HUMAN RIGHTS OF REFUGEES

IN INDIAN LEGAL REGIME

AND ROLE OF JUDICIARY

^̂ ^̂ ^̂ ^̂ ^̂ ^̂ ^̂ =

CHAPTER - IV

"HUMAN RIGHTS OF REFUGEES IN INDIAN LEGAL REGIME AND ROLE OF JUDICIARY"

PRELUDE

Although there are international inst i tut ions for the

protection of refugees as it is submitted earlier in chapter III,

still ultimately the protection of refugees depends on

individual sovereign states which have to follows their

respective national legislation. States have the responsibility

to protect refugees by reason of their accession to

international ins t ruments , by reason of their own legislation,

by reason of their political and moral commitments, or by

reason of customary international law.i In its ninth session in

1954, the United Nations General Assembly recognized that

'the ultimate responsibility for the refugees within the mandate

of the High Commissioner fall in fact upon the countries of

residence".^

Despite the fact that currently there are 146 states

parties to the 1951 Convention or its 1967 Protocol,3 many

countries which do harbour large number of refugees, and are

vitally concerned with refugee problems are not parties to the

refugee conventions. The s tates of the Asian region lag

significantly behind those of other regions of the world. So far

in Asia only China, Iran, J apan and the Philippines (and Iran

Israel and Yemen) are s tates part ies. Whereas states in other

regions of the world have adopted binding regional

1. Prof. Rahmutullah Khan as quoted in Manik Charkraborty, Human Rights and Refugees-Problems, Law and Practices, 2001 , p. 119.

2. hi'., at 120. 3. Dr. Nairn Ahmed, "Nurturing hope and lending a hand to the refugees, 1 1, p.

6, http://wwvv.thedailvstar.net/law, visited on 27.07.2009

http://wwvv.thedailvstar.net/law

CHAPTER - IV

ins t ruments for the protection of refugees. There is no such

instrument to protect the refugees of the Asian region.'*

Historically, South Asia has witnessed substant ia l intra-

regional movement and dislocation of regional groups fleeing

ethnic or religious persecution and political instability.

India's multiethnic, multilingual and relatively stable society

has often made it a natural destination for people fleeing

persecution and instability in their own countries.^ This

phenomenon continues, today India is still a land of refuge.

India's s ta tus as a preferred refugee haven is confirmed by

the steady flow of refugees from many of its sub- continental

neighbours as also from elsewhere. India continues to receive

them despite its own over-a-billion population with at least

six hundred million living in poverty with limited access to

basic amenities.6

Refugees in India

India mostly plays host to refugees from its neighouring

countries who are either forced to leave their countries of

origin due to internal or external conflict, political

persecution or human rights infringements. Tamil refugees

from Sri Lanka, J u m m a people from Bangladesh, Tibetan

refugees from Tibet and Chin and other tribal refugees from

Burma, Afghanistan, Iran and even Sudan today comprise the

bulk of India's refugee population.^ In modern times, the

movement of the refugees and displaced persons has seriously

affected India and other South Asian countries. The statist ics

4. Patricia Hyndman, "Developing International Refugee Law in the Asian-Pacific Region: Some Issues and Prognoses", Asian Year Book of International Law, Vol. I. 1991, p. 26-27.

5. Isha Bothra, "The Law Policy and Practice of Refugee Protection in India", p. 1, ht tp: / /www.legalserviceindia.com.. visited on 21.07.2009.

6. Arjun Nair, "National Refugee Law for India: Benefits and Road Blocks", 2007 p. 1 ht tp: / /www.ipcs.org. visited on 16.07.2009.

7. Ibid.

227

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CHAPTER - IV

indicate that India has one of the largest refugee populations

in the world because of India's porous borders and

accommodative policies. It is estimated that India hosted

approximately 456,000 refugees in 2008,^ including about

96,000 Sri Lankans, about 73,300 stay in more than a

hundred camps but registered with the nearest police

stat ions. About 2,800 more entered in 2008.^ Some 110,000

Tibetans, about 80 percent of whom lived in camps or

scattered set t lements, lived more freely in the country. 1°

About 100,000 ethnic Chin from Myanmar lived under the

most restricted conditions in the eastern state of Mizoram

with a few hundred in New Delhi.n An estimated 30,000

Afghans remained although only about 9,000 held UNHCR

mandate s ta tus . Around 25,000 Bhutanese refugees also

resided in India as more left Nepal for Indian states of West

Bengal, Sikkim, and Bihar and about 25,000 Nepalis

remained in fear of Maoists now in the Government of Nepal. 12

India also hosted some 600 Somali refugees, who began

fleeing their country after collapse of the government in 1991

and an unknown number of Iraqi and Iranian refugees and

about 200 Palestinians from Iraq also resided in India. i3 Some

65,000 ethnic Chakmas from Bangladesh remained mostly in

the states of Arunachal Pradesh, Mizoram and Assam. ^̂ The

Supreme Court established their Indian nationality but the

actual naturalization process proceeded slowly.

8. World Refugee Survey-India 2008, p . l , http://\vww.\vorldrefu gees survey, org visited on 16.07.2009.

9. Ibid. 10. Ibid. 11. /(/., at 2 12. Ibid. 13. Ibid. 14. Ibid.

228

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CHAPTER - IV

Statistics for India

Item 2 0 0 8 Figures

Refugees 85 Asylum Seeke r s 4 1 1 , 0 0 0

Sri Lanka 120 ,000

Ch ina 110 ,000

Myanmar 100 ,000

Afghan i s t an 30 ,000

B h u t a n 25 ,900

Nepal 2 5 , 2 0 0

New Asylum Seeke r s 3 ,300

1951 Conven t ion No

1967 Protocol No

UNHCR Execut ive Commit tee Yes

Popu la t i on 1.2 bil l ion

GDP $ 1.2 t r i l l ion

GDP per Cap i t a $ 1,050

Source: World Refugee Survey, 2008

h t t p : / / w w w . w o r l d r e f u p e e s u r v e v . o r g / i n d e x . p h p ? t i t l e = i n d i a . v is i ted on 1 6 . 0 7 . 2 0 0 9

Legal Status of Refugees in India

In India there is no national legislation concerning

refugees, their legal s ta tus and rights. They are treated as

aliens. In the absence of clear cut guidelines, refugees thus

fall under the purview of the legislative framework that

addresses all foreigners in India. Further India's refugee

policy is governed by certain administrative regulations.

There are three sets of laws that deal with foreigners in India.

They are: The Registration of Foreigners Act, 1939, dealing

with all the foreigners, the foreigners Act, 1946, empowering

http://www.worldrefupeesurvev.org/index.php?title

CHAPTER - IV

the state of regulates the entry, the presence and departure

of aliens in India and the foreigner's order 1948. Under

Section 2 of the Registration of Foreigners Act, the term

foreigner is defined as "a person who is not a citizen of India",

which can refer to aliens of any kind including immigrants,

refugees and tourists. The Foreigners Act of 1946 and the

foreigners' order of 1948 also uses this definition of a

foreigner.^^

The Indian government has the power to restrict

movement inside India, limit employment opportunit ies, and

control the opportunity to associate and the right to return

refugees to the country they have fled from. Further

Government has the power to either grant or refuse entry if a

person does not possess a valid passport.^^ The governments

can refoule refugees at the border, i'̂

No current Indian law refers directly to refugees. The

current position is that they are dealt with under the existing

Indian Laws, both general and special, which are otherwise

applicable to all foreigners. In the absence of a legal process,

India's t reatment of asylum seekers has always been a

political decision, a direct result of the country's relation

with the refugee's country of origin^^ hence the government of

India handles refugee matters administratively, according to

15. Tapan K. Bose, "India: Policies and Law's towards Refugees'", Asian Human Rights Commission - Human Rights Solidarity, Vol. No. 10 Oct. 2000 http./. www.hrsolidarity.net Visited on 20.08.2009..

16. The Government may also order that any non-citizen of India "shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed". India ' s cit izenship Amendment Act of 2003 defines all non-cit izens who entered without visas as illegal migrants, with no exception of refugees or asylum seekers.

17. Supra n. 6 at 6. 18. Devirupa Mitra, "India takes first steps to define refugee", April 29th (2008)

P. 6. http: /WWw.thaindian.com visited on 14.07.2009.

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CHAPTER - IV

internal domestic and bilateral political and humani tar ian

consideration.

India is not a signatory to the 1951 convention relating to the status of refugees or the 1967 protocol

India has never been a member of the 1951 International

Convention for Refugees and its 1967 Protocol, and even

though it is member of the UN High Commissioner for

Refugees (UNHCR) Executive Committee since 1996^9, but it

does not officially recognizes the work of the UN body in its territory.20

India's reluctance to sign the Convention stems from its

position that it is Eurocentric, tailored to fit the refugee

movements after World War II and has not responded well to

mass migration.21 Another reason of not signing the UN

convention protecting refugees is that the signing convention

meant to be obligated to accept massive flows of refugees

from politically unstable neighbors' . As mentioned earlier

India has a huge population over a billion people with at least

six hundred million living in poverty. Thus our own people

are living like refugees with limited access to basic

necessit ies. Signing convention implies taking on the

obligation to provide employment, food, housing, medical

care, education etc., to refugees.22 Despite not signing up, our

record to giving shelter has been very good.

India's International Commitments

India does not have on its s ta tute book a specific and

separate law to govern refugees. In the absence of such a

19. ExCom of the UNHCR approves and supervises the material assistance programmes of the UNHCR.

20. Supra n. 18 at 7. 21. Ibid. 22. Palok Basu, Law Relating to Protection of Human Rights under the Indian

Constitution and Allied Laws, 2002, p. 527.

CHAPTER - IV

specific law, all existing Indian laws like The Criminal

Procedure Code, The Indian Penal Code, and The Evidence Act

etc., apply to the refugees as well. Even though India is not a

signatory to the 1951 convention of Refugees and also the

1967 Protocol, India is a signatory to a number of United

Nations and World Conventions on Human Rights, refugee

issues and related matters . India's obligations in regard to

refugees arise out of the later.23 India became a member o the

Executive Committee of the High Commissioner's Programme

(EXCOM) in 1995. Membership of the EXCOM indicates

part icular interest and greater commitment to refugees

matters . India voted affirmatively to adopt the UN Declaration

of Human Rights which affirms rights for all persons, citizens

and non-citizens alike.24 India voted affirmatively to adopt the

UN Declaration of Territorial Asylum in 1967and also ratified

the International Covenant on Civil and Political Rights

(ICCPR) as well as the International Covenant on Economic,

Social and Cultural Rights (ICESCR) in 1976. India ratified

the UN Convention on the Rights of the Child in 1989. India

ratified the Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) in 1974. Further

India accepted the principle of non-refoulment as envisaged

in the Bangkok-Principles, 1966, which were formulated for

the guidance of member states in respect of matters

concerning the s ta tus and treatment of refugees. These

principles also contain provisions relating to the repatriation,

right to compensation, granting asylum and the minimum

standard of treatment in the state of asylum.25

23. T. Ananthachari, "Refugees in India: Legal Framework, Law Enforcement and Security", ISIL Year Book of International Humanitarian and Refugee Law, http: /w\vw.worldii.org/int/iournals IS1LYB1HRL7 2001, visited on 24.11.2007.

24. Ibid. 25. Ibid.

CHAPTER - IV

A genera l survey of the law and pol icies of the India

shows t h a t the c o u n t r y h a s followed m u s t of the provis ions of

I n t e r n a t i o n a l Convent ion on Refugees in p r ac t i ce . Taking th i s

into a c c o u n t , it is c lear t h a t India r e s p e c t s i n t e r n a t i o n a l

t r e a t i e s on the t r e a t m e n t of refugees res id ing wi thin i ts

te r r i tory ; bu t it chooses to m a i n t a i n i ts own admin i s t r a t i ve

a r r a n g e m e n t of dea l ing with t emporar i ly or p e r m a n e n t se t t led

refugee 's c o m m u n i t i e s .

Indian Practice Regarding Refugee Protection

The prac t ice of the Ind ian Governmen t h a s been to deal

with refugees in th ree main ways^^;

(a) Refugees in m a s s influx s i t u a t i o n s are received in c a m p s

and accorded t empora ry p ro tec t ion by the Ind ian

Government inc lud ing , some t imes , a ce r t a in m e a s u r e s of

socio-economic protection.27

(b) Asylum seeke r s from S o u t h Asian c o u n t r i e s or any o the r

coun t ry with which the gove rnmen t h a s a sens i t ive

r e l a t i onsh ip , apply to the gove rnmen t for pol i t ical

a sy lum which is u s u a l l y g r an t ed w i thou t an extens ive

refugee s t a t u s d e t e r m i n a t i o n sub jec t , of cou r se , to

poli t ical exigencies;28

(c) Ci t izens of o the r c o u n t r i e s apply to the office of the

United Nat ions High Commiss ione r for Refugees

(UNHCR) for ind iv idual refugee s t a t u s d e t e r m i n a t i o n in

26. Supra n. 5 at 2. 27. India has received and accommodated mass influx refugees from Tibet and

Sri Lanica in special camps with varying facilities for health, education and employment, as cited in Isha Bothra, "'The Law, Policy and Practice of Refugee Protection in India", 2007, p. 2, http://www, legal service india.com.

28. Asylum seekers who enter India individually after a mass influx has taken place are granted asylum after a preliminary screening mechanism. This process continues in the case of Tibetan 's and Sri Lankans who enter India in small number and must fulfill certain criteria before they are registered by the Indian Government as cited in Isha Bothra, "The Law, Policy and Practice of Refugee Protection in India",2007, p. 2, http:, /www .legalserviceindia.com.

http://wwwhttp://india.comhttp://legalserviceindia.com

CHAPTER - IV

a c c o r d a n c e with the t e rms of the UNHCR s t a t u t e and the

Refugee Convention.29

Indian Government h a s e s t a b l i s h e d fairly well

exper ienced b u r e a u c r a t i c m a c h i n e r y c o n v e r s a n t with the

p rob lems of refugee a d m i n i s t r a t i o n .

India h a s a th ree pronged s t r a t egy to deal with refugee

problem:^^

(a) The Home Minis t ry dea l s with the formula t ion of policies

of r ehab i l i t a t ion and s e t t l e m e n t of refugees .

(b) The Ministry of Ex te rna l Affairs is empowered with the

respons ib i l i ty of b i la te ra l nego t i a t ion and to deal with

the i s s u e s i n t e rna t iona l ly .

(c) The S ta te Gove rnmen t s are e n t r u s t e d with the

respons ib i l i ty of p ro tec t ion a n d m a i n t e n a n c e of the

refugee c a m p s at the local level.

On the o the r h a n d , Nat ional H u m a n Rights Commiss ion ,

Minority Commiss ion and S ta te H u m a n Rights Commiss ion

e tc . , are e n t r u s t e d for e n s u r i n g overal l h u m a n r igh t s ,

f u n d a m e n t a l freedom and equal o p p o r t u n i t y to all, a t na t i ona l

level in the i r a r e a s .

Refugees and the Indian Legal Framework

India is home to one of the l a rges t refugee p o p u l a t i o n s

in the world. Al though the Ind ian gove rnmen t claim t h a t i ts

policies conform to i n t e r n a t i o n a l s t a n d a r d s , no Ind ian law

refers direct ly to refugees . The r e su l t is t h a t refugees are

29. In 2003, the UNHCR handled, inter alia, 10283 refugees from Afghanistan and 940 refugees from Myanmar. The UNHCR also handles refugees from Iran, Sudan, Somalia and other countries etc as cited in Isha Bothra, "The Law, Policy and Practice of Refugee Protection in India'",2007, p. 2, h ttp: //\v w w. 1 e ga 1 se r V i c e i n d i a. com.

30. Manoj Kumar, "International Human Rights Law for Refugees-An Indian Perspective", The Third Concept, an International Journal of Ideas, May 2 0 0 1 , p . 2 1 .

234

CHAPTER - IV

treated under the law applicable to aliens. The Indian

government deals with the refugees at both the political and

administrative levels. Refugees encounter the Indian legal

system on two counts . There are laws which regulate their

entry into and stay in India. Once they are within the Indian

Territory, they are then liable to be subjected to the

provisions of the Indian penal laws for various commissions

and omissions under a variety of circumstances.^i There are

various consti tutional and legal provisions with which

refugees may be concerned under varying circumstances.

(i) Constitutional Provisions

India is a country governed by the Rule of Law. Indian

Constitution is a living document in which the s ta tus of

human rights is fairly high. Constitution confers certain

rights on every human being and certain other rights on

citizens. Every person is entitled to equality before law and

equal protection of the law. So also, no person can be

deprived of his life or personal liberty except according to

procedure established by law. Thus state is bound to protect

the life and liberty of every human being, be he a citizen or

otherwise.32 The Constitution of India expressly incorporates

the common law percept and the courts have gone further to

raise it to the s ta tus as one of the basic features of the

Constitution which cannot be amended. The Constitution of

India reflects the international norms set out in the Universal

Declaration of Human Rights which, among other things,

affirm, the principle of non-discrimination and proclaim that

all human beings are born free and equal in dignity and

rights, and that everyone is entitled to all the rights and

freedoms set forth in the document without distinction of any

31. Supra n. 23 at 5. 32. Supra n. 22 at 529.

.Z33

CHAPTER - IV

kind.33 Hence, in India, almost all the basic refugee rights

have got consti tut ional recognition. Chapter III of the

consti tut ion, under Article 14-35, deals with a variety of

fundamental r ights. However, all these fundamental rights

are not available to aliens and at the time of emergency, due

to war and external aggression, the enforceability of the

fundamental rights other than right to life can be suspended

by the state.^^

The consti tution of India provides following fundamental

human rights and fundamental freedoms to refugees, legally

admitted to India and so long as he is permitted by the

government to remain in this country:

(a) Equality before the Law or Equal Protection of the Law^^

The principle of 'equality before the law' is universally

recognized, and is to be found in almost all those written

Consti tutions which guarantee fundamental rights. The

underlying principle of Article 14 is that all persons and

things similarly circumstanced should be treated alike both

in privileges conferred and liabilities imposed. Among equals,

the law should be equal and should be equally administered.

The like should be treated alike. What is prohibited is

discrimination between persons who are substantial ly in

similar c i rcumstances or conditions.3^ Article 14 applies to

"any person" and is not limited to citizens alone. Both

individuals and juris t ic persons are entitled to the benefit of

Article 14.

33. V.D. Mahajan, Constitutional Law of India, 1984, p. I l l 34. Supra n. 30. 35. A r t i c l e 14 of the I n d i a n C o n s t i t u t i o n . 36. Supra n. 33 at 86.

236

CHAPTER - IV

Article 14 provides: "The state shall not deny to any

person equality before the law or equal protection of laws

within the territory of India".

Why May Claim Article 14 Protection

The obligation imposed on the state by Article 14 is for

the benefit of all persons, within the territory of India. The

benefit of Article 14 is, therefore, not limited to citizens.

Every person whether natura l or artificial, whether he is a

citizen or an alien,37 is entitled to the protection of this

Article .38

So, as per the provision, even a foreigner will have the

right to invoke Article 14 and complain against the

discrimination if he is denied the equal protection of law

within the territory of India. The state would not discriminate

a refugee against other refugees of same class regarding any

benefit or rights they enjoy by virtue of their refugee s ta tus .

It may however be noticed that an alien (a foreign national)

cannot claim equal rights under Article 14 with that of the

Indian nat ionals , so far as the grant of citizenship of India.

In Louis De Raedt Vs. Union of India,^^ the Supreme

Court had ruled that the fundamental rights of the foreigner

was confined to Article 21 and did not extend to a foreigner,

the right to reside and settle in India, as s tates in Article 19

(1) (e) Relying on the judgments and distinguishing the

decision of the Supreme Court in National Human Rights

Commission Vs. State of Arunachal Pradesh'^^ the Madras High

Court in David John Hopkins Vs. Union of India"^^, held that

foreign nat ionals did not have any fundamental right

37. NHRC Vs. State of Arunachal Pradesh, 1996, ISCC 295. 38 Narender Kumar, Constitutional Law of India, 2007, p. 105-106. 39. AIR 1991 SC 1886. 40. AIR 1996 SC 1234. 41. AIR 1997 Mad. 366.

:37

CHAPTER - IV

guaranteed for the grant of citizenship of India, in which

mat ters , the Government of India had got unrestr icted power

under the citizenship Act, 1955, to refuse citizenship, without

assigning any reason whatsoever and that a foreign national

could not claim equal rights under Article 14 with that of the

Indian national.^^2

(b) Right to Life and Personal Liberty etc.̂ ^

The Indian Constitution guarantees the right to life and

personal liberty to all persons. The protection of Article 21 of

the consti tut ion is available to citizens as well as non-

citizen,^4 and they also have right to live, as long as they are

here, with human dignity.

Article 21 provides "No person shall be deprived of his

life or personal liberty except according to procedure

established by law". This right has been held to be the heart of

the constitution.'^^

Article 21 secures two rights:

(i) Right to life; and

(ii) Right to personal liberty

Article 21 prohibits the deprivation of the above rights

except according to procedure established by law.^s

Article 21 can be claimed only when a person is deprived

of his "life" or personal liberty by the "states" as defined by

42. Supra n. 38 at 106. 43. Article 21 of the Constitution of India. 44. The foreigners enjoy the protection of Article 21 in two ways: (a) They are equally entitled to the right against deprivation of life or bodily

integrity and dignity (Louis De Raedt (1991) 3 SCC 554 at P. 13; Chandrima Das 2000, 2 SCC 465 at P. 28, 32 and 34; Anwar (1971) 3 SCC 104 at p. 4; and NHRC 1996, 1 SCC 742 at p. 20.

(b) To a certain extent, the right against executive action sans procedural due process accrues to them. P. Mohammed Khan 1978, 1 1 APWR 208.

45. l.R. Coelho Vs. State of T.N., AIR 2007, SC 89 1. 46. Supra n. 38 at 289.

238

CHAPTER - IV

Article 12. It not only refers to the necessity to comply with

procedural requirements, but also, substantive rights of

citizen.'^'^ Violation of the right by a private individual is not

within the purview of Article 21."^^

Who can claim the Protection of Article 21

The right secured by Article 21 is available to every

person, citizen or non-citizens. Thus, even a foreigner"^^ can

claim this right. However, Article 21 applies only to natural

person. It has no application to corporate bodies.^^

It is well settled that an alien can claim the protection

of Article 2 1 . It, however, does not include the right to reside

and settle in India, as mentioned in Article 19 (1) (e) which is

applicable to the citizens of the country.^i

In Cherchi Domenico Ferdinando V. Union of India^^, the

petitioner a foreigner who had come to India on tourist visa,

granted extension to stay in India on the ground of his

purported marriage with an Indian, which way, in fact, to

facilitate and carry out widespread trafficking in drugs by

foreign tour is ts . Holding that an alien had no right to reside

or settle in India, the Delhi High Court upheld his

deportation from India by an order of the Government.

J u s t 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. Thus, the refugees can avail of the benefit under

47. Bombay Dyeing & Mfg. Co. Vs. By. E.A. Group 2006, 3 SCC 433. 48. Supra n. 46. 49. A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27; NHRC Vs. State of

Arunachal Pradesh, AIR 1996 SC 1234; Louis De Raedt Vs. Union of India, AIR 1991 SC 1886.

50. Supra n. 38 at 290. 51. Cherchi De Raedt Vs. Union of India, AIR 1991 SC 1886; Hans Muller of

Nuremburg Vs. Supdt. Presidency Jail, Calcutta AIR 1955 SC 367. 52. AIR 2004 Del. 147.

CHAPTER - IV

Article 21 of the Constitution in the same way as the citizens

of India. They cannot be exposed to threat to life and

personal liberty. State being governed by the rule of law is

bond to protect the life and liberty of every human being, be

he a citizen or otherwise.

Article 21 is of the widest amplitude after the judgment of

Meneka Gandhi case^^ and it covers a variety of rights which

are provided to refugees' aliens and non-citizens in India:

(i) Right to live with human dignity^^

"It is the fundamental right of everyone in this country to

live with hum.an dignity free from, exploitation." This right to

live with human dignity enshrined in Article 2 1 .

(ii) Right to livelihoods^

"The right to life includes the right to livelihood." If the

right to livelihood is not treated as a part of the

Constitutional right to right to life, the easiest way of

depriving a person of his right to life would be to deprive him

of his means of livelihood to the point of abrogation. Deprive

a person of his right to livelihood means person is deprived

from his life.

(iii) Right to Shelter^^

The right to shelter has been held to be a fundamental

right which springs from the right to residence secured in

Article 19 (1) (e) and the right to life guaranteed by Article

21 .

53. Menaka Gandhi Vs. Union of India, AIR 1978 SC 597. 54. Francis Coralie Vs. Union Territory of Delhi, AIR 1981 SC 746; also see,

Bandhua Mukti Morcha Vs. Union of India, 1984 SC 802. 55. Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 180; also see,

Narendra Kumar Chandla Vs. State of Haryana, AIR 1987, Bom. 406. 56. Chameli Singh Vs. Union of India, AIR 1996 SC 1051, also see, Prabhakaran

Nair Vs. State of T.N., AIR 1987 SC 21 17.

MO

CHAPTER - IV

Right to shelter, includes adequate living space, safe

and decent s t ructure , clean and decent surroundings,

sufficient light, pure air and water, electricity, sanitat ion and

other civic amenities like roads, etc. So as to have easy

access to his daily avocation. The right to shelter, does not

mean a mere right to a roof over one's head but "right to the

entire infrastructure necessary to enable him to live and

develop as a human being".

(iv) Right to Education^''

Right to education is fundamental right under Article 21

and "it directly flows from the right to life". The right is,

however, not an absolute right and that it 's content and

parameters have to determine in the light of Article 41 and

45.

The Constitution (86^^ Am.endm.ent) Act, 2002 inserting a new

Article 21-A declaring right to education an independent

fundamental right.^^

(v) Right to Social Security and Protection of the Family^^

Right to life guaranteed under Article 21 includes within

its ambit "the right to social security and protection of the

family". Interpreting Article 39 (e) of the Constitution of India

vis-a-vis Article 25 (2) of the Universal Declaration of the

Human Right and Article 7 of the International Convention on

Economic, Social and Cultural rights, 1965, J.K. Ramaswamy

in Calcutta Electricity Supply Corporation (India) Limited Vs.

Subhas Chandra Bose^^, held that the right to social and

57. Uni Krishan Vs. State of A.P., AIR 1993 SC 2178, also see, Mohini Jain Vs. State of Karnataka, AIR 1992 SC 1858.

58. Supra n. 38 at 303. 59. Calcutta Electricity Supply Corporation (India) Limited (CESC Limited) Vs.

Subhas Chandra Bose, AIR 1992 SC 573. 60. AIR 1992 SC 573 (Minority opinion)

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CHAPTER - IV

economic justice was a fundamental right. It is explained that

right to life and dignity of person and s ta tus without means,

were cosmetic rights. "Socio-economic rights were, therefore,

basic aspirations for meaningful right to life and that the right

to social security and protection of the family were integral

part of the right to life".

In NHRC V. State of Arunachal Pradesh^^ the Supreme

Court said that the state was bound to protect the life and

liberty of every human being, be he a citizen or otherwise an

that the state could not tolerate or permit anybody or group

of persons to threaten other person or group of persons.

(vi) Right to Health and Medical Assistances^

The right to life guaranteed under Article 21 includes

within its ambit the right to health and medical care. It

includes the right to lead a healthy life so as to enjoy all

faculties of the human body.63

It is not merely a right enshrined under Article 21 but

an obligation cast on the state to provide this both under

Article 21 and under Article 47.^4

(vii) Right to Privacy^^

The Right to personal liberty and the right to move freely

and speech could be described as contributing to the right to

privacy. However, the right was not absolute and would

always be subjected to reasonable restrictions.

CHAPTER - IV

would necessarily have to go through a process of case by

case development.

(viii) Right to Free Legal Aid and Right to Speedy Trial

The "right to free legal aid" at the cost of the state to an

accused, who could not afford legal services for reasons of

poverty, indigence or incommunicado situation, was part of

fair, jus t and reasonable procedure implicit in Article 21.^'^

The "right to speedy trial", has been interpreted to be a part

of the fundamental right to life and personal liberty.^^ Article

21 requires that a person can be deprived of his liberty only

in accordance with procedure established by law which

should be a jus t , fair and reasonable procedure.

(ix) Right against Inhuman Treatment

The Supreme Court in several cases, has taken a serious

note of the inhuman treatment meted to the prisoners and

has issued appropriate directions to prison and police

authorit ies for safe guarding the right of the prisoners and

person in police lock-up, particularly of women and

children.69 So the inhuman treatment by the police was

violation of Article 21 . As human dignity is a clear value of

our Constitution not to be parted away for mere apprehension

entertained by jail officials.'^o

(c) Protection against Arrest and Detention^^

The Indian Constitution guaranteed protection against

arrest and detention in certain cases. It embodies procedural

67. M.H. Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548. 68. Pratap Singh Vs. State of Jharkhand, 2005 (3) SCC 551, Hussainara Khatoon

(No. 1) Vs. Home Secretary, Bihar, AIR 1979 (1360); Meneka Gandhi Vs. Union of India AIR 1978 SC 597.

69. Rama Murthy Vs. State of Karnataka, AIR 1997 SC 1739; Khedat Mazdoor Chetna Sangath Vs. State of M.P., AIR 1995 SC 31.

70. Supra n. 3 8 at 33 3. 71. Article 22 of the consti tution.

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CHAPTER - IV

sa fegua rds a g a i n s t a r r e s t or de t en t ion which are avai lable in

the following two c a s e s :

A. Where the a r r e s t a de t en t i on is made u n d e r the o rd inary

law re la t ing to commiss ion of offences.

B. Where the de t en t ion is made u n d e r a law providing for

prevent ive de t en t ion .

Who can claim Article 22

The sa feguard con t a ined in Article 22 can be claimed by

every pe r son w h e t h e r a ci t izen or a non-c i t i zen . Even a

foreigner can claim these sa fegua rds . However, t he se

sa fegua rds are not avai lable to an enemy al ien (i.e., a

na t i ona l of a c o u n t r y with whom India is a t war)'^^ Article 22

lays down the four r i g h t s / s a f e g u a r d s a g a i n s t a r r e s t or

de t en t ion made u n d e r o rd ina ry law re la t ing to the

commiss ion of offences:'^^

(a) Right to be informed, a s soon as may be, of the g r o u n d s

for a r r e s t or de t en t i on .

(b) Right to c o n s u l t and to be defended by a legal

p r ac t i t i one r of h i s choice .

(c) Right to be p roduced before the n e a r e s t Magis t ra te

wi th in 24 h o u r s of a r r e s t .

(d) Right not to be de t a ined in cus tody beyond 24 h o u r s

w i thou t the a u t h o r i t y of the Magis t ra te .

Article 22 (1) and 22 (2) of the Indian Cons t i t u t i on

reflect t h a t the ru l e s of n a t u r a l j u s t i c e in common law sys tem

are equal ly app l icab le in Ind ia , even to refugees.

72. Supra n. 38 at 344. 73. See, Article 22 (1) & (2) of the Constitution of India.

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CHAPTER - IV

(d) Protection in Respect of Conviction for Offences'^^

C o n s t i t u t i o n provides p ro tec t ion in r e spec t of convict ion

for offences. The pro tec t ion con ta ined in Article 20 is

avai lable to all p e r s o n s , c i t izens or non -c i t i z ens . The te rm

"person" in Article 20 i n c l u d e s a co rpora t ion which is

a c c u s e d , p r o s e c u t e d , convicted or p u n i s h e d for an offence.

So the foreigners or a l i ens are also en t i t led to the

p ro tec t ion of the rights:'^^

(a) The r ight a g a i n s t p rosecu t ion u n d e r re t rospec t ive pena l

law;

(b) The r ight a g a i n s t double j eopardy ; and

(c) The r ight a g a i n s t se l f - incr imina t ion .

(e) Right against Exploitation^^

The C o n s t i t u t i o n of India provides p ro tec t ion a g a i n s t

explo i ta t ion . This r ight is s ecu red to every pe r son , whe the r

c i t izen, non-c i t i zen on a l ien. The pro tec t ion con t a ined the re in

is avai lable not only a g a i n s t s t a t e b u t a lso a g a i n s t pr iva te

individuals.'7'^

Prohibition of "Traffic in Human Beings' and Forced Labour

Article 23 of the Cons t i t u t i on p roh ib i t s traffic in h u m a n

being and beggar and o the r s imilar forms of forced l abour and

any c o n t r a v e n t i o n of th i s provis ion sha l l be an offence

p u n i s h a b l e in a c c o r d a n c e with law.'^^ However it does not

p roh ib i t s t a t e to impose compulso ry services for publ ic

p u r p o s e s provided t h a t in mak ing so it sha l l not make any

74. Article 20 of the Constitution of India. 75. See, Article 20 (1), 20 (2) & 20 (3) of the Constitution of India 76. Article 23 and 24 of the constitution of India. 77. People ' s Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1473. 78. Article 23 (1) of the Constitution of India.

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CHAPTER - IV

discrimination on grounds only of religion, race, caste or

class or any of them.'^^

So this right is available to citizens and refugees, and

non-citizens without any discrimination. The practice of

traffic in human being is condemned in almost every

international ins t rument dealing with human rights.

Prohibition of employment of Children^^

Article 24 provides: "No child below the age of fourteen

years shall be employed to work in any factory or mine or

engaged in any other hazardous employment".

This provision read with the Directive Principles of State

Policy contained in Article 39 (e) and 39 (g), provides for the

protection of the health and strength of children below the

age of fourteen years.^i

The prohibition contained in Article 24 could be plainly

and indubitably enforced against everyone, whether state or

private individual.

(j) Right to Religious Freedom^^

"Secularism is the basic feature of the Constitution".^^ In

the matter of religion, the state is neutral and t reats every

religion equally.

Constitution of India provides 'freedom, of religion', the

right is available to every person, citizens or non-citizens or

aliens.

Article 25 of the constitution of India provides: "Subject

to public order, m,orality and health and to the other provision

79. Article 23 (2) of the Constitution of India. 80. Article 24 of the Constitution of India. 81. People ' s Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1473. 82. Article 25 (1) o f t he Constitution o f l n d i a . 83. S.R. Bommai Vs. Union o f lnd i a , AIR 1994 SC 1918.

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CHAPTER - IV

of this part, all persons are equally entitled to freedom of

conscience and the right freely to profess, practice and

propagate religion".

Article 25, secures to every person:

• freedom of conscience; and

• the right to-

profess religion;

practice religion; and

propagate religion

The state has an obligation to guarantee this right to

all.

(g) Right to Constitutional Remedies^

Fundamental Human Rights are meaningless unless

there is effective machinery for the enforcement of these

rights. Violation of the fundamental rights by the state can be

challenged. Article 32 and 226 of the Constitution provided

an effective remedy for the enforcement of these rights. So

any person whether citizen or non-citizen or alien or refugee

aggrieved by the infringement of the fundamental rights

enshrined in part III of the constitution can directly approach

to the Supreme Court or High Courts for relief.^^ j ^ is one of

the 'highly cherished rights'^^ of the Constitution. This right

has been held to be "integral part of an important and the

basic structure of the constitution".^'^

84. Article 32 and 226 of the Constitution of India. 85. For detail , see Article 32 of the Constitution of India. 86. Fertilizer Corporation Kamgar Union Vs. Union o f lnd i a , AIR 1981 SC 344. 87. Ibid.

247

CHAPTER - IV

Thus, the right to move the Supreme Court or High

Courts for the enforcement of the fundamental rights is itself

declared to be a fundamental right.

(h) Directive Principles of State Policy^^

Part IV of the Constitution relates to the Directive

Principles of State Policy. It sets forth the ideals and

objectives to be achieved by the state for setting up in India a

Social Welfare State. The basic aim of the Welfare State is the

a t ta inment of substant ia l degree of social, economic and

political equalities, the assumption by community acting

through the State, as its responsibility, to provide the means,

whereby all its members can reach minimum standard of

economic security, civilized living, capacity to secure social

s ta tus and culture to keep good health. 9̂

Article 51(a) requires that "The State shall endeavour to

promote international peace and security" which stipulated

that government had a fundamental duty to show compassion

which is important for the recognition of refugees as human

beings.50

Further Article 51 (C) st ipulates that "the State shall

endeavour to foster respect for international law and treaty

obligations in the dealings of organized people with another". ^^

Even without being a party to the 1951 Convention

relating to the s ta tus of Refugees or the 1967 Protocol, in

India, the rights of refugees to this extent are protected by

the provisions made in Constitution.

As discussed earlier all the basic human rights of

refugees have got consti tutional recognition in India, inspite

88. Part IV of the Constitution related to Directive Principles of State Policy. 89. Supra n. 38 at 447. 90. Supra n. 38 at 467. 91. Ibid

248

CHAPTER - IV

of t h a t the p e r s o n s who g r an t ed a s y l u m in India get some

special t r e a t m e n t as long as they r e m a i n in the te r r i to ry .

SPECIAL TREATMENT

(i) Exemption from penalties

Article 3 (1) of the 1951 Refugee Convent ion provides

t h a t "the contracting state shall not impose penalties, on

account of their illegal entry or presence on refugees who

coming directly from a territory. Where their life or freedom.

was threatened enter or are present in their

territory without authorization, provided they present

themselves without delay to the authorities and show good

cause for their illegal entry or presence".^^

This is one a rea where India is very a p a t h e t i c t owards

refugees . Under Sect ion 14 of the Fore igners Act, 1946 a

foreigner is l iable to the p u n i s h m e n t with i m p r i s o n m e n t for a

te rm which may ex tend to five y e a r s and is a lso l iable to fine.

Due to lack of a p rocedu re for cons ide r ing a s y l u m c la ims , all

ind iv idual a s y l u m s - s eeke r s who en te red illegally or s tayed

in India wi thou t a u t h o r i z a t i o n were p e r s e c u t e d and p u n i s h e d

u n d e r th i s sec t ion . However, in case of large scale influx,

India h a s a lways ac ted accord ing to the pr inc ip le laid down in

the Refugee Convent ion and h a s not imposed p e n a l t i e s on the

refugees.53

(ii) Identity and travel documents

The 1951 Convent ion on the S t a t u s of Refugee u n d e r

Article 28 provides t ha t :

"The contracting states shall issue to refugees lawfully

staying in their territory travel documents for the purpose of

92. Manik Chakarbarty, Human Rights and Refugee - problems, Laws and Practices, 2001, pp.132 - 133.

93. \d., at 134.

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CHAPTER - IV

travel outside their territory unless compelling reason of

national security or public order otherwise require". ^"^

In India, all refugees who are recognized so were given

identification certificates showing their refugee s ta tus . But,

as regard to travel documents; no refugee has so far had a

privilege of getting travel documents except Tibetan refugees.

Tibetan refugees can even travel to foreign countries and

come back to India on the basis of such identification paper.^s

Statutory Provisions

In the absence of any refugee specific legal frame work,

the legal position is that they are treated as aliens. There are

some statutory provisions which are applicable to aliens as

well as to refugees. As mentioned earlier that India has no

general legislation on refugees and hence refugees are not

classified and treated differently from other aliens. They are

covered under the:

• Registration of Foreigners Act, 1939 (Central Act 16 of

1939) which is applicable to all foreigners.

• The Foreigners Act, 1946, which empowers the State to

regulate the entry, presence and departure of aliens in

India.

• The Passport (Entry into India) Act 1920.

• The Passport Act 1967.

(a) The Registration of Foreigners Act, 193996 (Act 16 of 1939)

The Government of India has enacted the Registration of

Foreigners Act, 1939, which received assent on 8*̂ April

1939. This Act was to provide for the registration of

94. Ibid. 95. hi. at 135. 96. Act No. 16 of 1939, received assent on the 8 April 1939, published in Gazette

of India, 1939, extra, p. 59.

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CHAPTER - IV

Fore igners in Ind ia i.e. en t e r ing , be ing p r e s e n t in, and

depa r t i ng from India . In th i s Act 'Foreigner' means a person

who is not a citizen of India. This Act ex t ends to the whole of

India .

The re levan t sec t ions of the Act to Refugees a re Sect ion

3 and 6.

Section 3-Powers to Make Rules

The Cen t ra l Governmen t may by notif icat ion in the

official gazet te m a k e r u l e s with r e spec t to foreigners for any

or all of the following p u r p o s e s , t h a t is to say:

(a) For r equ i r ing any foreigner en te r ing , or being p r e s e n t in

(India) to r epor t h i s p r e sence to a p resc r ibed a u t h o r i t y

wi thin s u c h t ime and in s u c h m a n n e r and with such

p a r t i c u l a r s a s may be p resc r ibed ;

(b) For r equ i r ing any foreigner moving from one place to

a n o t h e r place in (India) to repor t , on arr ival a t s u c h

o the r p lace , h i s p r e sence to a p resc r ibed au tho r i t y

wi thin s u c h t ime a n d s u c h m a n n e r and with such

p a r t i c u l a r s a s may be p re sc r ibed ;

(c) For requ i r ing any foreigner who is a b o u t to leave (India)

to repor t the d a t e of h is i n t ended d e p a r t u r e a n d such

o the r p a r t i c u l a r s a s may be p resc r ibed to s u c h a u t h o r i t y

and wi th in s u c h period before d e p a r t u r e a s may be

p re sc r ibed ;

(d) For r equ i r ing any foreigner en te r ing , being p r e s e n t in, or

d e p a r t i n g from (India) to p r o d u c e , on d e m a n d by a

p resc r ibed a u t h o r i t y , s u c h proof of h is ident i ty a s may

be p re sc r ibed ;

(e) For r equ i r ing any pe r son hav ing the m a n a g e m e n t of any

hote l , boa rd ing , h o u s e , s a ra i or any o ther p r emise s of

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CHAPTER - IV

l ike n a t u r e to r e p o r t t h e n a m e of a n y f o r e i g n e r r e s i d i n g

t h e r e i n for w h a t e v e r d u r a t i o n , to a p r e s c r i b e d a u t h o r i t y

w i t h i n s u c h t i m e a n d in s u c h m a n n e r a n d w i t h s u c h

p a r t i c u l a r s a s m a y be p r e s c r i b e d ;

(f) Fo r r e q u i r i n g a n y p e r s o n h a v i n g t h e m a n a g e m e n t or

c o n t r o l of a n y v e s s e l or a i r c r a f t to f u r n i s h to a

p r e s c r i b e d a u t h o r i t y s u c h i n f o r m a t i o n a s m a y be

p r e s c r i b e d r e g a r d i n g a n y f o r e i g n e r e n t e r i n g , or i n t e n d i n g

to d e p a r t f rom ( Ind ia ) in s u c h v e s s e l or a i r c r a f t , a n d to

f u r n i s h to s u c h a u t h o r i t y s u c h a s s i s t a n c e a s m a y be

n e c e s s a r y or p r e s c r i b e d for g iv ing effect to t h i s Act ;

(g) Fo r p r o v i d i n g for s u c h o t h e r i n c i d e n t a l o r s u p p l e m e n t a r y

m a t t e r s a s m a y a p p e a r to t h e C e n t r a l G o v e r n m e n t

n e c e s s a r y or e x p e d i e n t for g iv ing effect to t h i s Act .

Sect ion 6: Powers to exempt from appl icat ion of Act

T h e C e n t r a l G o v e r n m e n t m a y , by o r d e r d e c l a r e t h a t a n y

or a l l of t h e p r o v i s i o n s of t h e r u l e s m a d e u n d e r t h i s Act s h a l l

n o t a p p l y or s h a l l a p p l y o n l y w i t h s u c h m o d i f i c a t i o n s or

s u b j e c t to s u c h c o n d i t i o n s a s m a y be spec i f i ed in t h e s a i d

o r d e r , to or in r e l a t i o n to a n y i n d i v i d u a l f o r e i g n e r or a n y

c l a s s or d e s c r i p t i o n of f o r e i g n e r s .

P r o v i d e d t h a t a c o p y of eve ry s u c h o r d e r , s h a l l be p l a c e d

on t h e t a b l e of p a r l i a m e n t a s s o o n a s m a y be a f t e r i t s

p r o m u l g a t i o n .

(b) The Foreigners Act, 1946^7 (Act 31 of 1946)

T h e G o v e r n m e n t of I n d i a h a s e n a c t e d t h e F o r e i g n e r s Act ,

1 9 4 6 . T h i s Act c o n f e r s u p o n t h e C e n t r a l G o v e r n m e n t c e r t a i n

p o w e r s in r e s p e c t of t h e e n t r y of f o r e i g n e r s i n t o I n d i a , t h e i r

p r e s e n c e t h e r e i n a n d t h e i r d e p a r t u r e t h e r e f rom. In t h i s Act

97. Act No. 3 1 of 1946, received assent on 23"* Nov. 1946.

CHAPTER - IV

"Foreigner" means a person who is not a citizen of India. This

Act e x t e n d s to the whole of India .

The re levan t sec t ions of th i s Act which are app l i cab le to

refugees are sec t ion 3 , 3A, 7 and 14 of the Act. These

sec t ions r ead as u n d e r :

Section 3, Power to make orders

(1) The Cen t ra l Government may by order m a k e provis ion,

e i the r general ly or with r e spec t to all foreigners or with

r e spec t to any p a r t i c u l a r foreigner or any p resc r ibed

c l a s s or desc r ip t ion of foreigner, for p roh ib i t ing ,

r egu la t ing or r e s t r i c t ing the en t ry of foreigners in to

India or the i r d e p a r t u r e the re from or the i r p r e s e n c e or

c o n t i n u e d p r e s e n c e t he re in .

(2) The p a r t i c u l a r a n d wi thou t pre judice to the genera l i ty of

the foregoing powers o rde r s made u n d e r th i s sec t ion

may provide t h a t the foreigner:

(a) Shal l no t en t e r India or sha l l en t e r India only at s u c h

t imes a n d by s u c h rou te a n d at such por t or place and

sub jec t to the obse rvance of s u c h cond i t ions on arr ival

a s may be p re sc r ibed ;

(b) Shal l not d e p a r t from India or sha l l d e p a r t only at such

t imes and by s u c h rou te and from such por t or place

a n d sub jec t to the obse rvance of such cond i t i ons on

d e p a r t u r e a s may be p resc r ibed ;

(c) Shal l no t r e m a i n in India; or in any p re sc r ibed a rea

t he re in ;

(cc) Shal l if he h a s been requ i red by order u n d e r th i s sec t ion

not to r e m a i n in India , meet from any r e s o u r c e s at h is

d i sposa l the cost of h is removal from India and of h is

m a i n t e n a n c e the re in pend ing s u c h removal ;

33

CHAPTER - IV

(d) Shal l remove himself to, and r ema in in, s u c h a rea in

India a s may be p resc r ibed ;

(e) Shal l comply with such cond i t ions a s may be p re sc r ibed

or specified:

(i) Requi r ing him to res ide in p a r t i c u l a r p lace ;

(ii) Impos ing any res t r i c t ion on h is m o v e m e n t s ;

(iii) Requi r ing him to furnish s u c h proof of h is ident i ty and

to repor t such p a r t i c u l a r s to s u c h a u t h o r i t y in s u c h

m a n n e r and at such t ime and place a s may be

p re sc r ibed or specified;

(iv) Requi r ing him to allow his p h o t o g r a p h and finger

impres s ion to be t a k e n and to furn ish s p e c i m e n s of h is

h a n d w r i t i n g and s i gna tu r e to s u c h a u t h o r i t y and a t

s u c h t ime and place a s may be p resc r ibed or specified;

(v) Requi r ing him to s u b m i t himself to s u c h medica l

examina t ion by such au tho r i t y and a t such t ime and

place a s may be p resc r ibed or specified;

(vi) Proh ib i t ing him from assoc ia t ion with p e r s o n s of a

p re sc r ibed or specified desc r ip t ion ;

(vii) Prohib i t ing him from engaging in ac t iv i t ies of a

p re sc r ibed or specified desc r ip t ion ;

(viii) Prohib i t ing him from u s i n g or p o s s e s s i n g p re sc r ibed or

specified a r t i c les ;

(ix) Otherwise r egu la t ing his c o n d u c t in any s u c h p a r t i c u l a r

a s may be p resc r ibed or specified;

(f) Shal l en te r into a bond with or w i thou t s u r e t i e s for the

due obse rvance of or as an a l t e rna t ive to the

enforcement of, any or p resc r ibed or specified

r e s t r i c t i o n s or cond i t ions ;

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CHAPTER - IV

(g) shal l be a r r e s t e d and de t a ined or confined; and may

make provis ion for any m a t t e r which is to be or may be

p resc r ibed and for such inc iden ta l and s u p p l e m e n t a r y

m a t t e r s a s may, in the opinion of the Cen t ra l

Government , be expedien t or n e c e s s a r y for giving effect

of th i s Act.

(3) Any a u t h o r i t y p resc r ibed in th is behalf may with r e spec t

to any p a r t i c u l a r foreigner make u n d e r c l ause (e) for

c l ause (f) of sub - sec t ion (2).

Section 3-A Powers to exempt citizens of commonwealth countries and other persons from application of Act in certain cases:

(1) The Cen t ra l Government may, by order , dec la re t h a t all

or any of the provis ion of th i s Act or of any order made

the re u n d e r shal l not apply or sha l l apply only in s u c h

c i r c u m s t a n c e s or with such excep t ions or modif ica t ions

or subjec t to such cond i t ions a s may be specified in the

order to or in re la t ion to:

(a) The c i t izens of any such common weal th c o u n t r y a s may

be so specified; or

(b) Any o the r ind iv idual foreigner or c l a s s or desc r ip t ion of

foreigners

(2) A copy of every o rde r s m a d e u n d e r th i s sec t ion sha l l be

placed on the table of bo th h o u s e s of p a r l i a m e n t a s soon

as may be after it is made .

Section 7: Obligation of hotel keepers and others to furnish particulars:

(1) It shal l be the duty of the keeper of any p r e m i s e s

whe the r fu rn i shed or u n f u r n i s h e d where lodging or

s leeping accommoda t ion is provided for reward , to

s u b m i t to such person and in such m a n n e r such

CHAPTER - IV

informat ion in r e spec t of fore igners ' a c c o m m o d a t i o n in

such p r e m i s e s , a s may be p re sc r ibed .

Explanation: The informat ion referred to in th i s s u b -

sect ion may re la te to all or any of the foreigners

accommoda ted at s u c h p remised and may be requ i red to

be s u b m i t t e d per iodical ly or a t any specific t imes or

occas ion .

(2) Every pe r son accommoda ted in any s u c h p r e m i s e s shal l

furnish to the keeper thereof a s t a t e m e n t con ta in ing

such p a r t i c u l a r s a s may be requ i red by the keeper for

the p u r p o s e of fu rn i sh ing the informat ion referred to in

sub - sec t i on (1).

(3) The keeper of every s u c h p r e m i s e s sha l l m a i n t a i n a

record of the informat ion fu rn i shed by him u n d e r s u b -

sect ion (1) and of the informat ion ob ta ined by him u n d e r

sec-sec t ion (2) and s u c h record shal l be m a i n t a i n e d in

such m a n n e r and prese rved for s u c h per iod as may be

p resc r ibed , and shal l a t all t imes be open to inspec t ion

by any police officer or by a pe r son a u t h o r i z e d in th i s

behalf by the Dis t r ic t Magis t r a t e .

(4) If in any a rea p resc r ibed in t h i s behalf the p resc r ibed

au tho r i t y by not ice p u b l i s h e d in s u c h m a n n e r a s may be

in the opinion of the a u t h o r i t y be bes t adop ted for

informing the p e r s o n s conce rned so d i r ec t s , it sha l l be

the du ty of every pe r son occupying or hav ing u n d e r his

cont ro l any res iden t ia l p r e m i s e s to s u b m i t to such

pe r son and in such m a n n e r such informat ion in r e spec t

of foreigners a ccommoda ted in s u c h p r e m i s e s a s may be

specified; and the p rov is ions of sub-sec t ion(2) shal l

apply to every pe r son a c c o m m o d a t e d in any such

p r e m i s e s .

256

CHAPTER - IV

Section 14-Penalties

If any person contravenes the provisions of this Act or of

any order made there under , or any direction given in

pursuance of this Act or such, he shall be punished with

imprisonment for a term which may extend to five years and

shall also be liable to fine; and if such person has entered

into a bond in pursuance of clause (f) of sub-section (2) of

section 3, his bond shall be forfeited, and any person bound

there by shall pay the penalty thereof, or show cause to be

satisfaction of the conviction court why such penalty should

not be paid.^^

India relies on the Foreigners Act, (i.e. Registration of

Foreigners Act, 1939 (Act 16 of 1939) and the Foreigners Act,

1946 (Act 31 of 1946) to govern the entry, stay and exit of

foreigners in India. However, the Foreigners Act is an archaic

legislation that was enacted by a colonial government in

response of the Second World War. Section 2 (a) of the Act

defines a foreigner as a person who is not a citizen of India,

thus covering all refugees within its ambit as well. Without a

specialize governance regime for country of his former

habitual residence as a result of such extent is unable or,

owing to such fear, is unwilling to return to it.^^ The

unrestr icted power of the executive to remove foreigners was

first confirmed by the Supreme Court in 1955,i^o where it

held that:

"The Foreigners Act confers the power to expel foreigners

from India. It vests the Central Government with absolute and

unfettered discretion and, as there is no provision fettering

98. Mohd. Anwar Vs. State of Bihar, 1992, Cr. LJ 48. 99. Supra n. 5. 100. Hans Muller of Nuremberg AIR 1955 SC 367.

CHAPTER - l \

this discretion in the constitution, an unrestricted right to expel

remains".

The u n t r a m m e l e d r ight of the execut ive to remove

foreigners from India h a s been u p h e l d by the S u p r e m e Cour t

in a n u m b e r of s u b s e q u e n t decis ions . i^ i

(c) The Passport (Entry into India) Act, 1920^02

The Governmen t of India h a s enac ted the P a s s p o r t

(Entry into India) Act, 1920. In th i s Act, "entry" m e a n s en t ry

by water , l and or air and "passport" m e a n s a p a s s p o r t for the

t ime being in force i s s u e d or renewed by a p resc r ibed

au tho r i t y and sat isfying the cond i t ions p resc r ibed re la t ing to

the c lass of p a s s p o r t to which it be longs . 1̂ 3 This Act is

ex tended to the whole of India .

The re levan t sec t ions of th i s Act to refugees are Sect ion

3 and 5, which read a s u n d e r :

Section 3-Power to make rules

(1) The (Centra l Government)^ may make rules't" r equ i r ing

t h a t p e r s o n s en t e r i ng India sha l l be in p o s s e s s i o n of

p a s s p o r t , a n d for all m a t t e r s anc i l la ry or inc iden ta l to

t h a t p u r p o s e .

(2) Wi thout p re jud ice to the genera l i ty of the foregoing

power s u c h ru l e s may:

101. Louis De Raedt (1991) 3 SCC 554, Sarbananda Sonowal 2005, 5 SCC 665. 102. Act 34 of 1920, receive assent on 9th September, 1920, Published in Gazette

of India, Pt. V, P. 54. 103. Section 2 of the Passport (Entry into India) Act, 1920.

(a) Substituted for the word "Governor-General in Council", by A.D., 1937. (b) For Indian Passport Rules, 1950, see Gazette of India, 1950, Pt. 1, S. I,

p .91 , as amended by S.O. 1794 of 1960. (c) Substituted for "The Provinces", by the Indian Passport (Amendment) Act.

1949 (36 of 1949) S. 4 (28.4.1949).

258

CHAPTER - IV

(a) Prohib i t the en t ry into (India)«= or any p a r t there of any

pe r son who h a s not in p o s s e s s i o n a p a s s p o r t i s sued to

h im;

(b) Prescr ibe the a u t h o r i t i e s by whom p a s s p o r t m u s t have

been i s sued or renewed and the cond i t ions with which

they m u s t comply, for the p u r p o s e of th i s Act; and

(c) Provide for the exempt ion , e i ther abso lu te ly or an any

condi t ion , of any pe r son or c l a s s of pe r son from any

provis ion of s u c h ru l e s .

(3) Rules made u n d e r t h i s sec t ion may provide t h a t any

con t r aven t i on thereof or of any order i s sued u n d e r the

a u t h o r i t y of any such rule shal l be p u n i s h a b l e with

i m p r i s o n m e n t for a t e rm which may extend to th ree

m o n t h s , or with fine or with bo th .

(4) All r u l e s made u n d e r th i s sect ion shal l be p u b l i s h e d in

the official gaze t te , and shal l t h e r e u p o n have effect as if

e n a c t e d in th i s Act.

Section 5-Power of Removal

The (Centra l Government)^ may by genera l or specia l

order , d i rec t the removal of any pe r son from (India)*' who, in

con t r aven t i on of any ru le made u n d e r Sect ion 3 p roh ib i t ing

en t ry into (India)^ w i thou t p a s s p o r t , h a s en te red the re in , and

t h e r e u p o n any officer of the Government shal l have all

r e a s o n a b l e powers n e c e s s a r y to enforce s u c h d i rec t ion .

259

CHAPTER - IV

(d) The Passport Act, 1967^4

The Government of India has enacted the Passport Act,

196. This Act is to provide for the issue of passport and travel

documents to regulate the departure from India of citizens of

India and other persons and for matters incidental or

ancillary thereto. It extends to whole of India.

The passport Act is 'procedure established by law'

within the meaning of Article 21 of the constitution and it is

not u l t ra virus the Article. All the departure and entry of the

foreigners into India is not valid until they do not hold a valid

passport or travel document, los gu t no refugee has so far had

a privilege of getting travel document in India, except Tibetan

refugees. Tibetan refugees can even travel to foreign countries

and come back to India on the basis of their identification

papers and documents . 1°̂

(e) The Extradition Act, 1962io7

The Government of India has enacted the Extradition

Act, 1962 in the thir teenth year of Republic of India. In this

Act, extradition is the surrender by one state to another of a

person desired to be dealt with for crimes of which he has

been accused or convicted and which are justifiable in the

Courts of the other state. Surrender of a person within the

state to another state, whether a citizen or an alien is a

(a) Substituted for the words "Governor-General in Council" by A.D., 1937. (b) Substituted for "the Provinces" by the Indian Passport (Amendment) Act,

1949 (36 of 19490 S. 4 (28.4.1949). 104. Act No. 15 of 1967, received assent on 24 June 1967, published in Gazette of

India, 29.5.1967, Pt. II, S.2. Ext. p. 372. 105. Section 3 of the Passport Act, 1967. 106. Supra n. 92 at 135. 107. Act No. 34 of 1962, received assent on 15th September, 1962, published in

Gazette of India, 19.6.1962, Pt. II, S. 2, Extra p. 418.

2C

CHAPTER - IV

political act done in pursuance of a treaty or an arrangement

a d - h o c . 108

(f) The Protection of Human Right Act, 199310̂

The Government of India has enacted the Protection of

Human Rights Act 1993. The Act provided for the consti tution

of a National Human Rights Commission (NHRC) State Human

Rights Commissions (SHRC) and Human Rights Courts (HRC)

for better protection of human rights and for matters

connected or incidental thereto. These recommendatory

bodies have powers to inquire into the violation of human

rights or abetment thereof. The Commission is not restricted

to investigating issues of concerns to citizens only and in fact

it also considers the matters relating to all human beings

including the rights of refugees in India, no

The National Human Rights Commission (NHRC) which

was established by the Protection of Human Rights Act, 1993

is the main body entrusted with promoting and protecting

human rights. The Human Rights Acts vests the NHRC with a

broad mandate but it only has the power to issue

recommendations and does not have any effective

enforcement mechanism at its disposal. The National Human

Rights Commission of India (NHRC) has functioned effectively

for the protection of refugee's human rights in India.

Enforcement of Human Rights of Refugees

It is true that a declaration of Fundamental Human

Rights is meaningless unless there is effective machinery for

the enforcement of these rights. India has been quite in the

108. For detail , see the Extradition Act, 1962. 109. Act No. iO of 1994, received assent on S"' January 1994, published in Gazette

of India. Part III, Sec. 1, dated 10th January, 1994, pp. 1-16. 110. The National Human Rights Commission filed a petition in the Supreme Court

on the threatened expulsion of Chakmas in Arunachal Pradesh.

6̂1

CHAPTER - IV

line of respecting and enforcing the concepts which stand for

human rights.

As discussed earlier, the Part III of the Constitution of

India has given all people including non-citizens found on

Indian territories the 'freedom of religion'A^^ Personal

liberty^^^ and 'the right of equality'^^^ etc. further the right to

enforce these fundamental rights,^i"* itself has been made a

fundamental right. ^^ The Supreme Court of India has

described this unique provision in the Constitution as "the

corner stone of the democratic edifice" (Prem Chand Vs. Excise

Commissioner)^^^ and "the protector and guarantor of

fundamental rights" (Romesh Thaper Vs. State of Madras). ̂ ^'^

In Indian Constitution the law enforcement provisions

ensure the full protection of the rights of refugees. So any

person, refugee or asylum seeker cannot be discriminated

against because of their non-citizens s ta tus . A person whose

right have been violated has right to directly approach the

High Court (Under Article 226) and the Supreme Court (Under

Article 32) for judicial rectification, redressal of grievances

and enforcement of fundamental rights.^^^ Government has

also consti tuted a statutory National Human Right

Commission (NHRC), which acts like a watch dog for any

complaints of Human Rights violations, vide protection of

Human Rights Act, 1993. In acts sue moto also for the

protection of Human Rights.

Ill 112 113 114 115

116 117

Article 25 of the Constitution of India. Id.. Article 2 1 . Id., Article 14. Id.. Article 32. U.N. Gupta, The Human Rights. Convention.^ and Indian Law, 2004, pp. 17-18. AIR 1963 SC 996. AIR 1950 SC 124 Dr. S. Subramanian, Human Rights: International Challenges, Vol. 1, 1997 p. 321 .

](i2

CHAPTER - IV

Constitutional Remedies

The most significant aspect of Consti tutionalism and

human rights is the exclusive and never to be denied the

right-to consti tutional remedies. It is remedy which makes

the rights real. It was, therefore, our const i tut ion-makers

having incorporated a long list of Fundamental Rights have

also provided for an effective remedy for the enforcement of

these rights under article 32 of the Consti tution. Article 226

also empowers all the High Courts to issue the writs for the

enforcement of Fundamental Rights. ^̂ ^

The significance of incorporating Article 32 in the

Constitution was explained by Dr. B.R. Ambedkar.120

"// I was asked to name any particular Article in this

constitution as the most im.portant-an Article without which

this constitution would be a nullity-I could not refer to any

other Article except this one i.e. Art. 32. It is the very soul of

the constitution and the very heart of it".

This right has been held to be an "important and integral

part of the basic structure of the constitution. ^^^

So any person, natural or artificial whose fundamental

rights has been violated can invoke the jurisdiction of the

Supreme Court under Article 32 which guarantees the right to

move the Supreme Court by "appropriate proceedings" for the

enforcement of the fundamental rights conferred by Part III of

the Constitution. 122 Further this Article confers power on the

Supreme Court to issue appropriate directions or orders or

119. Dr. J.N. Pandey, Constitutional Law of India, 2004, p. 332. 120. CAD, Vol. VIII, pp. 950-953, as cited in Narender Kumar, "Consti tutional

Law of India", 2004, p. 329, see also, J.N. Pandey. "Consti tutional Law of India'", 2004.

121. Fertil izers Corporation Kamgar Union Vs. Union of India, AIR 1981 SC 344. 122. Article 32 (1) o f the Constitution of India.

CHAPTER - IV

writs,123 for the enforcement of any of the r igh t s conferred by

Par t III of the const i tut ions.^24

Under Article 32 , the S u p r e m e Cour t ' s power to enforce

f u n d a m e n t a l r igh t s is wides t . There is no l imi ta t ion in regard

to the kind of p roceed ings envisaged in Article 32 except t h a t

the proceeding m u s t be "appropriate". So whenever , the re is

violat ion of f u n d a m e n t a l r ight , any pe r son can move to the

cour t for an a p p r o p r i a t e remedy. Article 32 is not merely

p reven t ing the inf r ingement of f u n d a m e n t a l r i gh t s ; the Cour t

held t h a t u n d e r Art. 32 it h a s power to g r a n t remedia l relief

which inc ludes the power to g r an t c o m p e n s a t i o n in

app rop r i a t e c a s e s . 2̂5 Where the f u n d a m e n t a l r igh t s of the

poor and d i s advan taged pe r son are violated:

Under Article 226 of the C o n s t i t u t i o n every High Cour t

shal l have power, t h r o u g h o u t the t e r r i to r i a l l imi ts in re la t ion

to which it exerc i ses j u r i sd i c t i on to i s sue any pe r son or

au tho r i t y inc lud ing the a p p r o p r i a t e c a s e s , any Government ,

wi thin those t e r r i to r i e s , d i r ec t ions , o rde r s to wr i t s , inc lud ing

wri ts in the n a t u r e of h a b e a s c o r p u s , m a n d a m u s , p roh ib i t ion ,

quo w a r r a n t s and cer t io ra r i or any of them-^^e

(a) for the enforcement of f u n d a m e n t a l r igh t s conferred by

Par t III, and

(b) for any o ther p u r p o s e ' . 2̂7

It is well se t t led t h a t it is not n e c e s s a r y to move the

High Cour t u n d e r Article 226 before moving the Sup reme

123. Writs in the nature of habeas corpus. Mandamus, prohibit ion, quo warranto and certiorari .

124. Article 32 (2) of the Constitutional of India. 125. M.C. Mehta Vs. Union of India, AIR (1987) SC 1086; see also, Rudal Shah

Vs. State of Bihar, AIR 1983 SC 1086; Bhim Singh Vs. State of J.K. 1985, 4 sec 677.

126. Supra n. 119 at 528. 127. 'For any other purpose ' meant for the enforcement of an statutory as well as

common law rights (Calcutta Gas Co. Vs. State of West Bengal, AIR 1962 SC 1044).

164

CHAPTER - IV

Court under Article 32 of the Constitution. Many High Courts

have granted relief to refugees in exercise of powers under

Article 226 of the Constitution.

Under both these Article i.e. 32 and 226 of the

Constitution, violation of Fundamental Rights can be

challenged in the court of law and even a foreigner, alien or

refugee will have the right to invoke the jurisdiction of the

Supreme Courti28 and High Courtsi29 under Article 32 and 226

respectively for the enforcement of their fundamental rights

in the same way as citizens of India. Under Article 32 and

226 a refugee or alien or foreigner or non-citizen can

complain against discrimination, if he or she is denied the

fundamental rights, which are provided to them within the

territory of India.

Dynamic Approach-Public Interest Litigation (PIL)

The various aspects of human rights are deeply

ingrained in the Constitution of India. However, it is to the

credit of the Supreme Court of India that they have adopted

an activist approach in mat ters of protecting and enforcing

human rights norms and over the years evolved several

judicial techniques such as 'Public Interest Litigation' to

effectuate remedial justice.^^^

The Concept of Public Interest Litigation in India was

initiated by Hon'ble Jus t ice Krishna Iyer in 1976 in Mumbai

128. Khudi Ram Chakma Vs. Union of India (1994) Supp. (1) SCC 615. 129. M. Gurunathan and others Vs. Government of India, WP No. 6708 of 1992,

also see, A.C. Moh. Siddique Vs. Government of India and others, WP No. 7916 of 1992 as cited in T. Ananthachari , "Refugees in India: Legal Framework, Law enforcement and security", ISIL year Book of International Humanitarian and Refugee Law http:/V\vww.vvoridii.org./int/iournals/lSILYBlHRIL7/2001 visited on 24.1 1.2009.

130. Sanjay Joshi, "'The Right to Equality, Life and Liberty under the Constitution of India", (ed.) Abdulrahim, P. Abdulrahim Vijapur, Suresh Kumar, Perspectives on Hitman Rights, 1999, p. 96.

265

CHAPTER - IV

Kamgar Sabha V. Abdulbhai's Case^^^ Jus t ice Iyer gave a

liberal expansion to the locus standi rule and observed:

Public interest is promoted by a spacious construction of

locus standi in our socio-economic circumstances

Representative actions, pro bono publico and like are in

keeping with the current assent of justice to the com.mon

manJ^^

In a series of decisions, the apex court has widened the

ambit of consti tutional provisions to enforce the human

rights of citizens and has sought to bring the Indian law in

conformity with the global t rends in human rights

jur isprudence. 133 Public interest litigation is the most

important contribution of judicial activism.

Explaining the concept of public interest litigation (PIL)

in S.P. Gupta Vs Union of India^^'* the Supreme Court ruled

that "any mem.ber of the public or social group acting bonafide"

could invoke the writ jurisdiction of the High Courts or the

Supreme Court, seeking redressal against violation of legal or

constitutional rights of persons, who owing to their poverty or

social or economic or other disability, could not approach the

Court of relief".

The concept of public interest litigation also applies

where the state or public authority acts in violation of a

constitution or s tatutory obligation or fail to carry out such

obligations resulting in injury to public interest or whatever

may be conveniently term as public inquiry, according to

Supreme Court "The only way in which this can be done is by

entertaining writ petitions and even letters from public spirited

131. AIR 1976 SC, p. 1463. 132. Justice Krishna Iyer as cited in Narender Kumar, Constitutional Law of India,

2007, p. 422. 133. Supra n. 38 at. 422. 134. AIR 1982 SC 149

26(

CHAPTER - IV

individual seeking judicial redress for the benefit of such

persons" J^^

So, public interest litigation is an opportunity to make

basic human rights meaningful to the deprived and

vulnerable sections of the community and to assure them

social and economic just ice which is the signature tune of our

consti tution. 136 7he Supreme Court has widened the scope of

public interest litigation or social interest litigation under

article 32 when it held that under article 32 Supreme Court

has power to grant remedial relief which includes the power

to grant compensation in appropriate cases where

fundamental rights of the poor and disadvantaged person are

violated. 137

Underlining the significance of public interest litigation

in protecting and promoting the human rights of the people of

India, the former chief just ice of India, P.N. Bhagwati has

rightly observed that the "Supreme Court has developed

the innovative strategy of 'Public Interest Litigation' for the

purpose of making basic hum.an rights meaningful for the large

masses of people in the country and making it possible for

them to realize their social and economic entitlem.ents."^^^

In a landmark judgment in National Human Rights

Commission Vs. state of Arunachal Pradesh,^^'^ the Supreme

Court has held that state is bound to protect the life and

liberty of every human being whether he is a citizen or non-

citizen. In this case public interest litigation was filed by the

135. M.C. Mehta Vs. Union of India, AIR 1987 SC 1087 136. Bandhu Mukti Morcha Vs. Union of India, AIR 1984 SC 803 137. M.C. Mehta Vs. Union of India, AIR 1987, SC 1087, See also, Rudal Shah Vs.

State of Bihar, AIR 1982 SSC 1086, & Bhim Singh Vs. State of J.K. (1985) 4 SSC 677.

138. Ajay Kumar Singh, "'Role of Judiciary in the Protection and Promotion of Human Rights-The Indian Experience'", (ed.) Abdulrahim, P. Vijapur, Suresh Kumar, Perspectives on Human Rights, 1999 p. 74.

139. (1996) ISCC 742.

6̂7

CHAPTER - IV

National Human Right Commission under Article 32 for

enforcing the rights under Article 21 of the consti tution. The

apex court of India held that the state is bound to protect the

life and liberty of every being and it is the consti tutional duty

of the state to safeguard the life, health and well being of

even aliens or refugees.

The landmark innovation of Public Interest Litigation

(PIL) is the most important contribution of Judicial Activism.

The judiciary has safeguarded the basic human rights of

people, with regard to -

(i) The pr isoners ' rights and prison administrat ion, î o

(ii) The protection of bonded contract and child labour, ^̂ i

{in] The protection of environment, i'̂ ^

(iv) The widening of scope of the right to life and personal l i b e r t y . 143

(v) The corruption and crime involving holders of high

political offices. 1"̂"̂

(vi) For activating the investigative process.I'^s

Thus the public interest litigation has today become a

byword for judicial involvement in social, political and

140. D.K. Basu Vs. State of W.B., AIR 1997 SC 610; See also Sheela Barse Vs. Union of India, AIR 1986 SC 1773; Hussainara Khatoon Vs. State of Bihar, AIR 1979 SC 1369.

141. Neerja Chaudhari Vs. State of M.P., AIR 1984 SC 1099; See also M.C. Mehta Vs. State of T.N., AIR 1997 SC 699.

142. M.C. Mehta Vs. Union of India., AIR 2004 SC 1193; T.N. Godavarman Thirumulkpad Vs. Union of India, AIR 1997 SC 1228, See also M.C. Mehta Vs. Union of India AIR 1997 SC 734; Vellor Citizens welfare forum Vs. Union of India, AIR 1996 SC 2715; M.C. Mehta Vs. Kamalnath, AIR 2000 SC 1997.

143. Chairman, Railway Board Vs. Chandrima, AIR 2000 SC 988; Vishaka V. State of Rajasthan, AIR 1997 SC 301 1, See also People 's Union for Civil Liberaties V. union of India, AIR 1997 SC 1203.

144. Shiv Sagar Tiwari V. Union of India, AIR 1997 SC 2725; State of Bihar V. Ranchi Zila Samta Party, AIR 1996 SC 1515.

145. Vineet Narain V. Union of India, AIR 1988 SC 889, Union of India Vs. Sushil Kumar Modi, AIR 1997 SC 314.

6̂8

CHAPTER - IV

economic affairs of the Indian society and state. Public

Interest Litigation helped the judiciary to exercise its power

in the most creative manner and devised new strategies to

ensure the protection of human rights to the people.

Statutory Remedies - Under the Protection of Human

Rights Act, 1993:

The Government of India has enacted the protection of

Human Rights Act, 1993 for the better protection and

promotion of human rights in India. This act was enacted in

the context of International Covenant on Civil and Political

rights (ICCPR) and the International Covenant on Economic,

Social and Cultural Rights (ICESCR), 1966.146

The Human Rights Bill was introduced in the Lok Sabha

on 14 May, 1993. It was thoroughly discussed and debated in

both the houses with certain modifications. The president,

under Article 123 of the consti tution, promulgated the

Protection of Human Rights Ordinance in 1993 on 28

September, 1993. The Protection of Human Rights Bill, 1993

was passed by both houses of Parliament and received assent

from the President on 8 January 1994. The Act came into

force with retrospective effect from 28 September 1993.i'*'^

The Act provide for the Constitution of a National

Human Rights Commission (Herein referred to as NHRC),

State Human Rights Commission in the s tates and the Human

Rights Courts at district level for the better protection of

human rights and the matter connected herewith or

incidental thereto, î s

146. Dr. Sunil Deshta, "Indian Judicial Initiative to Curb Custodial Violence : The Role of NHRC", Vol X, Issue 1, Journal of NALSA, Jan 2009, p. 11.

147. Arun Ray Mohapatra, NHRC of India : Formation. Functioning and Future Prospects, (2001) P. 58, See also, O.P. Chauhan, Lalit Dadwal, Human Rights Promotion and Protection, 2004, P. 56.

148. /hid. Also See, Dr. U. Chandra, Human Rights, 1999 p.295.

269

CHAPTER - IV

National Human Rights Commission

The Nat ional H u m a n Rights Commiss ion came into

ex i s tence on 12 October 1993 , u n d e r the Protec t ion of H u m a n

Rights Act, 1993 , is s t a t u t o r y a u t o n o m o u s body a n d h a s the

a u t h o r i t y to deal with the legal m a t t e r s conce rn ing the

h u m a n r ight c a u s e .

The Ministry of Home Affairs, m e n t i o n e d th r ee specific

object ives of the e s t a b l i s h m e n t of the Nat ional H u m a n Rights

Commiss ion : î ^

(a) To s t r e n g t h e n the i n s t i t u t i o n a l a r r a n g e m e n t s t h r o u g h

which h u m a n r igh t s i s s u e s could be a d d r e s s e d in the i r

en t i re ty in a more focused m a n n e r ;

(b) To look into a l l ega t ions of excess i n d e p e n d e n t l y of the

government in a m a n n e r t h a t would u n d e r l i n e the

Governmen t ' s c o m m i t m e n t to p ro tec t h u m a n r igh t s ; and

(c) To complemen t and s t r e n g t h e n the efforts t h a t h a s

a l ready been made in th i s