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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 7 |
T. ANANTHACHARI[*]
There are numerous aspects pertaining to refugees which are of major importance both to India, as a country and to the refugees, particularly in the context of law enforcement[1]. Given the security scenario prevailing in the country, particularly arising out of the role of some of the neighbours in this regard, an utterly humanitarian matter like the ‘refugees’ has come to be influenced by considerations of national security. It is a reality that we can ill-afford to overlook this aspect of the matter in any dispassionate deliberation of the subject under review in this article. While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement. Also, all policies governing refugees are laid down by the Union government though the impact of the refugee problem as such has to be borne by the State administration to a greater degree if not wholly.
Security personnel at the international borders, immigration personnel at the land check posts, international airports and seaports, besides a host of state police personnel, are all intimately connected with law enforcement affecting refugees one way or another. As the very term ‘security’ denotes, all the above categories of personnel are entrusted with the onerous responsibility of ensuring national as well as internal security of the country as their first and foremost charge. They have to make sure that the laws of the land are enforced in regard to refugees without in any way ignoring or neutralising security considerations. But, at the same time, it is also their responsibility that the humanitarian overtones so characteristically and inseparably associated with refugees in general, are not lost sight of. It is also well known that every single situation pertaining to ‘refugees’ is replete with human rights aspects as well. It is obvious that these have also necessarily to be taken due care of by law enforcement personnel.
A proper understanding of the circumstances pertaining to specific refugee situations by the concerned law enforcement agency or even by an individual official, would pave the way for taking care of both the security as well as the humane aspects- from both the humanitarian as well as the human rights angle. At the same time, knowledge on the part of all those who handle refugees- whether they are part of the government machinery or outside it (including international agencies, NGOs etc) of the laws of the land and also how the security and enforcement personnel function, would considerably facilitate looking after the refugees.
It should be appreciated that a person becomes a refugee because of circumstances which are beyond that person’s control, often poignant. He/She is left with no other option but to flee from human rights violations, socio-economic and political insecurity, generalised violence, civil war or ethnic strife all these leading to fear of persecution. The import of this observation would be evident when one looks at the definition of a ‘refugee’. The term ‘Refugee’ has a particular meaning in international law and its legal definition is laid down in the United Nations 1951 Convention relating to the Status of Refugees[2] (to be referred to as “1951Convention”) and its 1967 Protocol[3]. Article 1 para. 2 of the 1951 Convention defines the ‘refugee’ as “A person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.”. Therefore, the need to give due importance to humanitarian and human rights aspects in dealing with refugees cannot be over-stressed.
Thus, it may be noted that there are well-defined and specific grounds, which have to be satisfied before a person can qualify to be a ‘ refugee’. These grounds are well- founded on fear of persecution and considerations of a number of factors which may operate individually or collectively.
While all persons who are not Indian citizens are ‘Foreigners’ including refugees, it is necessary to clearly distinguish the latter from other categories of ‘foreigners’. There are considerable misgivings in the minds of many in India because of the failure to clearly understand the difference between ‘refugees’ and various ‘other categories of foreigners’. The consequence of this misunderstanding, particularly because of the large number of ‘illegal immigrants’ from Bangladesh who have spread into different parts of India, has tended to adversely influence the thinking of many in the country about the basic issues involved in the problem of ‘refugees’. Unless the distinction between the ‘refugees’ on the one hand and all other categories of ‘foreigners’ on the other, is clearly brought home, our attempts to sensitise people in the various strata of our society will remain inadequate.
There are at least three well-defined groups of foreigners who are different from ‘refugees’. It is important that the distinction among them is clearly understood and none of them is confused with or mistaken for a ‘refugee’. These categories are:
Persons under this category come to India for a specific purpose and duration with the prior permission of the Government of India. However, in certain circumstances any one in this category could become eligible for being a refugee, if, during their sojourn in India, the situation in their country of origin becomes such as to endanger their lives and liberty if they were to return to their country. Many Iranians who had come to India for studies during the regime of the Shah of Iran, have stayed back in India as refugees after the fall of Shah of Iran and a revolutionary government took his place in 1978. It should be mentioned that no one can automatically claim the right for ‘refugee status’[4] under this category. It is the prerogative of the Indian government to satisfy themselves and decide each case according to merits and circumstances.
Any foreigner who might have left his or her country of origin without due authorisation from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee. After all, there is no element of persecution or coercion compelling the individual to leave the country of origin. Illegal migrants from Bangladesh are examples of this category. Such persons have to be treated as illegal and unauthorised entrants into the country and dealt with under the appropriate laws applicable to foreigners like Foreigners Act, Indian Passport Act etc. besides the IPC, Cr.PC etc.
None of these can ever become eligible to be refugees. They have to be dealt with under the provisions of the Indian criminal laws as well as any other special laws in force even though some of them may be in possession of valid travel documents.
Those persons who are fleeing persecution and human rights violations from one region of the country and have sought refuge in another region of the same country, fall under this category. Such persons cannot be categorised as ‘refugees’ as they have not crossed any international border. Moreover, they have the protection of their national government. These persons are categorised as ‘internally displaced persons’ (IDP)[5]. Kashmiris who have been forced to flee from Jammu and Kashmir and who have settled in other parts of India fall under this category. Incidentally, in many African countries, the IDPs are also treated as ‘refugees’ within the ambit of the 1951 Convention.
A brief look at the refugee scenario in India will help appreciate in the proper perspective, the complexities of law enforcement in a variety of situations impinging upon the refugees. India has been home to refugees for centuries. From the time when almost the entire Zorastrian community took refuge in India fleeing from the persecution they were then subjected to on religious grounds in Iran, India has, from time to time continued to receive a large number of refugees from different countries, not necessarily from the neighbouring countries alone. The most significant thing which deserves to be taken note of is that, there has not been a single occasion of any refugee originating from the Indian soil except the transboundary movement of the people during the partition of the country in 1947. On the other hand, it has invariably been a receiving country and in the process, enlarging its multi-cultural and multi-ethnic fabric. In keeping with its secular policies, India has been the home to refugees belonging to all religions and sects. It is relevant to point out that since its independence India has received refugees not only from some of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.
The South Asian sub-continent has often witnessed situations where refugees from one or the other neighbouring countries have crossed over to India. Considering the sensitivities of national and regional politics in the sub-continent, the problem of refugees crossing over to India cannot be totally disassociated from the overall security issues relevant locally. At the end of 1999, India had well over 2,51,400 refugees, who do not include those from countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.
Even though India has been the home for a large number and variety of refugees throughout the past, India has dealt with the issues of ‘refugees’ on a bilateral basis. India, as explained in the earlier pages, has been observing a ‘refugee regime’ which generally conforms to the international instruments on the subject without, however, giving a formal shape to the practices adopted by it in the form of a separate statute. Refugees are no doubt ‘foreigners’. Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate law to deal with ‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis. UNHCR often plays a complementary role to the efforts of the Government, particularly in regard to verification about the individual’s background and the general circumstances prevailing in the country of origin. That agency also plays an important role in the resettlement of refugees etc.
It may be restated for purposes of clarity and understanding that a refugee[6] is defined as one who is outside the country of nationality (or even country of habitual residence) due to one of the five grounds, namely, a well-founded fear of persecution on the basis of religion, race, nationality or membership of a political or social group. In some countries, a person who flees his home country because of armed conflicts or wars or other generalised violation of human rights and who may not be targeted on account of any of the five grounds specified above, is excluded from the purview of the above definition of ‘refugee’. In many countries a difference is sought to be made between persecution effected by State agents and the one effected by non-state agents as may be the case in places where ‘rebel’ ‘terrorist’ and such other groups are active. Under such circumstances it is only those who are affected by the action of the State agents who are held to fulfill the definition of ‘refugee’ and not the latter.
One of the principal elements to satisfy a claim to refugee status is that the claimant must be ‘genuinely at risk’. Various legal “tests” have developed which concern the standard of proof that is required to satisfy what constitutes being genuinely at risk or having a genuine well founded fear of persecution. Some of these tests have been articulated by courts in a number of countries[7]. In the case of INS vs Cardoza Fouseca [8] interpretation of the “well founded fear” standard would indicate that “so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is not enough that persecution is a reasonable possibility...” The above standard was considered in R vs Secretary for the Home Department[9] , the case of ex parte Sivakumaran[10]. The judgement suggested that the ‘test’ should consider whether there is an evidence of a “real & substantial danger of persecution”. The Canadian Federal Court of Appeal considered the above and disapproved the House of Lords formulation in Joseph Ayei vs Ministry of Employment & Immigration[11] . They considered the “reasonable chance” standard. Therefore, in sum, in considering the above ‘tests’ what can be gleened is a rather liberal standard which requires that if, “....there is an objective evidence to show that there is a reasonable possibility or chance of relevant prosecution in the claimant’s state of origin”, the claim should be adjudged well founded.
In the case of India, the decision as whether to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it. The Government of India (GOI) may be often seen as following a policy of bilateralism in dealing with persons seeking to be refugees. For example, Afghan refugees of Indian origin and others, who entered India through Pakistan without any travel documents, were allowed entry through the Indo-Pakistan border till 1993. Most of the refugees had entered India through the Attari border near Amritsar in Punjab. Subsequent to 1993, the Government altered its policy of permitting Afghan refugees freely into India.
In the case of a large number of them (many of them were Afghan Sikhs and Afghan Hindus) who had to flee from Afghanistan under circumstances which fulfilled one or more of the grounds specified earlier for being treated as a ‘refugee’, the GOI did not officially treat them as refugees. However, the UNHCR with the consent of the GOI, recognised them as refugees under its mandate and is rendering assistance to them. In such cases, even though the local Government is kept in the picture, the UNHCR becomes responsible to look after them as well as ‘administer’ them and also to ensure that such refugees do not in any way violate the code of conduct governing them.
In contrast, in 1989, when the Myanmar authorities started suppressing the pro-democracy movement in that country and about 3,000 nationals of that country sought refuge in India, the GOI declared that in accordance with well accepted international norms defining refugee status, no genuine refugee from Myanmar would be turned back and in fact, they were accepted as refugees by the GOI. Similar is the case of Sri Lankan Tamil refugees crossing the sea to enter the southern Indian State of Tamil Nadu. The Government of India followed a specific refugee policy regarding Sri Lankan refugees and permitted them entry despite the fact that the refugees did not have travel documents.
In cases where the Government of India recognises the claim of refugee status of a particular group of refugees, there is minimal interference if any, caused to the refugees. This is the case even though there may be no official declaration of any policy of grant of refugee status to that group. However, there are instances where refugees recognised by the Government of India and issued with valid refugee identity documents by the government, are later prosecuted for illegal entry/over stay. The National Human Rights Commission had taken up successfully the cause of a number of Sri Lankan Tamil refugees who had been likewise prosecuted.
In order for a claimant refugee to put forward a genuine claim for determination of refugee status, it is crucial to accumulate all the documents that the claimant can muster in support of the grounds of persecution or fear thereof resulting in flight from country of origin. The documentation may be in the form of an identity card of employment with some governmental agency in the country of origin, or an identity card indicating membership of a particular group. Production of the same would be evidence of a claim of involvement with particular groups and would also serve to prove the claimant’s identity. Any other information that the claimant may be able to gather to prove specific persecution or fear thereof, such as names of persecutors, leaders of groups involved in committing persecution, details of areas where persecution is committed will help strengthen the case of the claimant. Similarly, the claimant must be able to establish all his statements to interviewing authorities in a consistent manner, without discrepancies. If there are obvious contradictions between the statements made by the claimant himself at different times to different persons, his claim to refugee status may be rejected. The statements made by the claimant must also not be contradictory to the general information available on the country of origin. Corroboration and confirmation of facts pertaining to persecution is an essential factor in determining refugee status. Efforts are made by authorities to gather background human rights data from a broad cross section of official and non-governmental sources in order to supplement whatever evidence may be adduced by the claimant himself. Thus, circumstantial evidence that persons similarly situated to the claimant are at risk in the country of origin, is essential.
To establish a fear of persecution, the term “fear” is not to be judged on the basis of the emotional reaction of the claimant. Instead, “fear” must be employed to mandate a forward looking assessment of risk. Therefore, persons who had already suffered persecution in their country of origin, as well as those who may be judged to face prospective risk of persecution in event of return to their country of origin, would be able to claim refugee status.
The heart of the refugee determination process is the careful consideration of the claimant’s own evidence, whether provided orally or in documentary form. It is ideally required that all claimants for refugee status receive an opportunity to be heard by the authority responsible for the adjudication of their case. All the materials thus collected and collated are then tallied with independent, internationally acknowledged information available on the region from which the claimant has arrived. In possible circumstances and cases, the information thus obtained is also reconfirmed from the UNHCR office in the country of origin.
Along with making claims for refugee status, refugees may also seek redressal of immediate basic problems facing them, such as food, shelter, legal aid etc. In regard to such matters the UNHCR plays a major role by providing in suitable and deserving cases, a “Subsistence Allowance” to destitute refugees and their dependents. The UNHCR also helps in enabling the refugee to find his own accommodation or to share a tenanted accommodation with another similarly placed refugee. When a refugee seeks legal aid for himself or for his dependent, the UNHCR may provide the assistance or recommend an Advocate who is familiar with handling refugee matters, to help sort out the problem faced by the refugee. In cases where the refugee is to be deported back to his country of origin, the UNHCR officials may request the Central Government to stall deportation proceedings, pending UNHCR attempts at resettlement of the refugee in a safe country. In order to make such resettlement possible, the UNHCR takes up such cases with the Embassies of other countries for grant of travel to and stay facilities in their countries.
India does not have on its statute book a specific and separate law to govern refugees. In the absence of such a specific law, all existing Indian laws like The Criminal Procedure Code, The Indian Penal Code, The Evidence Act etc. apply to the refugees as well. Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, India is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. India’s obligations in regard to refugees arise out of the latter. India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves and supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates particular interest and greater commitment to refugee matters. India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all persons, citizens and non- citizens alike. India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967. India ratified the International Covenant on Civil and Political Rights (ICCPR)[12] as well as the International Convention on Economic, Social and Cultural Rights (ICESCR)[13] in 1976. India ratified the UN Convention on the Rights of the Child in 1989[14]. India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[15] in 1974 under which Article 1 imposes legally binding obligation. India accepted the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.
In order to get a clear understanding of the rights which devolve on the refugees on account of India’s international commitments mentioned above and their relevance to law enforcement, it is pertinent to enumerate some of the more important rights accruing to refugees under the above mentioned Conventions. Article 13 of the Universal Declaration of Human Rights guarantees ‘Right to Freedom of Movement’, Article 14 ‘Right to Seek and Enjoy Asylum’ and Article 15 the ‘Right to Nationality.’ Article 12 of the ICCPR deals with ‘Freedom to leave any country including the person’s own’ and Article 13 ‘Prohibition of expulsion of aliens except by due process of law’. Under Article 2 A of the UN Convention on the Rights of the Child, the State must ensure the rights of “each child within its jurisdiction without discrimination of any kind”; Article 3 lays down that “In all actions concerning children the best interest of the child shall be a primary consideration”; Article 24 relates to ‘Right to Health’; Article 28 to ‘Right to Education’ and Article 37 to ‘Juvenile Justice’.
Refugees encounter the Indian legal system on two counts. There are laws which regulate their entry into and stay in India along with a host of related issues. Once they are within the Indian territory, they are then liable to be subjected to the provisions of the Indian penal laws for various commissions and omissions under a variety of circumstances, whether it be as a complainant or as an accused. These are various constitutional and legal provisions with which refugees may be concerned under varying circumstances[16].
There are a few Articles of the Indian Constitution which are equally applicable to refugees on the Indian soil in the same way as they are applicable to the Indian Citizens[17].
The Supreme Court of India has consistently held that the Fundamental Right enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. The various High Courts in India have liberally adopted the rules of natural justice to refugee issues, along with recognition of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role in the protection of refugees. The Hon’ble High Court of Guwahati has in various judgements, recognised the refugee issue and permitted refugees to approach the UNHCR for determination of their refugee status, while staying the deportation orders issued by the district court or the administration.
In the matter of Gurunathan and others vs. Government of India[18]and others and in the matter of A.C.Mohd.Siddique vs. Government of India and others[19] , the High Court of Madras expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will. In the case of P.Nedumaran vs. Union Of India[20] before the Madras High Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees who did not want to return to continue to stay in the camps in India. The Hon’ble Court was pleased to hold that ”since the UNHCR was involved in ascertaining the voluntariness of the refugees’ return to Sri Lanka, hence being a World Agency, it is not for the Court to consider whether the consent is voluntary or not.” Further, the Court acknowledged the competence and impartiality of the representatives of UNHCR. The Bombay High Court in the matter of Syed Ata Mohammadi vs. Union of India[21] , was pleased to direct that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The Hon’ble Court further permitted the refugee to travel to whichever country he desired. Such an order is in line with the internationally accepted principles of ‘non-refoulement’ of refugees to their country of origin.
The Supreme Court of India has in a number of cases stayed deportation of refugees such as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab[22] ; and, N.D.Pancholi vs. State of Punjab & Others[23] . In the matter of Malavika Karlekar vs. Union of India[24] , the Supreme Court directed stay of deportation of the Andaman Island Burmese refugees, since “their claim for refugee status was pending determination and a prima facie case is made out for grant of refugee status.” The Supreme Court judgement in the Chakma refugee case clearly declared that no one shall be deprived of his or her life or liberty without the due process of law. Earlier judgements of the Supreme Court in Luis De Raedt vs. Union of India[25] and also State of Arunachal Pradesh vs. Khudiram Chakma[26] , had also stressed the same point.
There is yet another aspect of non-refoulment which merits mention here. The concept of ‘International Zones’ which are transit areas at airports and other points of entry into Indian territory, which are marked as being outside Indian territory and the normal jurisdiction of Indian Courts, is a major ‘risk factor’ for refugees since it reduces access of refugees to legal remedies. This legal fiction is violative of the internationally acknowledged principle of non-refoulement. In the matter of a Palestinian refugee who was deported to New Delhi International Airport from Kathmandu was sent back to Kathmandu from the transit lounge of the Airport. He was once more returned to New Delhi International Airport on the ground of being kept in an ‘International Zone’. Such detention is a classic case on the above point barring legal remedies to the detained refugee. The only relief in such a case is through the administrative authorities[27].
Articles 22(1),22(2) and 25(1) of the Indian Constitution reflect that the rules of natural justice in common law systems are equally applicable in India, even to refugees. The established principle of rule of law in India is that no person, whether a citizen or an alien shall be deprived of his life, liberty or property without the authority of law. The Constitution of India expressly incorporates the common law precept and the Courts have gone further to raise it to the status of one of the basic features of the Constitution which cannot be amended.
The Indian Constitution does not contain any specific provision which obliges the state to enforce or implement treaties and conventions. A joint reading of all the provisions as well as an analysis of the case law on the subject shows international treaties, covenants, conventions and agreements can become part of the domestic law in India only if they are specifically incorporated in the law of the land. The Supreme Court has held, through a number of decisions on the subject[28] that international conventional law must go through the process of transformation into municipal law before the international treaty becomes internal law. Courts may apply international law only when there is no conflict between international law and domestic law, and also if the provisions of international law sought to be applied are not in contravention of the spirit of the Constitution and national legislation, thereby enabling a harmonious construction of laws. It has also been firmly laid that if there is any such conflict, then domestic law shall prevail.
It will be useful to acquaint oneself with the realities on ground when a refugee attempts to cross or actually crosses over to India. The Border Security Force (BSF) which guards the India-Pakistan and the India-Bangladesh borders, the Indo-Tibetan Border Police Force (ITBPF) which is deployed along the India-Tibet (China) border and the Assam Rifles (AR) which is deployed along the India-Myanmar border, are usually the first representatives of the Indian system which refugees may encounter when they enter or exit India by land routes.
Vastness and, sometimes even the treacherous nature of the border terrain make it difficult to physically man the entire international borders of India. The gaps in the border left unguarded, are often used by refugees to illegally enter/exit the Indian territory. If caught while entering illegally, the authorities may return the refugee across the border, sometimes even without ascertaining relevant refugee claims of persecution in the country of origin, though this is not in strict conformity with the internationally acknowledged principle of non-refoulement. When this happens, the refugee may face ‘forced return’ to the country where he/she came from. In the alternative, the border guarding force may interrogate and detain the person as permissible under the law of the land, at the border itself, pending decision by the administrative authorities regarding his plea for refuge/ asylum. In all such cases, the person will have to be ultimately handed over to the local police who will exercise their powers under relevant provisions of the Criminal Procedure Code (Cr.PC).
It goes without saying that there will be circumstances and occasions when the authorities may have to be satisfied about the bona fides of the person concerned. It is part of the duty and responsibility of the authorities to rule out any criminal or anti-national taking the plea of a ‘refugee’ and entering the country for mala fide purposes. If caught while illegally exiting India, the person (refugee) may be handed over to the local police for investigation and for further action according to law. In cases where the refugee is found in possession of invalid travel documents or in cases of violation of any other Indian law, the refugee may be detained by the border authorities at the border post itself and handed over to the local police for investigation. In all such instances, after the registration of a case on the basis of a First Information Report, the police would lodge the accused refugee in the area prison and produce him/her in the local court for trial in conformity with the provisions of CrPC..
The following two cases will illustrate the position of law as well as the procedure that is followed in two specific circumstances. Mehmud Ghazaleh,[29] an Iranian refugee registered with UNHCR, was detained while illegally exiting India for Nepal via the Sonauli border in District Maharajgunj, U.P. The refugee was travelling on forged & fabricated travel documents. He was detained by the border authorities who prima facie discovered that his travel documents were forged. They handed the refugee over to the local police station at Sonauli for investigation and registration of FIR u/s 419/420/468/471 IPC read with Sec 3/6 of the Passport Act and Sec.14 Foreigners Act. He was subsequently interned at the Gorakhpur district jail. In another case two Afghan refugees, Shah Ghazai and his minor son Assadullah, were apprehended by the authorities at the Attari border at Amritsar, Punjab while attempting to illegally exit India for Afghanistan via Pakistan. They were handed over to the local police in Gharinda, district Amritsar for investigation and registration of FIR and were subsequently interned at the Amritsar Central Jail.
NGOs and Human Rights activists look for instances and often intervene through legal action in courts, in cases of suspected illegal detention of refugees, particularly in cases where it is alleged that formal FIR is not recorded by the concerned law enforcement authorities even after such a detention. It is sometimes alleged that such a situation obtains in cases where the refugee is suspected to be a spy or a terrorist entering the Indian borders with the deliberate and mala-fide intent to cause harm to the stability and integrity of the country or a person suspected to be engaged in trans-border crime like smuggling etc. In such cases allegations are made that the refugee’s detention would not be recorded until the authorities are in a position to know the credentials of the individual(s) concerned. The following case is illustrative of the above, even though the circumstances pertaining to it may be somewhat different. An Iranian refugee, Syed Ata Mohamadi[30], recognised by UNHCR, was apprehended at the Bombay International airport en route to Canada. He was detained at the immigration lounge of the airport for travelling on an assumed name, on a false passport. His detention lasted over a month, he was released only on the intervention of the Bombay High Court.
Immigration and Custom officials come into the scene at the point of entry into India through seaports and airports. In cases where a refugee is detected while entering/ exiting established seaports and airports on Indian territory, without valid travel documents, he/she is immediately detained by the Immigration/ authorised Custom officers and prima facie investigated. In cases of illegal entry, the immigration authorities usually take steps to deport the refugee immediately to the country where he or she last came from. This, it may be mentioned, is not in conformity with the principle of non-refoulement. Pending deportation, the refugee is detained at a detention cell in the immigration section of the airport, seaport etc. In such an eventuality, the refugee has to arrange to buy his/her own meals and other requirements from resources at his/her disposal. In addition, when deported, the cost of the ticket is also required to be paid by the refugee, which often renders him/her a destitute. The following is a case of this kind. A Palestinian refugee Majid Ahmad, was deported from Kathmandu to New Delhi. He was again sent back to Nepal and was once again deported back, thus amounting to four trips in two days. He was subsequently detained at the Immigration lounge of the International Airport at New Delhi for over 25 days. All the expenses for his food as well as his forced travels including his final deportation to Bangladesh were met from his personal resources, which no doubt was almost fully depleted.
In the event of violation of any other law, such as forgery/ fabrication of travel documents by a refugee, the immigration/ custom officials hand over the accused refugee to the local police where a First Information Report is registered against the accused refugee and taken into police custody. He/she would be produced in the local sessions court and may be ordered to be lodged in the local prison awaiting trial. A case of this kind is cited here. A 17 year old Sri Lankan Tamil refugee, Winston Venojan[31] registered with UNHCR, was separated from his family in Madras and came to Delhi, where he received information that his father was in London. In an attempt to reach London, he was duped by a travel agent who fabricated a passport for him. The forgery was detected at the New Delhi International Airport, and the refugee was handed over by the custom authorities to the area police for investigation and registration of FIR. The refugee was produced before the concerned Metropolitan Magistrate who remanded him to judicial custody in Tihar jail.
In instances where the immigration/ custom authorities suspect discrepancies in the travel documents of a refugee when he or she enters the country, they may send the purported documents for further investigation to the local Foreigners Regional Registration Office (FRRO) and direct the refugee to tender appearance at the FRRO the next day. An Iraqi refugee, was detained at the New Delhi International Airport for holding alleged false travel documents. He was released from detention, but his travel documents were seized and he was asked to approach the local FRRO for reclaiming them the next day. However, he was later arrested and a FIR was lodged against him u/secs.419/ 420/ 468/ 471 of the Indian Penal Code.
In cases where refugees initially enter India with valid travel documents which in the ensuing period expire, or in cases where discrepancies in the travel documents are detected subsequent to his/her entry into India, the refugee may be arrested on expiry of the said documents, or when the said discrepancy is detected. Often, refugees fail to obtain renewal of their visas/ residential permit from the local Foreigners Regional Registration Office and random checks are routinely conducted by the local police, amongst foreigners, including refugees, at places commonly frequented by them such as hotels, restaurants, religious places, markets etc. Those refugees who do not comply with the mandatory requirement of renewal/obtaining residence permits, are arrested and produced before the local sessions court which may direct that they may be lodged in the local prison pending trial.
The police usually do not consider any pleas of claim of refugee status, persecution in country of origin etc. Further, the administrative authorities vide sec.3 of the Foreigners Act, 1946 may issue Leave India Notice to refugees who have failed to obtain extension of their travel permits, or who are ordered to be deported by the court. In such cases the refugee may be arrested if apprehended, and may be forcibly deported. Gurinder Singh and Karamjit Singh[32], two Afghan Sikhs of Indian origin, who had fled persecution from Afghanistan were registered as refugees with UNHCR in New Delhi. They were issued Leave India Notices by the FRRO to leave India within 7 days of receipt of the notice. The only remedy under such circumstances is through legal action in the appropriate court. In this instance, a criminal writ petition was filed in the Punjab & Haryana High Court at Chandigarh and interim stay of the Leave India Notice was obtained.
India has taken numerous steps and measures to fulfill its international obligations in respect of refugees. Some of the more important ones merit detailed mention.
The Government of India have followed a fairly liberal policy of granting refuge to various groups of refugees though some groups have been recognised and some other groups have not been, often keeping in view the security concerns of the nation. However, the emerging trend of past refugee experiences bear testimony to the fact that entry into India for most refugee groups is in keeping with international principles of protection and non- refoulement. Further, such entry is not determined by reasons of religion or any other form of discrimination. It may be pointed out that India has granted refuge to Buddhist Tibetans, Hindus and Christians of Sri Lanka, Hindus and Muslims from the then East Pakistan, Hindus, Muslims, Christians and Buddhists from Bangladesh and Sikhs and Muslims from Afghanistan etc.
There is no concept of work permits in India, although refugees who are granted residence permits do find employment in the informal sector, without facing any objection from the administration. In fact, Tibetan refugees have been granted loans and other facilities for self- employment. Similarly, most Sri Lankan Tamils have been granted freedom of movement within the camp areas, enabling work facilities for them as casual labour. Similarly, Chakma and Afghan refugees have also been engaging in gainful, even if it is in minor forms of employment.
Generally, refugees are allowed freedom concerning their movement, practice of religion and residence. In case of refugees whose entry into India is either legal or is subsequently legalised, there is limited interference by the administration regarding these basic freedoms. However, those refugees who enter India illegally or overstay beyond permissible limits, have strict restrictions imposed upon them in accordance with the statutes governing refugees in India i.e., The Foreigners Act, 1946, Foreigners Order, Passport Act etc.
From the moment of entry of a refugee into the Indian territory, the laws of India would apply to him/her. Therefore, enforcement and security personnel who have to deal with refugees, cannot overlook the legal requirements which have to be adhered to by them. In the following paragraphs an attempt has been made to identify some common situations which may be faced by enforcement and security personnel in dealing with refugees. An attempt has also been made to suggest possible courses of action within the legal framework.
The main purpose of this attempt is twofold. Firstly, it will help to focus on the need for showing due concern for human rights. Secondly, it is also important to create awareness about the unavoidable compulsions, which forced the person concerned to take refuge in the country and the inherent and unmistakable poignant human situation in the entire episode. It is pertinent to remember that the circumstances and facts pertaining to each refugee may be peculiar and different from the rest. In such cases, therefore, it is extremely important to ascertain, understand and appreciate the background of the compelling circumstances of each of the cases so that the law of the land may be applied in the most appropriate manner. It is in this context that the legal provisions, directions and guidelines, if any, issued by competent courts as also the practical experience gained in dealing with such cases, would come in handy.
Keeping the above aspects in view, some of the more important situations relevant to security personnel are enumerated below. An attempt has been made to highlight the more feasible options which could be considered in dealing with refugees. It goes without saying that these options have to be exercised within the legal frame-work of the country.
Refugees may enter India by land, air and/or sea. Depending upon the point of entry, they will come into initial contact with immigration authorities at airports or sea-ports or with the border guarding authorities at the border check-posts. It is relevant to point out that more often than not, a refugee would be without valid travel documents or valid identity documents making his/her entry into the country ‘illegal’. Since India has not yet incorporated the principle of non-refoulement in its legal statutes, the person concerned would have to face the prospect of being arrested and prosecuted as per the laws of the land. However, this should not be held against the intending refugee to debar entry as a matter of course. Therefore, the agency which comes into contact with the refugee initially, will have to satisfy itself about the bonafides of the intending refugee instead of pre-emptorily refusing entry. Under the circumstances, the ends of justice would be met if the person seeking refuge does not have valid travel documents, is arrested and produced in a court of law for appropriate judicial action. In the meanwhile, even as that person is under judicial detention, the security agency will have opportunity to verify his claims and also to notify the concerned competent authority in government to take decision in the matter. In such cases the help of the UNHCR could also be sought so that that agency would be in a position to help speed up the process of verification and also to render suitable help in finalising the legal process.
A refugee may face detention as soon as he/she illegally crosses the international border into India. It is pertinent to appreciate that the refugee has at that moment just entered an unknown country, after fleeing to save his/her life from his/her own country of origin. He/she may have undergone severe trauma of loss of family and friends in his/her homeland or en route India. The refugee in such situations may be unable to explain his/her background during initial interrogation, giving rise to apprehension on the part of local authorities regarding the genuineness of his/her subsequent refugee claim. He/she may be suspected to be a spy or infiltrator in the light of inconsistent statements that may have been made by him/her to the authorities. This is bound to be further compounded if the refugee is not in possession of the usual ‘travel documents’. In fact, it would be very unreasonable to expect him/her to possess valid travel documents, considering the background of his/her having to escape from his/her own country. The same may result in further interrogation and continued detention pending registration of FIR (First Information Report, which is usually the basis of the start of ‘investigation’). In such a situation there may be no course of action open to the refugee to follow, since he/she has no family to lean on locally and who may be aware of his/her plight. Further, the refugee would not be in a position to get a message across to any person outside regarding his/her predicament. What is more, because of the peculiarities of the circumstances, the refugee may be detained in a remote place further compounding an already difficult and unnerving situation.
In such circumstances it would be quite justified for the security agency to register a case under the provisions of IPC/Foreigners’ Act etc. and even arrest the refugee and forward him/her to the court having local jurisdiction. In case the refugee desires legal help it is desirable that the local ‘legal-aid cell’ may be allowed to be contacted by the refugee. Where such facilities are not available and the refugee is not in a position to hire legal services on his/her own, the court may be requested to notify the UNHCR to render help to the refugee to seek legal assistance. If any local NGO is available and willing, their services may also be sought to help out the refugee.
While in detention the refugee may be suffering from some physical ailment requiring immediate medical attention. In the event that the detaining authority does not provide the requisite medical aid, the same may result in devastating consequences. In some cases court’s directions can be obtained and appropriate medical attention and treatment given to the refugee. Here again, NGOs can play a very useful role. In the case of a Palestinian refugee who was detained at the international airport in New Delhi consequent to a deportation order pending against him, a writ petition was filed to obtain the Delhi High Court’s order that the refugee be provided at least the basic necessities like food and medical care. Knowledge of such cases would help security personnel to foresee and where necessary, seek the help of an agency like the UNHCR or a local NGO to render necessary help to the refugee.
Most courts are of the opinion that in cases where there has been no grave breach of law by the accused woman (refugee), she may be released on bail pending trial. In the specific case of Marui, an Iraqi refugee who fled persecution from Iraq with her husband and children, the family was arrested in New Delhi. However, .Marui being a woman, was released on bail soon thereafter though her husband continued to be in detention till much later. Even after such a release, it is quite possible that the woman may find herself in some predicament having been suddenly isolated in a foreign country. In such specific cases, it would make the task of the security officials easier if they liaised with the UNHCR or any local NGO to provide the much needed psychological support to the refugee woman. Also, in such cases where deportation orders are passed by the courts, the UNHCR can help to rehabilitate the concerned refugee in another sympathetic country. Knowledge on the part of security and enforcement officials of such available options would help in perpetuating humanitarian attitude on the part of security officials.
Refugee children face many problems which deserve to be treated with due sensitivity, care and caution by the authorities concerned. Usually, access is provided to detained mothers to meet their children and tend to their needs. There are, however, cases of sufficiently grown up refugee children who may be between the ages of 15 and 18 years of age and who may be detained for non possession of valid travel documents. Such a problem mostly arises due to the fact that children are not granted separate residential permits but are included in their parent’s permits. In cases involving children who do not possess separate residential permits, the UNHCR may be in a position to help sort out the problem, particularly because in cases where refugee children are separated from their families, UNHCR makes all possible attempts to reunite them. Therefore, it will be advantageous if the security agency concerned seeks the help and assistance of the UNHCR in such matters.
In the specific case of Winston Venojan, a Sri Lankan Tamil refugee, thanks to the UNHCR, the 17 year old boy, who had got separated from his parents, was reunited with them. In this case the boy was arrested on landing at New Delhi. Bail was, however, granted to him within a short time. In genuine cases of this kind, the security agency should always consider not to oppose bail. In the meanwhile, the UNHCR got clearance from the British Immigration and Nationality Department for the boy to travel to the UK. However, the refugee could not be permitted to leave the country till the disposal of the case for the violation of some of the legal provisions under the Indian laws. Luckily this matter was speedily disposed off on the intervention of the Delhi High court. Once the court’s orders were obtained, the refugee was provided with Red Cross travel documents to travel to London. The security agency can further help in such genuine case by speedy investigation and filing of charge sheet in time.
Release of a refugee from detention is often fraught with legalities. Courts are sometimes reluctant to direct release of the refugee without ensuring about securing his/her presence in a specific place. The primary concern of courts while barring the deportation of refugees is that the refugee should not become “untraceable”. In some cases of this kind, courts have agreed that the refugee may be handed over into the “care of UNHCR”. This would ensure that the refugee will be available whenever wanted. In addition, the UNHCR would take care of the refugee till the legal issue is disposed of. In cases where the UNHCR refuses to take custody of the said refugees, there will be no alternative but to send the refugees back to Jail.
The refugee on release from prison after serving his/her sentence may still not be having valid travel documents. In such circumstances, the refugee may face the risk of re-arrest while commuting from the prison to secure residential permit/refugee certificate etc., Hence the authorities are often requested to provide police escort to the refugee to enable him to reach the authorised place safely and to secure documents for valid stay in India. This measure would help speed up to regularise the stay in India, which is desirable from both the point of view of security as well as humanitarian considerations.
The need for timely filing of charge-sheet in courts of law cannot be over emphasised, particularly in the cases of refugees. Only when the charge sheet is filed it is possible for the refugee to be aware of the charges against him and to plead guilty to the same. In some cases the refugee may require early disposal of his/her case, hence filing of charges at an early stage is crucial.
It can be easily seen from the foregoing paragraphs that India notwithstanding its own security concerns, particularly in the last couple of decades, and pressure of population and the attendant economic factors, continues to take a humanitarian view of the problem of refugees. Even though the country has not enacted a special law to govern ‘refugees’, it has not proved to be a serious handicap in coping satisfactorily with the enormous refugee problems besetting the country. The spirit and contents of the UN and International Conventions on the subject have been, by and large, honoured through executive as well as judicial intervention. By this means, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other. It is in balancing these interests, which may sometimes appear to be competing with each other, that the security and law enforcement agencies face day-to-day challenges. If and when a separate ‘Refugee Law’ for the country is enacted, it is important that this aspect is given due consideration. It is important that security and enforcement officials do not overlook both the legal as well as the underlying human angles inherent in the ‘refugee’ situation, specially the latter.
[*] Director-General, Border Security Force, (Retired).
[1] Saikal Amin (ed.) Refugees in the Modern World : A Reader (Canberra,1989); B.S. Chimni, International Refugee Law(New Delhi,2000); Gowllard Vera Debbas, The Problem of Refugees in the Light of Contemporary International Law Issues (London,1995); Guy S Goodwin Gill, The Refugee in International Law (Oxford, 1996);J.Hathaway, The Law of Refugee Status (Toronto,1987): Tim Dunne and Nicholas J.Wheeler, (ed.) Human Rights in Global Politics (Cambridge, 1999); Cornellis D.Jong de, “The Legal Framework: The Convention Relating to the Status of Refugees and the Development of Law Half a Century Later” International Journal of Refugee Law, vol.10(1998),pp.688-99.
[2] J.Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, vol. 9 (1996), pp.229-53.
[3] See Goodwin Gill, note 1; Pirkko Kourula, Broadening the Edges : Refugee Definition and International Protection Revisited (Hague, 1997)
[4] Hathaway, note 1.
[5] Roberta Cohen and Francis Deng, Masses in Flight: The Global Crisis of Internal Displacement (Washington,1998); Wendy Davies, Rights Have no Borders : Internal Displacement Worldwide (Oslo,1998).
[6] See Article 1(A) (2) of the 1951 Convention on Refugees
[7] Mary Crock, “Apart from US or to Part of US? Immigrant’s Rights, Public Opinion and the Rule of Law”, International Journal of Refugee Law, vol.10 (1998), pp.49-76.
[8] 467 US Supreme Court Case, 407 (1987).
[9] (1988), 1 All ER 193 (H.L)
[10] Sivakumaran, House of Lords Decision (1988) 1 ALL ER 193.
[11] Joseph Ayei, Canadian Federal Court of Appeal (1989), Imm. L.R. (2d) 169.
[12] 10 April 1979.
[13] 10 April 1979.
[14] 11 December 1992.
[15] 9 July 1993.
[16] 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.
[17] Articles,14,20 and 21 of the Indian Constituion.
[18] WP No.S 6708 and 7916 of 1992
[19] 1998(47)DRJ(DB)p.74.
[20] The case is pending before the National Human Rights Commission of India, 13 August 1997.
[21] Syed Ata Mohammadi vs. State, Criminal writ petition no.7504/1994 at the Bombay High Court
[22] Crl. WP No.125 & 126 of 1986.
[23] N.D. Pancholi vs. State of Punjab & Others [WP (civil) No. 1294 of 1987, unreported)].
[24] Crl. WP No.243 of 1988.
[25] (1991) 3SCC 544.
[26] 1994 Supp. (1) SCC 615.
[27] Delhi High Court, Criminal Writ Petition-60/1997.
[28] (eg, Gramophone Company of India Ltd vs Birendra Bahadur Pandey AIR 1984SC 667; Civil Rights Vigilance Committee, SLRC College of Law, Bangalore vs Union of India AIR 1983 Knt.85; Jolly George Verghese vs Bank of Cochin AIR 1980 SC 470.)
[29] A.D.Cri No. 48 of 1994.
[30] Mohamadi, note, 21
[31] State vs. Winston, FIR No., 438/1993 under sections 419, 420,468 and 471 of the Indian Penal Code.
[32] Gurinder Singh vs. State, Criminal Writ Petition, N..871/1994 at Punjab & Haryana High Court at Chandigarh.
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