India continues in receiving refugee inspite of its overpopulation where millions of people are
below poverty line and are debarred from basic amenities. However there is no uniform legal
framework to protect refugee. The main authority on the refugee law is the 1951 Convention
Relating to The Status of Refugee which is known as Refugee Convention which defines the
word Refugee. According to the Article 1 of 1951 Convention a ‘refugee’ is a person who
flees across an international border because of well founded fear of being persecuted in his
country of origin for the reasons of race, religion, nationality, membership of a particular
social group and political opinion and is not willing to go back to his home state.

Despite the fact that India is a host to diverse groups of refugees, the country has no specific
laws or cohesive policy for refugees. India is not a signatory to the 1951 Refugee Convention
nor to its 1967 Protocol on the Status of Refugees. Therefore, the protection of refugees is
confined to ad-hoc measures taken by the Government of India, leaving refugees with little
protection for their civil and political rights and virtually no legal provisions for their safety
and welfare. There is the need for the protection of the rights of refugees and to improve
their situation in India with a mission to assist asylum seekers, refugees and other displaced
populations in realizing their basic human rights and accessing the justice system.

CONSTITUTIONAL PROTECTION TO REFUGEES:

Foreigners are entitled to limited constitutional protection. These include protection of
the equality under Article 14 of the Indian Constitution and protection of life and
liberty under Article 21 of Indian Constitution. They are also entitled to the protection
of right recognized under article 20, 22, 25, 28, 32. All these articles are applicable
both for citizens and non citizens.

Article 14 guarantees equality before law and equal protection of law. The executive distinguishes foreigners according to their needs and deal with them differently based on intelligible differentia having the nexus with the object.

Article 21 deals with the protection of life and personal liberty. The Supreme Court
has reinterpreted Article 21 to include a substantive due process law which is
followed against the state action.

Article 22 deals with right against arrest and detention. Article 25-28 deals with right to freedom of conscience and free practice and propagation of religion. Article 32 grants the right to move to the Supreme Court for enforcement of these above fundamental rights.

Article 253 of the Constitution gives the Indian Parliament the 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 any decision made at any
international conference, association or body. In Visakha V. State of Rajasthan,
Supreme Court has ruled in favor of harmonious construction of international law
and domestic law when it is consistent with fundamental rights. As in this case there
was no legislation pertaining to prevention of sexual harassment, Supreme Court
relies on the objective of CEDAW and laid down a guide line for preventing sexual
harassment. It shows that in case of deficiency of domestic law regarding any matter,
Indian Courts are empowered to interpret any hard cases in the light of international
convention or treaty.

ROLE OF UNHCR IN THE PROTECTION OF REFUGEES IN INDIA:

The United Nations High Commissioner for Refugees (UNHCR) plays an important role in
refugee protection throughout the world. In India UNHCR is very active and assist the
refugee in getting refugee status and ensures that when they go to their home state, their
repatriation is voluntary. A refugee who does not get direct assistance from Indian government is free to apply to the UNHCR for asylum claims and other assistance. UNHCR is mandated by its parent statute to conduct refugee status determination tests and issue certificates to those who fulfil the criteria of Refugee Convention. UNHCR works throughout the region of South Asian countries to raise the awareness of refugee issue and encourage all nations to give protection to
refugees. It is instrumental in organizing regional consultation on the problem of refugees. The recent consultation was held in Dhaka in November 1997 to adopt Model National Law on refugees in which India participated.

ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF REFUGEES:

In India judiciary has played a major role in protecting refugees. A number of judicial
decisions of various High Courts and the Supreme Court provide a series of rights to millions
of refugees who had fled their country of origin and have crossed the internationally
recognized border and are staying in Indian Territories. The courts have invoked the
constitutional provision to protect the rights of refugees.

Right to basic amenities:
In Digbijay Mote V. Government of India, public interest litigation was filed by an NGO
who was running a school for the Srilankan refugee students in Karnataka. A petition was
moved when the conditions became difficult to run the school. The government of Karnataka
through its Ministry of Women and Social Welfare undertook to provide financial assistance
to run the school. In Majid Ahmad Abdul Majid Mohd Jad Al Hak V. Union of India, court held that basic amenities like food and medical care must be provided to the refugee while in detention.
In K.A Habib V. Union of India, the Gujarat High Court decided that the principle of non
refoulment is encompassed in Article 21 of the Indian Constitution. It decided that two
refugees from Iraq could not be sent back to their home state if they had fear for their life and
security.

In India adopting model national legislation is the first step towards refugee protection.
Judiciary and human right instruments are the only source to protect refugees which depend
upon case to case but the difficulties arises when there is mass influx of refugees coming
from different states. It is therefore highly essential to draft legislation on refugees so that
there will be a uniform legal framework to recognize the rights of refugees. The domestic
NGOs and UNHCR are complimentary to each other. The only act of UNHCR is to recognize
refugees within its mandate. In a situation where Government of India denies access to
UNHCR and other foreign humanitarian agencies, domestic NGOs play the most crucial role
to provide “protection” to the refugees. By enacting domestic law, refugee can be
distinguished from IDPs and can acquire specific protection. India is therefore not required to
sign 1951 Convention as protection is already been given by Indian Constitution and
judiciary. Now it is high time to think for a specific legislation on refugees which can
entertain the future upcoming refugees in India without any human right violations.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.