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A refugee - is any person whose life is under constant threat or the living conditions are not conducive for his healthy survival and he runs for shelter to another nation. He should be treated differently to a stateless person as he still possesses a de jure national status. However, the exact definition is, any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or unwilling to avail protection of that country”.
India continues and will continue to be the host country since times immemorial for a large number of refugees not only from neighboring countries but from other parts as well due to its geographic location, democratic Government, religious tolerant society and goodwill. India though is not a signatory of the 1951 Refugee Convention but it has ratified a number of other human rights treaties, which imposes obligations to provide protection to refugees. Some of the conventions enlisted are UN Declaration on Territorial Asylum 1967, Universal Declaration of Human Right 1948 (Art.14), International Convention on Civil and Political Rights (ICCPR Art.13), Convention on the Elimination of Discrimination against Women (CEDAW), International Convention on Economic Social and Cultural Rights (ICESCR) and Convention against Torture and Cruel Inhuman or degrading Treatment or Punishment (CAT). These treaties impose a positive duty on India to provide protection to refugees as long as they fear persecution at the hands of their Govt.
INTERPLAY OF HUMAN RIGHTS LAW, REFUGEE LAW & INTERNATIONAL HUMANITARIAN LAW.
Refugee Law and Human Rights law are complementary co-existing and overlapping with each other as their main aim is to protect the life, dignity and liberty of each individual and there is no exception to this cardinal principle. Article 21 of the Constitution of India focuses on the protection of human rights of all individuals including non-citizens. The importance given to human rights by India determines the quality of life of its refugees because we have not ratified the Convention. The Principle of non-refoulement which prohibits forceful repatriation is described under both refugee and human rights law. A strong human rights mechanism in the host nation determines, what solutions will be offered during the refugee crisis; it governs how well or unwell the refugees will be treated and what kind of rights will they get.
Humanitarian Law deals with conflicts and Refugee law deals with people fleeing from conflicts. In other words, refugee law comes into the picture to protect the distressed during armed conflicts because of the indiscriminate killing and destruction of the property of civilians. These people have no choice but to flee out of fear or persecution because they no longer enjoy protection from the parent Govt. Therefore both IHL and refugee law work hand in hand. It can be reasonably concluded that all three laws there are applicable inter-dependently and there are no watertight compartments. A majority of the laws, principles and rules are “borrowed” from each other.
LAWS GOVERNING REFUGEES
We have a number of domestic legislation in force to deal with refugees. India draws no distinction between a “foreigner” and a “refugee”. And this gives rise to a plethora of problems which will be highlighted subsequently. The laws are
• Passport (Entry into India) Act, 1920.
• Passport Act, 1967.
• Registration of Foreigners Act, 1939.
• Foreigners Act, 1946.
• Foreigners Order, 1948.
The Passport (Entry into India) Act, 1920 and the Passport Act, 1967 makes no distinction between genuine refugees and other categories of foreigners like economic migrants, tourists and students. As a result, the refugees run a big risk of arrest by immigration authorities and illegal deportation in the absence of a valid passport. Penalty should not be imposed on refugees because they may leave in turmoil not have the time to get a passport issued. In most of the countries, access to passport offices may not be possible due to distance and lack of infrastructure. Once the refugee enters the Indian Territory, they may get valid passports and identity cards if the public interest criteria is fulfilled. But so far only Tibetan refugees have been issued valid passports. The reason for their “privileged treatment” is that their political and spiritual leader too resides in India and they have their parliament on the Indian soil. Some scholars criticize it because it hampers the sovereignty of India. The reasoning may be that in order to protect national interest, no refugee is given the fundamental right to freedom of movement or issued an identity card. Also it causes trouble for refugees to open bank accounts, obtain ration cards or rent accommodation because they have no identity. This is contradictory in nature because the constitution does not guarantee freedom of movement but the administration may give this right based on a case to case analysis imposing reasonable restrictions. This clearly violates the equality principle as all refugees should be treated alike on Indian soil.
The Registration of Foreigners Act, 1939 empowers the Central Government to make rules for foreigners. Where and whom to report, provide proof of identity and registration certificate. This law should not be applicable to refugees as they have already suffered at the hands of their Government and these burdensome technicalities add to their agony. Furthermore, the power of Central government is used in an arbitrary manner to harass genuine refugees and there are no checks to curb this power. The Foreigners Act, 1946 places some more restrictions on refugees like defining whom to meet and the routes only through which they can enter the country. One of the biggest criticisms of this act is that the authorities have “unlimited power” to arrest and detain any foreigner on mere suspicion for non-compliance under this act. Though the court tried to restrict this power by stating that in order to penalize, there should be actual contravention of provisions. Unfortunately, more and more refugees continue to be detained on frivolous grounds and they are not released for long durations.
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