NON-REFOULEMENT IN THE INDIAN CONTEXT
Author: Chaitra Srihari, IV year of B.Com.,LL.B. from BMS College of Law, Bengaluru
“No one puts their children in a boat unless the water is safer than the land.”
- Warsan Shire
The world has witnessed over centuries, migration of people wanting to find a place away from home to escape war, persecution or environmental disasters.But over the recent years theseoccurrences have increased and is believed to increase in years to come. According to the United Nations High Commissioner for Refugees (UNHCR), there are currently over 70 million refuges all over the world who have been displaced from their homes due to various reasons. The people who have migrated from their homes seek refuge in a different country with a desire to build a peaceful life away from the chaos and life-threatening situations back home.The realm of International Law includes many treaties and conventions dealing with refugees and their protection. One of the most important principleregarding the protection of the refugees is that of the principle of ‘Non-Refoulement.’
Who Are Refugees?
The term Refugee was first defined under Article 1A (2) of the 1951 Convention and Protocol Relating to the Status of Refugees[i]which was framed after World War II, but the refugee crisis grew barring the time and geographical constraints enshrined therein. Result of this was updating to the 1967 Protocol relating to the Status of Refugees[ii] where the limitations were removed, and the meaning was made eligible to all persons.Refugees are defined as those‘people who have fled their home country where they face persecution based on their race, religion, ideology or even their political affiliation and is unable to or does not want to return fearing persecution’.
The host country has a moral obligation of not sending back the refugees seeking protection from inhumane, degrading and cruel treatment back home. This concept of not returning the refugees back is called as ‘Principle of Non-Refoulement’.
Meaning of Non-Refoulement
The concept of non-refoulement was first introduced in the 1951 Convention ofStatus of Refugees under Article 33(1)[iii] thatprovides ‘that the states contracting to the convention shall not send back the refugee who is termed as the ‘refouler’ back to the country where they are being persecuted’.
But an exception here implies that this principle when the refugee is considered to be a danger to the security of the country or has been convicted by a final judgement for a serious crime which makes him a danger to the society of the country where he is seeking protection can be deported as under Article 33(2) of the 1951 Refugee Convention.
The principle of non-refoulement is regarded as a customary international law[iv]. The protection of the refugees from the torture and the torment back home and proving them with a safe place where they could rebuild their life away from the agony is the main objectiveof this law.
Refugee Situation in India
India though not being a signatory to the 1951 or the 1967 protocol butbeing a staunch follower ofthe principle ‘Vasudhaiva Kutumbakam’ (the world is one family)has provided asylum to numerous communities seeking protection from persecution back home. During the late 1950s India had given refuge to the Tibetans who fled along with their spiritual leader, later during the 1980s Afghan-Soviet war and with the Taliban returning to power in 2021, to the Afghan refugees and in the south to the Sri Lankan refugees who fled their home country in the 1980s during the Sri Lankan civil war. In the recent years India has also seen a huge influx of Rohingya refugees escaping persecution from the Rakhine state in Myanmar. These refuges have settled in various camps across the country and majority in west-Bengal and Jammu and Kashmir region. There are estimated 40,000 refugees and the majority of them have not been registered as so.In the Indian legal framework, The Foreigners Act, 1946 mainly deals with the refugees and asylum seekers even though they have not been explicitly defined therein.
Many cases have been tried in India regarding the refugee status and protection to the asylum seekers, one of the landmark cases in this context is that ofNational Human Rights Commission vs State of Arunachal Pradesh &Anr[v]. The principle of non- refoulement was discussed in this case.A large group of people from the Chakma community were displaced from East Pakistan (now Bangladesh) due to the Kaptai Hydel Power Project in 1967 and settled in the state of Arunachal Pradesh. The refugees having residing in the state for over 30years were not allowed to apply for citizenship. These people were even forced to leave or had to face harm. The NHRC filed a petition in court requesting to stop the forceful migration of the Chakmas from Arunachal Pradesh.The Supreme Courtby the way of writ of mandamus directed[vi] the state of Arunachal Pradesh to ensure the life and personal liberty of the Chakmas residing in the state and not to be moved forcibly. They also emphasized the need to uphold the constitutional values for protection of the rights of refugees. This case helped in validating the concept of non-refoulement.
The opinion of the Indian courts on the principle of non-refoulement inter-linked with the constitutionswas highlightedagain in the case of Kataer Abbas Habib Al Qutaifi v. Union of India and ors.[vii] In this case two refugees who sought asylum in India were from Iraq. They had escaped from Iraq’s mandatory military service which the two refugees did not want to join. But the refusal of the mandatory service would result in brutal punishment, to avoid this the two persons escaped from their home country. They were detained in India under the Foreigners Act and were told they would be deported back to Iraq. The Gujrat High Court related the principle of non-refoulementwith Article 21 of the Indian constitution which deals with all the people in general in the territory of India where they would not be deprived of their life or personal liberty. The court asserted relying on the Constitution of India the protection and dignified life of the refugees should be looked into. Since, these refugees were not a treat to the security of the India and had the proof persecution, the court established the principle of non-refoulement and the two refugees were allowed to seek refuge in India.
From these cases it is evident that Article 21 of the Constitution of India is interlinked with the principle of non-refoulement. Which strives to not deprive people in India from life and personal liberty.
Recent Scenario- Rohingya Case
Of late the migration of people from war torn areas as well as from areas carrying out ethnic cleansing has increased. The Rohingya refugee crisis is one of the most talked about over the last few years. The Rohingya refugees originate primarily from the Rakhine State in Myanmar, India being one of the neighbouring country has seen a huge influx of Rohingya refugees.Many of the refugees were detained and even considered to be sent back.
In the case of Mohammad Salimullahand Anr. V. Union of India And Ors[viii]the Apex court in the order passed in April 2021[ix], opined that the refugees detainedshall not be deported unless the procedure prescribed for such deportation is followed. The court said that the National Courts could look into International Treaties and Conventions as long as they are not conflicting the Municipal Law.The court observed “the rights guaranteed under Articles 14 (equality) and 21 (due process of law) are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”
Time and again the applicability and the importance of article 14 and 21 of the Indian Constitution has been highlighted. Thefollowing of the principle of non-refoulementis of paramount importance as the life of the refugees are in danger if they are deported back.
India is not being a signatory of either the 1951 convention nor the 1967 convention and reasoned firstly, that the borders of countries in South-Asia are very pours and can cause massive influx of migrants which will lead to a strain on the infrastructure and resources where majority of the countries in this region which are developing countries and secondly, the disturbance in demographic balance,but has taken in refugees over the years and provided them protection.Since the 1967 Protocol the geopolitical scenario and the demographics of the world has changed and is still changing, due to which updating The Status of Refugee Convention isthe need of the hour. The refugee hosting capacity of countries in different regions of the world has to be looked into for better distribution and care of refugees so that only one country is not burdened with it.Finally,in the Indian context there is need to frame a national law specifically dealing with refugees so as to avoid confusion and unnecessary litigation and further misery to them. The recent changes in the geopolitical situation in close proximity to India has made the framing of laws absolutely essential.
[i]Refugees, U., n.d. Convention and Protocol Relating to the Status of Refugees. UNHCR. <https://www.unhcr.org/3b66c2aa10.html> [ii]Ohchr.org. n.d. OHCHR | Protocol relating to the Status of Refugees. <https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx> [iii]Ohchr.org. n.d. OHCHR | Convention relating to the Status of Refugees. <https://www.ohchr.org/en/professionalinterest/pages/statusofrefugees.aspx>. [iv]Unhcr.org. n.d. Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. <https://www.unhcr.org/4d9486929.pdf> [v]Chaudhary, O., 2004. Turning Back: An Assessment of Non-Refoulement under Indian Law. Economic and Political Weekly, 39, p.3261. <https://www.jstor.org/stable/4415288> [vi]ndiankanoon.org. n.d. National Human Rights Commission vs State of Arunachal Pradesh &Anr1996 AIR 1234. <https://indiankanoon.org/doc/767216/>. [vii]Indiankanoon.org. 2022. Ktaer Abbas Habib Al QutaifiAnd ... vs Union Of India (Uoi) And Ors. 1999 CriLJ 919 <https://indiankanoon.org/doc/1593094/> [viii]Indiankanoon.org. 2022. Mohammad Salimullah vs Union of India on 8 April, 2021. <https://indiankanoon.org/doc/10486034/> [ix]Main.sci.gov.in. 2022. interlocutory application no.38048 of 2021 in writ petition (civil) no.793 of 2017. <https://main.sci.gov.in/supremecourt/2017/27338/27338_2017_31_1502_27493_Judgement_08-Apr-2021.pdf>