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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 16 |
SANJAY PARIKH[*]
The development of refugee law has its foundation on the events taking place in the western countries[1]. At the end of first world war, the serious problems of refugees emerged which led the League of Nations to create an office of the High Commissioner. Dr. Nansen of Norway was the first High Commissioner who took active interest in grant of international protection to refugees so much so that the certificates of identity issued by the High Commissioner came to be known as the “Nansen Passport”. Thereafter, there had been various developments in solving the problems of refugees but the major break-through was the experience at the end of Second World War[2]. The solution to refugees’ problems had to be based on the Universal Declaration of Human Rights( hereafter referred as UDHR) which was adopted on 10 December 1948[3] by the General Assembly, affirming the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. The preamble of the said declaration recognised the inherent dignity and equality as being inalienable rights of all members of the human family to achieve freedom, justice and peace in the world. Article 1 of the UDHR stated that all human beings are born free and equal in dignity and rights. Article 2 declared that everyone is entitled to all the rights and freedoms set out in the Declaration without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It further said, and what is relevant here, is that no distinction shall be made on the basis of political, jurisdictional or international status of the country or territory to which a person belongs. Article 3 of UDHR can be compared with Article 21[4] of the Indian Constitution, which states that everyone has a right to life, liberty and security of person.
Realising the commitments made in the UDHR and considering the problem of refugees, the General Assembly of United Nations adopted the “Statute of the Office of the United Nations High Commissioner for Refugees” on 14th December, 1950[5]. The work of the High Commissioner was stated to be non-political, humanitarian and social in nature. The High Commissioner was to act under the policy directive of the General Assembly or the Economic and Social Council. There were provisions made as to how the High Commissioner shall provide protection to the refugees falling under his competence. The statute also took within its fold the earlier protection
mechanisms including the Constitution of International Refugee Organisation[6]. This statute actually became effective when the Convention Relating to the Status of Refugees was adopted on 28th July, 1951 by the United Nations, which came into force on 22nd April, 1954[7]. The preamble of this Convention at the outset refers to the equality principle enshrined in the Universal Declaration of Human Rights. A wish has been expressed that all states, recognising the social and humanitarian nature of problem of refugees, will do everything within their power to prevent this problem. Article 1 defines the term “refugee”. Article 2 of this Convention places general obligation on every refugee to confirm to its laws and regulations as well as to measures taken for the maintenance of public order. Article 3 puts obligation on the contracting states to treat the refugees without any discrimination as to race, religion or country of origin.
Under Chapter II the juridical status[8] of the refugee has been defined. The personal status of the refugee has to be governed by the law of the country of his domicile and if he has no domicile, by the law of the country of his residence[9]. In granting him right to property[10], artistic rights[11] and right of forming association[12] he has to be accorded as favourable treatment as possible, in any event, not less favourable than that accorded to aliens generally “in the same circumstances”. Article 6 of the Convention defines the term “in the same circumstances”. A refugee is entitled to have free access to the courts of law and enjoy in the Contracting State the same treatment as a national[13].
Under Chapter III which is titled ‘Gainful Employment’[14], the contracting State has been put under obligation to provide employment including self employment and to carry on professions on the basis of most favourable treatment to be given to the foreign nationals in the same circumstances.
Under Chapter IV Welfare Schemes[15] have been provided to be made available to the refugees, namely, rationing, housing, public education, public relief, labour legislation and social security.
Article 26 grants freedom of movement to the refugees by stating that they will have right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances. Under Article 31 a safeguard has been provided for a refugee who illegally enters in the territory when his life or freedom was threatened in the country from which he has migrated. He is not to be punished only due to such illegal entry provided within reasonable period he shows good cause for his illegal entry. Article 32 states that a refugee shall not be expelled save on the grounds of national security or public order and that his expulsion shall only be in pursuance of a decision reached in accordance with due process of law. Under Article 35 each Member State has been asked to provide information and statistical data with regard to condition of refugees and implementation of this Convention.
The above Convention, however, was limited to only those persons who became refugees as a result of events occurring before 1 June 1951. Therefore, it was thought that looking into the massive problems of refugees subsequent to the year 1951, a Protocol relating to the status of refugees be enacted and that decision resulted in adoption of the Protocol with effect from 4 October1967[16]. The Protocol took within its fold the provisions of the Convention of 1951 (Articles 2 to 34). The Protocol consists of Articles I to XI. Besides the above Convention and Protocol there is Declaration on Territorial Asylum which was adopted by the General Assembly on 14 December, 1967[17]. The Declaration became necessary in view of problems concerning Territorial Asylum and in view of Articles 13 and 14 of the UDHR which recognised the right of a person to leave and return to his country and also to have right to seek and enjoy asylum in other countries from persecution. The important provision of this Declaration is that a person who has been persecuted by a country shall not be subjected to such measures which result in his expulsion or compulsory return to that country.
On the basis of above International Conventions and Declarations, regional instruments have been framed to deal with the refugee problem in Africa[18], Cartagena Declaration of Refugees[19] in America and Inter-governmental Instruments adopted by Asian-African Legal Consultative Committee[20]. The “Bangkok Principles” which speak about “ burden sharing” and the “ doctrine of state responsibility” as being the steps towards durable solution to the problem have to be studied seriously keeping in view the UDHR.
In order to enlarge the mandate of refugee law, in the 1997 SAARC Law Regional Seminar, a draft Model law for refugees was submitted which was adopted as proposed Model Law. It defined the term refugee as follows:
a. any person who is outside his or her country of origin, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group of political opinion, or,
b. any person owing to external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either part or whole of his or her country of origin, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin.
The above broad definition takes within its fold the various dimensions of refugee problems. While the first part of the definition is based on the 1951 Convention, the second part is taken from Article 12 of the 1969 OAU Convention.
In the light of international scenario, let us now look at the Indian situation. The statistics indicate that India has one of the largest refugee population in the world but, there is no law or consistent policy to deal with the problems of refugees. India has neither signed the Convention of 1951 relating to the status of refugees nor the Protocol of 1967. The figures which have been collected indicate that there are more than one lakh Tibetans (with thousands fresh arrivals every year), nearly one lakh of Sri Lankans (which figure has also increased), about 15,000 Afghans, in addition, quiet a sizeable population of Burmese, Somalis, Sudanese, Iranians and other nationalities. It appears that a draft legislation concerning Refugees and Asylum Seekers Protection Act, 2000 is under consideration of the Government. But, nothing appears to have been done to initiate further discussion; in fact not many are aware of this draft legislation.
In absence of any protection by national statute or governmental policy, one has to look at the constitutional safeguards and the international instruments which are in consonance with constitutional principles.
Article 21 of the Indian Constitution which applies to all persons, also apply to the refugees. As per this Article, no person can be deprived of his life or personal liberty except according to the procedure established by law. This situation was squarely faced by the Supreme Court of India in the famous case concerning Chakmas[21] – Bangladesh refugees. In view of grave danger posed to the life and liberty of Chakmas, the National Human Rights Commission(hereafter referred to as NHRC) [22] had to approach the Supreme Court under Section 18 of the Protection of Human Rights Act[23], 1993 to save the lives of Chakma refugees in the State of Arunachal Pradesh. In this case it was found that there was a serious threat to the Chakmas by a group of persons forcing them to leave the State. In the independent inquiry conducted by NHRC it was found that the Chakmas were dying on account of the blockade for want of medicine. Blockade had also adversely affected the supply of ration, medical and essential facility etc. The Supreme Court referred to earlier cases, namely, State of Arunachal Pradesh vs. Khudiram Chakma[24] and Louis De Raedt vs. UOI[25] to come to the conclusion that though Chakmas are foreigners, still they are entitled to the protection of Article 21 of the Constitution. This is how very forcefully the Supreme Court of India came forward for protecting the rights of Chakmas. It stated :
We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons, it is duty-bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, constitutional and statutory, to be considered for being registered as citizens of India[26].
While the protection of Article 21 can be availed of by the refugees and it is the duty of the state to act in consonance with Article 21, the Supreme Court in earlier cases of Khudiram Chakma as well as in Louis De Raedt also held that the refugees are not entitled to the protection of Articles 19(1)(d) and (e) of the Constitution. It was said that Article 21 is confined to life and liberty and “does not include the right to reside and settle in this country” as Article 19(1)(e) is applicable only to the citizens of this country and that “the machinery of Art. 14 cannot be invoked to obtain that fundamental right.”In the case of Khudiram Chakma the refugee families, instead of residing in the allotted lands, had negotiated private lands and had settled there. When they were sought to be evicted, they had challenged the eviction notice in the Court. The Supreme Court held that the principles of natural justice were satisfied in that case on the ground realities; there being allegations of refugees indulging in criminal activity and associating with anti-social elements. Denying the compensation awarded by the High Court on humanitarian grounds, the Supreme Court left it on the state’s policy to decide where they should be settled and whether they should be granted any compensation.
If one looks at both the judgments, it cannot be denied that the subsequent judgment in the NHRC vs. State of Arunachal Pradesh has considered the problems of refugees in a more liberal and humanitarian manner than the earlier judgment in Khudiram Chakma. Though a direction was given in the latter case ( re: NHRC) for consideration of the applications of refugees for grant of citizenship by the Central Government but not much appears to have been done in that regard.
A recent judgement of the Supreme Court in Chairman, Railway Board vs. Chandrimadas & Ors[27] decided on 29th January 2000 has set up a right precedent in enforcement of human rights of the refugees. In this case, one Hanuffa Khatoon, a Bangladeshi national, was gang-raped in the Rail Yatri Niwas of Howrah Railway Station. Chandrima Das, a practicising lady advocate of Calcutta High Court, filed a writ petition before the High Court claiming compensation against the railway department. The High Court awarded a sum of Rs. 10 lakhs as compensation on the basis that the rape was committed in Rail Yatri Niwas belonging to the Railways and was perpetrated by the railway employees. This judgement of the High Court was challenged before the Supreme Court on various grounds including on the question of locus-standi as well as the right of compensation not being enforceable under Article 226 of the Constitution. These contentions were repelled by the Supreme Court by referring to various judgements which had settled the law with regard to locus standi as well as about grant of compensation for violation of Article 21 of the Constitution. The Supreme Court relied upon an earlier judgement in Bodhisattwa Gautam[28] where it was held that rape is a crime against the entire society; it is a crime against the basic human rights and is violative of Article 21 – Right to Life which includes right to live with human dignity. We are, however, concerned here with the argument raised by the state that the victim was a foreign national and, was therefore, not entitled to any relief under the public law domain for the violation of fundamental rights which are available only to the citizens of this country. The Supreme Court rejected this contention for two reasons: firstly, on the ground of domestic jurisprudence based on constitutional provisions and secondly on the ground of human rights jurisprudence founded on the UDHR. The Court referred to the Preamble and various articles of the UDHR, provisions from CEDAW[29] and then observed that “our Constitution guarantees all the basic and fundamental human rights set out in the UDHR to its citizens and other persons. The Chapter dealing with the fundamental rights is contained in Part-III of the Constitution[30]. The purpose of this Part is to safeguard the basic human rights from the vicissitudes of political controversies and to place them beyond the reach of political parties, who by virtue of their majority, may come to form their Government at the Centre or in the State.” It was held that where ever in Chapter III of the Constitution, the term “person” is mentioned (like in Article 14 and 21), it will apply to all persons including citizens and non-citizens. Similarly Articles 20 ( providing protection in respect of conviction for offences) and 22 ( providing safeguard against arbitrary arrest and detention) are also available to non-citizens. As against these provisions, Articles 15, 16 and 19 use the term citizen and therefore they do not apply to a foreigner. The Supreme Court, on the basis of above discussion, held that commission of offence of rape amounts to violation of the fundamental right guaranteed to a woman under Article 21 of the Constitution and the victim, though a national of another country, was entitled to be treated with dignity. The court upheld the judgment of the Calcutta High Court compensating the victim for violation of Article 21 of the Constitution. This case may be categorized as a landmark judgement as its shows the sensitivity of the court in taking the jurisprudence of human rights on the highest level by placing its decision on protection of human dignity . The importance of the judgement also lies in the fact that the doors of Public Interest Litigation[31] were made available in the case of a foreign national.
The NHRC, which has earned the world-wide reputation of being an effective and independent institution in implementing human rights, has been actively considering the problems of refugees. It has taken initiative to give direction to the state governments of Assam and Tamilnadu for protection of refugees. There are several hundred complaints filed by the individuals as well as groups which are pending before the NHRC. There is urgent need to develop a policy within the constitutional and human rights framework to solve the problems of refugees in India, where NHRC can play a very active role.
The experts in the field of international law and human rights are very often expressing their views that the creation of international instruments for every single aspect is diluting the efficacy of implementation of human rights as contained in the UDHR which alone could be made the basis for implementation of all human rights whether concerning women, children, torture, racial discrimination, refugees etc. Whether that view is correct or not is debatable. However, it cannot be disputed that ultimately all international instruments have to sustain themselves on the basis of UDHR and they should be reflected in the domestic laws.
The problems of refugees, in the context of human rights violations, was presented by Sadako Ogata at the 50th Session of the U.N. Commission on Human Rights as follows:
“Human rights violations are a major factor in causing the flight of refugees as well as an obstacle to their safe and voluntary return home. Safeguarding human rights in countries of origin is therefore critical both for the prevention and for the solution of refugee problems. Respect for human rights is also essential for the protection of refugees in countries of asylum.”
In the fifty first annual meeting of UNHCR’s Executive Committee there was stock-taking of the implementation of 1951 convention. It was noticed that there are specific problems like mass influx of refugees resulting in protracted refugee situation creating problems of settlement in the country with limited options, challenges arising from the asylum, migration nexus etc which need lasting and protection based solutions. Erika Feller, Director of the Department of International Protection, felt that voluntary repatriation is the most desirable solution for refugees but it is hampered by causes related to violence, lingering insecurity or resurgence of conflict and therefore other lasting solutions like burden-sharing[32] mechanisms need closer examination.
India has neither signed the Convention of 1951, nor the subsequent Protocol of 1967. There are no policy guidelines or legislation applicable on refugees. It is only the courts and now the NHRC which are enlarging the scope of Article 21 of the Constitution in giving protection to the refugees by relying upon the international human rights instruments. This country once upon a time encompassed the whole world as one family (Vasudhevya Kutumbakkam). This realisation was based on a deeper understanding of human relationship on universal consciousness and not the words but the content of the saying is important. When one approaches the larger dimensions of human unity and human dignity and attempts to actualise them, may be prudently and cautiously, it certainly takes the country and its people on a higher pedestal of civilization and towards the ultimate goal of universal brotherhood. In Britain, the adoption of the European Convention into the domestic legislation through the Human Rights Act, 1998 has been characterised as revolutionary since the Magna Carta. The fear of dilution of parliamentary sovereignty is slowly giving way to greater realization of human rights.
No doubt India has done appreciable work concerning refugees but a lot more is still required to be done for realization and enforcement of human rights of refugees by declaring a policy or enacting a legislation, may be within the socio-economic constraints, but surely guaranteeing to them the basic human rights.
[*]Advocate, Supreme Court of India.
[1] Gowllard Vera Debbas, “The Problem of the Refugees in the Light of Contemporary International Law Issues”, ( Martinus Nijhoff, 1995); Bauer G. Elisabeth, Beyond Frontiers, Refugees, Migrants and Human Rights in the Post-Cold War Era (WCC Publications, 1993); James Hathaway, The Law of Refugee Status (Butterworths, 1987); Louise W.Holborn, The International Refugee Organisation: Its History and Work, 1946-52 (Oxford Univesity Press, 1956); P.Weis, “The International Protection of Refugees” American Journal of International Law, vol.48, pp. 193-221 ; E.Balogh, “ World Peace and the Refugee Problem” Recueil Des Cours, vol.II, (1949), pp.373- 506; P.Weis, “ Legal Aspects of the Convention of 28 July, 1951 Relating to the Status of Refugees” British Yearbook of International Law, vol.30 (1953), pp. 478-89.
[2] Nagendra Singh, The Role and Record of the UN High Commissioner for Refugees (Macmillan, 1984).
[3] Hersch Lauterpacht, An International Bill of the Rights of Man, ( New York,1950); John P Humphrey, Human Rights and the United Nations : A Great Adventure (Transnational Publishers, 1983); Manoj Kumar Sinha, Implementation of Basic Human Rights (Manak Publishers; 1999); M.Gavouneli, “ The Protection of Human Rights Through the Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights” Theasaurus Acroasium, (1990), pp. 659-76; J Humphrey, “The International Bill of Rights: Scope and Implementation”, Williamete & Mary Law Review, vol.17(1976), pp. 527-41.
[4] V.R.Krishna Iyer, Human Rights and the Law, (Vedpal Law House, 1984); D.D.Basu, Human Rights in Constitutional Law, (Prentice hall, 1994).
[5] See for the text, Manoj Kumar Sinha, Basic Documents on Human Rights and Refugee Laws ( Manak Publishers, 2000), pp.476-79.
[6] Louise W. Holborn, The International Refugee Organisation : Its History and Work, 1946-52 ( Oxford Univesity Press, 1956).
[7] The 1951 Refugee Convention came into force on 22 April 1954. Currently 138 states are parties to the 1951 Convention and its Protocol 1967. The mandate of the Office of the UNHCR derives from Statute, which is appended to United Nations General Assembly Resolution 428(V) of 14 December 1950. See for the text of the 1951 Convention and its Protocol 1967. Ibid., pp.479-93.
[8] Articles 12 to 16.
[9] Article 12.
[10] Article 13.
[11] Article 14.
[12] Article 15.
[13] Article 16.
[14] Articles 17 to 19.
[15] Article 20 to 24.
[16] Sinha, note 5, pp.493-96; also see Martin B.Tsamenyi and K.N. Samuel Blay, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees”, International Journal of Refugee Law, vol. 2(1990), pp. 527-561.
[17] Ibid, pp.507- 508.
[18] Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis Ababa, 10 September 1969.
[19] Cartagena Declaration on Refugees,1984.
[20] Bangkok Principles,1966.
[21] AIR 1996 SC 1235.
[22] The Commission was constituted by an Act of Parliament. The Act is divided into eight chapters consisting of 43 Articles. Special powers conferred to NHRC under Article 10(c) which says, “The Commission shall regulate its own procedure”. There are 19 Articles under Procedural Regulations. The National Human Rights Commission is the first of its kind among the South Asian countries. The NHRC came into effect on 12 October 1993, by virtue of the Protection of Human Rights Act 1993.
[23] See for details, The Protection of Human Rights Act 1993 with Procedural Regulations (National Human Rights Commission, New Delhi, 1993).
[24] (1994) Supp.1 SCC 651.
[25] (1991) 3 SCC 554.
[26] Note 21, para 20, Emphasis added.
[27] 2000(2) SCC 465.
[28] The Supreme Court of India in Bodhisattwa vs. Ms. Subdhara Chakraoborty, (1996) 1 SCC 490 has held “rape “ as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution.
[29] Convention on the Elimination of All Forms of Discrimination against Women, 1979.
[30] Articles 12 to 35 of the Indian Constitution deal with Fundamental Rights. The Indian Constitution groups the Fundamental Rights under several sub-heads. A) Right to Equality (Arts.14-18). B) Right to Freedom (Arts.19-22); C) Right against Exploitation (Arts.23-24); D) Right to Freedom of Religion (Arts.25-26); E) Cultural and Educational Rights (Arts.29-30); F) Right to Constitutional remedies (Art.32).
[31] Cassells J, “Judicial Activism and Public Interest litigation in India: Attempting the Impossible”, American Journal of Comparative Law, vol.37(1989), pp.485-519.
[32] Revitalizing the Refugee Protection Regime:The Road Ahead as the 1951 Convention turns 50, Statement by Erika Feller, Director, Department of International Protection to the 51st Session of the Executive Committee of the High Commissioner’s Programme. See for the text of Erika Feller’s statement pp. 284-94 in this Year Book.
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