CHAPTER- 2

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF

NON-CITIZEN-NATIONAL SCENARIO

Chapter-2

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF

NON-ciTIZEN - NATIONAL SCENARIO

An Overview

In the foregoing chapter I have tried to discuss conceptual and legal

development of human rights of the non-citizen in global perspective. There

in I have tried to survey the basic international instruments relating to the

protection of human rights of non citizen. The situation of the rights regime

for the non-citizen in developed and so called developing countries has rapidly

been surveyed. It is further highlighted that there are certain basic

differences in conceptual perspective about the rights protection regime for

the non-citizen including refugee and asylum-seekers between the developed

countries of West like USA, Canada, european countries, and in east like

Asian and Mrican countries. Moreover most importantly, no specific regional

human rights or refugee related instruments has yet been produced by

Asian countries to serve the purposes of protection of human rights of the

non-citizen in tune of the specific requirement of the Asian countries but an

effort has been taken by a group of legal experts and NGOs to construct a

frame work of the Asian Human Rights Charter under the aeigies of Asian

Human Rights Commission. The governments of the sovereign states in Asia

has yet to take an initiative to make this effort fruitful.

In this chapter an effort has been taken to discuss the conceptual and

legal position of the human rights of non-citizen in India.

As has been mentioned earlier, non-citizen means and includes refugees,

asylum-seekers, economic migrants, so called illegal immigrants, stateless

persons and foreign nationals in general. Since Independence India has

witnessed a huge migratory flows, mostly involuntary, in the form of refugees

and asylum-seekers from neighbouring countries. For example Tibetan, Tamil,

Mghan, Bangladeshi, Chakma, Chin, Burmese, Bminese refugees. Economic

migrants has also come to India for their economic upliftment sometime

legally and some time illegally like Bangladeshis illegal immigrants. A lot of

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON-CITIZEN -NATIONAL SCENARIO

stateless persons are also present in India who are not recognised as refugees

or asylum-seeker or even as foreign nationals. The best example of these

categories of people are Bangladeshis or erstwhile East Pakistani origin.

The last category that is the foreigners in General come into India mainly

as tourists or as students.

In the tune of the great traditional values for human rights in India,

these non-citizen people get legal protection in India from the Indian

Constitution in the form of fundamental rights.

In fact, the Charter of the United Nations (1945) and the Universal

Declaration of Human Rights ( 1948) influenced the founding fathers of our

Constitution. Mahatma Gandhi and Jawaharlal Nehru and many other

legendary leaders like Dr. Ambedkar had a vision of a free nation where the

' · hu.mblest had fundament.al freedom's - social~ economic and political - like

the highest and the wealthiest, and like the citizen also for the non-citizen,

to some extent. These rights lie spread out, as of today in Part III of our

Constitution where in one can read almost every thing in the Universal

Declaration and the two Covenants that is ICCPR and ICESCR. Indeed what

has been known as the Bangalore principles, declared by a resolution dated

26th February 1998 of the Judges of the Commonwealth countries, affirms

the importance of the importing, by interpretation, the values enwombed in

the UN instruments on Human Rights into domestic laws, as far as possible. 1

The 'Bangalore principles' further lays down that :-

· « 1. Fundamental humim rights and freedom are inherent in all

human kind and find expression in Constitutions and legal systems

throughout the world and in the international human rights

instruments.

2. These international human rights instruments provide

important guidance in cases concerning fundamental human rights

and freedoms.

3. There is an impressive body of jurisprudence, both

international and national, concerning the interpretation of particular

human rights and freedoms and their application. The body of

1. V.R. Krishna lyar. op. cit. at p. 268.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON-CITIZEN -NATIONAL SCENARIO

jurisprudence is of practical relevance and value to Judges and

lawyers generally.

4. In most countries wlwse legal systems are based upon the

common law, international convention are not directly enforceable in

national Courts unless their provisions have been incorporated by

legislation into domestic law. However, there is a growing tendency

for national courts to have regards to these intemtional norms for the

purpose of deciding cases where the domestic law- whether

constitutional, statute or common law- is uncertain or incomplete.

5. This tendency is entirely welcome because it respects the

universality of fundamental human rights and freedoms and the vital

role of an independent judiciary in reconciling the competing claims

of im!ividuals and groups of persons with the general interests of

the community.

6. While it is desirable for the norms contained in the

j.nteniaiional hUman 'rights in.Struments · to be still more widely

recognized and applied by national courts, this process must take

fully into account local laws, traditions, circumstances and need.

7. It is with the proper nature of the judicial process and well

established judicial functions for national courts to have regard to

international obligations which a country undertakes whether or not

they have been incorporated into domestic law- for the purpose of

removing ambiguity or uncertainty form national constitutions ,

legislation or common law.

8. However, where national law is clear and inconsistent with

the international obligations of the State concerned, in common law

countries the national court in obliged to give effect to national law.

In such cases the court slwuld draw such, inconsistency to the

attention of the appropriate autlwrities since the supremacy of

national law in no way mitigates a breach of an international legal

obligation which is undertaken by a country.

9. It is essential to redress a situation where, by reason of

traditional legal training which has tended to ignore the international

dimension, judges and practising lawyers are often unaware of the

remarkable and comprehensive developments of statements of

international human rights norms. For the practical implementation

of these views it is desirable to make provision for appropriate courses

in universities and colleges, and for lawyers and law enforcement

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON-CITIZEN - NATIONAL SCENARIO

officials; provision in libraries of relevant materials; promotion of

expert advisory bodies knowledgeable about developments in this

field; better dissemination of information to judges, lawyers and law

enforcement officials; and meetings for exchanges of relevant

information and experience.

1 0. These views are expressed in recognition of the fact that

Judges and lawyers have a special contribution to make in the

administration of justi1:e in fostering universal respect for [undamental

human rights and freedoms . .,

These principle have been reaffirmed in the Harare Declaration ( 1989)

and in the Banjul Affrrmation (1990) as well as the Ahuja confirmation (1991).

All of them insist that international instruments emanating from the UN

strengthening human rights must be telescoped into national legal systems

to the maximum extent language permits. 2

Moreover the universal Declaration (1948), Passed unanimously by the

General Assembly, casts an obligation on member states to bring the corpus

juris of the country into line with the norms laid down in that paradigmatic

masterpiece.3 India has ratified both the consequential covenants 4 and is

duty bound to take steps as aforesaid.

During the cold war period there was a tremendous ideological conflict

between the two super power with regard to the concept of protection of

Human Rights. In one side when USA was loud only about the political

covenant as its main agenda, USSR on the other side emphasized the

economic content of the other covenant. India, as it stepped out of colonial

clutches, struck a new path; and Nehru true to the Bandung spirit, wanted

punchasheel or five principles of international relations to generate global

comararaderie. The sovereignty of the people was strengthen by India playing

a leading role in the Non-Aligned Movement (NAM). People's human rights

needed freedom from super power pressure and NAM made sense as a

response to cold war politics.

However , till today, India has ratified the 1965 International Convention

2. Ibid. at p. 273. 3. Ibid. at p. 268. 4. ICCPR and ICESCR

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN .-_:._}NATIONAL SCENARIO

on the Elimination of All Forms of Racial Discrimination ( an 3rd December

1968), the 1948 Convention on the Prevention and Punishment of the Crime

of Genocide ( on 27 the August 1959), the 1952 Convention on the Political

Right of Women ( on 1st November 1961) and the 1979 Convention on the

Elimination of All Forms of Discrimination Against Women ( on 9 the July

1993) the 1973 International Convention on the Suppression and Punishment

of the Crime of Apartheid (on 22nd September 1977) and the 1990 Convention

on the Rights of the Child (11th December 1992), apart from her accedation

to the 1966 ICCPR and ICESCR. She has also signed in the 1984 Convention

Against Torture and other cruel, Inhuman or Degrading Treatment or

Punishment (on 14th October 1997).

But India has not signed and ratified the 1951 Refugee Convention or

196 7 protocol there under. The result is that India is not bound to follow the

Refugee convention or protocol and due to this the recognition of any individual

or group of people as refugee, is the role sole discretion of the government of

India. India's refugee policy is in fact based upon the administrative function

and management with regard to the treatment of refugees and furthermore

stands upon the bilateral relations and negotiation between India and that

particular country of origin of that particular individual or groups;.

Therefore, when in one hand the protection of human rights of the

refugees and other non-citizens are entrusted mainly upon part III of our

constitution, on the other hand they are generally treated as Foreigner or

'alien' for whom mainly The Foreigners Act 1946, The Passports Act 1967,

and the Registration of Foreigners Act has become applicable.

Under the Foreigner's Act 1946, the deportation or allegedly forced push

back is also recognized for the people who are declared illegal immigrants.

A. Genesis of Human Rights in India

India has a great traditional value for human rights as an inalieanable

natural rights since ancient historical time period. This may be evident if

we examine the following message of chairman ICHLR in the following words:

"The Indian perception is infonned by a profound regard for

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -· • NATIONAL SCENARIO

personhood and a deep commitment to prevent suffering. Ancient

India's cultural vision has recognized this veneration for the

individual. The Manusmriti deals elaborately with Dharma even

amidst the clash of arms. The deeper springs of humanitarian law

distinguished the people of India by the very fact that Dharma Yudha

or the humanitarian regulation of warfare, is in the very blood of

Indian history. Cosmic compassison and ecological empathy flow

from the abundant reservoir of Buddha's teachings whose mission

was the search or an end to human sorrow or Dukha. <Emperor

Ashoka' renounced was as he beheld slaughter in the battle field. In

the Mahabharata and Ramayana, the great epics of India, we find

inviolable rules of ethics and kindness to be observed even by

warnings rulers in battle fields. One may conclude that the Indian

Constitution in enacting fundamental duties in Article 51 A of the

Constitution has cast on every citizen the duty to promote harmony

among all the peoples of India, to have compassion for living creatures

and to develop humanism and abjure violence. Thus humanitarian

legality and concern for refugee status are writ large in the Indian

ethos. Its noble tone and temper is in keeping with the Delhi

Declaration on signed by Rajiv Ganghi and Gorbachev (1989 )

expressing the finest spirit of India's composite cultural heritae as it

advocates a Non-violent world order and war free global humanity."

So from this message it is evident that the Indian History is warranted

by the fact that human rights jurisprudence has always occupied a place of

prime importance in India's rich legacy of historical tradition and culture.

The truth is that what the West has discovered about human rights now,

India has embedded the same in its deep rooted traditions sine time

immemorial. 5

Moreover the philosophy of human rights in the modern sense has taken

shape in India during the course of British Rule.6

The Indian National

Congress, which was in the vanguard of freedom struggle, took the lead in

this matter. National struggle for freedom was truly at attempt of Indians to

secure basic human rights for all the people with the result that the

promulgation of the constitution by the people of India.7

5. Dr. Furqan Ahmed, 'Human Rights and Developing Nations : Provisions, Problems and Perspectives', in Prof. Z.A. Nizami and Dr. Devika Paul (ed), Human Rights in The Third World Countries, (1994), p. 31.

6. Dr. S. Subramanian, Human Rights: International Challenge, Voll (1997) pp. 3 and 56. 7. Subhas C. Kashyap, Human Rights and Parliament (1972), p. 20.

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CONCEPTUAL AND LEGAL POSITION OF TtiE RIGHTS OF NON - CITIZEN - : NATIONAL SCENARIO

(a) Position of Human Rights in Ancient India

Ancient Indian philosopher and thinkers expounded a theory of higher

moral law over and above positive law embodying certain values of universal

validity like Dharma ( righteousness), Artha (wealth), Kama (desires) and

Moksha (Saevation) with a view to establish a harmonious social order by

striking a balance between inner and outer, spiritual and meterial aspects

of life.

The basis of ancient human rights jurisprudence was Dharma - the

ideal of ancient Indian legal theory was the establishment of socio- legal

order free from traces of conflicts, exploitations and miseries. Indeed such a

law of Dharma was a model for the universal legal order.

To be true, the root of the concern for human rights in Vedi cage may

be traced in religion, humanitarian traditions and the unceasing struggle

for freedom of equality. 8

The philosophers of vedi cage endeavoured to define

human rights as those rights which were inherent in our nature and without

which we could not live as human being. The Vedas proclaim the liberty of

body (Tan) , dwwelling house( Skridhi) and life (Jibase ).9

In 1367 B.C,.

Bahmani and Vidyanagar kings are stated to have entered into an agreement

for the humane treatment of prisoners of wars and the sparing of lives of the

enemy's unarmed subjects. It is also apparent that protection of the rights

and the individual was the main purpose for which the state existed. Vedic

philosophy always enlightens that human rights enveloped within its fold

the 'constant perpetual desire of giving to every man what is due to him" .10

Rig Veda further provided an adequate frame work for the regulation of the

behaviour of the ordinary person and even of the King. 11

Referring to the

social responsibility of the kind , Manu states:

" ... It was his duty to uphold the law, and he was as much

subject to law as any other person. It was obligatory upon him to

enforce not only the sacred law of the texts bit also the custom.ery

8. P.L. Mehta and Neena Verma, Human Rights Under the Indian Constitution - The Philosophy and Judicial Gerrymandering, 1st edn (Deep & Deep Publications, New Delhi, 1999) p. 11

9. Ibid at p. 12. 10. Dr. Paramjit Singh Jaswal and Dr. Nistha Jaswal. Human Rights and the Law (1995) pp. 3- 4. 11. Yogesh K. Tyagi, 'Third World Response to Human Rights', IJIL Vol. 21. No. 1, Jan -Mar 1981, p. 120.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN _. NATIONAL SCENARIO

laws (rights and claims) of the subjects. This was possibly the human

rights enforcement system in its embryonic stage."

Moreover Panini interprets Dharma as an act of religious merit, custom

and usage. Mahabharata describes it as being ordained for the advancement

and growth of all creatures for restricting creatures form injuring one another

and to uphold all creatures. Thus ·in India, the Dharma of the Vedic period

provided for the protection of the rights of man.

Rig Veda further contended that the King who receives food grains and

goods form his subjects were bound to ensure the wellbeing (yogaksema) of

his subjects. Infact Yogaksema implies the idea of welfare, wellbeing including

the idea of prosperity, happiness and so on. That is why Kautilyas' Arthashastra

asserts : " In the happiness of the subjects lies the happiness of the King,

· and what is beneficial to the. subjects is his own benefit." Kautilya further

categorically ordained that "the King shall provide the orphan, the aged, the

infirm, the afflicted and helpless with maintenance, he shall also provide

subsistence to the helpless expectant mothers and also to the children they

gave birth to."

There was however a downfall of human rights jurisprudence in post

vedic period. This period witnessed the rise of Buddhism and Jainism which

were certainly a reaction against the deterioration of the moral order as

against the rights of privileged class. 12

A close scrutiny of Buddhist period

reveals that people were equal in all fields of their life. Life was indeed

more. liberal and repudiated caste distinctions. 13

After· Buddha, Ashoka

protected and secured the most precious of human rights particularly right

to equality, fraternity, liberty and happiness. Torture and inhuman treatment

of Prisoners were prohibited under Ashoka's administration. 14

Mauryan and

Gupta Empire was also symbolized with the golden periods in respect of

protection of the human rights. Hieuen Ttsang says that administration in

Chandragupta period was founded on benign principles. There was no forced

labour, crimes were rare, and King personally supervised the whole

administration. 12. Supra note 8, p. 14. 13.1bid. 14. Yogesh. K. Tyagi, op. cit., pp. 121 - 122.

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CONCEPTUAL ANO LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -.. . NATIONAL SCENARIO

The last Emperor of Hindu India, Harsha Vardhana aimed his governance

towards the welfare of the governed. He provided food and drinks and stationed

physicians with medicines for the poor persons without any cost. Men of

merit and ability were patronized irrespective of their castes, colour and 15

creed.

(bl Human Rights in Medieval Period

In the Medieval period , the philosophical and ideal speculation were

replaced by new ideal of chivalry, war and other heroic traditions which led

to confusion and uncertainty. M.K Nawau is however, objective enough to

qualify his conclusion with the observation that "Islamic law at least in its

traditional interpretation, consider certain human beings as more equal 16

than others".

In the initial stage, the advent of Muslim rule led to systems and ideals

totally different from Hindu view of society and life. Muslim conquerors -

especially Mohmud Ghagnavi and others made frontal attacks on Ancient

way of life and religion.17

But Mughal rullers especially with Akbar a new

era began in mughal History of India in the field of Human Rights, with his

policy of universal reconciliation and tolerance. He was earnestly concerned

with the welfare of his subjects. At one place, Akbar went to the extent of

saying that if he was guilty of an unjust act; he would rise in judgement

against himself.18

His justice loving a, tradition was followed by his son

Jehangir, too. There was a popular legend that Jehangir arranged a chain

with bells to be hung outside the palace in order to enable petitioners to

approach him for the redressal of their grievances. 19

Besides freedom of trade, freedom of religion, at least in a limited sense,

was a fascinating aspect of the M ughal period. Akbar himself respected all

faiths. He never used force to impose his Din fllahi (divine religion) on his

subjects. Infact, Jains, Parsis, Hindus and Christians all took their share in

15. Supra note 8., p. 16. 16. Supra note 14., p. 123. 17. Supra note 8., p. 17. 18.1bid. 19.1bid.

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CONCEPTUAL AND lEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - . NATIONAL SCENARIO

the decision making process of the Akbar administration. He followed the

path of Sul - i - Kul or universal toleration or peace with all.

Fairness to Islam as it operated in the Akbar era of India justifies mention

of the following provisions during the great ruler's reign, since this has a

bearing on human rights.

It 1. He repealed the discriminatory law regarding citizenship and

created one common citizenship as also one unanimous system

of justice for all.

2. He prohibited the making of war Prisoners as slaves (1562 A. D)

3. He abolished Hindu Pilgrim's tax as also Jizya which made

invidious discrimination against Hindus.(1564 A.D.)

4. He permitted HindLELus and Christians to build temples and

churches, respectively.

5. He permitted Hindus who had been forcibly converted into Islam

to revert to the religion of their forefathers (1580 A. D)

6. He permitted the buying back from servitude of children who

were sold to become slaves by their parents.

7. He repealed the law which provided for imposition of death clause

for criticizing the religion of Islam or the Conduct of Prophet

Mohmmad.

8. He prohibited sati unless the concerned Hindu widow wanted to

do so voluntarily and without pressure by any one. 20

The trend initiated by Akbar came to be reversed by Aurangazeb though

the Marathas and the Sikhs opposed and fought the fanatism of a Anrangazeb

and his successors.21

The sheer indifference to Human Rights ultimately

gave rise to Bhakti Movement in India. It revived and regenerated the old

Indian value of truth, righteousness, justice and morality.

(c). Conceptual and Legal Development of Human Rights during British

Period

The modem version of human rights jurisprudence may be said to have

taken birth in India at the time of British rule. When the British ruled

20. cf. M. Rama Jois. Legal and Constitutional History of India. Vol. II p. 8. 21. Supra note 8., p. 17.

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CONCEPTUAL AND LEGAL POSITION' OF THE RIGHTS OF NON - CITIZEN - NATIONAL SCENARIO

India, resistance to foreign rule was mainfested in the form of demand for

fundamental freedoms and civil and political rights for the people. There

. was no fundamental law guaranteeing the subject's rights and liberties and

they were humiliated and discrimination against in many ways, in their

own country.22

Moreover, under the British rule, human rights and democracy

were suspect, and socialism was anathema for the process of administrative

and judicial justice.

The British looked down upon Indian values, myths mores and lores as

a lump of loath some and demeaning thought.23

Indians were discriminated

in matters of their political and civil liberties and rights by these British

rulers. The legislature, executive and judiciary were oriented to protect and

promote the interests of the British nationals. Therefore, Gandhiji condemned

British rule over India as 'Satanic', 'Adharmik' (unjust) and coercively violent.

So he expounded the theory of peaceful resistance (Satyagraha) to fight

British laws, for they deprived Indians a meaningful life, liberty and national

independence.

Due to the demand of the Indians through the national movements and

formation of various organizations, the Charter Act of 1813 was enacted

with a view to promote the interest and happiness of the native inhabitants

in India. Similarly, the Charter Act of 1833 was passed to allow the Indians

to enjoy some political rights. This Act made some definite and liberal steps

towards the fulf:llment of the rights of the natural born subjects of His Majesty

as well as the natives of the British territories ..

Next to this, the proclamation of Queen Victoria in 1833 declared the

"secular nature of the State" and the principles of non-interference with

the religious belief and worship of any of the subjects. It further declared

that none would be fav~mred, molested and disquieted by reasons of his

religious faith and observances. It ordained that 'all shall ... enjoy the equal

and impartial admittance to public offices and assignment to duties of which

any subject by his education, ability and integrity was qualified to discharge.

22. Dr. S. Subramaniam ., op. cit., p. 122. 23. P.L Mehta and Neena Verma., op. cit., p. 19.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN ~- :NATIONAL SCENARIO

The Government of India Act 1915, in pursuance of the demands for

fundamental rights through the 'home rule document' prepared by Indian

National Congress (INC) in 1895, guaranteed equality of opportunity in the

public services regardless of race and religion. But only this guarantee did

not satisfy the people of the country; so a series of resolutions adopted by

the INC between 1917 and 1919 repeated the demand for civil rights and

equality of status with English.

Constitution of the Irish State in 1921 included a list of fundamental

rights. This had profound influence over the leaders of the INC, which in

1925 finalized the draft of 'Commonwealth of India Bill' embodying a

Declaration of Rights. Further Madras Congress of the INC in 1927 demanded

incorporation of a Declaration of Fundamental Rights in any future

constitutional frame work. A Committee under Motilal Nehru was appointed.

Reporting in 1928, this committee declared that the first concern of the

people of India was to secure Fundamental Rights. It is interesting to not

that the Constitution of the Republic of India enacted in 1950 , incorporated

ten of the Nineteen Rights enumerated in the Motilal Nehru Committee

Report 1928. 24

The Simon Commission, appointed by the British Government, however

totally rejected the demand voiced by Nehru Committee Report.

Again in 1931 Karachi Session of Congress (INC) adopted a detailed

programme of 'Fundamental Rights and Duties and Economic and Social

change. At the time, when Government of India Act 1935, was in the anvil it

was proposed that Fundamental Rights were to be enumerated in the

24. The rights emphasised by the Motilal Nehru Committee Report were : (i) Personal liberty, inviolability of dwelling place and property. (ii) Freedom of conscience and of profession and practice of religion subject to public order & morality. (iii) Right of free expression of opinion and to assemble peaceably and without arms and to form association and unions

subject to public order and morality. (iv) Right to free elementary education ..... maintained and aided by the state without distinction of caste and creed. (v) Equality for all citizens before the law and in civil rights. (vi) Right to every citizen to the Writ of habeas corpus. (vii) Protection in respect of punishment under ex-post facto law. (viii) Non-discrimination against any person on grounds of religion, caste or creed in the matter of public employment. (ix) Equality of rights of all citizens in the matter of access to and use of public roads, wells and other places of public

resort. (x) Freedom of combination and associationfor the maintenance and implementation of labour and economic condition. (xi) Right to keep and bear arms in accordance with regulations. (xii) Equality of rights of men and women as citizens.

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CONCEPTUAL AND LEGAL POSITION Of THE RIGHTS Of NON - CITIZEN ....... . NATIONAL SCENARIO

constitution. But the report of the Statutory Commission was not in favour

of it, one of the reasons given being that the princely states in India were

against the formulation of such rights. It is amply clear that more repressive

measures were adopted to crush the liberties of people during the Second

World War. Thus the Government of India Act 1935 was passed without any

Bill of Rights much to the disappointment of the Indian leaders. However,

subsequently in Sapru Committee 1945 stressed on the need for written

code of Fundamental Rights and Constituent Assembly, raised a forceful

demand for the inclusion of human rights in the Constitution. With the

commencement of the Constitution of Republic of India 1950 the natural

rights, that is the human rights in the form of fundamental rights have been

incorporated in part III of the Constitution. The Philosophy of human rights

and directive principles of state policy for the good governance and better

administration have been incorporated in Preamble and Part IV of the Indian

Constitution. Under Part III of the constitution interalia right to equality,

freedom of speech and expression, assembly, formation of association or

union, freedom of movement , freedom to practice any profession, right to

life and personal liberty, right to freedom of religion, cultural and educational

and rights, right against exploitation and right to constitutional remedies

are enumarated. Whereas Part IV of the Constitution includes rights to

adequate means of livelihood, right against exploitation , right to both sexes

to equal pay for equal work, right to work , right to education (Presently as

fundamental rights upto the age of 14 years), public assistance in case of

unemployment, old age sickness, right to equal justice and free legal aid,

right to living wage.

So, it may be submitted that through the promulgation of the Constitution

by the people of India marked a watershed in the human rights history of

India.The Preamble, Fundamental Rights and the Directive Principles of

State Policy together provide the basic human rights not only for the people

of India, but also for the non-citizen to some extent, because some of the

rights mentioned above are also available to the non citizen, e.g. right to

equality, right to life and liberty etc.25

25. Infra for detail discussion.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN ....; . NATIONAL SCENARIO

In a recent development, the Protection of Human Rights Act 1993

defmes Human Rights (in section 2(d)) as follows:

"lruman 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 courts

in India."

So, we may say that effort has been taken by India to define and protect

human rights more loudly in recent times, if not exhaustively.

B. Glimpses of Immigration in India

As in the foregoing part, that is the genesis of human rights in India an

effort has been made to point out the historical evolution of the concept of

human rights since ancient India. But when the theme of the entire

discussion is the conceptual and legal position of the rights of non-citizen in

Indian perspective, it may be expected to provide detail about the existance

of non-citizen in India and to point out the problem area with regard to their

rights protection along with their tendency of growth in various dimension.

The entire discussion may take place in four parts, that is -

(a). Rejected peoples, (b). Political Refugees and Asylum-seekers, (c).

Stateless Persons emanating from forced immigration to India, (d).

megal immigrants and (e). Legal immigrants.

(a). Rejected Peoples:

Governments or dominant ethnic groups may expel from their country ethnic

or religious minorities or in other ways make life for minorities so

intolerable that for their safety and well being they flee the country. In

several instances rejected peoples are dumped upon a neighbouring

country in the expectation that they will be accepted because they share

the ethnicity of groups within the receiving country. There have been

three instances of rejected peoples where people were involuntarily

migrated to India. Such as, Indo-Pakistan Refugee flows, 1947-48, Exodus

of Burmese Indians, Exodus of Sri Lankan Indians.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN _. . NATIONAL SCENARIO

(i). Indo - Pakistan Refugee Flows 194 7 - 48

It is a well known history that in 194 7 partition of India took place by

the decision of the British and consequently two sovereign nations were

formed as India and Pakistan. This resulted huge population movement in

the form of population exchange among these two independent counties

under violent conditions. Since 194 7 and till 1950s an estimated nearly

eight million Hindus and Sikhs migrated from Pakistan to India and almost

the same number {that is six to seven million) of people migrated to Pakistan.

To create Pakistan the province of the Punjab with Sikh, Muslim and the

Hindu populations were partitioned as were the multi-religious provinces of

Bengal and Assam.

The massive refugee flows, or as they might be more benignly described,

the population exchange took place in a violent environment. Violence was

particularly acute in the Punjab where armed conflicts erupted between

Sikhs I Hindus and Muslims. On each side of the border ethnic groups

massacred one another and seized property in an effort to create ethnically

more homogeneous regions. When the massacres ended- some have put

the death tool as high as half a million- and the population flows subsided,

Pakistan's punjab and Sindh provinces were almost entirely Muslim while

India's Punjab was almost entirely Hindu and Sikh.

Like Pakistan, India did not expected that the refugees to go back to

their place of origin and therefore took initiative for resettlement of these

people. Since there had been a defacto exchange of both people and immovable

property, refugees were resettled on properties left by those, who fled. But it

must be mentioned that the resettlement was not so systematic and organized

in Bengal and Assam, in comparison to Punjab. Many people were deprived

of their proper resettlement in Bengal due to the lack of initiative.

(ii). Exodus of Bunnese Indians,

A similar flow was also associated with the creation of an independent

state, took place from Burma to India. In the early part of 20th century when

Burma was a part of British India, substantial number of Indian origin people

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN -· NATIONAL SCENARIO

were settled in Burma who were engaged mainly in the government services,

businessmen, traders, money lenders and Professionals like Doctors,

Engineers and Lawyers.

After the independence of Burma in 1948, the newly formed government

took initiative to Burmanise the public service. Indian employees in

government service were told to leave, Burmese was made the official

language, and only a few Indians were granted Burmese eitizenship.

Therefore in 1948 and 1949 a majority of the Indian origin people left and

came back to India. Another exodus took place in mid 60s when the Burmese

government nationalized trade, industry, banking and commerce, thereby

depriving Indian middle men of their property and income. At this time an

estimated 1,50,000 Indian origin people, mostly of South Indian origin,

"returned" from Burma to Madras.

(iii). Exodus of Sri Lankan Indians

Since post independence of India the exodus of Sri Lankan Indians

and Sri Lankan Tamils took place, where in Sri Lankan Indians have been

migrated to India and subsequently provided the citizenship and Sri Lankan

Tamils in a chunk has come to India as Refugees.26

As in Burma, Sri Lanka had a large Indian population who were mainly

plantation workers, engaged in tea plantations in the Kandyan highlands.

The post independence Sri Lanka started the process of cleansing immigrant

population like Sri Lankan Indians out of the country. From the very beginning

of the post independence period, the majority Sinhalese leadership demanded

expulsion of there plantation workers and denied any political rights including

voting right although in 1928 British Donoughmore Commission, a

Constitutional Reform Commission appointed by the British recommended

for voting right of these workers. Therefore just after the independence, the

Sri Lankan government introduced the Ceylon Citizenship Act, 1948 and the

Indian and Pakistani Residents (Citizenship) Act of 1949. These acts along

with various agreements subsequently signed with the Indian government

in 1964 and 1974, added up to a set of policies to end all further migration

26. Infra.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - . NATIONAL SCENARIO

into Sri Lanka, to expatriate as many of the Indian estate workers as India

would accept and to remove the franchise and citizenship form the estate

workers. Practically the Sri Lankan citizenship Act disentitled the franchise

of 95% of the estate workers who, said the Sri Lankan government, had

been British not Sri Lankan citizen.

In 1954, the Nehru - Kotelewala Pact were signed which provided that

the Indian government would accept Indian Tamils who wished to become

citizens of India but the Indian government rejected the contention of the

Sri Lankan government that those who did not qualify for Sri Lankan

citizenship would automatically be given Indian Cccitizenship. This situation

created a huge number of stateless persons purees who were denied

citizenship both in Sri Lanka and India. For the purpose to resolve this

problem in 1964, a subsequent treaty, the indo Ceylon Agreement on 1964

(the Sirimavo-Shastri Pact), India agreed to take 5,25,000 Sri Lankan Indians,

while Sri Lanka in turn agreed to grant citizenship to 3,00,000 people . A

subsequent agreement between Bandarnaike and Indira Gandhi in 1974

increased India's share to 6,00,000 and Sri Lanka's to 3,75,000.

So through these agreements, a huge number of Sri Lankan Indians

has come back to Indian soil and they were mostly rehabilitated in various

parts of Tamilnadu.

It is important to note here that the people who has come to India from

Pakistan, Burma and Sri Lanka through above mentioned three incidents,

these were granted citizenship by India, therefore they do not come under

the perview of my research area as, the research area has to be confined to

study the Human Rights of the non-citizen who are existing in India under

the Indian legal system. But to make a holistic approach it is felt necessary

to mention at least the various phases and incidence of immigration into

India.

(b). Political Refugees and Asylum-Seekers

Since independence India has also received a huge member of political

refugees and asylum-seekers. Among them, the immigration of Tibetan, East

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN ~ NATIONAL SCENARIO

Pakistanis, Sri Lankan, Tamils, Chakmas from Bangladesh, Bhutanese

Nepali's, Iranians, and Mghans are important to mention here.

(i). Tibetan Refugees :-

In 1950s a huge number of Tibetans had entered into India as asylum

seekers who were granted asylum by the government of India. The background

of this mass influx was purely political and a bit controversial and moreover

posed a number of quarries in the international politics. In 1949, soon after

the victory of the Communist in main land China, Chinese army marched

into Tibet to colonise the region and make the region as an integral part of

China. For this purpose various institutions and machinery were formed to

control the Tibet. In March 1959 a rebellion began with the support of a good

number of Tibetan Buddhist which resulted a direct armed conflict and

violence among the Chinese military and a huge number of Tibetan population.

The Tibetan revolt were crushed by well armed Chinese People's Liberation

Army, sending Tibet into a state of terror.27

Approximately 85,000 Tibetans fled in the next few years establishing

make shift camps in the hot Indian lowlands.28

Fleeing people took shelter

mainly in India, Bhutan and Sikkim (that time Sikkim was an independent

state). But eighty percent of the total immigrant population, who seek asylum

in these countries, had entered into India. But during this period of late

1950s thousands of people died either in attempting to escape from Tibet or

from diseases due to the abrupt change of tJ:?.e climate. Since 1950s an

estimated 1:2 million Tibetans have been killed and many temples,

monasteries and traditional institutions were destroyed in trivet during this

conflict situation. The Tibetan capital Lasha witnessed continuous protests

made by the young Buddhist which resulted ito continuous fleeing of the

Tibetan people to the neighbouring countries.

It must be mentioned here that the permanent issue of conflict between

the Tibetan ethnic community and China is that, since the culture of Tibetan

and Han Chinese are totally different and political administration is also

27. Manik Chackrabarty. Human Rights and Refugees- Problems, Laws and Practices, (Deep and Deep Publications, New Delhi, 1998) p. 144.

28.lbid.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN ~ __ NATIONAl SCENARIO

quite different, therefore Tibet can not be treated as a part of mainland

China. But it is a matter of debate as to how different is the present culture

and tradition of Tibet when a continuous influx of Chinese population into

Tibet and good communication through rail and road has been established

and moreover compulsory mixing up of the Chinese and Tibetan population

through marriage etc are taking place, by which resulting the outnumbering

of Tibetan population by the mainland Chinese. The Chinese Communist

leader's contention has to be taken into consideration in this regard. They

say that Tibet is the integral part of China and it shall remain so. Moreover

Tibet has been considered as the trump card in the hand of India where

India takes political milage in the international politics, where in the

conserted effort might be taken by some super powers like USA.

However, as a result of Chinese take over, at the initial stage Dalai

Lama along with his 13,000 followers crossed over to India and subsequently

this number increased around 50,000. All were granted asylum by India.

Initially India considered the Tibetan problem as a temporary problem but

subsequently she felt the problem as a long term issue.

The responsibility of receiving these refugees were assigned to the

Ministry of External Affairs. The ministry arranged temporary accommodation

and other humanitarian assistance in transit camps at Missamari (Assam)

and Buxa (West Bengal). At the initial stage three month valid registration

certificates were issued after the registration of Tibetan people as refugees.

But subsequently the period were extended time to time and they were

rehabilitated mainly in three sectors, namely land based agricultural sector,

agro-industry based sector and handicraft based settlements in the states

of Jammu and Kashmir, Himachal Pradesh, U.P., Sikkim, West Bengal, Orissa,

MP, Karnataka and Arunachal Pradesh. The head quarter of the Central

Tibetan Administration (CTA) has been established in Dharamsala, Himachal

Pradesh.

(ii). Sri Lankan Tamil Refugees:-

Sri Lankan Tamil Refugees came ~o India in two phase. The first exodus

of Refugees commenced on 24th July 1983 and continued till 29th July 1987.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - ·- NATIONAL SCENARIO

During this period, 1,34,053 refugees arrived in India. Following the India­

Sri Lanka Accord of 1987, refugees began to return to Sri Lanka. Between

1987 and 1989 around 26000 camp and non-camp refugees returned to Sri

Lanka. Remaining refugees either returned to Sri Lanka personally by

chartered ship or strayed in India with their relatives or by their own means

and without any governmental help or assistance.

The second Eelam war triggered a fresh exodus of refugees.29

Mter 25

August 1989, 1,22,000 refugees came to Tamilnadu. Of these 1,16,000 were

destitutes and were accommodated in refugee camps. 30

The return of the

refugees commenced on 22 January, 1992. According to UNHCR between 20

January,1992 and 20 March, 1995, 54,188 refugees have returned to Sri 31

Lanka.

The Sri Lankan Tamil refugees in Tamilnadu could be categorized into

three categories. [ 1]. Those in the refugee camps. According to the policy

note for 1994 - 95, issued by the Tamilnadu government, 68,543 refugees

were accommodated in 122 refugee camps located in different parts of the

State [2]. refugees who have been identified as belonging to militant groups;

1,629 militant refugees are stationed in five special camps at vellore,

Pudukottai, Salem, Chengalpettu MGR and Madras.[3]. Refugees who

maintain themselves outside the Refugee camps. Mter the assassination of

Rajiv Gandhi these people were required to register themselves with the

nearest police station. By July 1991, 26,363 refugees have registered

themselves with the police. Soon afterwards, the police wanted to apprehend

those who had not registered, which resulted in the arrest of 1 ,800 refugees

under the Foreigner's Act.

It may not be out of place to mention here the root cause of the refugee

influx into India from Sri Lanka. Precisely speaking, the dispute and conflict

started in early1970s when the Sinhalese dominated government of Sri

Lanka introduced certain affirmative action programme to provide education

and employment preferences to Sinhalese population. Tamil leaders fought

29. V. Suryanarayan, "Sri Lankan Tamil Refugees in Tamilnadu", in S.D. Muni and Lok Raj Baral (ed). Refugees and Regional Security in South Asia (Konark Publishers Pvt. Ltd. New Delhi. 1996), pp. 219- 224 at p. 221.

30.1bid. 31.1bid.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - . __ NATIONAL SCENARIO

these measures, and then pressed for autonomy for the Tamil majority region

of the North Sri Lanka. In 1983 Sinhalese militants launched a programme

against Tamils in Colombo, forcing Tamils to fleek northward. The result

was the break of down of civil war in Northern Part of Sri Lanka. India took

active participation in combating the militancy and simultaneous effort to

mediate between Sri Lankan government and Tamil militants. It is alleged

that India provided shelter, arms, ammunition and other materials to Tamil

militants following certain political policy decision which resulted much more

complexity into this conflicting situation.

However we may say that India intervened in the internal conflict of Sri

Lanka which May be justified because of the reason that the burden of Sri

Lanka Tamil refugees has to be borne by India herself. This statement may

fmd relevance because in the late 1980s India provided support to the Tamil

militants while offering to serve as a mediator. As Sri Lankan troops fought

in the North, often killing civilians, the Indian Government air lifted relief

supplies to the Tamils. India continued to press for a political settlement

granting regional autonomy to the Tamils. For the purpose of political

settlement of the Tamil problem Indian Prime Minister Rajiv Gandhi signed

consecutive two agreements with the Sri Lankan government to suppress

the Tamil militants who are ironically trained and supported in all respected

by Tamil nadu government.

(iii). East Pakistani Refugee Influx in 1971

As we are all aware that since 25 March 1971 Pakistan went into military

operation upon the Bengalis of East Pakistan which resulted unprecedent

violent struggle in the soil of East Pakistan and caused mass killing and

destruction of property of the civilian people. Consequently massive exodus

of refugees were powered into India by crossing by crossing the international

border of East Pakistan.(the then)

The civil war came after years of conflict between East Pakistan and

the central government of Pakistan over the issue of regional autonomy and

military rule. The Awami League of East Pakistan won a majority of seats in

the Elections for Pakistan's National Assembly in February 1971. The League

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -. _ NATIONAL SCENARIO

called for a national federation in which the Fedural government would

be responsible only for defence and foreign affairs and with the federating

units maintaining their own militia, currencies, revenue and control over

foreign trade. Following a period of intense unsuccessful negotiation, a

military crackdown began on East Pakistan in March 25, 1971. Awami League

leaders including Sheikh Mujibur Rahman were arrested and just after that

the people of East Pakistan Bengalis proclaimed independent Bangladesh

on April 10, 1971 and a government of exile was established in Kolkate,

India. Subsequently fighting broke out between the Pakistan Army and 'Mukti

Bahini' who were subsequently aided and assisted by the Indian military

force.

According. to one· account the mass killings of April 1971 rose to more

than 3,00,000 people leading to a flow of refugees of 60,000 a day. The

following table May highlight the monthly flow of East Pakistani refugees in

India.

Table 2.1

Monthly Account of the Refugee - Flow to India. (April to August 1971)

Month Refugee Flow Total

April 6,55,874 6,55,874

May 30,32,476 36,88,350

June 25,87,648 62,75,998

July 8,47,351 71,23,349

August 8,91,825 80,15,174

Source: Bangladesh Documents, volume I (New Delhi: Ministry of External Affairs, 1971 ),p.446.

From the above table 2.1 it may clearly be evident that in May 1971 the

influx of refugees were highest. No official account is found regarding the

monthly flow of refugees from September to November 1971 but if we accept

the statistics of the international agencies , the total flow of refugees figuring

about 10 (ten) million among which State of West Bengal received the highest

that is 7.5 million refugees, Tripura 1.4 million, Maghalaya 0.7 million and

Assam 0.3 million.32

On an average in one point of time about 1700 Refugees

32.1bid.

207

33 entered every hour.

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN .....: .•.. NATIONAL SCENARIO

As in the later phase of the military campaign, the Hindus- aside from

(mainly Muslim) nationalist politicians, intellectuals and students - became

the major target of arrests, torture and death.34

While the intention of the

Pakistan military was to communalise the crisis, it created serious problems

for India as the percentage of Hindu refugees increased manifold to that of

the Muslim refugees. 35

In August 1971, for example, the communal

composition of the refugees figured 69.71 Lakhs Hindus and 5.41 Lakhs

M 1. 36

us 1ms.

All kinds of humanitarian assistance were given by India to these

refugees despite of her economic constraints. Around Rs 323 crores had

been spent among which foreign aid was Rs 137 crores. By spending that

much of huge amount India provided tood shelter, clothing, drugs and

medicines to these badly needy people. However the elaborate discussion in

this regard may be made in the next chapter.

In this moment let me mention that when all efforts to bring about

reconciliation, restore calm and permit the return home of the refugees had

failed, India considering the continuous influx as a threat to its stability,

declared war on Pakistan on December 6, 1971. Hostilities ceased on

December 17 and were immediately followed by the proclamation of the new

independent State of Bangladesh. Soon after the creation of favourable

conditions after the independence of Bangladesh, the voluntary repatriation

was facilitated with the cooperation of the newly formed Bangladesh

government and the task was completed by March - April 1972.

The refugee issue however was far from over with the liberation of

Bangladesh. Although, most of them returned, a million or or so, mostly

Hindus, stayed back creating fresh problems in the Indian States adjacent

to Bangladesh that is in West Bengal, Tripura, Assam and Meghalaya.

33.1bid. 34. lmtiaz Ahmed, "Refugees and Security : The Experience of Bangladesh", in S.D. Muni and Lok Raj Baral (etal).

Refugees and Regional Security in South Asia (Konark Publishers Pvt. Ltd. New Delhi. 1996), pp. 121 - 151 at p. 128. 35.1bid. 36.1bid.

208

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -· --~~ NATIONAL SCENARIO

Moreover since after the independence, Bangladesh again turned into the

refugee producing country by producing huge number of Chackma refugees

from Chittagong Hill area. A huge number of illegal immigrants mainly Hindus

are reported regularly. All these aspects May be discussed in the next phase

of this chapter.

(iv). Chackma Refugees form Bangladesh

Chackmas from Chittagong Hill Tracts took refuge to India in two phases.

That is [ 1] before the independence of the Bangladesh and [2) after the

independence.

Before independence of Bangladesh some 45,000 chackmas fled across

the international border into India in 1963, pushed out by the pressure of a

modernizing East Pakistan, victims of the Kaptai Hydro Electric project that

inundated their homeland. Over the last forty years, the first large group of

officially recognized Chackma refugees have multiplied and grown. The

present estimate of these chackma Refugees is that over 85000 of them are

jostling for space and identity in Arunachal Pradesh, under increasingly

hostile and violent pressure from locals, belatedly resentful of their presence.

The Chackma refugee flew into India since the independence of

Bangladesh has certain peculiar background which may be worthy to mention

here at least briefly. Under the British rule the.Chittagong Hill Tracts (herein

after CHT)was an 'excluded area', where non-tribals were restricted from

settling in the districts and tribals were given limited self governance. In

1964 the Government of Pakistan ended this special status and allowed

Bengalis of plains to settle down in CHT area. Even after the independence

this was continued and government sponsored settlement were increased.

This developed acute insecurity and fear of loss of ethnic tribal identity in

all respect among the CHT tribals that is broadly called as Chackmas. The

leaders of the Chackmas Community demanded, inter alias, autonomy for

CHT with its own legislature, from the Bangladesh government . The

government vehemently opposed and rejected the demands of Chackmas

leaders and lunched attacks in the CHT at the same time encouraged

settlement of Bengalis, for example the rise in the Bengali population in the

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN _.. NATIONAL SCENARIO

CHT from 11.6% in 1974 to 48.5% in 1991 is remarkable so is the drop of the

Hill peopels percentage from 88.4% to 51.5%.37

Although some of the drop in

the hill peoples percentage is probably the result of the refugee flow to

Tripura (India). 38

The Chackmas formed the. Chittagong Hill Tracts Peoples Solidarity

Association (PCJSS) which called for regional autonomy under the Bangladesh

Constitution, the restitution of all lands taken by Bengali settlers of plains

since 1970 and a ban on further immigration. When Bangladesh again

rejected their demands, the Chackmas launched an armed insurgency

through 'Shanti Bahini' ( a militant organization of chackmas). To curb the

· insurgency of Chacknias in Bangladesh started counter insurgency operation

by deploying military force which started mass killings (around 3,000 were

killed) and destruction. The result is that these operations of Bangladesh

military force in the CHT area produced fresh waves of refugees into India

notably in 1779, 1981 , 1984 and 1986. In 1994, 54,000 refugees lived in

Tripura. In 1986 around 70,000 Chackmas had entered in Tripura and Mizoram

and in one time it was raised on and around 85,000 and as an average it

was nearly 25,000. While those entered in mizoram were immediately pushed

back, 56,000 of them (in 1992) remain in six evacuee camps in South Tripura.

Although a majority of these refugees are Chackmas the rest comprise

members of nine oth~r indigenous tri~es, riamely Marma, Tripuri, Bourem,

Musung, Pankhu, · Khu~i, Khijang and Chak. 39

In the subsequent years

voluntary repatriation has taken place but that was not totally successful

due to some peculiar constraints.Moreover due to the hostile environment

presently it is found that returnee refugees again coming back to India in a

good number. In the Chackma refugee camps humanitarian assistance have

been provided by the State and the Central Government but these were not

adequate. However at this moment let us shift to the discussion of another

incidence of immigration flow into Indian soil.

37. lmtiaz Ahmed. op. cit., at p. 131. 38.1bid. 39. Manik Chackrabarty.op. cit., at pp. 169 - 170.

210

(v). Bhutanese immigrants

CONCEPTUAl AND lEGAl POSITION OF THE RIGHTS OF NON -CITIZEN _,;, . NATIONAl SCENARIO

Since the ethnic conflict between the ruling Drupkas of Bhutan and

the ethnic Bhutanese of Nepali origin started in 1990, around 15,000

Bhutanese refugees of ethnic Nepali origin took shelter at Siliguri and

Jalpaiguri of West Bengal and Kokhrajhar district of Assam.40

If one is go by

categonrization of over 86,000 Bhutanese refugees of ethnic Nepali origin in

Nepal after bilateral discussions between Kathmandu and Thimpu, the

Bhutanese refugees does not fall under any category. The Government of

India does not recognize them as refugees and hence provide little assistance.

However under the 1949 Indo-Bhutan Friendship Treaty, they are allowed

to stay in India and can engage themselves in employment activities and

other facilities like education etc.

As has been mentioned in the previous chapter, Nepal and Bhutan

continue with bilateral discussion(upto date eleven round table discussion

took place)as an attempt to fmd an amicable solution of the problems but no

substantial findings has come out yet. However these people prayed for

political asylum to the Government of India but they have not yet received

any status. At the maximum they have been allowed to stay in India but at

the same time there is little hope that these Bhutanese immigrants as

asylum-seekers could return to their country of origin.

(vi). Refugees from Burma (Myanmar)

Since 1988 Burmese refugees and political asylum-seekers has entered

into Indian State of Mizoram. These Burmese immigrants mainly comprised

of pro-democratic activists of Burma and the Chin refugees, a tribal chunk

of Burma who are opposing military dictatorship and pressing for autonomy

in their chin district of Burma.

Background:-

Since 1988 the military Junta led by General Saw Maung seized the

power after killing thousands of pro-democracy demonstrators including

members of All Burma Students Democratic Front (ABSDF), the National

40. South Asia Human Rights Documentation Centre. Country Report of the Refugee situation in India, p. 4.

211

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN .._:, . : NATIONAL SCENARIO

League for Democracy (NLD) and other dissenting ethnic minorities including

Chin Tribals. The government through the State Law and Order Restoration

Council (SLORC), which in 1997 renamed itself the State Peace and

Development Council (SPDC) , perpetrated a wide range of human rights

abuses. It also carried out other forms of repression such as sending political

dissenters into forced labour, arbitrary arrests and summary execution

throughout Burma (Myanmar).

Since 1991 the General Assembly and the International Labour

Organization (ILO) showed concern about the human rights violation by the

military Junta of Myanmar. More recently , in June 1999 the ILO announced

that-

« The Bunnese authorities hnd not desisted in the least from

carrying out or from condoning practices such as forced labour,

arbitrary detention, torture and rape."

Therefore in July 1999 ILO suspended Burma from participation until it

reforms its forced labour practices.

For ameliorating this situation the Burmese government made no sincere

effort and in lieu of this started vehement repression; For example government

made an effort to break up the NLD party by forcing resignations through

arrests or intimidations and these includes the house arrest of the NLD

leader; .Noble Peace Prize Winner Daw Aun Sari Suu Kyi. However, the

deterioration of the human rights condition may also be evident from the

number of reports of the Commissions' special rapportur for Burma to the

UN general assembly.

On the other hand, following the introduction of the Burmese way to

socialism by the Burma socialist programme party, the economy of Burma

gradually declined and as a result some Chins and a few Burmahs started

to enter and earn a living in Mizoram since 1975. The brutal crackdown of

the 1988 popular uprising for democracy also instigated the exodus of Chin

Refugees from Burma. The Chins are predominantly Christians who

constituted only 3% of the total population of Burma. The presence of the

armed forces of the Chin National Front (CNF) , struggling for self

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -..;. .. ~ NATIONAL SCENARIO

determinations along the Indo-Burma Border was also a major factor behind

the suppression of the chin people by the dictatorship Burma.

The refugee flow -

At least 2,00,000 Burmese refugees and asylum-seekers were in

neighbouring countries in 1999 due to the human rights abuse and brutal

persecution perpetrated by the military Government of Burma. Among these

2 lakhs Burmese refugees and asylum seekers 1,45,000 people are living in

Thailand (mostly ethnic minorities, along with some pro democratic activists),

4,000 in India (mostly Chin) ,53,000 in Bangladesh (52,000 Rohingya and

1,000 Chin); more than 100 in Malaysia (also mostly Rohingya) and a good

number in China (mostly Kachin tribes). Apart from these, an estimated

5,00,000 to 1 million Burmese were internally displaced.

Indian context-

Due to this repressive measures, brutal torture, persecution and political

turmoil few thousands of pro democratic activists including former Prime

Minister of Burma Mr. U. Nu, his daughter Ms Than Nu and his son-in-law

Mr. Aung Tyein took shelter and asked for political asylum in India. These

people took shelter in State of Mizoram. The Government of India accepted

all the people who left Burma in fear of persecution, as refugees.

Apart from this, about 40,000 Chin refugees that fled to India mostly

flocked to the neighbouring State of Mizoram. From these many went to New

Delhi few years later and sought shelter and assistance from the UNHCR,

New Delhi and also from Government of India. The UNHCR took up the

matter of Chin refugee flow into India with the Government of India. In June

1996 UNHCR urged the chin refugees to go back to Mizoram on the assurance

of the Ministry of External Affairs that the Chins would not be pushed back.

However it may be mentioned that since July 2000 India took certain

initiative for deportation of Chin refugees where in it is alleged that forceful

means have been taken by the Government of India and State Government

of Mizoram.

213

(vii). Afghan Refugees

CONCEPTUAL ANO LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -: ... : NATIONAL SCENARIO

Inflow of Mghan refugees were started in 1979 - 80 that is just after

the Soviet invasion in Mghanistan. Although approximately 4 million civilians

fled to Iran and Pakistan during this period but few thousands of people,

mostly elite and upper middle caste people have come to India. Most of them

had valid travel documents to stay in India temporarily on their way to the

countries of Asylum in the Western World. And those who could not go to

any other country strayed back in India and sought protection from the

UNHCR, New Delhi. By January 1991 there were about 20,000 Afghan

refugees in India all of whom were accorded refugee status by the UNHCR,

New Delhi. Although the Government of India did not adopt any specific

policy towards these refugees, it allowed all Mghans to stay in India for the

purpose of getting UNHCR's protection and assistance.

However, by the end of May 1993 the Afghan refugees population

increased to some 25,000, due to a large influx of Hindu and Sikh Mghans,

the majority of whom have arrived in India since July 1992 owing to events

in Mghanistan.

(viii). Other Refugees and Asylum-Seekers in India under the protection ofUNHCR,

New Delhi

The UNHCR, New Delhi looks after around 23,000 refugees of various

nationalities like the Mghans, Iranians, Somalis, Burmese and Sudanere.

There are 22015 Mghan refugees, 228 Iranian refugees , 349 Somali refugees,

257 Burmese refugees, 109 Sudanese refugees , and 107 other refugees as

of 1995 as recognized by the UNHCR.

There have been allegations concerning the social welfare, policy of the

UNHCR in Delhi towards the refugees. New Delhi based South Asian Human

Rights Documentation Centre (SAHRDE) commented in their report "The

status of Refugees under the Protection of the UNHCR in New Delhi" that

they had received numerous allegations about the arbitrariness of the UNHCR

to cancel the refugees status and allowances.

214

(c). Stateless Persons

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN _.;. · NATIONAL SCENARIO

A good number of stateless persons are also found in India. In various

phases and waves these people had entered into India as immigrants without

any valid travel documents or visa. Not only this, another way of creation of

stateless persons are also found in some parts of Assam. These stateless

persons, as mentioned in earlier chapter are not recognized as citizen in

the host country or in the country of origin. Therefore the existence of these

people are not above the condition of existance of animal.

The existance and problems of the stateless persons in India may be

elaborated with the help of the following instances.

(i) Stateless Chackmas and Hajongs:-

At frrst, let us take the ease of the stateless chaclanas and Hajongs in

Indians State of Arunachal Pradesh. As mentioned earlier, the chackmas

had entered into India mainly in two phases. That is, before 1971, and after

the independence of Bangladesh (when four waves of Chackmas hitted in

Indian soil)

Despite the fact that most of the inhabitants of the CHT are either

Buddhist or Hindu, the region became a part of Pakistan with the partition

of India in 1947. Since this time the Chaclanas and other non Muslim tribal

groups of the CHT have faced extensive and well documented oppression at

the hands of the various Islamic Governments. In 1964, communal violence

and the construction of the Kaptai Hydro Eclectic dam, which resulted,

submerge of huge (around 30% of the total land cultivated and inhabited by

chackmas) areable land, displaced nearly 1,00,000 Chackmas. A large

number of these sought refuge in India.

Approximately 35,000 of these Chackmas were given valid migration

certificates and settled in what was then the North-East Frontier Agency

(NEFA), today the Arunachalese district of Lohit, changlang and Papumpare.

These migration certificates indicated legal entry into India and the

willingness of the Government to accept the chackmas as future citizens,

much like migration from Pakistan following partition. Nearly 1000 members

215

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN__:.. .· NATIONAL SCENARIO

of the Hajong tribe, a Hindu group from the Mymensingh district of Bangladesh,

were also settled in this areas and granted migration certificates. In the

more than thirty five years since their resettlement, the Chackmas and

Hajongs have built villages, developed the land granted to them, and

established strong ties to the region. Additionally they have become integrated

into the social fabric of the State of Arunachal Pradesh. They have voted in

State elections and paid state taxes on their land. Many of these Chackmas

and Hajongs, who new number about 65,000 persons, were born in India and

know no other home. Inspite of all these facts they are denied Indian

citizenship, hence surviving as Stateless persons in State of Arunachal

Pradesh, moreover, these Chackmas and Hajongs are facing human rights

abuses and imminent threats to the lives and property some time from the

State Government and even some time from private entities like Arunachal

Pradesh Students Union (AAPSU). To save the life and property when the

Chackmas and Hajongs seek intervention of the National Human Rights

Commission (NHRC), NHRC inquired and determined that the State

government was acting in concert with the AAPSU to issue "quit notices"

with a view to intimidating the Chackmas and Hajongs and expelling them

from the State. The matter went up to the Supreme Court and the Court

concluded that there was indeed an imminent threat to the lives and property

of the Chackmas and Hajongs. Therefore the court ordered to state

government to protect the live and propef!Y of these· Chackmas and Hajongs

and to stop the expulsion process.41

(ii). Stateless Persons in Assam

In spite of its record of communal harmony Assam experienced communal

riots in the wake of partition of India in 194 7 causing displacement of more

than hundred thousand Muslims living in lower Assam. All these displaced

people involuntarily migrated in East Pakistan in the wake of the riots.

However following the Nehru - Liaquat Ali pact of 1950 involving India and

Pakistan, which assured them safe return as well as rehabilitation, many

returned home about two years later.

41. National Human Rights Commission v. State of Arunachal Pradesh.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN-· · . NATIONAL SCENARIO

In the early sixties, particularly after the India-China war of 1962, there

were demands to detect and deport the so-called "Pakistani infiltrators"

form Assam. As a result Government of Assam introduced the "prevention of

infiltration from Pakistan" (PIP) scheme to detect and deport such infiltrators.

The deportation under the PIP scheme terrorized the virtually unorganized

and defenseless rural Muslim peasantry - particularly the Na-Assamiya

Muslims throughout the Brahmaputar Valley. Between 1961-67, the Assam

police deported 56917 'infiltrators' from Nagaon district alone. Assam's ex­

chief minister Hiteswar Saikia admitted that during the period 1961- 67,

192079 Muslims were deported from Assam to East Pakistan. Though this

community migrated from East Bengal (not East Pakistan) much before the

partition, they were Asamiyaised and they identified themselves with the

Asamiya Nationality after independence. Many of these deported persons

return back to India and staying in Assam as Stateless Persons because

subsequently they are not recognized as citizen of India or citizen of Present

Bangladesh. The identity crisis therefore persists to the Bengalis. Although

the illegal migrants (Determination by Tribunals) Act 1983 has been passed

to determine the foreigners and deportation accordinly, where in the Act,

after amendment in 1986 mentioned that those who migrated in India after

25th March 1971, shall be 'foreigner'. So these people as mentioned above

should not be treated as deportable alien rather they are supposed to get

Indian Citizenship. But it has been denied and contrarily they are facing

the threatening of deportation.

(iii). Stateless persons in Orissa, Uttar Pradesh,Uttaranchal and Maharashtra

Same kind of incidents are found even now a days in Orissa, Uttar

Pradesh and newly State like Uttaranchal.

In orissa, around 700 people are found in stateless status who are

residing in Sunabera Refugee Camp in Koraput district. These people migrated

from East Pakistan and took refuge in India before 1960. These people were

initially rehabilitated under Dankaranya Project of the Central Government

under which land for cultivation and residence were provided in the State of

Madhya Pradesh mainly and some districts like Malkangiri, Koraput,

217

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN ....:.~ .:-; NATIONAL SCENARIO

Nabarangapur districts of Orissa. Dankaranya Project were closed in 1990

and East Pakistani Bengalis were mostly rehabilitated and provided

citizenship except some people like these 700 hapless residents of Sunebera

Camp. They are denied ownership of land and even of 'Patta' of the land.

After forty years of living in India they are denied of the basic rights of

citizen from the government including government employment but

interestingly these people of Sunabere camps were provided Ration Card

and voting rights. Till today these stateless persons are designated as

"Bangladeshi". 42

Mter partition in 194 7 few lacks of Bengalis from East Pakistan were

migrated and settled in ten districts of Uttar Pradesh which are now in the

State of Uttaranchal. Mter more than fifty years of resettlement the state

government was asking citizenship pass from these people. In fact, this

citizenship pass had been issued by the state government just after the

formation of newly State of Uttaranchal. 43

In that pass or Card it was

mentioned , "This particular person is the permanent resident of this

particular area and he/she is the citizen of India." The last phase of this

citizenship card was deleted in case of East Pakistani Bengali displaced

persons. This kind of arbitrary act in the part of the state government of

Uttaranchal was rampant particularly in the four districts like Basili, Ram pur,

Pilvit and Udham Singh Nagar.44

By this way these Bengali resettlers were

transformed as stateless persons and faced certain difficulties with regard

to the citizenship.

Bengali settlers who arrived in India before Bangladesh formation and

settled in Delhi or in Mumbai (Bombay) and even the Bengalis from West

Bengal also facing the problem of statelessness or declared as illegal

immigrants and therefore departed to Bangladesh. Sometime this kind of

problem is brought by the political parties and some time we found in the

form of news reports very often. Many a occasion this kind of problem of

statelessness or illegal immigration are becoming political issues and public

debate goes on many a occasion.

42. Anamitra Sengupta, "Orisae Satso Bangali Aajoo Sikarhara", Ananda Bazar Patrika, Kolkata, 9th July' 2001. 43. Staff Reporter, "Bangali Bitaran Uttaranchale", Aajjkal, Kolkata, 25th September' 2001. 44.1bid.

218

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN .....;.. NATIONAL SCENARIO

(d). Wegal Immigrants

The term 'illegal immigration' and 'illegal immigrants' has a broad

connotation. If we strictly interpret the term, the meaning may come out as

- immigration without valid Passport and Vise and/ or any other valid travel

document which are recognized under the law of the land. At the initial

stage immigration might be illegal and subsequently when the host country

recognize the individual or a group as Refugees or asylum seekers, then it

become legal. Some time illegal immigrants are also called as 'economic

migrants' when the migration takes place illegally and recognition by the

host country comes subsequently and when the motive of illegal immigration

is clearly for the economic betterment of the individual or group of people in

thet case it may be called as economic migration.

It is important to mention that in India economic migration in most of

the cases take place through the illegal immigration at the initial stage.

This may be evident from the incidents like the incidence of 'Stranded

Bangladeshis' in recent time(in the month of February 2003). The episode

involved 213 stranded Bangladeshis Shake charmers at the Satgachi border

of Cooch Behar district of West Bengal. The stranded people say they had

crossed the border through Jangipur in Murshidabad district of West Bengal

and more around the state. According to the headmen of the group, Din

Islam they have been doing so for years because being the snake charmers

by profession they were used to wandering around like gypsies and also sell

cod fish bones and medicinal herbs and plants collected from the sub­

himalayan region of Terai and Doors every year. Taking the coznizance of

this incidence the government of India took initiative to depart or push back

these Bangladeshis who were not recognized by Bangladesh Government as

Bangladeshi nationals sat the initial stage.45

However due to political and

diplomatic pressure, Bangladesh Government reluctantly took away these

gypsis but before that these people were stranded in the Zero line. Due to

the political turmoil these people faced server physical exhausion and trauma.

The contention of the Bangladesh Riffels (BDR) was that the stranded people

45. Sudipto Chandra, "Dumping Ground?", The Stateman, (Kolkata) 14th February' 2003. NB Extra. p. 1.

219

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN ...;.._,_NATIONAL SCENARIO

were Indians and 'the BSF is trying to push minority Indians into Bangladesh

. On the otherside the BSF blamed the BDR by saying that BDR rounded

these people up from different places of their country and pushed them to

India. 46

In this connection, the BSF reiterated that an unspecified number

of Bangladeshis keep sneking inside India on a daily basis, to say nothing of

militants and criminals.47

However the term illegal immigrants are coloqnally used in Media and

our society. This term is also supplemented by the term 'infiltrators',

'migrants', 'refugees' (most of the time used wrongfully}, asylum seekers (it

is also misinterpreted) in India.

So on the basis of the above disscussion it may be submitted that the

problem of economic migration particularly from Bangladesh is very much

prevalent in modern time where in the bordering states like West Bengal ,

Assam and other North Eastern States face social problem and difficulty.

This difficulty some time transform into political issues like illegal immigration

and the role of government in general and the role of law enforcement

agencies like BSF, CRPF or State police became questionable. The issue of

human rights abuses also get due importance in the society in the wake of

deportation or forced push back. Most importantly, when both the countries

e.g. Bangladesh and India claim that these immigrants (illegal) are not the

citizen of their countries, then the issue become more complicated. At that

juncture the question of 'State lessness' can arise.

Many a occasion Indian civil society feel excited and witnessed the

huge influx of people from the otherside of the border. Some time reason

may be political, or communal violence or as a result of developmental

activities, or ethnic conflict or other kinds of social unrest.

It is true that North-East India is the worst suffer form illegal

immigration. The governmental statistics pointed out that around 1.2 crores

of people are living in this area who are virtually illegal immigrants. Most of

them are allegedly 'Bangladeshi ' immigrants who were just snaked into

46. Allegation is particularly brought by IG, BSF (North Bengal Sector), K.C. Sharma, which is emphasised in Sudipto Chandra's article 'Dumping Ground?' (The Stateman, Kolkata, 14th February' 2003. p. NB Extra 1.)

47. Supra note. 45.

220

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF '. NON - CITIZEN -. .. : NATIONAL SCENARIO

India through some human traffickers in exchange of lump sum amount.

Media frequently allege that the border security personnel are directly

involved in this process of human trafficking. As because these so called

illegal immigrants violate the Foreigners Act 1946 and rules there under

therefore they are routinely deported by Indian law enforcement agencies

including Border Security Force (BSF), media and various Political parties

very often press for strict vigil in the border. But due to the lack of geographical

demarcation and porus border the border particularly in Eastern and central

North-Western parts of India are porus. Since a long time the central

government is trying to introduce identity card for every citizen which may

be used for multipurpose. By this processes the state and central

governments are trying to solve the problem of illegal immigration.

Interestingly in the month of January 2003 the central government declared

in the News media that around 11000 Pakistani nationals are presently

illegally staying in India and they are to be deported immediately. The State

governments and central government through various ministries are trying

hard to deport these people.

But it may be submitted that before deportation human rights obligations

must have to be taken into consideration. The principle of Natural Justice

has to be followed. Mixing up of terrorists and militants with the common

immigrants and linking up of terrorism with so called illegal immigration is

nothing but the generalized version of the entire problem.

It is also a practical difficulty to make a demarcation between a citizen

and an immigrant particularly when little difference is found physically and

in language.

Moreover human trafficking and consequently involuntary migration of

women and children from Bangladesh, Nepal and Burma is a regular feature.

This May be discussed in detail in the subsequent part of this thesis

particularly dedicated for the discussion of Protection of human rights of

the non-citizen women CUid children.

221

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -• .. ~ NATIONAL SCENARIO

(e). Legal Immigrants

Apart from the refugees, asylum-seekers and so called illegal

immigrants, many people come to India as student or tourists under the

Foreigners Act and Passport Act by the issuance of student and tourist visa

respectively. But these are temporary in nature.

(f). Rate of Recognition of Immigrants as Refugees or Assylum-Seekers

by India under lntemational Refugee Law - An Analysis

Generally India recognize the immigrants as refugees and asylum­

seekers on ad-hoc or temporary basis or case to care basis. Depending upon

the bilateral relationship between the country of origin and India, government

(Central Government) decides the permission of stay of the asylum seekers.

Trend of the recognition or the rate of recognition of the refugees, asylum­

seekers and more generally of the immigrants may be understood from the

following tables (2.2, 2.3, 2.4)

Table 2.2

Refugees and others of concem to UNHCR Upto the end of 1998

1. Refugees

2. Asylum Seekers

3. Returned Refugees

4. Total others of concern

Total

185,500

10

185510

Source: UNCHR Country Profile India September 1999, p. 3

Table 2.3

Refugee Population by Legal Status in India (in %1

-f Under 1951 Refugees Convention,

Legal Status UNHCR Mandate

Others f Unknown

t Prima Facie

Type of Recognition Individually Recognized

Not Available J Unknown Source : UNHCR Country profile -India, Sept. 1999 p.3

222

1969 OAU 0.0

9.3

90.7

0.0

9.3

90.7

300000

c: 250000 0 :;:; «11

~ 200000 0

Q.

Q) 150000 Q)

01 ::1

Qj 100000 a::

50000

0

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON-CITIZEN - NATIONAL SCENARIO

Table 2.4

INDICATIVE NUMBER OF REFUGEES IN INDIA (Between 1989 to 1998)

10000

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 Year

Total·number is 9500 in the year of 1989, which is rounded up as 10000

Source: UNHCR Country Profile- India, September 1999, P- 3

From table 2.2 and 2.4 it is evident that in the end of 1998 UNHCR

recognized refugees are 1,85,500 and Asylum-Seekers are only 10. There is

a steep rise of number of refugees from 1989 to 1993 and again it gone up

and picked up to 2,74,100 in 1995. Mterwards the refugee population gone

down steadily, mainly due to the voluntary repatriation. But interestingly,

the legal status of these refugees and asylum-seekers under UNHCR

mandate is only 9.3 and more the 90% have unknown status , according to

the statement of UNHCR (Table 2.3). Moreover, only 9.3 % are individually

recognized. This shows that India never follow any strict principle with regard

to the recognition of non-citizens as refugees or asylum-seekers. Therefore

UNHCR officially states that the types of recognition of more than 90% non­

citizen are unknown to them.

C. Conceptual and Legal Development of the Human Rights of Non­

Citizen in Post Independent India

As has been mentioned in the earlier part of this chapter that India has

a tradition of nourishment and protection of human rights since ancient

historical time period. This has been developed and legal frame work has

223

CONCEPTUAL ANO LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN_; ... NATIONAL SCENARIO

independence of India, the Indian Constitution, after recognizing some

inalienable natural rights as human rights which were embodied in Universal

Declaration of Human Rights 1948 and Motilal Nehru Committee report,

enumerated in part III and part IV of it in the form of Fundamental Rights

and Directive Principles of State Policy. Fundamental Rights are enforceable

rights through article 226 (for High Courts) and Article 32 (for Supreme

Court) of the Constitution. But Directive Principles of State Policy are not

enforceable through courts. These are enumerated in the constitution for

the fixation of policy of the good governance by the State and upliftment of

the philosophy enumerated in the Preamble of our Constitution. Human

Rights which are enumerated in UDHR, ICCPR, ICESCR can be reflected in

this Part III and Part IV of the Constitution; for example Right to life, Right

to personal liberty (Article 21 of the Indian Constitution), Right to Equality

(Art 14) , Right against Self incrimination(Art 20), Right against arbitrary

arrest and detention (Article 22).

All the above rights are available to citizen as well as to non-citizen.

But some particular rights are available only to the citizen; for example

freedom of speech, expression, assembly, association, movement and practice

any profession (Article 19). These rights are not available to the non-citizen.

Interestingly in the Indian legal system, the term 'non-citizen' has not

mentioned any where. Rights which are available both to the citizen and

non citizen therein the term is used as 'Person'.48

The term 'Alien' is also

used in same statutes. But the term 'Foreigner' is used most popularly in

various statues like Foreigners Act 1946.

The early , exit and stay of the non-citizen are governed and controlled

by the Foreigners Act 1946, the Passport Act , the Citizenship Act 1955 and

the registration of Foreigners Act 1939, apart from the provisions of the

constitution. Like any other country, the entry of any non-citizen that is the

foreigners depends upon the availability of valid Passport, Visa and/ or any

other travel document. Otherwise the entry and stay of the non-citizen

shall be treated as illegal for which deportation can be made by the

48. For example- as mentioned in Articles 14 and 21 of the Indian Constitution.

224

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN -1:. ~ NATIONAL SCENARIO

shall be treated as illegal for which deportation can be made by the

government. But for the refugees and asylum-seekers kind of leave or

permission is also provided under the Foreigners Act 1946.

In the foregoing part of this chapter it is mentioned that in the wake of

partition, huge population migrated from Pakistan to India. Under the provision

of the Constitution of India, particularly under Articles 6 and 7 got citizenship.

Therefore there people are not non-citizen presently and do not come under

the purview of our discussion. But the stateless persons who are present in

India like Chackmas or Bengalis migrated from East-Pakistan, are supposed

to get the citizenship because they have fulfilled all the necessary

requirements as mentioned in Article 5 of the Constitution as well as in

Sections 5(1)(a)3(1), and 3(1)(a) of the Citizenship Act 1955 as amended in

1986. These people come under the purview of our present discussion.

Moreover the refugees and asylum-seekers like Tibetans, Sri Lankan,

Afghans, chackmas and Bengalis from Bangladesh (on or after 1971) are

also treated as non-citizen who are allowed to stay into India temporarily

under humanitarian ground. Most importantly, India always try to settle the

immigration problem on ad-hoc basis. Policy varies from case to case.

Depending upon the nature of the problem or issue and relation with the

country of origin, India decides the fate of the immigrants. The official logic

behind this, is that, due to the paucity of fund and resources and restricted

flow of funds from International agencies like UNHCR or other transactional

NGOs. India usually takes ad-hoc policy towards refugees and asylum­

seekers. Same reason is stated with regard to the non-ratification of the

1951 refugee Convention and Protocol there under. But as India ratified

ICCPR and ICESCR apart from the signature in Convention against Torture.

Hence India has to follow certain norms with regard to the protection of

human rights of the refugees and asylum-seekers. For further clarification

and better understanding with regard to the adherence for the human rights

protection for non-citizen by India, it may appropriate to highlight India's

Refugee policy, at least briefly.

225

(a). India's Refugee Polley and Laws

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NDN - CITIZEN ~ • NATIONAL SCENARIO

The judicial basis of the international obligations to protect refugees,

namely non-refoulement including non-rejection at the frontier, non-return,

non-expulsion or non-extradition and the minimum standard of treatment

are traced in international conventions and customary law. As mentioned

earlier, the only treaty regime having near universal effect pertaining to

refugees is the 1951 Refugee Convention and its 1967 Protocol on the Status

of Refugees which is the magna-carat of refugee law. It is reiterated that

since India has not yet ratified or acceded to this regime, her legal obligation

to protect refugees is traced mainly in customary international law. An

examination of this aspect raise the basic question of relation and effect of

international law with the Indian munical law.

The Constitution of India contains just a few provisions on the status of

international law in India. Leading among them is Article 51© which directs

India to foster respect for its international obligations arising under

international law for its economic and social progress. Since this principle

of Article 51(c) is laid down in Part IV of our Constitution, it is not enforceable

and India has merely to endeavour to foster respect for international law.

However when Article 51 (c) is read in the light of other Articles and Judicial

opinion and foreign policy statements, it suggests otherwise.

On the other hand still India follows English common law doctrine which

states that rule of international law in general are not accepted as part of

municipal law. This doctrine further enumerates that if, there is no conflict

between these rules and the rules of municipal law, international law is

accepted in municipal law without any incorporation. Indeed the doctrine of

common law is specific about certain international treaties affecting private

rights of individuals. To implement such treaties, the doctrine requires

modification of statu tory laws and the adoption of the enabling legislation in

the form of an Act of Parliament. By virtue of Article 372 of the Constitution

this doctrine is still applicable to India. Article 372 of the Constitution lays

down that the laws which were in force before the commencement of the

constitution, are still applicable and enforceable until altered, repealed or

226

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - , iiiATIONAL SCENARIO

amended. Moreover following the common law principle, specific incorporation

off certain treaties through the making of law by Parliament under Article

253 of the Constitution is also possible.

The Judicial opinion is that rules of international law and municipal

law should be construed harmoniously, and only when there is an inevitable

conflict between these two laws, the municipal law should prevail over

international law.

Against this backdrop one can make inference that as long as

international refugee law does not come in conflict with Indian legislations

and policies on the protection of refugees, international refugee law is a

part of the municipal law.

India never had a clear policy as to whom to grant refugee status. When

the question of adoption of a convention and establishment of an agency for

the international protection of refugees came for discussion in the Third

Committee of the UN General Assembly, in 1949, the Indian delegation

expressed its views on these issues.49

Mr. Mujeeb, a member of the delegation,

told the third committee that instead of establishing a new organization for

the protection of refugees, the International Organization for Refugees should

be maintained and then the Third Committee should address itself to the

drafting of the convention on the legal protection of refugees. Again in the

same committee another member of the Indian delegation, Mrs. Kripalani

said that the Indian Government did not want to shrink from any of its

international responsibilities, and it wished to take part in any humanitarian

work undertaken by the U.N. She further said that in spite of its difficulties,

India would have voted for the establishment of a High Commissioner's Office

if it had been convinced that there was a great need to set up an ellaborate

international organization whose sole responsibility would be to give refugees

legal protection. After the convention was adopted India did not ratify or

accede, and the reason for not doing so are never disclosed except that it

was stated in the Parliament by the former External Affairs Minister, Mr.

B.R.Bhagat that since the Government had come up with certain basic

49. Summary Records of the Third Committee meeting 259 (10th November 1949), GAOR, Sixth Session, p. 8143.

227

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN - '. NATIONAL SCENARIO

difficulties, the implications, if India ratifies these Conventions, were under

study. 50

In other words, it can be said that India's initial stand on the treaty

regime of the refugee law was declared to be a subject of review.

But for the protection of human rights of the refugees and asylum­

seekers India on principle accepted 'Bangcock Declaration 1966'. Following

this declaration India accepted the principle of non-refoulement as including

non-rejection at the frontier.

Moreover India generally deals with the question of admission of refugees

and their stay until they are officially accorded refugee status under

legislation which deal with foreigners who voluntarily leave their homes in

normal circumstances. As has been pointed out, in the case of refugee

protection, the constitution of India guarantees certain fundamental rights,

which are applicable to all non-citizens. Any violation of these rights can be

remedied through recourse to the judiciary as the Indian Supreme Court

has held that refugees or asylum-seekers can not be discriminated against

because of their non-citizen status.

India's refugees policy is further governed by certain administrative

regulations. The standard of humane treatment set by these administrative

regulations flows from the ethos that persons displaced from their homes

need both protection and economic sustenance. The administrative

experiences of the government department responsible for rehabilitation

and the laws adjudicated at the time of partition have contributed towards a

refugee policy for India.

In India refugees are registered under the Registration Act 1939 which

is applicable to all foreigners entering the country. Apart from this, as already

mentioned the Foreigners Act 1946 and the Passport Act 1967 are also

applicable. Under these laws the entry can be restricted for any foreigners

who enter India as illegal immigrants but exemption provisions as laid down

in the above laws are applicable to refugees. It may be noted that refugees

in developing countries, unlike those in the West (barring those from former

Yugoslavia) usually descend! in large numbers. Under these circumstances,

50. India, Lok Sabha Debates, Vol. XVII, 7 May 1986, Col. 32.

228

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON- CITIZEN - NATIONAL SCENARIO

refugee determination becomes an administrative task to over see the relief

and rehabilitation process rather than to supervise who stays or does not

stay.

Beside the above legislations, following laws have been framed by India

since its Independence which may be mentioned in the following tabuler

form (Table 2.5)

TABLE 2.5

Few Major and Some Minor Acts Applicable to Refugees

This table shows that apart from some major laws like the Foreigners

Act 1946, the Passport Act 1967 and the Registration of Foreigners Act 1939

and more over beside the Constitutional Provision, following laws are

applicable to refugees. Some laws are particularly for the protection of the

rights of refugees in the partition period and some other laws are present

which are still very much important with regard to the protection of the

rights of the refugees.

LAWS RELATED TO THE REHABILITATION OF REFUGEES IN

PARTITION PERIOD

SL.NO. Law

1. East Punjab Evacuees

(Administration of Property) Act

Year of

Commencement

1947

2. Patial a Refugees (Registration of Land Claims)

Ordinance, 2004

3. UP Land Acquisition

(Rehabilitation of Refugees) Act

4. East Punjab Refugees

(Registration of Land Claims) Act

5. (i). Mysore Administration of Evacuee

Property (Emergency) Act

(ii). The Second Emergency Act

229

1948

1948

1948

1949

1949

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN - NATIONAL SCENARIO

OTHER REFUGEE RELATED LEGISLATION

6

7.

8.

9.

Immigration (Expulsion from Assam) Act

Administrative of Evacuee Property Act

Evacuee Interest (Separation) Act

Influx From Pakistan (Control) Repealing Act

10. Displaced persons (Compensation and

Rehabilitation) Act

11. Displaced Persons (Claims}

Supplementary Act

12.

13.

Transfer of Evacuee Deposits Act

Citizenship Act

14. Foreigners law

(Application and Amendment) Act

15. Goa, Daman and Diu Administration

of Evacuee Property Act

16.

17.

Refugee Relief Taxes Acts

Refugee Relief Taxes (Abolition) Act

18. Illegal Migrants (Determination by

Tribunals) Act

1950

1950

1951

1952

1954

1954

1954

1955

1962

1969

1971

1973

1983

Source: V.Vijaykumar ,"Refugees and Human Rights - International

and National experiences", in Chiranjivi J. Nirmal(ed), Human Rights in

India- Historical, Social and Political Perspectives (Oxford University Press,

New Delhi 1999)pp172 -186 at pp. 184- 185.

The above table may indicate that several legislations have been made

which have direct impact upon the refugees in India. But among these

legislations, the most important piece of legislation which have direct impact

on the refugees in India, that is the Illegal migrants (Delermination by

Tribunals) Act 1983. However under these Acts, rules and regulations have

also been, issued by the administrative authorities as delegated legislation

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN- NATIONAL SCENARIO

in managing affairs relating to the refugees and asylum-seekers like Tibetans,

Sri Lankans, East Pakistanis ets.

b. Refugees and Human Rights - Protection Regime in India

It is reiterated that for the minimum standard of treatment of refugees,

India has undertaken an obligation by ratifying the ICCPR and ICESCR to

accord an equal treatment of all non-citizens with its citizens wherever

possible. India is presently a member of Executive Committee of the UNHCR

and it entails the responsibility to abide by international standards on the

treatment of refugees.

As early as 1953 the then Prime Minister of India, Jawaharlal Nehru

informed Parliament that India would abide by international standards

governing asylum by adopting similar, non-binding domestic policies.51

Since

then, the Indian Government has consistently affirmed the right of the state

to grant asylum on humanitarian ground. Based on this policy, India has

granted asylum and refugee status to Tibetans and Tamils from Sri Lanka.

The 1971 refugees from Bangladesh were officially called 'evacuees', but

were treated as refugees requiring temporary asylum. No other community

or group has been officially recognized as 'refugees'. India claims to observe

the principles of non-refoulement and thus never to return or expel any

refugees whose life and liberty were under threat in his I her country of

origin or residence.

In this regard, the statement made by Prof .. Saxena of Jawaharlal Nehru

university, New Delhi is worthy to not.· Prof. S~ena maintains that despite

the lacuna of any law particularly for Refugees, India does apply in practice

certain articles of the 1951 Refugees convention.

These includes:-

(a). Article 7 as India provides refugees the same treatment as all aliens,

(b). Article 3 as India fully applies a policy of non-discrimination,

(c). Article 3A as no penalty is imposed on illegal entry,

51. Non-binding domestic policies are laid down in Art 51 of the Constitution which is non-enforceable because of its presence in Part IV of the Indian Constitution.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN - 1 NATIONAL SCENARIO

(d). Article 4 as religious freedom is guaranteed,

(e). Article 16 as free access to the courts is provided,

(f). Article 17 and 18 as work permits have no meaning and refugees do

work, thus complying with these articles on wage earning rights,

(g). Article 21 as freedom of housing is allowed and refugees need not stay

in camps, for freedom of movement is guaranteed to all aliens, except in

certain areas where special permits are required not only for aliens but

also for all Indians, and

(h). Articles 27 and 28 as identity and travel cards are issued to refugees.

However many activists like South Asian forum for Human Rights

(SAFHR) have contested the assertion of Prof .. Saxena. They point out that

the majority of the Sri Lankan Tamil Refugees and almost all of the Chackma

Refugees were forced to live inside camps. Severe restrictions were imposed

on the freedom of movement. In addition, asylum-seekers from Burma were

arrested and jailed; and during 1995 - 97, approximately 5,000 Chin Refugees

from Burma were pushed back over the border. They also point out that

since the government does not issue 'residence permits' to all refugees they

are unable to open bank accounts, rent houses and set up a business.

Moreover some of the Indian educational institutions do not admit

refugees. As a result many young refugees are unable to pursue their

academic careers.

In this connection, it is submitted that, the plight of refugees in India

generally depends upon the extent of protection they receive either from the

Indian Government or the UNHCR. Depending upon the treatment of the

refugees and asylum-seekers by the Government and UNHCR and considering

the living conditions of these non-citizens, these people may be categorized

as three primary categories. These three categories may be stated as follows: 52

(i). Refugees who receive full protection according to standard set by the

Government of India; e.g. Sri Lankan Tamils, Jummas from CHT of

Bangladesh.

52. This kind of categorisation of Refugees and Asylum Seekers in India has been suggested by South Asian Human Rights Documentation Centre, New Delhi.

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CONCEPTUAL AND LEGAL POSITION OF TKE RIGHTS OF NON - CITIZEN _. NATIONAL SCENARIO

(ii). Refugees whose presence in Indian territory is acknowledged only by

UNHCR and are protected under the principle of non-refoulement; e.g.

Mghan, Iranian, Somali, Sudanese etc.

(iii). Refugees who have entered India and have assimilated into their

communities. Their presence is not acknowledged by either the Indian

Government or UNHCR; e.g. Chin Refugees from Burma (Myanmar)

However, if we engage ourselves in analysing the role of the higher

judiciary and National Human Rights Commission in India, we will fmd that

since independence of India, the High Courts and the Supreme Court of

India has always taken a proactive role for the protection of the basic human

rights of these non-citizen people. Moreover since its inception, the National

Human Rights Commission (NHRC) has taken a welfaristic attitude towards

these refugees and asylum-seekers, and has functioned effectively as a

watch-dog for the protection of refugees. In National Human Rights

CommissionvState of Arunachal Pradesh, 53

the NHRC has approach the

Supreme Court of India under Article 32 of the Constitution and obtained

protection for the Chackmas Refugees from Chittagong Hill Tracts (CHT)

tribal areas of Bangladesh, when their life and security was threatened by

local politicians and youth leaders in the State of Arunachal Pradesh. Relief

was granted by the Supreme Court on the basis of the rights of the aliens

under Article 14 and 21.

Then the Chief Justice of the Supreme Court, Justice A.M. Ahmadi

speaking for the court in National Human Rights Commission v. State of Arunachal

Pradesh case 54

said that the state is bound to protect the life and liberty of

every human being. He pointed out that the rights of refugees under the

Constitution of India were confirmed by Article 21, which also included the

right to non-refoulement. In the case of Khy Htoon and other v. State of KK • 55 lVlanzpur.

The Imphal bench of the Gauhati High Court ruled that refugees have

fundamental rights under Articles 10, 21, and 22 of the Indian Constitution.

53. (1996)1 sec 742. 54. Ibid. 55.

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CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - C1TIZEN -;',.,/'NATIONAL SCENARIO

In recent time Supreme Court of India moved further with regard to the

protection of human rights of non-citizens which includes the protection of

human rights of refugees, asylum-seekers and even for the so called illegal

immigrants. This is evident from the decision of the case, Cha.innan, Railway

Board and Others v. Cha.ndrima Das (Mrs) and Other, 56

where in Supreme Court

held that even those who are not citizens of this country and come here

merely as tourists or in any other capacity will be entitled to the protection

of their lives in accordance with the constitutional provisions. Court further

emphasized that:

"'They also have a right to 'life' in this county. Thus they also

have the right to live, so long as they are here with human dignity.

Just as the State is under an obligation to protect the life of every

citizen in this country, so also the State is under an obligation to

protect the life of the persons who are not citizens . .;.7

All the aforesaid cases revealed thart our apex Code took an active role

in promoting and upholding human rights of the non-citizen in the line of

citizens of India. Now we have to look into the role of the government as well

as legislative organ of our country in the next chapter.

D. A SUM UP

In this chapter I have tried to discuss the conceptual and legal position

of the rights of non-citizen in India. Through this discussion, I have intended

to high light some specific aspects, which may summarily be pointed out in

the following manner.

1. Indian history is warranted by the fact that human rights Jurisprudence

has always occupied a place of prime importance in India's rich legacy of

historical tradition and culture. The truth is that what the West has

discovered about human rights now, India has embedded the same in its

deep rooted traditions since time immemorial.

2. In Ancient India, the trace of the concept of human rights are found in

the notion of harma. Concept of Dharma had the aim to establish socio­

legal order free from traces of conflicts, exploitations and miseries.

56. AIR 2000 SC 988 57. Ibid.

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CONCEPTUAL ANO LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN - NATIONAL SCENARIO

Moreover, Vedas proclaim the liberty of body (Tan), dwelling house (Skridhi)

and life (Jibase). Rig-Veda further provided an adequate frame work for

the regulation of the behaviour of the ordinary person and even of the

King.Kautilya's Arthashastra emphasized that in the happiness of the

subjects lies the happiness of the King and what is beneficial to the

subjects is his own benefit.

But medieval period witnessed the down fall of human rights Jurisprudence

except the regime of Mughal Emperor Akbar. Akbar emphasized upon

universal reconciliation and tolerance. Beside freedom of trade and

freedom of religion, Akbar revised citizenship law through repealing of

the discriminatory provision in the Citizenship Law of and created one

common citizenship as also one unanimous system of justice for all. He

further prohibited the making of war prisoners as slaves.

3. During British period, the development of human rights jurisprudence

had taken place as per the increase of demand made by the Indian

National Congress. A limited political rights were provided to native Indians

during the last phase of British rule in India. In 1928 motilal Nehru

committee demanded certain human rights in the form of fundamental

rights from the Britishers, which were outrightly turned down by the

British Ruler. For the first time, in an organized and modem manner

Motilal Nehru Committee demanded right to liberty, property, equality,

writ of habeas corpus, equality of rights of men and women. The committee

further deman~ed freedom of conscience, profession, and practice of

religion, freedom of expression and opinion and right to free elementary

education for all.

4. The demands through Motilal Nehru Committee were subsequently got

due importance to the framers of the Constitution for Independent India

and most of the recommendation of this committee were accepted and

included in our present Constitution.

5. Before going to point out the conceptual and legal development of the

rights of the non-citizen in post independent India, it is to be mentioned

that India has witnessed some severe waves of immigration flows since

235

CONCEPTUAL AND LEGAL POSITION OF THE RIGHTS OF NON - CITIZEN -. .. NATIONAL SCENARIO

her independence. Rejected peoples like Indo-Pakistan Refugees of 1947

- 1948, due to the wake of partition, Burmese and Sri Lankan Indians

immigrants have come to India. Political Refugees and Asylum-seekers

like Tibetans, Sri Lankan Tamils, East Pakistani Refugees in 1971,

chackmas, Bhutanese, Burmese, Mghan, Iranian, Somalis have come to

India to save their life and property and to avoid political and ethnic

persecution. There are also presence of stateless persons who were

emanated from immigration to India. Till India today getting the regular

flow of illegal immigrants who enter into India without any valid document.

Apart from all these, India also receives a good number of temporary

immigrants all these, India also receives a good number of temporary

immigrants who come to India legally as tourists, students and

businessmen etc.

6. Non-citizens including refugees and asylum-seekers are generally governed

in India mainly under the Foreigners Act 1946, the Passport Act 1967

and the Registration of Foreigners Act. Entry and stay of the non-citizens

are governed under the Foreigners Act 1946 as all non-citizens are

recognized as foreigners or aliens. There is no such Refugee law present

in India particularly for the governing of refugees and asylum seekers.

Absence of any particular refugee law results different treatment of

refugees and asylum-seekers and more over recognition and treatment

of refugees and asylum-seekers depends upon the ad-hoc policy accepts

by the Indian Government on case to case basis.

7. Indian Constitution provides certain rights to non-citizens including

refugees and asylum-seekers which are at par with the ights of the

citizen of India. Such as Right to equality, Right to life and personal

liberty, Right against inhuman and degrading treatment or punishment.

8. India had not signed in 1951 refugees Convention and Protocol thereunder,

hence not bound to follow the said convention and protocol. But India

ratified or signed ICCPR, ICESCR, CRC, CEDAW, and Convention against

Torture. India tries to follow the provision of these international

conventions.

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CONCEPTUAL ANO LEGAL POSITION OF THE RIGHTS OF NON -CITIZEN - ·NATIONAL SCENARIO

9. Despite the lacuna of any law particularey for refugees, India does apply

certain provisions of the 1951 Refugee convention, like the application of

the principle of non-refoulment including non-rejection at frontier,

treatment of refugees at par with all aliens in India, policy of non­

discrimination, religious freedom, free access to court , permission for

work and freedom of housing.

10. Human rights activists like South Asian Forum for Human Rights,

Amnesty International and South Asian Human Rights Documentation

Centre allege that on paper although India follows above principles but

practically there are huge evidence of forced push back, discrimination,

restriction on work and restriction or limitation on freedom of housing

(many refugees are forced to stay only in camps).

11. Indian Judiciary and the National Human Rights Commission has taken

pro-active role to protect the human rights of non-citizen. Supreme Court

of India in National Human Rights Commission v. State of Arunachal Pradesh

held that aliens have the right to equality and right to life and personal

liberty under Articles 14 and 21 respectively and therefore entitled to

get the relief from the government. In this case the court further

recognized the right of non-refoulment of refugees. In Chandrima Das

case, Supreme Court held that even those who are not citizens of these

country and come here merely as tourists or in any other capacity will

be entitled to protection of their lives in accordance with the constitutional

prOVISIOnS.

12. 'Bangalore Principles' which were laid down by a resolution in 1998 of

the Judges of the Commonwealth Countries, affirms the importance of

the importing, by interpretation, the values eml.vomed in the UN

instruments on Human Rights into domestic laws, as far as possible.

This Bangalore principle has to be taken into consideration by the

government for the purpose of protection of the basic rights of the non­

citizen or foreigner or alien present in this country.

237