Updated: Oct 22, 2020
Considering that India is surrounded by various developing countries who have seen wars and other crisis, the influx of refugees into India has been taking place for several decades, and the refugee count until 2019 stands at 1,95,105. It is extremely strange that for a country which hosts thousands of refugees, there exists no legislation dealing with the entry, stay and exit of these refugees. In fact, the word ‘refugee’ is nowhere used under any Indian laws. While courts have already adjudicated and offered protection to refugees in matters with respect to the stay and deportation of refugees, there is silence and lack of legal authority on the position of refugees who try to enter the Indian territory, especially during the pandemic. Since this area of jurisprudence is a grey area, this article will start by discussing who the refugees are and the current legislative framework for them followed by arguing for the inadequacy in these law with respect to the influx of refugees and further argue that India has an obligation to entertain the influx of refugees during the pandemic by analyzing a series of judgements and international instruments.
Inadequacy In Domestic Laws
While there are no Indian statutory provisions applying to refugees exclusively, past refugee influxes into India indicate that they are dealt with under the Foreigners Act 1946, Registration of Foreigners Act 1939, Passports (Entry into India) Act 1920, Citizenship Act 1955, and the Indian Penal Code. Refugees come under the broad umbrella term of “foreigner”. A foreigner as per Section 2(a) of the Foreigners Act 1946, means a person who is not a citizen of India. This definition is of a general nature and hence is inclusive of refugees, asylum-seekers, stateless persons, tourists, etc.
The pressing need for refugee legislation stems from the inadequate protection offered by national laws, which would lead to an arbitrary use of power by the State. For example, no distinction is made between refugees and say, foreigners travelling for business purposes. Hence, the State has fundamentally ignored the reality that one set of non-citizen is there in the country by choice, while one is there due to lack of better alternatives. Further, their rights and privileges are currently not stemmed out in any Indian law. In its absence, the State should follow the general practice followed by countries internationally, however, it is seen that there have been a mixed set of judicial pronouncements which have also held that the State is supreme and the national laws can be used to deal with the refugee problems. The authors argue that the provisions under these Acts and subsequent orders made thereunder are inadequate and should not apply to refugees. This is because a crucial distinction exists between any alien(foreigner) and a refugee. A refugee should be placed on a higher pedestal than that of other non-citizens. A refugee would not be in the country if not for the dismal state of conditions in their native State, and hence are fragile and in more need of protection, is entitled to more rights and privileges. This has to be coupled with their plight as they may be here without money, shelter and might have been separated (or have lost) their families. As domestic laws create no special provisions for the protection of refugees, reliance would have to be placed on court decisions and a catena of international instruments.
Existing Legal Framework
Before delving into the various international instruments governing refugees’ influx into India, it is imperative to understand the authority or influence of these instruments in the Indian context. Under Article 51(c) of the Indian Constitution, India is to foster respect for international law and treaty obligations. The Supreme Court in K.S. Puttaswamy v Union of India has held that any international instrument not inconsistent with Indian laws can be given effect even without express legislative sanction by the Parliament. The best example would be the landmark case of Vishaka v State of Rajasthan, wherein the violation of human rights resulted in the direct application of CEDAW principles in spite of there being no Indian law on point.
The chief organization for the protection of refugees is the United Nations High Commissioner of Refugees (“UNHCR”). It issues guidelines and circulars from time to time. India is an Executive Committee (ExCom) member of the UNHCR since 1995. To be an ExCom member, one needs to show special interest and devotion towards the protection of refugees. If the country fails to abide by the UNHCR guidelines, it will be removed from its position of an ExCom member and the UNHCR may impose monetary sanctions. Hence, India is bound by the UNHCR guidelines such as the Declaration on Territorial Asylum and Protection of Asylum Seekers which requires the mandatory admission of refugees into the country, even if it is on a temporary basis and provide them with protection. Similarly, the Guidelines on Temporary Protection or Stay Arrangements requires States to make appropriate entry and reception arrangements by allowing access to territory towards refugees. Under Article 14 of the Universal Declaration of Human Rights, everyone has a right to seek and enjoy asylum from persecution in other countries. Certain conventions applicable to specific sets of populations, such as Article 22 of Convention on The Rights of the Child requires States to undertake necessary protection and provide entry and humanitarian assistance to refugee children.
The Principle Of ‘Non-Refoulement’
The principle of ‘non-refoulement’ means that no State can send a refugee back to the State where they are being persecuted. While this principle is generally applied to refugees already inside the territory of a State, it is important to note that it is equally applicable to those refugees who are about to but haven’t yet entered the Indian territory. In other words, India cannot “push-back” refugees who may enter its territorial sea. India has to scrupulously observe this principle, as it is both a part of customary international law and is embedded in the below-mentioned international instruments to which India is a signatory.
The UNHCR guidelines on Declaration on Territorial Asylum, Protection of Asylum Seekers and Guidelines on Temporary Protection or Stay Arrangements prevent States from returning persons back to any State where they could be subject to persecution. A guidance note issued in 2014 by the UNHCR requires States to implement safeguards before removing refugees from the territory, and ensure that their entry prevention does not lead to refoulement. AALCO’s Principles on Status & Treatment of Refugees prevents expulsion of refugees if there is a danger of persecution in other countries. The Convention against Torture, Principles on Effective Prevention and Investigation of Extra Legal Arbitrary and Summary Executions and International Convention for Protection of All Persons against Enforced Disappearance state that no persons can be ostracized against their will and expelled to a country where they could be subject to torture and other inhuman acts. A perusal of these legal instruments mandates India to prevent the expulsion or refoulement of refugees.
In NHRC v. State of Arunachal Pradesh, the Supreme Court held that a foreigner possesses right to life and liberty under Article 21 of the Indian Constitution. In Ktaer Abbas Habib Al Qutaifi and Dongh Lian Kham, the Courts have further gone to state that the principle of non-refoulment is encompassed within Article 21 of the Constitution. Therefore, the principle of non-refoulment is an obligation entrenched in the Indian legal jurisprudence. By enumerating non-refoulment under Article 21, the Courts have made it a non-derogable principle. After the Forty-fourth Amendment to the Constitution of India, Article 359 was amended to exclude the suspension of Article 21, even during a national emergency.
COVID-19 may be classified as a health crisis, and even if an emergency were to be proclaimed, the principle of non-refoulment cannot be curtailed by virtue of it being a part of Article 21. Non-refoulment being a part of Article 21 and extending to even those trying to enter the Indian territory, the right to life and liberty under Article 21 will be equally applicable to refugees attempting to enter the Indian territory. Therefore, India’s refusal to allow the entry of refugees, during a pandemic, will not only be in violation of the principle of non-refoulment but will also be in violation of Article 21.
The UNHCR COVID-19 Guidelines
Most nations imposed complete lockdown restrictions and sealed their borders since March 2020 on account of the pandemic. This compromised the entry of refugees and ostensibly provided an excuse for countries to refuse the entry of refugees. Anticipating such behaviour by the States, UNHCR released a Circular on March 16th 2020. The Circular was in consonance with international laws and customs on refugees to reiterate the right of refugees to seek asylum in a third country. It is undisputed that any country will have the right to impose restrictions at the border to counter the spread of COVID-19. Nonetheless, such measures cannot preclude the entry of refugees.
Clause 6 of the Circular states that “blanket restrictions” on the entry of refugees will not be permissible and it is imperative for a State to provide measures of institutional quarantine, testing and health-care facilities to incoming refugees to curtail the spread of COVID-19. This is relevant in India since the right to life is applicable to refugees and the Supreme Court has held that the right to health is integral to the right to life under Article 21 and the government has an obligation to provide health-care facilities.
The inadequacy of Indian laws in dealing with refugees subsequently leads to reliance on international instruments that create an obligation upon the Indian State. Distinguishing between citizens and non-citizens, to allow only the entry of citizens into the sovereign territory have made the lockdown restrictions discriminatory in nature. India by allowing citizens to enter after the spread of the pandemic has set a precedent of border relaxation, which shall now be extended to non-citizens as well. The COVID-19 pandemic is unprecedented and it is certain that none of the international law framers could have envisioned the existence of such a virus.
In absence of COVID-19 specific laws to govern the entry of refugees, all guidelines laid down by the UNHCR as the parent body concerned with the rights of refugees should be of primary importance, especially in light that India is also an ExCom member. These Circulars should be conjunctively read with all the existing international law principles, treaties and customs to enumerate the overriding right of any refugee to enter the Indian territory over the presence of any health risks. On a more fundamental level, India needs a new concrete legislation dealing with refugees, which takes into account their fragile nature and offer adequate protection to such persons.
Title Image Source : DW
This article has been written by Andolan Sarkar and Anshul Ramesh. The writers are fourth year students of Jindal Global Law School, Sonipat, India.