By Tenzin Tsering
REFUGEE: Rights & Issue of Deportation under Indian Legal System
Introduction - During my recent visit to Dharamsala District Court to appear for Mr. Phuntsok case (a young TVC Gopalpur student arrested by police in connection with invalid RC), I had observed that the FIR has been registered by the police in a casual manner, without considering that the fact that it’s a discretion of the authority to re-new the RC even after the time lapse. Nevertheless, I was more surprised by the conduct of the Lower Court in dealing with his bail application. Ld. Judicial Magistrate Court, Dharamsala while dismissing his bail application had made very serious observation, stating that he requires to be deported. It is stated that the issue of deportation can be decided only by the authority and the Court have no business to make such observation until he is not found guilty of the offence. By making such stringent observation the Ld. Court probably missed out the fact that, the accused is presumed to be innocent until proven guilty by the Court of Law. Undoubtedly, Section 14 of the Foreign Act is complicated sections which involve continuous offence. However, there is no legislative mandate that shall appear from a reading of the Foreigners Act that a person charged with an offence under the said Act cannot apply for bail.
Definition of Refugee - The word refugee in general term means a person who has been forced to leave their country in order to escape war, persecution, or natural disaster. It is stated that a person becomes a refugee because of he/she has left with no other option but to flee from human rights violations, socio-economic and political insecurity, generalised violence, civil war or ethnic strife all these leading to fear of persecution. The term ‘Refugee’ has a particular meaning under International Law and its legal definition is laid down in the United Nations 1951 Convention relating to the Status of Refugees (herein referred as “1951 Convention”) and its 1967 Protocol. Article 1 of the 1951 Refugee Convention defines a refugee as:- "A person who 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's law to deal with `refugees' is inchoate. Under the Indian law, there is no specific definition which defined “Refugee”. The section 3(a) of the Foreigners Act, 1946 defined the word "foreigner" means a person who is not a citizen of India. Further, Section 2(b) of the Citizenship Act, 1955 defined the word “illegal migrant”, which defined as a foreigner who has entered into India- (i) without a valid passport or other travel documents and such other documents or authority as may be prescribed by or under any law in that behalf; or (ii) with a valid passport or other travel documents and such other documents or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time. Rajeev Dhavan, Senior Advocate of Supreme Court & Constitutional Expert had points out the difference between ‘refugees’ ‘asylum seekers’ and ‘migrants’ in his book Refugee Law and Policy in India. ‘Refugees’ and ‘asylum seekers’ are externally displaced persons forced out or forced to leave their countries and who cannot return because they have a well-founded fear of persecution. They are not bereft of ideas of social and economic betterment. But, they are distinct from ‘migrants’ voluntarily seeking a better life.” Currently, in India the refugees are governed by outdated Foreigners Act, 1946. The primary and most significant lacuna in this law is that it does not contain the term ‘refugee’; consequently under Indian Law, the term ‘foreigner’ is used to cover aliens temporarily or permanently residing in the country. This places refugees, along with immigrants, and tourists in this broad category, depriving them of privileges available under the Geneva Convention. The National Human Rights Commission (NHRC) has submitted numerous reports to the Government of India urging to promulgate refugee law in India or bring amendments to the outdated Foreigners Act (1946).
Registration Certificate (RC) for Tibetans:- The Registration Certificate are issued all the non-citizen including Tibetans, who are either born in India or entered into India. Registration Certificate is a documents issued by the Government of India, which permits non-citizen including Tibetans to stays in India. It has to get it renewed every five years (earlier it used to renewed every one year). The Tibetan’s Registration Certificate are issued by the Central Government by exercising power under Section 3 of the Foreigner Act, 1946 & Section 3 of the Registration of Foreigner Act, 1939, which reads as under:- “Regulating Entry of Tibetan Nationals into India- In exercise of the power conferred by Section 3 of the Foreigner Act, 1946 and Section 3 of the Registration of Foreigner Act, 1939, the Central Government is pleased to direct that any foreigner of Tibetan nationality, who enters India hereafter, shall- (a) At the time of his entry into India obtain from the Officer-in-Charge of the Police post at the Indo-Tibetan frontier, a permit in the form specified in the annexed schedule; (b) Comply with such instruction as may be prescribed in the said permit; and (c) Get himself registered as a foreigner and obtain a certificate of registration.”
Ramification for Non-Renewal of Registration of Certificate- Non-renewal of Registration Certificate before the expiry date shall invite legal action against the RC holder by police authorities. Non-renewal of Registration Certificate would amount to criminal offence and such person may be book under section 14 of the Foreigner Act. There are few cases particularly from Dharamsala (HP) where the police had arrested Tibetans for failing to re-new RC and 7-8 cases of deportation of Tibetan by Local Authorities to Tibet, for not having valid RC. Many a times Courts are either reluctant or denied bail to Tibetan arrested in contravention to Section 14 of the Foreigner Act, which is a violation of fundamental right of the person arrested. The Supreme Court of India had time and again had stated that, "Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by 'law'. The denial of bail by the Court merely on the basis of being a foreign national is a violation of fundamental right of the accused person, particularly when no such distinction has been made by the Legislature under the Law. The High Court of Delhi while dealing with the similar issue in the case of Lambert Kroger vs Enforcement Directorate reported in 85 (2000) DLT 46, while allowing the bail application of the foreign national made an observation that "Admittedly the petitioner’s passport is with the respondent and ordinarily the petitioner cannot leave the country without the passport. Though the possibility of fleeing from trial may be more in the case of foreign national. It cannot be said that an accused cannot be granted bail merely because he is a foreign national. There is no law which authorizes or permits discrimination between a foreign national and an Indian national in the matter of granting bail what is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions to ensure that the accused will be available for facing trial."
International Conventions on Non- Refoulement or Repatriation of Refugee- India believes that it has always been generous towards refugees, even without being party to the 1951 Convention. India is neither party to the 1951 Refugee Convention nor its 1967 Protocol and even it does not have a law or policy for the protection of refugee in India. However, it continues to grant asylum to a large number of refugees from neighbouring countries viz. Tibetans, Burmese, Bangladeshi, Pakistani, Afghanis etc. Though India is not a signatory to 1951 Refugee Convention nor 1967 Protocol but India is signatory to the United Nations Convention against Torture on 14.10.1997 and both the convention provides non-refoulement provisions. (a) 1951 Refugee Convention- Article 33- Prohibition of expulsion or return (Refoulement)- No Contraction State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (b) Convention Against Torture & Other Cruel, Inhuman or Defrading Treatment or Punishment (commonly known as the United Nations Convention against Torture- Article 3 of the said Convention states that- No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Thus, the perusal of the above two provisions manifest that even if the refugee in India are not protected by 1951 Refugee Convention from Refoulement/deportation, yet the Government of India cannot deport the refugee in view of the protection given by Article 3 of the United Nations Convention against Torture being signatory to the said convention. Further, the Government of India being party to the Universal Nation Declaration of Human Rights (UNDHR) is also bound to protect the human right of the refugee and protect the refugee from refoulement/deportation.
India’s obligation to 1951 Refugee Convention under Article 51(c) of the Constitution of India – Article 51(c) of the Constitution of India states that the State shall endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Although India is not a party to the 1951 Convention, it is bound by the International Customary Law principle of non-refoulement. Article 51 of the Constitution extends the principle of the rules of natural justice with regard to refugees being followed i.e. the refugees should not be expelled or forcibly returned in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of various grounds such as membership of a particular social group or a political opinion. The principle of "Non-Refoulement" is the principle which prevents all such expulsion or forcible return of refugees and should be followed by the Government of India in accordance with Article 51 of the Constitution. Further, the Indian judiciary has also time and again ruled in favour of harmonious construction of International and Domestic law when it is consistent with fundamental rights (see Visakha vs. State of Rajasthan 1997 (6) SCC 241). In Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715 the Supreme Court of India held that “it is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the Municipal Law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of law”.
Human Right of Non-Citizen in India: The "Humanitarian Jurisprudence" is now an International Creed in time of Peace and War. According to Jean Picket, an authority on Humanitarian Law, "It is based on two basic principles viz. necessity and humanity.” The word Human Right is defined under Section 2(d) of the protection of Human Right Act, 1993 as; “Human rights means the rights relating to life liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the Courts in India.” The Higher Judiciary in India has always emphasized upon the protection of non-citizen people and often directs the government agencies to follow the International obligations. In a landmark case by the Supreme Court in case of National Human Rights Commission v. State of Arunachal Pradesh reported in (1996) 1 SCC 742, which is now famously known as ‘Chakma case’, for the first time had enlarged the scope of Article 21 of the Constitution of India. In the said case, National Human Rights Commission approached the Hon’ble Supreme Court of India under Article 32 of the Constitution of India and obtained protection for the Chakma refugee from Chittagong Hill Tracts tribal areas of Bangladesh, when their life and security was threatened by the local politicians and AAPSU leaders in the State of Arunachal Pradesh. The Supreme Court granted relief on the basis of the rights of the aliens under Article 14 & 21 of the Constitution of India and held that the Indian Constitution confer certain rights on every human being, may be a citizen of this country or not, which includes right of "life". Hon’ble Chief Justice of India A. M. Ahmedi, C. J. (as he then was), speaking for the Court, said:- “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 the laws. So also, no person can be deprived of his life or 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.” The Supreme Court recently affirmed the said principle of right to life and liberty (Article 21) for non-citizen in its recent judgment while dealing with the case of an FIR filed by police against three Uganda nationals, where it observed that, “Article 21 of the Constitution [right to life and liberty] applies to all citizens, whether Indian or foreign nationals. Their right to liberty could not be restrained by the police due to a business dispute."
Role of Indian Judiciary for the protection of Refugee from Deportation, Refoulement or Repatriation: Refugees are often been danger of refoulement or repatriate or deportation by the India authorities when they are arrested or detained. Those who arrested for illegal stay may be detained illegally under administrative order without charges. The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains. The non-refoulment principle is the heart of the Refugee Convention which prevents deportation to a persecuting country. The Foreigners Act allows the Indian government to refoule foreigners, including asylum-seekers, through deportation, and is therefore in violation of International Customary Law. The Supreme Court of India in Hans Muller of Nurenburg vs Superintendent, Presidency (1955 SCR (1)1284) gave "absolute and unfettered" discretion to the Government to throw out foreigners. The said judgment was again affirmed by the Supreme Court in Mr. Louis De Raedt & Ors vs Union Of India (1991 SCR (3) 149) however, at the same time, the Supreme Court in the said judgment had recognized that "foreigners" have due process rights including the right to be heard. However, it is relevant to note that the Law follows the Fact. Merely non-renewal of RC is not sufficient ground for deportation, it has to be back by fact that the deportee is involved in activities which prejudicial the security of the Country. For instant, in the case of Mohammad Sadiq Versus Government of India, the Court held that refugee can be deported on the grounds of national security. In this case, the court allowed the deportation of refugees under the Foreigners Act, 1946 if they were found indulging in activities undesirable and prejudicial to the security of India. Similar view was taken by the High Court of Delhi in Khadija Versus Union of India, where it held that International Law and Conventions cannot be applied to refugees indulging in criminal activities, and consequently, they can be repatriated the UNHCR, New Delhi for their country settlement, the Court has given a time four weeks to the Petitioner to seek asylum in a third Country.
The well-known judgment on the issue of Refuge and application of 1951 Refugee Convention in India is Ktaer Abbas Habib Al Qutaifi vs Union Of India 1999 CriLJ 919, wherein the High Court of Gujarat highlighted the principle of non-refoulement and extensively pointed out the importance of this present general principle of International Law in the context of application in the municipal legal system like India. After referring Article 33 of the 1951 Refugee Convention, the High Court of Gujarat held that the principle of non-refoulement prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects life and liberty of a human being irrespectively of his nationality. It is encompassed in Article 21 of the Constitution, as long as the presence of refugee is not prejudicial to the law and order and security of the India. The Court further reiterated that all member nations of the United Nations including our county i.e. India is expected to respect for International treaties and conventions, concerning Humanitarian Law.
Further, the High Court of Madras in P. Nedunara v. Union of India [Writ Petition No. 6708/96], the controversy was with respect to deportation of certain Sri Lankan Refugees, wherein the High Court restrained the Government from deporting refugees to Sri Lanka against their will. Even the High Court of Gauhati in Civil Writ Petition No. 1847/89], wherein the Petitioner sought direction to allow him to go to Delhi to seek political asylum from the United Nations, High Commissioner for Refugees. He also prayed that till he gets such certificate he may not be deported to Burma, where his life would be in danger. During the pendency of the writ petition, the petitioner has registered as refugee. On the facts of the case, the Court directed to release the petitioner to enable him to make an attempt to obtain political asylum. In Zothansangpuri v. State of Manipur the Guwahati High Court held that refugees have the right not to be deported if their life was in danger in the country to which he is proposed to be deported. It is stated that the reason which the court noted in the above cases is that if deported, the refugee‘s life would be in danger and the significance of these cases is that the Court noted that the refugees have a right to be protected against deportation order under International Law and also have fundamental rights under Articles 10, 21 and 22 of 82 the Constitution of India.
CONCLUSION: Thus, in light of the discussed above, I opine that when the issue of human rights of individual is involve, the Court has to take liberal view and exercise its extra-ordinary jurisdiction in order to protect the life and liberty of the refugee. The Court while ordering deportation of refugee must act cautiously, keeping in mind the human right of the deportee. As per my knowledge, there are 7-8 cases of Tibetans being deported by the India authorities, which is not only violation of human right but also against Customary International Law. Secondly, the Article 51 of the Constitution extends the principle of the rules of natural justice with regard to refugees being followed i.e. the refugees should not be expelled or forcibly returned in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of various grounds such as membership of a particular social group or a political opinion. The principle of "Non-Refoulement" is the principle which prevents all such expulsion or forcible return of refugees and should be followed by the Government of India in accordance with Article 51 of the Constitution. Even otherwise, India may not be party to 1951 Convention but since India has accepted refugees in its State, it is deemed to be an impliedly followed 1951 Refugee Convention. Thirdly, Refugee who are denied protection by the Government of India can get refugee status from the UNHCR in a de facto system of refugee protection in India.
Submitted by author for publication on TPR