Under the rubric of human rights protection within international law, the status and treatment of refugees have become prominent issues. This prominence is due to humanitarian concerns that underlie the structure of international law. Cases of a mass influx of refugees have acquired priority in the framework of human rights protection, and they have virtually monopolized the attention of the affected governments around the world. Many of the same crucial issues apply to individual refugees as well. India has had to handle refugee issues ever since the mass migration triggered by its Partition. Large numbers of Tibetans and Sri Lankans fleeing their homes have sought refuge in India, as well as smaller groups and individual refugees comprising of Afghans, Bhutanese, Iranians, Somalis, Burmese and Sudanese. The total number of refugees in India is estimated to exceed 3, 00,000. Recently, on 16th January 2020, the center signed a quadripartite agreement with the state governments of Tripura, Mizoram, and leaders of the Bru community to permanently settle around 34,000 internally displaced Bru people in Tripura.
Background of this development
In 1997, following ethnic tension, around 5,000 families comprising around 30,000 BruReang tribals were forced to flee Mizoram and seek shelter in Tripura. These people were housed in temporary camps at Kanchanpur, in North Tripura. Since 2010, the Government of India has been making sustained efforts to permanently rehabilitate these refugees. The Union government has been assisting both the State governments in taking care of the refugees. Till 2014, 1622 Bru-Reang families returned to Mizoram in different batches. On 3rd July 2018, an agreement was signed between the Union government, both the State governments and representatives of Bru-Reang refugees, as a result of which the aid given to these families was increased substantially. Subsequently, 328 families comprising of 1369 individuals returned to Mizoram under the agreement. There had been a sustained demand of most Bru-Reang families that they may be allowed to settle down in Tripura, considering their apprehensions about their security.
India is not a party to the major international instruments that establish a framework for refugee protection, such as the 1951 Convention relating to the Status of Refugees (“1951 Convention”) and the 1967 Protocol relating to the Status of Refugees (“1967 Protocol”), despite their acceptance by various states. Further, India’s position towards the United Nations Refugees (“UNHCR”) has been ambiguous. While initially refusing to allow it to operate in India, it eventually accepted its assistance on a few occasions like the government of India allowed the UNHCR to aid Tibetan refugees in 1964, appealed for aid for the refugees created in the India-Pakistan War of 1971. The aforementioned agreement by the center is a step forward towards fulfilling the obligation of international nature that the argument revolving around the refugees is of humanitarian nature and not political nature. Some commentators maintain the NHRC prevents refoulement of refugees, but the existence of the Commission does not guarantee substantive rights. Granted, the Commission has been involved in some very noble litigation that clarified the rights of refugees. Despite the NHRC’s valiant victories, the organization and its implementing legislation (Protection of Human Rights Act of 1993) do not change substantively the rights of refugees. Rather, the Commission provides a new ‘procedural mechanism’ by which human rights are implemented in India. The NHRC investigates human rights abuses, provides recommendations to government and spearheads litigation, but in no way provides new rights to citizens or non-citizens. Our country India was born alongside the modern regime of international law at the inception of the post-war era. As a result, many of the basic tenets of international law are mirrored in the Indian Constitution, leading to one of the most progressive outlooks on constitutional rights among the world’s major nations. Article 51 enshrined the dual importance of national and international law by directing the government to ‘maintain respect’ for international law. It reads as follows:
The State shall endeavor to … foster respect for international law and treaty obligations in the dealings of organized people with one another.
Today India is still not a party to the 1951 Convention Relating to the Status of Refugees (the ‘Refugee Convention’). Therefore, India is not in the type of situation that prompted the drafting of Article 51, that of being locked into certain international obligations. Instead, India has expressly avoided international obligations. As a result, the Refugee Convention and its rule of non-refoulment are not incorporated into domestic law yet but this decision of the center needs applause since it is in the furtherance of a common objective by the countries all around the world that is to uphold the value of the life of each individual in the highest regard.
Refugee Law in India and its Salient Features
At present, refugees in India are governed by the general laws relating to foreigners. These laws, however, do not guarantee refugees the treatment to which they are entitled under currently accepted norms of international refugee law. A refugee may face detention as soon as he illegally crosses the international border into India without a valid passport due to his violation of the Passport Act, 1967, the Foreigners Act, 1946, and the Foreigners Order, 1948. According to Rule 5 of the aforesaid Order, the foreigner may be detained when permission to enter is refused. Security legislation like the National Security Act, 1980 gives absolute power to the government to detain a foreigner. Section 3 of the Foreigners Act gives the government the absolute right to deport a foreigner, thereby giving it the ability to refoule, or “return” refugees, in direct contravention of customary international law. India’s case law dealing with refugees is amorphous. In Hans Muller v. Superintendent Presidency Jail, Calcutta, the Supreme Court of India gave “absolute and unfettered” discretion to the Government to expel foreigners. On the other hand, both the Supreme Court and several High Courts have on several occasions provided a liberal interpretation of the rights of refugees in specific cases dealing with specific refugees. A prime example of this is the case of Dr. Malvika Karlekar v. Union of India where the Supreme Court stopped the deportation of twenty-one, Burmese refugees, from the Andaman Islands whose applications for refugee status were pending and gave them the right to have their refugee status determined. The Madras High Court has on occasion prevented forced repatriations and upheld non-refoulment. Thus, the Indian judiciary’s stand with respect to refugees is far from uniform. However, the root of the problem is not conflicting judicial decisions but the absence of a clear statutory recognition of the rights of refugees and a distinct framework for refugees as opposed to ordinary foreigners. A standardized mechanism for the handling of refugee problems is sorely required.
The displacement of people from one place to another is not a new phenomenon. The refugee crisis which is now prevalent in all parts of the world has its own causes and explanation. The most important factor that is behind this crisis is persecution or fear of persecution that one suffers in his own homeland. UNHCR, being the main agency to tackle the refugee matters, has played a significant role in the resolution of the refugee crises in different parts of the world. But it needs greater cooperation from the nation-states. The demand of India’s accession to the 1951 Convention has gained much momentum. It may not be now delayed any longer, but till there is any legislation, such steps are applause demanding since it upholds the basic tenets upon which the whole constitution is placed.
 AIR 1955 S.C. 367.
 Crl. W.P No. 243 of 1988