Introduction:
In terms of law enforcement, there are several aspects of refugees that are incredibly essential to both India as a country and the refugees themselves. A purely humanitarian problem like “refugees” has become touched by national security considerations in light of the present security situation in the country, particularly as a result of the activities of some of the country’s neighbors in this regard. It is a truth that we cannot afford to overlook this aspect of the issue in any objective discussion of the subject under discussion in this article. While the Indian Constitution defines law and orders as a state subject, the Union government is entirely responsible for foreign relations and international orders. As a result, various federal and state government agencies have been entrusted with dealing with refugee law enforcement concerns. Furthermore, the Union government establishes all refugee policies, even if the overall effect of the refugee crisis must be borne to a greater part, if not fully, by the state administration. Immigration agents at land checkpoints, international airports, and seaports, as well as a myriad of state police officers, are all involved in law enforcement that impacts refugees in some way.
All of the aforementioned types of personnel have been tasked with the onerous burden of defending the country’s national and internal security as their first and foremost responsibility, as the term security suggests. They must guarantee that the nation’s standards are respected when it comes to refugees, while also taking security considerations into account. They must, however, take care not to disregard the humanitarian implications that are so intimately associated with refugees in general. Every scenario involving “refugees” is also understood to be fraught with human rights issues. These, too, must be dealt with by law enforcement. From a humanitarian and human rights approach, a full understanding of the circumstances surrounding specific refugee situations by the competent law enforcement agency or even a single official would pave the way for taking care of both security and humane elements. Simultaneously, all individuals who interact with refugees, whether they are part of the government apparatus or not (including international organizations, NGOs, and so on), would benefit from a better understanding of the laws of the country and how security and enforcement officers function.
Refugees
A refugee is a person who is outside his place of origin because he or she is afraid of being persecuted on grounds of race, religion, nationality, membership in a specific social group, or political opinion and is unable or unwilling to seek asylum in that country. It is critical to understand that a person becomes a refugee as a result of events beyond their control, which are usually sad. He or she has no option but to leave human rights violations, economical and political insecurity, widespread violence, civil conflict, or ethnic strife, which all place them at risk of persecution. The relevance of this revelation becomes evident when one examines the idea of a “refugee.”
The United Nations 1951 Convention relating to the Status of Refugees (henceforth referred to as the “1951Convention”) and its 1967 Protocol[1] define the term “refugee” in international law. According to Article 1 paragraph 2 of the 1951 Convention, “a person who is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” As a result, it is impossible to stress the importance of considering humanitarian and human rights considerations while dealing with refugees. As a result, it is important to emphasize that a person must meet well-defined and clear criteria to be labeled a “refugee.” These arguments are founded on a fear of persecution as well as judgments of several variables that may function alone or in concert.
Refugees in India
A cursory look at the refugee situation in India can help put the complexities of law enforcement in various scenarios involving refugees into proper perspective. India has been a refugee shelter for millennia. Since the period when nearly the entire Zorastrian people came to India to avoid religious persecution in Iran, India has continued to welcome a large number of refugees from different countries, not only those in the region. The most significant fact to note is that, except for the transboundary movement of individuals during the 1947 nation-split, there has never been a single case of a refugee originating from Indian soil. On the other hand, it has always been a hospitable country, resulting in the expansion of its multi-cultural and multi-ethnic fabric. In line with its secular philosophy, India has accepted refugees of all faiths and sects.
Since its independence, India has accepted refugees not just from its close neighbors but also from far-flung countries like Afghanistan, Iran, Iraq, Somalia, Uganda, and Sudan. After decades of persecution in Myanmar, which culminated in the military’s horrific onslaught in 2017, hundreds of thousands of Rohingya Muslims have sought shelter throughout the world. Many refugees are having trouble resettling in their new countries, notably in India, where over 17,000 Rohingyas live in refugee camps. Many individuals consider that this country’s opportunities and health care are inferior to Malaysia, Thailand, and Bangladesh[2].
International Commitment
In India’s statute book, there is no unique and separate legislation for dealing with refugees. In the absence of such legislation, all existing Indian laws apply to refugees, including the Criminal Procedure Code, the Indian Penal Code, the Evidence Act, and others. India has ratified several United Nations and World Conventions on Human Rights, Refugee Issues, and Related Matters, but neither the 1951 Refugee Convention nor the 1967 Protocol. The latter is the source of India’s responsibility to refugees. India was chosen to the Executive Committee of the High Commissioner’s Program (EXCOM) in 1995. The EXCOM is a United Nations body that oversees and authorizes the UNHCR’s material aid program. Membership in EXCOM displays a strong interest in and dedication to refugee concerns.
The Universal Declaration of Human Rights, which provides rights to all individuals, both citizens and non-citizens, was ratified by India. India voted in support of the United Nations Declaration of Territorial Asylum in 1967. In 1976, India ratified both the International Covenant on Civil and Political Rights (ICCPR)[3] and the International Covenant on Economic, Social, and Cultural Rights (ICESCR)[4]. The United Nations Convention on the Rights of the Child[5] was accepted by India in 1989. India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1974, and Article 1 of the treaty makes it legally binding. The Bangkok Principles of 1966, which were developed to advise member governments on matters about refugee status and treatment, included the idea of non-refoulment. These Principles address repatriation, compensation, granting refuge, and providing the bare minimum of care in the state of asylum. To have a full understanding of the rights that descend on refugees as a result of India’s international obligations and their relevance to law enforcement, it is important to highlight some of the more significant rights accruing to refugees under the above-mentioned Conventions. Article 13 of the Universal Declaration of Human Rights guarantees the right to freedom of movement, as well as the right to seek and enjoy asylum in Article 14 and the right to nationality in Article 15. The ICCPR’s Articles 12 and 13 deal with the “right to leave any nation, including one’s own,” as well as the “prohibition of alien expulsion unless through due process of law.” Article 2 A of the UN Convention on the Rights of the Child states that the state must protect the rights of “each child within its jurisdiction without discrimination of any kind”; Article 3 states that “the best interests of the child shall be a primary consideration in all actions concerning children”; Articles 24 and 28 deal with “Right to Health,” and Article 37 with “Right to Education.”
The Indian Legal Framework
On two levels, the Indian legal system confronts refugees. Some rules restrict their entry into India and stay there, as well as a plethora of other issues. As a result, once they reach Indian territory, they are subject to the requirements of Indian criminal laws for various acts and omissions in a variety of scenarios, whether as a complainant or an accused. Several constitutional and legislative regulations may apply to refugees in a variety of circumstances[6].
Constitutional Provisions
A few provisions of the Indian Constitution apply to refugees on Indian soil in the same way they do to Indian citizens[7].
The Supreme Court of India has frequently stated that Article 21 of the Indian Constitution guarantees everyone the right to life and personal liberty, regardless of whether they are Indian citizens or foreigners. The Indian High Courts have liberally applied natural justice concepts to refugee cases, while also recognizing the United Nations High Commissioner for Refugees (UNHCR) as a key participant in refugee protection. In a series of judgments, the Hon’ble High Court of Guwahati has acknowledged the refugee issue, allowing refugees to appeal to the UNHCR for a determination of their refugee status while deportation orders issued by the district court or the administration are on hold. In the cases of Gurunathan and others vs. Government of India and others[8] and A.C.Mohd.Siddique vs. Government of India and others[9], the High Court of Madras ruled that no Sri Lankan refugees should be forced to return to their homeland against their will.
In the case of P.Nedumaran vs. Union Of India before the Madras High Court, Sri Lankan refugees sought a writ of mandamus directing the Union of India and the State of Tamil Nadu to allow UNHCR officials to check the voluntariness of the refugees in returning to Sri Lanka and to allow those who did not want to return to stay in camps in India. “Because the UNHCR was tasked with establishing the voluntariness of the refugees’ return to Sri Lanka, and because it is a United Nations agency, it is not for the Court to determine whether the consent was voluntarily or not,” the Hon’ble Court stated. The Court also praised the UNHCR’s representatives for their professionalism and impartiality. The Bombay High Court was pleased to decide in Syed Ata Mohammadi vs. Union of India[10] that “there is no question of deporting the Iranian refugee to Iran because he has been recognized as a refugee by the UNHCR.”
The refugee was also given permission by the Hon’ble Court to travel to whatever country he desired. This decision is in line with internationally agreed-upon principles of “non-refoulment of refugees to their home countries.” The Supreme Court of India has postponed the deportation of refugees in cases such as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab[11] and N.D.Pancholi vs. State of Punjab & Others[12]. In Malavika Karlekar vs. Union of India[13], the Supreme Court awarded a stay of deportation of Andaman Island Burmese refugees because “their claim for refugee status was undergoing adjudication and a prima facie case for award of refugee status is made out.” In the Chakma refugee case, the Supreme Court said unambiguously that no one’s life or liberty may be taken away without due process of law. In the instances of Luis De Raedt vs. Union of India[14] and State of Arunachal Pradesh vs. Khudiram Chakma[15], the Supreme Court has already emphasized the same reasoning.
Conclusion
Even though the country lacks specific legislation to deal with “refugees,” it has not proven to be a serious hindrance to the government’s capacity to efficiently deal with the large refugee issue. For the most part, the spirit and content of relevant UN and international treaties have been upheld via executive and judicial intervention. The administration has therefore struck a reasonable balance between human and humanitarian obligations on the one hand, and national security and interest on the other. Security and law enforcement agencies have daily challenges in balancing these objectives, which might appear to compete at times. If and when a separate ‘Refugee Law’ for the nation is enacted, this element must be fully considered. The legal and underlying human sides of the ‘refugee’ situation, particularly the latter, must not be overlooked by security and law enforcement forces.
References:
[1] UNHCR, Protecting Refugees: questions and answers, (Nov 10, 2021, 10:00 AM), https://www.unhcr.org/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html.
[2] Meenakshi Ganguly, Rohingya Refugees Caught Between India and a Hard Place, Nov 9, 2021, 10:00 AM, https://thediplomat.com/2019/02/rohingya-refugees-caught-between-india-and-a-hard-place/.
[3] 10 April 1979.
[4] Supra 3
[5] 11 December 1992.
[6] List I (Union List) Entry 14 – confers on the Parliament exclusive power to make laws with respect to “entering into treaties and agreements with foreign countries and implementing treaties, agreements and conventions with foreign countries.
Entry 17. Speaks about citizenship, naturalisation and aliens;
Entry 18. Speaks about Extradition;
Entry 19. Speaks about Admission into and Emigration & Expulsion from, India; passport and visas.
List III (Concurrent List) Entry 27 – speaks about Relief and Rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India & Pakistan.
Part II – Citizenship Articles 5 to 11: These Articles provide for Rights of Citizenship of migrants from Pakistan; Rights of Citizenship of migrants to Pakistan; Rights of citizenship of certain persons of Indian origin residing outside India; voluntary acquisition of other citizenship and Parliamentary rights to regulate citizenship.
[7] Articles,14,20 and 21 of the Constitution of India.
[8] WP No.S 6708 and 7916 of 1992.
[9] 1998(47)DRJ(DB)p.74.
[10] Syed Ata Mohammadi vs. State, Criminal writ petition no.7504/1994 at the Bombay High Court.
[11] Crl. WP No.125 & 126 of 1986.
[12] N.D. Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987].
[13] Crl. WP No.243 of 1988.
[14] (1991) 3SCC 544.
[15] 1994 Supp. (1) SCC 615.
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