of
1946, The Registration of Foreigners Act of 1939, The Extradiction Act of 1962 and a few decisions
of the Indian Courts.18

The Constitution of India contains just a few provisions on the status of international law in India,
Article Sl(c) states that - "the State [ India ] shall endeavour to foster respect for international law
and treaty obligations in the dealings of organized peoples with one another".

This above-mentioned provision is placed under the Directive Principles of State Policy in Part IV of
the Oonstitution which are not enfoceable in any court. Here it may be submitted that before its
independence, the Indian Gburts administered the English common law. They accepted the basic
principle governing the relationship between international law and municipal law under the cornmon
law doctrine. English law has traditionally adopted a dualist approach to the relationship between
international and domestic law, seen most clearly in the case of treaties. In British docrtrine a treaty

18
http://reporting.unhcr.org/node/10314

23 | P a g e
does not automatically become part of the domestic legal order by virtue of its conclusion and
promulgation by the executive government. A treaty imposing obligations on, or creating rights in
favour of, individuals (whether citizens or aliens) require legislation in order to make it effective and
enforceable in the 28 courts

• For some time it was thought that customary law also was not part of the law of England until
expressly 1 adopted 1 as part of the domestic law by statute or by the declaration of a higher court.
This theory has recently been rejected by the English Oourt of Appeal, with the apparent consent of
the House of Lordi9

• The position now is that customary law, established to be such by sufficient evidence, is regarded
as part of the law of England unless contrary to Statute.

This coomon law practice has been fallowed by the Indian exective, legislature and judiciary even
after the independence of India. Article-253 of the Constitution lays down that -"Parliament has
power to make any law · for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decsion made at any
international conference, association or other lxxiy".

This constitutional provision implies that whenever there is a necessity, the Parliament is empowered
to incorporate an international obligations undertaken at international level into its own municipal
law. In:trecase "Grarrophone Company of India Ltd. v. Birendra Bahadur Pandey"29 a, Justice
Chinnappa Reddy observed that –

"The doctrine of incorporation recognizes the position that rules of international law are incorporated
into national law and considered to be part of the national law, unless they are in conflict with an Act
of Parliament. National courts can not say 'yes' if Parliament has said 'no' to a principle of
international law''.

Against this backdrop when one examines the binding force of international refugee law on India and
its relations with Indian municipal law, one can easily draw a conclusion that as long as international
refugee law does not come in conflict with Indian legislations or policies on the protection of
refugees,international refugee law is a part of the municipal law.

LEGISLATIONS

Govt plans to amend Citizenship Act to give succour to refugees

24 | P a g e
Keeping its promise to provide succour to refugees from neighbouring countries, the NDA
government is contemplating to amend the Citizenship Act so that Hindus and Sikhs, who had
entered India without valid documents could be granted Long Term Visa and citizenship.
The issue was discussed threadbare at a high-level meeting chaired by Home Minister Rajnath
Singh and attended by Foreign Secretary S Jaishankar besides others.
There are thousands of Hindus and Sikhs who have entered India after facing religious persecution in
countries like Pakistan, Bangladesh and Afghanistan without any valid document.
These refugees have been facing difficulty in getting Long Term Visa (LTV) or Citizenship and the
existing law does not allow anyone granting Indian nationality if he or she can not show proof of
documents on country of birth.
“Hence, the government plans to amend the Citizenship Act so that such refugees could be granted
LTV and citizenship without any hindrance,” a Home Ministry official said.
In its election manifesto before the 2014 Lok Sabha elections, the BJP had declared India as “a
natural home for persecuted Hindus” who “shall be welcome to seek refuge”.
Prime Minister Narendra Modi, while campaigning in 2014 had made a distinction between Hindu
and Muslim refugees from Bangladesh and arguing that the former should be accommodated.
“We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the
only place for them. We will have to accommodate them here,” Modi had said.
Ever since the Modi government came to power, several concessions have been offered to the
persecuted Hindus and Sikhs of the neighbouring countries that include issuing Long Term Visa,
allowing such people to buy residential properties, procuring PAN cards, Aadhar card, driving
licence, opening bank accounts, lowering of visa fees besides others.19
Besides, the Home Ministry also organised special camps at district level in Gujarat, Madhya
Pradesh, Rajasthan, Uttar Pradesh, Karnataka, Maharashtra, Andhra Pradesh, Haryana and NCT of
Delhi for granting LTV and citizenships.
Children of refugees on LTV are allowed to take admission in schools/ colleges/ universities/
technical and professional institutions under foreigner quota without permission from the state
government/UT administration.
State governments/ UT administration are empowered to grant permission to such people to engage
themselves in employment of purely private nature.
State governments/UT administration delegated powers for services like grant of visit to additional
places, grant of No Objection to Return to India (NORI) and grant of permission to change in mode
of travel and port of exit.
19
http://shodhganga.inflibnet.ac.in/bitstream/10603/128419/15/12_chapter%204.pdf

25 | P a g e
East Punjab Evacuees (Administration of Property) Act, 1947

UP Land Acquisition (Rehabilitation of Refugees) Act, 1948

East Punjab Refugees (Registration of Land Claims) Act, 1948

Mysore Administration of Evacuee Property (Emergency) Act, 1949

Mysore Administration of Evacuee Property (Second Emergency) Act, 1949

CASE LAWS

DonghLianKham&AnotherVs.UnionofIndia&Another

The High Court of Delhi, stayed the deportation of two refugees from Myanmar saying; “Thus,
Respondent no. 2 (FRRO) is directed to hear the petitioners and explore a third country option for
their deportation. The UNHCR is also expected to give its inputs to the FRRO for the needful. After
a conscious decision is taken, the necessary concurrence/approval may be obtained from MHA
(Foreigners Division). The aforesaid exercise be completed before 31st of March, 2016. The
petitioners shall not be deported from India till then.”

A petition was filed in the High Court of Delhi ‘Dongh Lian Kham & Another Vs. Union of India &
Another [WP (CRL) 1884 of 2015, decided on 21.12.2015] with a prayer for direction to the Govt.
Authorities not to deport the two people living as refugee in India to their country of origin i.e.
Myanmar and to consider sympathetically the application of the Petitioner for Long Term VISA.
They have legitimate reasons to be persecuted in their home country because of their hailing from
ethnic and religious minority community. The Petitioners were Mandate refugees and staying in
India under Long Term VISA since 2009 & 2011 respectively. They were convicted under Narcotics
Act and their VISA hence couldn’t be renewed.20

The High Court held:

“Since the petitioners apprehend danger to their lives on return to their country, which fact finds
support from the mere grant of refugee status to the petitioners by the UNHCR, it would only be in
keeping with the golden traditions of this country in respecting international comity and according
good treatment to refugees that the respondent FRRO hears the petitioners and consults UNHCR

20
https://indiankanoon.org/

26 | P a g e
regarding the option of deportation to a third country, and then decide regarding the deportation of
the petitioners and seek approval thereafter, of the MHA (Foreigners Division).”

The Court also considered Article 14 of the Universal Declaration of Human Rights, 1948,
Convention Relating to the Status of Refugees, 1951, EU Resolution on Minimum Guarantees for
Asylum Procedures, 1955, The International Covenant on Civil and Political Rights, 1966 and the
UN Declaration on Territorial Asylum and principle of "non-refoulement".

Shri Kranti & another Vs Union of India & Ors

The Foreigners Act 1946 gives the Indian Government “powers in respect of the entry of foreigners
into [India], their presence therein and their departure therefrom”. In the Andaman and Nicobar
Islands, the act has been used to hold largely poor fisherman in conditions that are in contravention
of Human Rights and International conventions.

Case Details and Status

Due to their country’s geographical proximity to India and strong sea currents, foreign nationals,
mainly poor fishermen, have been found and arrested in Indian territorial waters. They are tried and
convicted under the Foreigners Act 1946 and held, pending repatriation, at what is commonly
referred to as the Open Prison/Poachers Camp, adjacent to the Central Prison at Prothrapur.

The camp currently houses more than 380 foreign nationals, of which over 75 are children. The
facilities provided to them are in contravention of human rights and international conventions.
Violations transgress the detainees’ right to food, health, education, movement and employment.
Their misery is compounded by the abuse they suffer from their caretakers.

In response, the foreign nationals have resorted to hunger strikes to bring attention to their
grievances. For example, during August 2006, over 350 were on hunger strike at one time.

In 2006, HRLN filed a PIL relating to the conditions under which the detainees are held, including
beyond the completion of their sentences. The High Court, Calcutta disposed of the application on
the grounds of lack of concrete material showing “callous indifference on the part of the
administration”. However they admitted the petitioners have the right to apply again for future
redress.

The matter is now pending before the Supreme Court.

Shri Irsayam & Others Vs Union of India & Others

27 | P a g e
This case upholds the right of 7 Indonesian sailors to be repatriated to their country of origin where
no grounds exist for denial of said right.

Case Details and Status

On 19 August 2006, 14 crew members of M. V. Mac were rescued in a storm by the Indian Coast
Guard. The crew members were interviewed upon arrival at Port Blair and given permission to
disembark. The crew’s passports and ship documents were taken from them on disembarkation.

Once ashore, the crew members underwent further lengthy questioning and their statements were
recorded. They were then placed in Hotel Jayamathi to await repatriation.

7 of the crew members, including the main master, have been repatriated to Indonesia. The
remaining 7 have been detained at the hotel pending provision of a plan of action for removal of the
wreck by the owners of the craft.

These 7 crew members have been held at Hotel Jayamathi for the past two years. It would seem that
they are being denied permission to leave in order to coerce the owners of the craft to remove its
21
wreck. During these two years, the crew members have been away from their families, with no
source of income. Their movements have been restricted, leaving them feeling like captives.

The crew members have made numerous approaches to the authorities to request repatriation. The
response from the authorities has been tardy, with little or no progress. As payments has also not
been made to the Hotel Jayamathi, the owner is reluctant to keep the crew members as guests and has
moved them from guest rooms to the store room.

The facilities provided to them are deplorable and in contravention of Human Rights and
International conventions on provision of food, health services and education.

The petitioners approached Human Rights Law Network and a letter was sent to the authorities on 1
February 2008. As no response was received, a petition was issued on behalf of the crew members.

In his order of March 2008, Biswanath Somaddar instructed the Assistant Secretary (Home),
Secretariat, Port Blair to look into the matter and “take a reasoned decision with regard to the same
in conformity and in accordance with law, preferably within 8 weeks but not later than 12 weeks
from the date of communication of this order”.

The administration has now passed an order for the repatriation of the crew members to Indonesia.

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https://indiankanoon.org/

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 BIBLIOGRAPHY

 Richard Black (Author),,Refugees, Environment and Development(Book), Published:

20 July 2017), Publisher: Routledge

 Rajesh S. Kharat (Author),Tibetan Refugees in India(Book), Published: 4 December

2004, Publisher: Kaveri Books; 1st edition

 Viet Thanh Nguyen (Author),The Refugees(Book), Published: February 2017,

Publisher: Grove Atlantic

 https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-
saga-from-1947-to-2017.html

 https://www.indiatimes.com/news/despite-mulling-to-deport-rohingya-india-s-home-to-
over-3-lakh-refugees-from-30-odd-countries-including-us-and-uk-274882.html

 https://thewire.in/221088/rohingya-refugees-india-even-basic-nutrition-services-distant-
dream/

 https://indiankanoon.org/

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