1. NON REFOLULMENT AND ASYLUM: INDIAN PRACTICE Prof (Dr).T.S.N.Sastry Head, Dept of IPR & Dean (Academic & Planning) TNDALU CHENNAI 600 028

2. Asylum Seekers

3. Meaning and Concept of Asylum Asylum means the temporary protection extended to political offences of nationals of another country or crosses its frontier in an emergent situation to save his/her life.Asylum means the temporary protection extended to political offences of nationals of another country or crosses its frontier in an emergent situation to save his/her life. The rigor of the concept of Asylum has underwent changes in the contemporary era.The rigor of the concept of Asylum has underwent changes in the contemporary era.

4. Meaning and Concept Art14 of the UDHR :everyone has the right to seek and to enjoy in other countries asylum from persecution. This being a declaration it doesn’t confer any a legally binding norm on the statesArt14 of the UDHR :everyone has the right to seek and to enjoy in other countries asylum from persecution. This being a declaration it doesn’t confer any a legally binding norm on the states

5. The Declaration on Territorial Asylum The Declaration on the Territorial Asylum adopted by the U.N.G.A.1967 also doesn’t confer any legal obligation on the States.The Declaration on the Territorial Asylum adopted by the U.N.G.A.1967 also doesn’t confer any legal obligation on the States. It is followed as a customary norm of International Law by the States. However, since there is no Convention is there it’s non- observance is not a violation.It is followed as a customary norm of International Law by the States. However, since there is no Convention is there it’s non- observance is not a violation.

6. According to the Declaration: In extending protection of human rights to persons in distress including persons struggling again colonialism; it is the concern of the international community; a person shall not be rejected at the frontier or, if already in its territory to seek asylum, expelled or compulsorily returned to any state where may be subjected to persecution.According to the Declaration: In extending protection of human rights to persons in distress including persons struggling again colonialism; it is the concern of the international community; a person shall not be rejected at the frontier or, if already in its territory to seek asylum, expelled or compulsorily returned to any state where may be subjected to persecution.

7. Awaiting Asylum seekers

8. Asylum seekers on stoways

9. All attempts to codify the area including the 1977 conference on Territorial Asylum failed to reach an agreement so farAll attempts to codify the area including the 1977 conference on Territorial Asylum failed to reach an agreement so far At present the Right of Asylum is nothing but a competence of the State and its sovereign and Territorial jurisdiction under the customary and general principles of International LawAt present the Right of Asylum is nothing but a competence of the State and its sovereign and Territorial jurisdiction under the customary and general principles of International Law

10. NON- REFOULEMENT The term non-refoulement derives from the French refouler, which means to drive back or to repel, as of an enemy who falls to breach one’s defences.The term non-refoulement derives from the French refouler, which means to drive back or to repel, as of an enemy who falls to breach one’s defences. Refoulement is a formal process whereby a lawfully resident alien may be required to leave a state, or be forcibly ejected there from.Refoulement is a formal process whereby a lawfully resident alien may be required to leave a state, or be forcibly ejected there from.

11. Non-Refoulement and Refugee Convention According to Art 33 of the 1951 Convention non-refoulement meansAccording to Art 33 of the 1951 Convention non-refoulement means “No contracting state shall expel or return 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 groups or political opinion.”

12. UN CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRATING TREATMENT 1984 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.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. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

13. The International Convention for the Protection of All Persons from Enforced Disappearance 2005 No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. For the Purpose of determining whether:For the Purpose of determining whether:

14. there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

15. The UN Principles on the Effective Prevention and Investigation of Extra Legal Arbitrary And Summary Executions Provide in Principle 5 No one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he would become a victim of extra-legal, arbitrary or summary execution in that countryNo one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he would become a victim of extra-legal, arbitrary or summary execution in that country The above right is not an absolute rights under the convention Art.33 (2) that the benefit of it may be claimedThe above right is not an absolute rights under the convention Art.33 (2) that the benefit of it may be claimed

16. Art. 33 (2) of the convention The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

17. THE OAU Convention 1969 It grants non-refoulement without exception. No formal concession is made to overriding consideration of national security, although in cases of difficulty in continuing to grant asylum, “ appeal may be made directly to other member States through the OAU” Provisions are made for temporary residence pending resettlement, although its grant is mandatory under Art. 2 of the OAU Convention.It grants non-refoulement without exception. No formal concession is made to overriding consideration of national security, although in cases of difficulty in continuing to grant asylum, “ appeal may be made directly to other member States through the OAU” Provisions are made for temporary residence pending resettlement, although its grant is mandatory under Art. 2 of the OAU Convention.

18. Core meaning of non-refoluement States have a duty not to return refugees in any manner whatsoever to territories in which they face the possibility of persecution. However, states may deny admission in ways not obviously amounting to breach of the Principle.States have a duty not to return refugees in any manner whatsoever to territories in which they face the possibility of persecution. However, states may deny admission in ways not obviously amounting to breach of the Principle. Example: Stowaways and refugees rescued at sea may be refused entry; refugee boats may be towed back out to sea and advised to sail on; or asylum application can be sent back to a transit or a safe third countryExample: Stowaways and refugees rescued at sea may be refused entry; refugee boats may be towed back out to sea and advised to sail on; or asylum application can be sent back to a transit or a safe third country

19. The state where a stowaway on board and travel on to the next port of call; or it may call upon the flag state to assume responsibility where the next port of call is unacceptable; or it may allow temporary disembarkation pending resettlement elsewhere.The state where a stowaway on board and travel on to the next port of call; or it may call upon the flag state to assume responsibility where the next port of call is unacceptable; or it may allow temporary disembarkation pending resettlement elsewhere. In the absence of rules and regulations of seeking asylum the plight of the refugees many a times left in lurchIn the absence of rules and regulations of seeking asylum the plight of the refugees many a times left in lurch

20. INDIA AND REFUGEES India is not a party neither to the convention nor the protocol of Refugees. However, traditionally India is a country which is filled with legal and illegal refugees.India is not a party neither to the convention nor the protocol of Refugees. However, traditionally India is a country which is filled with legal and illegal refugees. Legal are entered with a passport or Indian Visa or entry permitLegal are entered with a passport or Indian Visa or entry permit India has mandated (protected by UNHCR) and non mandated refugees Direct Protection of Indian Governemnt). Majority are non- mandated.India has mandated (protected by UNHCR) and non mandated refugees Direct Protection of Indian Governemnt). Majority are non- mandated.

21. MANDATEDAND REFUGEES Refugees from Afghan, (came in three batches, First due to the Soviet Intervention in 1979, Secondin 191-92 after the fall of the Najibullah Regime and the third with the take over of Afghanistan by Taliban and Post Taliban ) Iran, Sudanese, Somalia and Iraq (Since 1960) and Myanmar from 1989 on words are mandated refugees. By 2006 there are nearly 11,562 refugees registered in India.Refugees from Afghan, (came in three batches, First due to the Soviet Intervention in 1979, Secondin 191-92 after the fall of the Najibullah Regime and the third with the take over of Afghanistan by Taliban and Post Taliban ) Iran, Sudanese, Somalia and Iraq (Since 1960) and Myanmar from 1989 on words are mandated refugees. By 2006 there are nearly 11,562 refugees registered in India.

22. Afghanistan Refugees

23. NON-MANDATED REFUGEES Refugees during partition, Tibet, Bangladesh, Chakmas Sri Lankan, Sindhi’s from Pakistan, Bhutan, and Ugandan are generally non- mandated refugees.Refugees during partition, Tibet, Bangladesh, Chakmas Sri Lankan, Sindhi’s from Pakistan, Bhutan, and Ugandan are generally non- mandated refugees. Apart from the above the Sindhi refugees from Pakistan in 1971, Bhutanese Refugees since 1991,Ugandan Refugees who arrived during the time of Idi Amin in 1972, Nepalese refugees in the recent past are all non-mandated.Apart from the above the Sindhi refugees from Pakistan in 1971, Bhutanese Refugees since 1991,Ugandan Refugees who arrived during the time of Idi Amin in 1972, Nepalese refugees in the recent past are all non-mandated.

24. Sri Lankan Refugees

25. LAWS RELATING TO REFUGEE IN INDIA There are a good number of laws of India extends protection to refugees. However the foreigners Act and the Citizenship and few of the constitutional provisions clearly deals with the issue of deportation of refugees from the Indian soil. In a number of cases the judiciary played a vital role in upholding the rights of the refugees against forcible deportation of persecution of life and liberty of them.There are a good number of laws of India extends protection to refugees. However the foreigners Act and the Citizenship and few of the constitutional provisions clearly deals with the issue of deportation of refugees from the Indian soil. In a number of cases the judiciary played a vital role in upholding the rights of the refugees against forcible deportation of persecution of life and liberty of them.

26. Judiciary and Non-Refoulement In Maiwand’s Trust of Afghan Human Freedom Fighters V State of Punjab (Cr.w.P.125,126 1986) N.d. Pancholi V state of Punjab and others (Cr.w P.243,1988) the S.C. held that the deportation of the Andaman Island and Burmese refugees since, their claim for refugee status is pending and their stay pose no danger to the country or thereat to the security of the Nation.In Maiwand’s Trust of Afghan Human Freedom Fighters V State of Punjab (Cr.w.P.125,126 1986) N.d. Pancholi V state of Punjab and others (Cr.w P.243,1988) the S.C. held that the deportation of the Andaman Island and Burmese refugees since, their claim for refugee status is pending and their stay pose no danger to the country or thereat to the security of the Nation.

27. Lui De Raeds V Union of India (1991 (3) SCC 554) answering a set of issues under Art. 21 of the Constitution, the S.C. held that though they possess the right to stay in India and enjoy fundamental rights held that the state possess every right to expel any foreigner This decision was delivered on Hans Muller of Nuremberg V. Superintendent, Presidency Jail Calcutta( AIR 1955 SC)Lui De Raeds V Union of India (1991 (3) SCC 554) answering a set of issues under Art. 21 of the Constitution, the S.C. held that though they possess the right to stay in India and enjoy fundamental rights held that the state possess every right to expel any foreigner This decision was delivered on Hans Muller of Nuremberg V. Superintendent, Presidency Jail Calcutta( AIR 1955 SC)

28. State of Arunachal Pradesh V Khudiram Chakma 1994 supp(1) SCC 615 In this case the court held that their forcible exist from the State of Arunachal Pradesh was illegal and their long stay doesn’t confirm them the right to citizenship under the citizenship act and the Immigrants (Expulsion from Assam ) Act 1950 applied to all the territories of Meghalaya, Nagaland and Arunachal Pradesh and they need to be shifted back to Arunachal Pradesh where they were entitled for resettlement as per the resettlement planIn this case the court held that their forcible exist from the State of Arunachal Pradesh was illegal and their long stay doesn’t confirm them the right to citizenship under the citizenship act and the Immigrants (Expulsion from Assam ) Act 1950 applied to all the territories of Meghalaya, Nagaland and Arunachal Pradesh and they need to be shifted back to Arunachal Pradesh where they were entitled for resettlement as per the resettlement plan

29. NHRC V State of Arunachal Pradesh (1996 SC AIR 1234) The Various chakma refugees living in Arunachal Pradesh were displaced by the Kaptai Hydel Power Project in 1964.Some became citizens of India Due to the inability of Assam many could not be resettled and other states help was sought. The All Arunachal Pradesh Students Union issued quit India threat before Sept 30. 1995. Basing on the Intervention of the NHRC the SC held that :The Various chakma refugees living in Arunachal Pradesh were displaced by the Kaptai Hydel Power Project in 1964.Some became citizens of India Due to the inability of Assam many could not be resettled and other states help was sought. The All Arunachal Pradesh Students Union issued quit India threat before Sept 30. 1995. Basing on the Intervention of the NHRC the SC held that :

30. The refusal of forwarding their applications for Citizenship was completely neglected by the Dy Collector and not discharged his duty properly. We being a country governed by Rule of Law and our constitution being the most succinct in extending protection of Human rights to Individuals the state has a duty to protect the Life and liberty of every human being be a citizen or otherwise.The refusal of forwarding their applications for Citizenship was completely neglected by the Dy Collector and not discharged his duty properly. We being a country governed by Rule of Law and our constitution being the most succinct in extending protection of Human rights to Individuals the state has a duty to protect the Life and liberty of every human being be a citizen or otherwise.

31. High Courts Decisions Mohammad Khan V State of A.P. (1978) II APWR408, it was held that a fair procedure needs to be followed before a deportation is effected. However, the Madras High Court in Ananda Bhabani V Union of India, 1991, Mad LW (Cri) 393) held that a deportation without hearing is not against the principles of Natural Justice if the circumstances so warrant the state that the security and safety concerns are primary.Mohammad Khan V State of A.P. (1978) II APWR408, it was held that a fair procedure needs to be followed before a deportation is effected. However, the Madras High Court in Ananda Bhabani V Union of India, 1991, Mad LW (Cri) 393) held that a deportation without hearing is not against the principles of Natural Justice if the circumstances so warrant the state that the security and safety concerns are primary.

32. In A.C. India and other Mohammed Siddique V. Government of India(W.P.6708 & 7916 1992) and Nedumaran V. Union of India WP 12298 and 12343 1992) the Madras High Court refused to permit the deportation of the Sri Lankan Refugees against their will.In A.C. India and other Mohammed Siddique V. Government of India(W.P.6708 & 7916 1992) and Nedumaran V. Union of India WP 12298 and 12343 1992) the Madras High Court refused to permit the deportation of the Sri Lankan Refugees against their will.

33. In Ktaer Abbas Habib Al Qutaifi V Union of India (1999 Crl.L.J 919) showed a sympathetic approach towards Iranian refugees considering their plea of danger to their life of their deportation and held Humanitarian Jurisprudence is now an international creed in time of peace and war and refused their deportation.In Ktaer Abbas Habib Al Qutaifi V Union of India (1999 Crl.L.J 919) showed a sympathetic approach towards Iranian refugees considering their plea of danger to their life of their deportation and held Humanitarian Jurisprudence is now an international creed in time of peace and war and refused their deportation.

34. Exceptions to Non-Refolument Non-Refolument is not an absolute principle. Art.3 of the 1933 Convention relating to the Status of Refugees recognised long back “National Security” and “Public Order” as justifications to expel a refugee.Non-Refolument is not an absolute principle. Art.3 of the 1933 Convention relating to the Status of Refugees recognised long back “National Security” and “Public Order” as justifications to expel a refugee. Art 33(2) 1951 Convention provides that the benefits of non-refolument may not be claimed by a refugee in respect of whom there areArt 33(2) 1951 Convention provides that the benefits of non-refolument may not be claimed by a refugee in respect of whom there are

35. Exceptions contd…. reasonable grounds for regarding her as a danger to the security of the country or who, having been convicted by a final judgement of a particular serious crime, constitutes, a danger to the community of that country. reasonable grounds for regarding her as a danger to the security of the country or who, having been convicted by a final judgement of a particular serious crime, constitutes, a danger to the community of that country. The exceptions thus framed with respect to individual concerned. However, at times a state has a right to expel a group of refugees too. The exceptions thus framed with respect to individual concerned. However, at times a state has a right to expel a group of refugees too.

36. Article 32 of the Convention Apart from the above grounds, a refugee may be expelled in pursuance of a decision reached in accordance with due process of law. Even in this situation also except in compelling reasons of national security, the refugee need to be given to clear himself either before authorities designated for such purpose or judicially; andApart from the above grounds, a refugee may be expelled in pursuance of a decision reached in accordance with due process of law. Even in this situation also except in compelling reasons of national security, the refugee need to be given to clear himself either before authorities designated for such purpose or judicially; and

37. Art 32. contd…. A state may give a reasonable time to such refugee to explore the possibilities of legal admission into another country.A state may give a reasonable time to such refugee to explore the possibilities of legal admission into another country. In all such cases reasonable internal measures as they may deem fit could be taken by the state.In all such cases reasonable internal measures as they may deem fit could be taken by the state. In such cases the reasonable restrictions may not be considered as violations of human rights.In such cases the reasonable restrictions may not be considered as violations of human rights.

38. Provisions of IPC 1860 IPC provisions of Sections 418, 419, 420, 468, and 471 equally apply to citizens and non- citizens including refugees.IPC provisions of Sections 418, 419, 420, 468, and 471 equally apply to citizens and non- citizens including refugees. Refugees are commonly detained for violating the provisions of IPC; cheating by impersonating (Sec.416); cheating and dishonestly inducing delivery of property (section 420); forgery (section 463);Refugees are commonly detained for violating the provisions of IPC; cheating by impersonating (Sec.416); cheating and dishonestly inducing delivery of property (section 420); forgery (section 463);

39. IPC contd….. Making and using forged documents (464).Making and using forged documents (464). These are interrelated. A refugee may be charged will all of these offences if passport, visa, or residential permit are forged.These are interrelated. A refugee may be charged will all of these offences if passport, visa, or residential permit are forged. Refugees detained for illegal entry into India who also possess travel documents that may be forged, false or fabricated would attract the provisions of the above sections of IPC.Refugees detained for illegal entry into India who also possess travel documents that may be forged, false or fabricated would attract the provisions of the above sections of IPC.

40. CONCLUSION India without any legislation and not being a party to either the Convention and the Protocol is extending protection to refugees traditionally since independence.India without any legislation and not being a party to either the Convention and the Protocol is extending protection to refugees traditionally since independence. As the Judges and the Courts of India known for their integrity and impartiality applied the Human rights approach to the problems of refugees in the many cases of non-refoulement.As the Judges and the Courts of India known for their integrity and impartiality applied the Human rights approach to the problems of refugees in the many cases of non-refoulement.

41. Conclusion In the Regional Consultation of Refugees and Migratory in South Asia held in Dhaka in the year 1997 an expert body drafted a model law to be adopted by the State.In the Regional Consultation of Refugees and Migratory in South Asia held in Dhaka in the year 1997 an expert body drafted a model law to be adopted by the State. According to the Model Draft Law of Refugees of India Art 5 deals with the concept of Non-Refoulement.According to the Model Draft Law of Refugees of India Art 5 deals with the concept of Non-Refoulement.

42. Conclusion It also accepts the international grounds onlyIt also accepts the international grounds only It also cautions that even in case of expulsion of a refugee on the grounds specified there in, they should not be arbitrarily returned to a situation or a country where in the life and liberty are threatened for reasons of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion.It also cautions that even in case of expulsion of a refugee on the grounds specified there in, they should not be arbitrarily returned to a situation or a country where in the life and liberty are threatened for reasons of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion.

43. Conclusion The Judges have to take into consideration both the human rights perspective with a humanitarian approach and the security policy of the State while dealing with the issue of non-refoulement.The Judges have to take into consideration both the human rights perspective with a humanitarian approach and the security policy of the State while dealing with the issue of non-refoulement. Further, it is an obligation cast on the courts in adopting the principles of International Law According Art 51 ©Further, it is an obligation cast on the courts in adopting the principles of International Law According Art 51 ©

44. Conclusion Directive principles of State Policy where in the State has expressly agreed to foster the Principles of International Law and need to be followed as long as they are not in violation of municipal law and the national security of the country or in no other manner affects the rights of the citizens.Directive principles of State Policy where in the State has expressly agreed to foster the Principles of International Law and need to be followed as long as they are not in violation of municipal law and the national security of the country or in no other manner affects the rights of the citizens.