Following World War I, its consequences and the irreconcilable damages affecting the entire world, the word “Refugee” was for the first time used in the year 1921. The first modern definition was used under the League of Nations from the Commission for refugees. But the proper definition for the term was given by “The International convention dealing with the issue of refugees is the 1951 Convention on Status of Refugees and the 1967 Protocol attached to it”. According to the article 1(A)(2) of the 1951 Convention, “the term ‘refugee’ shall apply to any person who […] as a result of events occurring before 1 January 1951 and owing to a 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, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it“
India though not being a signatory party to the 1951 Convention or the 1967 Protocol, it acceded to various Human Rights treaties and conventions that contain provisions relating to the protection of refugees. As a result, India is under a legal obligation to protect the human rights of refugees by taking appropriate legislative and administrative measures under Article 51(c) and Article 253 and also under the same laws it is under the obligation to uphold the principle of non-refoulment. India being a member of the Executive Committee of the office of United Nations High Commissioner for Refugees, it puts a moral, if not a legal obligation, on it to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee Convention.
An individual refugee is protected essentially under the Constitution of India since there has been no domestic legislation passed on the subject of refugees. Under the context of the Indian Constitution, refugees are considered under the ambit of the term ‘alien’. The word alien appears in the Constitution of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil Procedure Code, and in Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes.
The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to non-citizens, including refugees, as they are to citizens.
India has had an age-old tradition of according humanitarian protection to refugees and asylum seekers. It has followed a very liberal refugee policy for the same. The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and incorporate it into domestic law or enact uniform legislation specifically for refugees so that it is not left to the discretion of the executive and the judiciary to decide their fate.
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