Refugee Protection and Indian Law

Tarunabh’s recent post, below, makes for very interesting reading especially, on Republic Day. I very much appreciated his analysis. I was not aware that the Andhra Pradesh High Court has held that non-refoulement (an impossibly difficult term to pronounce correctly in Indian English) is part of Article 21. And I think that the Supreme Court’s decision in the Arunachal Pradesh case is a fascinating one. That case deserves a lot more serious attention than it has received in critical constitutional examination. Inspired by Tarunabh’s post, I would like to pose the following issues for my blog colleagues and co-authors to further consider.

1. It is most unfortunate, in my personal view, that India did not sign the 1951 Refugee Convention. Accession to that convention in the 1950s would have been a strong signal to our fledgling republic’s commitment to human rights and human dignity. It is a bit hard to understand why India, having adopted a constitution that was directly influenced by Western constitutional traditions and ideas of human rights, would reject the Refugee Convention a year later. I’d welcome pointers on historical research about our refusal to sign the agreement.

2. Even though India is not a formal party to the 1951 Convention, it is bound by those principles of the convention that constitute customary international law. I recall that several writers and authors of international refugee law have argued that non-refoulement is one such principle. However, I am curious to know whether this argument has been made in any court given that our Supreme Court has previously invoked provisions of international conventions to which India had appended express reservations (the CEDAW Case).

3. Again speaking personally, I wonder whether one could argue that, once a foreigner or refugee is entitled to the same basic protection of constitutional rights and freedoms that a citizen enjoys, that foreigner or refugee cannot be subject to greater restrictions on those rights and freedoms than the restrictions that apply to citizens.

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  • Thanks Vikram. I will try and answer some of your questions. First, the Gujarat High Court case on non-refoulement is indeed fascinating. It involved two Iraqi men escaping compulsory military service (at the pain of harsh and cruel punishments) to India. The government wanted to deport them to Iraq. The High Court first established a prima facie fact that they are refugees under international law, and then read non-refoulement as part of Article 21.
    A difference must be made between a refugee and a foreigner. The NHRC v. Arunachal Pradesh case by the Supreme Court is for foreigners rights under Article 21 generally. It is the right to protection of life and liberty – but it does not include the right to settle down or reside in India [expressly established as a principle of law in Louis Deraedt v. Union of India reported in (1991) 3 SCC 554]. Louis Deraedt case was cited before the Gujarat High Court – it seems that the High Court agreed this was true for foreigners in general, but when it came to refugees specifically, non-refoulement would apply since that is part of Article 21.

    Regarding the issue of India not joining the Refugee Convention, in 1951, the decision can be said to be justified. The original Convention concerned itself only with ‘events occuring before 1 January 1951’ in Europe, although individual member-states were allowed to expand the geographical reach to outside Europe. It had little practical application to the post-partition refugees since it was not designed to meet a mass scale refugee movement that took place in the sub-continent. Only the Protocal in 1967 deleted the restriction of its application to events before 1951. This might have been an opportune moment for India to join the Convention, but having dealt with the post-partition refugees and the Tibetan refugees with generosity, India perhaps felt justified in ignoring what was seen as essentially European model of dealing with refugees.

    However, the fact that India was constrained to allow the UNHCR to apply the principles in the Convention in limited cases (mostly for refugees from outside South Asia) points to the continued relevance of the Convention even to India.

    I am not sure if there is a legal authority on this, but I am nearly certain that the principle of non-refoulement is part of customary international law, and binds India, irrespective of whether it has signed the Convention or not.

  • Dear Tarunabh, both your post and Vikram’s questions were fascinating. Could you also respond to Vikram’s third question?

    If non-refoulement is part of international customary law which binds India, would it be possible for India, for instance, to deny asylum to someone like the LTTE chief, Prabhakaran, if indeed he seeks asylum here?

    If a seeker of political asylum had once faced charges in a case in India, (which trial and appeal process have now been concluded as in the case of Rajiv assassination case), how will the Government resolve this issue – of giving primacy to asylum, and prosecuting him for any of the offences which he might have committed in the past.

  • Here are the two answers:
    1. To Vikram’s third question: – refugees and foreigners are only entitled to those constitutional rights that are not restricted to citizens. The statutory law on foreigners (Foreigners Act) gives them no rights whatsoever – they only have the right to protection of life and liberty from the State through the SC judgment in NHRC case. Now, with respect to refugees, through the Gujarat High Court case, they have the right not to be expelled or returned. But do they also have other basic freedoms available to citizens, say under Article 19? So, can Taslima claim to publish her books in India? No directly, under the constitution. But because the freedom of speech includes the freedom of information, Indian citizens also have an interest in reading her book, which they can claim under Article 19. However, not all rights limited to citizens may have such derivative application. But, thre is nothing that stops the Parliament (indeed, if India signs the Convention, it might be obliged) to provide some of these basic freedoms by law to refugee. Of course, if there is also a provision that provides for a procedure through which a refugee with no hope of return can be naturalised as a citizen, most of these problems will be solved.
    2. Regarding the Prabhakaran issue – I dont think that granting political asylum and granting refugee status are synonymous. In fact, I think they are quite the opposite. Refugee status is a matter of law and rights, political asylum is a matter of executive discretion based on geo-political considerations. Prabhakaran will have to prove that he was persecuted on one of the status grounds like race etc. and is fleeing that. I doubt he will be able to claim refugee status legitimately. Refugee law does not extend protection to those running from legitimate application of criminal law (like murder) – so, you can be prosecuted for crimes that are not related to your status but conduct and if you flee, the receiving country can legitimately return you. So, compulsory military service backed with punishments violates political opinion, criminalisation of sodomy is liked to sexual orientation status – both, although modelled as crimes, are linked to statuses. Thus, it is the substance of the treatment that separates legitimate prosecution from illegitimate persecution – not its form.
    Of course, one exception to the prosecution rule is that some countries have amended their laws to provide that whatever the crime and howsoever legitimate the need to punish it, if the possible punishment is very cruel, or if it is the death penalty, they will not return the person. This is discretionary on the part of the country and is not, yet, obliged by international law.

  • i was just contrasting refugee status with ‘political asylum’. these words have ordinary meanings and specialised legal meanings. within the international legal system, ‘refugee’ has come to have a special legal meaning, as a person fleeing persecution of a particular type and for that fact, entitled to legal rights. i dont think the Refugee Convention uses the word ‘asylum’ (i may be wrong about this), but i dont mind ‘refuge’ and ‘asylum’ being used interchangeably in the popular sense. what i was distinguishing ‘refugee status’ from was ‘political asylum’ – the addition of the adjective takes us to a special class of asylum, which is granted for ‘political’ (and i assume, in contrast with, legal) reasons. i dont think these semantics make much difference as long as we have the concepts clear. so, prabhakaran will probably not be entitled to a refugee status under international law. whether a country grants him asylum, therefore is not a matter of legal obligation under international law, but a matter of other political/moral considerations (it is possible that it may be a matter of legal obligation under domestic law in some countries, though – since nothing prevents a country to grant wider protections in its domestic law than the minimum that is required by international law).

    in any case, insofar as india does not really recognise the ‘refugee’ as a legal concept, the semantic quibble is confined to jurisdictions that do give ‘refugee’ a distinct legal meaning. we dont do it in india, and taslima nasreen, at least officially, is on a visitor visa, valid for 6 months – like most tourists. The various legal statuses that a foreigner can legally have in India must be mentioned in the Foreigners Order, 1948 – I tried hard and looked everywhere on the internet, including Manupatra – but could not trace this Order.