RIGHTS OF REFUGEES

This article is written by Vani Khandelwal of 3^rd Semester of Symbiosis Law School

ABSTRACT

This paper deals with the topic rights of refugees. Refugees are people who have fled away forcefully from a country. The introduction starts with human rights as a basic concept and then proceeds to define refugees. The first part of the paper deals with rights of refugees as per international law. The second part of the paper deals with rights of refugees provided as per Indian law. It begins with history and then proceeds to describe about Rohingya refugee group and the problems faced by them. Some important topics like human rights, humanitarian law and refugee law has been displayed. Conclusion summarizes the paper and points out the issues in the society.

KEYWORDS: Refugee, Human rights, Civil, Conventions, Union of India, Laws.

INTRODUCTION

Since human rights are the core of our existence, they are extremely important. They have undergone a protracted fight, but they are now firmly entrenched in accordance with the many human rights agreements and the Universal Declaration of Human Rights. These documents ensure that everyone, including immigrants, refugees, and law-abiding citizens, has the civil, political, economic, social, and cultural rights that they are entitled to.

Around the world, millions of individuals leave their homes in quest of a better future for their family. Others are immigrants. Some are evacuees.

A refugee is a person who has been compelled to leave their home to avoid persecution, violence, or wars. They are entitled to the nation’s protection. They can’t be sent back since doing so would put their lives or their freedom in danger. The people who seek asylum are those who need international protection from dangers they face at home. It is important to remember, nevertheless, that not everyone who requests asylum in a foreign nation is given the status of a refugee.

•  Rights of refugees as per International Law

The protections outlined in the Universal Declaration of Human Rights apply to every living thing, from the day of conception until the day of their death. People residing on the soil of various countries, particularly refugees and migrants, are protected by these provisions and other Conventions. The following list includes some of the crucial rights that refugees and migrants have access to:

• Right to freedom from torture or inhumane treatment: No one shall be “subjected to torture or cruel, inhuman or degrading treatment or punishment,” according to Article 5 of the Universal Declaration of Human Rights. This suggests that in order to fulfil the goals of the Convention, the protection of refugees and migrants from cruel treatment is necessary.
• Right to freedom of opinion and expression: According to Article 2 of the Universal Declaration of Human Rights, everyone has the right to freedom of expression, and no one should be subjected to prejudice based on their race, colour, sex, nationality, socioeconomic class, or place of birth. It is crucial to keep in mind that this right prohibits any form of discrimination based on a person’s membership in a country or territory or on the status of that nation or territory in terms of politics, law, or international relations.
• Right to freedom of thought, conscience and religion: Everyone has the right to freedom of mind, conscience, and religion, which includes changing their faith or belief and expressing their religion through teaching, worship, etc., according to Article 18 of the Universal Declaration of Human Rights. No one is compelled to change their religion, not even those who are refugees or migrants.
• Right to shelter: According to Article 14 of the Universal Declaration of Human Rights, everyone has the right to seek and receive shelter from persecution in other nations. It is further emphasised that this right cannot be used in cases where criminal charges are truly related to non-political offences.
• According to international law, migrants and refugees have specific rights. Every state has a responsibility to defend and uphold these rights. The State has a responsibility to monitor whether the rights granted to everyone residing on their territory and subject to their jurisdiction are actually being used or are merely symbolic. The International Organisation for Migration (IOM) mentions several specific rights that are available to both migrants and refugees when they are being held.[1]
• Rights of refugees in India (introduction)
• History

As a result of the division of India and Pakistan, many people left. In the years following India’s independence, about 20 million people moved there. It had to set up multiple relief camps to accommodate the massive number of refugees. When the Dalai Lama and his supporters requested political asylum from India in 1959 as refugees, people from Bangladesh and Pakistan started to arrive. East Pakistani refugees came to India in great numbers in 1971. In 1983 and 1986, respectively, refugees from Bangladesh and Sri Lanka entered India. By the end of 1992, India had received 2,000,000 migrants and 237,000 refugees. Refugees have always entered India in some quantity throughout its history.[2]

• Rohingya Refugee Group

The Rohingya, sometimes known as Arakanese Indians, are stateless people from Myanmar. The UN has designated them as one of the most vulnerable minorities in the world. The Rohingya community was denied citizenship under the 1982 Myanmar Nationality Law. They were compelled to flee because of the Myanmar Army’s growing military campaign. More than 6700 Rohingya people died in August 2017.Despite the fact that they are numerous in many Indian cities, the government of the nation does not recognise them as refugees. Most of those migrants relocated to Bangladesh. There were significant moves and the displacement of refugees. As of December 2017, there are many risks to the safety of Rohingya refugees. [3]

• Problems faced by refugees

Refugees who end themselves in various refugee camps or nations encounter various difficulties in their daily lives. They must endure difficult living circumstances. They live in tents, have little access to food, water, or clothing. They have numerous challenges when living without sufficient housing. People who leave refugee camps and enter host nations frequently experience unforeseen difficulties, as well as linguistic and cultural issues. The children of refugees are those who experience the biggest difficulties. They struggle mightily to keep up in school and are unable to comprehend and function. Most refugees labour in some capacity in the nation where they are currently residing, where recruiters take advantage of them. [4]

• Laws and provisions in India to protect rights of refugees
• Constitutional Remedies

A few articles of the Indian Constitution are applicable to refugees while they are in the country. The most important Article is Article 21, which deals with the right to life and the freedom of the individual and is applicable to everyone, whether or not they are Indian citizens. Numerous decisions on refugees have been made in accordance with Article 21. [20] Article 14 guarantees everyone’s right to equality before the law.  Additionally covered by Articles 5, 6, 7, 8, 9, 10, 11, 12, 20, 22, 25–28, 32, and 226 are non-Indian nationals, including refugees. The court ruled in Louis De Raedt v. Union of India that non-Indian citizens are entitled to the fundamental rights to life, liberty, and dignity. [5]

Only the Refugee and Asylum (Protection) Bill of 2009 exists in India; there is no other clear legislation pertaining to refugees, but the Foreigners Act of 1946, which differentiates between aliens and refugees, leads to additional persecution of refugees.

The following laws apply to refugees:

1. Citizenship Act, 1955 (No.57 of 1955)
2. Extradition Act, 1962 (No. 34 of 1962)
3. Foreigners Act, 1946 (No.31 of 1946)
4. Illegal Migrant (Determination by Tribunals) Act, 1983 (No.39 of 1983)
5. India Penal Code Act, 1860 (No.45 of 1860)
6. Passport (Entry into India) Act, 1920 (No.34 of 1920)
7. Passport Act, 1967 (No.15 of 1967)

The legal system is essential in protecting refugees; countless lawsuits led to important judgements in their favour. The judiciary has simplified it using the concepts of Public Interest Litigation and Social Action Litigation.

In Digbijay Mote v. Union of India, an NGO was operating a school for Sri Lankan refugees. When a PIL was filed because operating the school was challenging, the Ministry of Women and Social Welfare gave the institution financial support.[6]

In Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India, it was mandated that detained refugees receive access to essential necessities including food and medicine.[7]

The SC granted a stay of execution of the deportation order against 21 Burmese refugees in Malvika Karelkar v. Union of India, allowing them to apply for refugee status with the UNHCR.[8]

UNHCR is actively involved in India as the number of cases involving refugees rises. Any refugees who seek sanctuary in India then go back to their country of origin are monitored by the UNHCR. It establishes who qualifies as a refugee and offers services to those individuals. UNHCR has been involved since the Bangladesh crisis and the issue of Tibetan refugees in 1971. With the cooperation of NGOs, the UNHCR office in Delhi works to offer assistance and income-generating opportunities for refugees. Preventing refugees from being forced to return to the country they fled until the issue there has been handled is the UNHCR’s primary duty in India.[9]

The National Human Rights Commission, or NHRC, gave the Tamil Nadu government orders in 1994 to help Sri Lankan refugees with their medical requirements. It complained to the Arunachal Pradesh government about its lack of support for the Chakmas in 1995, and the court eventually decided that the government must provide the community with the aid it requires. It participates in every refugee crises in India and provides any essential aid.[10]

Need for Domestic laws in India

Considering the current problems and the other problems that may arise in the future, India urgently needs a distinct law for refugees. India will continue to hold refugees until a law is passed, depending on their home country and political factors. NHRC has provided numerous reports on the necessity for India to adopt a law based on refugees, but none of them have received a response. A law is necessary to ensure that all refugees are treated fairly and that the appropriate arrangements are made for them during the crisis. Provisions for internally displaced individuals should be included in the statute as well. This new law must replace all existing measures that worsen the plight of refugees and will streamline the application process. Ending discrimination against refugees in India and assisting them in every manner for their development will also help. [11]

It was concluded during an online open discussion that a national law incorporating all the best practises already in place is required to maintain uniformity and legal sanctity in protecting refugees’ and asylum seekers’ human rights across the nation. The panel came to the conclusion that while India has a strong history of handling foreign refugees and asylum seekers, it must continue to prioritise national security and assist those who are seeking to take advantage of government social programmes. In his remarks to the audience, NHRC chair Justice Arun Kumar noted that all people, including refugees and asylum seekers, have rights under Articles 14, 20, and 21 of the Constitution. However, as the Supreme Court also noted, their permission to remain in the country cannot be extended indefinitely without them obtaining citizenship. [12]

• Interplay of Human Rights Law, Refugee Law, Humanitarian Law

Human rights law and refugee law commonly coexist and cross paths in many contexts. Human rights law and international humanitarian law are distinct areas of the law, but they also intersect since one area of the law is concerned with defending someone from an oppressive power, and the other is concerned with the conduct of parties to armed conflict. Humanitarian law and human rights legislation work together to safeguard those who are under the control of a party to a conflict.[13]

Conflicts are dealt with under humanitarian law, whereas refugees are dealt with under refugee law. They complement each other because of that.

When it comes to the interaction between refugee law and human rights law, they both refer to the principle of non-refoulment, which forbids forcible return. Overall, none of the laws function on their own; rather, they all work in concert. A couple of the thoughts or ideas have also been taken from one another or stolen from them.[14]

CONCLUSION

Despite the fact that there are a number of conventions and laws managing migrants around the world, they nevertheless encounter problems. When a huge country like India lacks a refugee law, we could comprehend that many countries share a similar face and are in the same situation. The field of refugee law will advance considerably more if UNHCR and NHRC collaborate. There is unquestionably a need for India to establish a law pertaining to refugees as there may be many more challenges in the future for a variety of reasons. Whenever UNHCR attempts to help refugees, NGOs should actively assist them. Even though there are several conventions and regulations controlling refugees around the world, they continue to face issues. We may realise that many nations have a similar face and are in the same boat when a large nation like India lacks a refugee law. The field of refugee law will advance considerably more if UNHCR and NHRC collaborate. There is unquestionably a need for India to establish a law pertaining to refugees as there may be many more challenges in the future for a variety of reasons. Whenever UNHCR attempts to help refugees, NGOs should actively assist them.

The refugees are backed by numerous Indian judgements. India has done excellent job in regards to refugees, but much more needs to be done. While many Rohingya refugees in India are receiving assistance, India intends to repatriate them to its own country. A report on the need for a refuge law was previously filed by NHRC, but no response was given. There might be a solution if UNHCR and NHRC work together in the same way. The 1951 Refugee Convention and its 1967 Protocol are the Conventions that have enjoyed widespread support, with numerous nations signing the Convention. They take into account the majority of refugee causes and inform us of the rights and other considerations that should be made for them. India as a whole requires a refugee law to regulate refugees coming into the country.

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[1] Rights of migrants and refugees under International Humanitarian Law; Blog available at Rights of migrants and refugees under International Humanitarian Law – iPleaders

[2] Human rights of refugees and refugee laws in India and Globally; Blog available at Human Rights of Refugees and Refugee Laws in India and Globally – Legal Desire Media and Insights

[3] Human rights of refugees and refugee laws in India and Globally; Blog available at Human Rights of Refugees and Refugee Laws in India and Globally – Legal Desire Media and Insights

[4] Human rights of refugees and refugee laws in India and Globally; Blog available at Human Rights of Refugees and Refugee Laws in India and Globally – Legal Desire Media and Insights

[5] Louis De Raedt v. Union of India; 1991 AIR 1886, 1991 SCR (3) 149

[6] Digbijay Mote v. Union of India, 1993 (4) SCC 175.

[7] Majid Ahmed Abdul Majid Mohd. Jad Al-Hak v. Union of India and Others; Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97

[8] Malavika Karlekar v. Union of India and Another, Writ Petition (Criminal No) 583 of 1992, India

[9] Christina Harrison, “UNHCR and the Protection of Refugees in India”, www.unhcr.org/en

[10] Human rights of Refugees and refugee laws in India and Globally; Blog available at Human Rights of Refugees and Refugee Laws in India and Globally – Legal Desire Media and Insights

[11] V. Vijay Kumar, “The Need for a National Legislation on Refugees.” in roundtable workshop on refugees in the SAARC region: National legislation on refugees, 30 April 1999, New Delhi.

[12] Need a national law to protect human rights of refugees and asylum-seekers: NHRC; Blog available at Need a national law to protect human rights of refugees and asylum-seekers: NHRC – India Today

[13] Droege, C, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, 2007

[14] Human rights of refugees and refugee laws in India and Globally; Blog available at Human Rights of Refugees and Refugee Laws in India and Globally – Legal Desire Media and Insights