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India’s Perception Of Refugee Law

MARKANDEY KATJU*

At the outset I would like to say that India is a country having a long historical tradition of welcoming refugees from all over the world. Throughout our 5000 years old known history we have always welcomed refugees with open arms and given them a place of honour and dignity in our society. For instance, the Parsis came to India 1200 years ago because they were persecuted in Persia due to religious bigotry, and since then they have lived with honour and dignity in our country. The Jews came to India 2000 years ago because they were persecuted by the Romans, and for these many years Jews have lived in India with honour and dignity and have never faced persecution in India. Of course most of these Jews have now migrated to Israel, not because of persecution but because they thought they had better opportunities in Israel. We have Armenians living in India for centuries. We have Syrian Christians who came to India in the fourth century A.D. because they were persecuted in Syria, and ever since they have lived with honour and dignity in our country. No one was ever turned away from the Indian shores.

There is an interesting story of the first batch of Parsi immigrants mentioned earlier came from Persia to India 1200 years ago. Their leader was brought before the Indian king who asked how it could be assured that the immigrants would not create problems in India. The Parsi leader requested for a glass of milk and some sugar. When that was brought, he put the sugar into the milk, stirred it, and asked the Indian king to taste some of the milk. The king found it sweet. The Parsi leader then said: “Your Majesty, far from creating problems for your people we will be like that sugar. The sugar has disappeared, but it has sweetened the milk. Similarly, we will get assimilated into your country, and make it more prosperous.” Indeed, Parsis and others who came as refugees to our country have contributed significantly to our culture and progress.

This being our historical tradition I would now like to speak about the present position of refugees and refugee law in India.

A peculiar situation is prevailing in India in this connection. While the Executive branch of the Indian state does not recognize refugees or refugee law, the judicial wing of our state does recognize refugees and refugee law to a certain extent. This needs to be explained.

The Indian government has not signed the 1951 Refugee Convention or the 1967 Protocol, and the reason is probably due to our financial constraints. India has a huge population of over a billion people, half of whom are illiterate and living below the poverty line in almost sub-human conditions, without proper food, education, employment, medical care, housing, etc. Thus half of our own people are like refugees. How then can we be expected to look after other refugees? After all, signing the Refugee Convention requires a country signing it to provide employment, food, housing, medical care, education etc. to refugees. How can we do that when we cannot provide these necessities to 500 million of our own people? India is a poor country with limited resources, and I hope the world community will understand our difficulties in this connection.

I would also like to mention that the Indian judiciary does recognize refugees and refugee law to a certain extent. I would like to inform you that the Indian judiciary is very independent. It is not subordinate to our government, and it often censures the government. The Indian judiciary has been playing an activist and creative role in recent years. In particular, the Indian judiciary has introduced refugee law into our legal system through the back door, as it were, since the front door has been shut by the executive.

The method adopted by the judiciary is by creative interpretation of Article 21 of the Indian constitution which guarantees the right to life and liberty to all persons and not merely to citizens. In the Indian constitution there is a chapter on Fundamental Rights (Part III) which is similar to the Bill of Rights in the U.S. constitution. Some of these fundamental rights are available only to citizens while others are available to all persons. Refugees may not be citizens but they are certainly persons, and hence they are entitled to the provisions of Article 21.

The Indian Supreme Court has interpreted the word ‘life’ in Article 21 to mean not merely an animal life but a dignified life, and hence refugees being persons, are also entitled to the same.

There are several decisions of the Supreme Court of India and the High Courts where refugees have been given protection by evoking Article 21 of the Constitution. The leading case is of the Chakma Refugees, National Human Rights Commission versus State of Arunachal Pradesh.^[1] In this decision the Supreme Court held that Chakma Refugees who had come from Bangladesh due to persecution (when Bangladesh was under Pakistani Rule) cannot be forcibly sent back to Bangladesh as they may be killed there and thus they would be deprived of their right under Article 21 of the Constitution. There are various other decisions of our courts also in this connection. Despite the fact that the Indian government has not signed the Refugee Convention, the Indian judiciary is giving protection to refugees in the above manner.

We would like to see advice and suggestion from IARLJ, UNHCR and other bodies and jurists to help us in the further development of refugee law in India.

[1] A.I.R.1996 SC 1234.

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