According to data collected by the United Nations High Commission for Refugees (UNHCR), India has close
to 2 lakh refugees living within its territory with the number constantly rising. However, unofficial reports
place the figure at above 4.5 lakh.Currently, the only law specifically governing refugees in India is through
judicial decisions regulating specific situations. There are also ad hoc administrative advisories by the
Ministry of Home Affairs, regulating specific situations concerning refugees, such as the Advisory on preventing and combating human
trafficking in India, dated 1 May 2012
In the absence of specific legislation pertaining to refugees, the general law applicable to foreigners, the
Foreigners Act, 1946, applies to refugees as well. The status of refugees is determined by UNHCR,
but it has limited reach and resources.These ad hoc, case-specific measures lead to a two-fold problem.
First, India’s national security interest
are hamere by the absence of a content legal structure to ensure that all non-citizens resident in India are properly documented and have a legitimate reason for their presence in India. Second, the lack of a law
providing certain basic rights to refugees violates India’s obligations under customary international law,which it is subject to, notwithstanding
its non-ratification of the 1951 Refugee Convention.
The foremost requirement in the Indian legal framework is a definition of the term ‘refugee’. This is essential for
any legislation making any provision for refugees, since the term is not easily defined. Second, the single most important principle relating to refugees in international law needs to be recognised in Indian law – that of non-refoulement, or non-return to country of origin. The Foreigners Act penalises those who enter the country
without valid identity documents, or may prohibit entry of such persons
into India. This implies that refugee-seekers are liable to be returned to the country they are fleeing from. A legal
solution needs to be worked out to prevent this.
As a consequence of accepting refugee-seekers at the border, a structured system must be put in
place for refugee status-determination.Moreover, a procedure with such
critical security implications should be controlled and carried out entirely by the government. As a result of this procedure, once a person is admitted into the country as a refugee, he needs to be issued a permit, either in
form of a long-term visa or a refugee permit. This will serve as an identity document, and assist the government in maintaining records.
IMPLEMENTATION AND IMPACT
The following amendments are required in the Foreigners Act, 1946,to implement the above:
1.The term ‘refugee’ needs to be defined as a person who, owing to well-founded fear of persecution based on race, religion, nationality,
membership of a particular social group or political opinion, is outside his country of nationality, or if having no nationality, is outside his country of habitual residence and i unable or, owing to such fear, unwilling to avail
himself of that country’s protection.
2. Exceptions must be carved out for refugees, codifying the principle of non-refoulement, wherever the Act prohibits or imposes penalties for being present in India without valid
3. A new section should be inserted in the Act, requiring status determination of refugees at the border, along with providing an identification document;
provision for rules outlining criteria for status determination as well as
officials responsible for the same.
These changes in the Foreigners Act will be the first key steps towards legal
recognition of refugees in India.