Refugees in the National Frame Work

 

Dr. Abha Sinha

Asst. Prof. of Law, T.C.L. Govt P.G. College, Janjgir-Champa (C.G.)

 

 

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 populations 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 (with 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.

 

Development of refugees law in India

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 Chakmas1 – Bangladeshi refugees. In view of grave danger posed to the life and liberty of Chakmas, the National Human Rights Commission (hereafter referred to as NHRC)had to approach the Supreme Court under Section 18 of the Protection of Human rights Act3, 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 Arnunachal Pradesh Vs. Khudiram Chakma4 and Louis de Raedt Vs. UOI5 to come to the conclusion that though Chakmas are foreigners, still they are entitled to 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 laws.


So also, no person can be deprived of his life of 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 anybody 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 India6.

 

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 citizens of this county and that “the machinery of Art. 14 cannot be invoked to obtain that fundamental right.” In the case of khudiram chakma the refugees 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 the regard.

 

A recent judgment of the Supreme Court in Chairman, Railway Board Vs Chandrimadas and Ors7 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 Calcatta High Court filed a writ petition before the High court claiming compensation against the railway department. The High Court awarded a sun of Rs. 10 lakhs as compensation on the basis that the rape was committed in Rail Yatri Niwas belonging to the Railway and was perpetrated by the railway employees. This judgment of the High Court was challenged before the Supreme Court on various grounds including on the question of locus-standi as well as the rights of compensation not being enforceable under article 226 of the Constitution. These contention repelled by the Supreme Court by referring to various judgments 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 Gautam8  where it was held that rape is a crime against the entire society; it is a crime against the basic human rights and is violation of Article 21- right to life which includes right to live with human dignity. We are, however, concerned herewith 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 Supreme Court referred to the preamble and various articles of the UDHR, provisions from CEDAW9 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 constitution10.The purpose of this part is to safeguard the basic human rights from the vicissitudes of political controversies and place them  beyond the 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 to their majority, may come to from their government at the 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 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 women 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 Kolkata High Court compensating the victim for violation of Article 21 of the Constitution. This case may be categorized as a landmark judgment 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 judgment also lies in the fact that the doors of public interest litigation11 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 right framework to solve the problems of refugees in India, where NHRC can play a very active role.

 

CONCLUSION-NEED OF THE FUTURE:

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 right 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.

 

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 realization 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 actualize 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 characterized 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 legislation, may be within the socio-economic constraints, but surely guaranteeing to them the basic human rights.

 

REFERENCE:

1.       AIR 1996 SC 1235.

2.       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.

3.       See for details, The protection of Human Rights Act 1993 with procedural Regulations (National Human Rights commission, New Delhi, 1993).

4.       (1994) Supp. 1 SCC 651.s

5.       (1991) 3 SCC 554.

6.       Note 21, Para 20, Emphasis added.

7.       2000 (2) SCC 465.

8.       The supreme court of in India in Bodhisattwa. Vs Ms. Subdhara Chakraoborty, (1996) 1 SCC 490 has held “rape” as an offence which is volatile of the Fundamental Right of a person guaranteed under article 21 of the constitution.

9.       Convention on the Elimination of all forms of Discrimination against Women, 1979.

10.     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 of (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)

11.     Cassells J “Judicial Activism and Public interest litigation in India: Attempting the impossible”, American Journal of Comparative Law, Vol.37 (1989), pp 485-519.

 

Received on 14.03.2015

Modified on 17.03.2015

Accepted on 25.03.2015

© A&V Publication all right reserved

Research J. Humanities and Social Sciences. 6(1): January-March, 2015, 57-60

DOI: 10.5958/2321-5828.2015.00009.1