An Assessment of Principle of Non- Refoulement under Indian Law

Introduction

India’s history with refugees has been long and dramatic. While India has produced its fair share of refugees, it has been more of a “refugee receiving country” than it is “refugee producing”. To them, India has been a graceful host. While not formally bound by any of the major international agreements protecting the rights of refugees (i.e., the 1951 Convention for the Protection of Refugees and the 1967 Protocol for the Protection of Refugees), India mostly follows International norms. There have, of course, been exceptions to the rule, especially in matters of 'national security', where India deviated from its traditional hospitality. A sober assessment of Indian law reveals that refugees are not entitled to non-refoulement unless India adopts new legal obligations.

Non- Refoulement under Article 21

As times change, a fluid Constitution helps to adapt and meet the needs of its people. Too much flexibility, however, can thwart the very raison d'etre of the written Constitution: to create a durable model of governmental power and individual right. Striking the balance can often be a confusing process, and Article 21 is no exception. The most important aspect of Article 21 is that it provides different rights in different contexts. Article 21 also provides lesser protection when it conflicts with the State's interests in immigration or national security. Finally, it provides no protection whatsoever when someone's life or liberty is deprived of them by a non-state actor. Article 21 has been broadened in recent decades to encompass vast substantive rights, but, it apparently fails to guarantee non-refoulement to each and every refugee. The historical development of Article 21 reveals that substantive rights may not exist for aliens under the Constitution. It began as a mere procedural (rather than substantive) check on government. Ironically, the Constitution's drafters derived India's narrowly conceived Article 21, in part, from the sufficiently broad Due Process Clause of the US Constitution. While much of India's law came from the British, "it was the Potomac and not the Thames that fertilised the flow of Yamuna". One of India's concerns with the Due Process Clause, which protects substantive as well as procedural rights, is that substantive due process would rule out preventative detention. As jurisprudence developed in the area of fundamental rights, the test for compliance with Article 21 commingled with the standards for Article 14. Although Article 14 establishes a right to equality before law, both the articles comprise 'fundamental rights' of the Constitution that apply to non-citizens. As a result, courts began applying similar tests to see if particular laws complied with the article. procedural violations of Article 21. This led to the final development of Article 21 - its commingling with Article 19 and the creation of substantive due process - was a development that only applied to Indian citizens. Since Article 19 only applies to citizens, then any influence it had on Article 21 should probably be limited to citizens. A brief glance at Indian case law neither confirms nor denies the hypothesis that only citizens receive substantive rights under Article 21. First, nearly in every case, granting substantive rights under Article 21 involves a citizen. Second, few, if any, cases involving aliens clearly grant substantive rights under Article 21. In summary, case law on the matter is ambiguous, and the historical development of substantive due process questions the conclusion that aliens retain substantive protections under the Indian Constitution. Non-citizens' claims to non-refoulement, which is ultimately a substantive right, are therefore called into doubt by the historical development of substantive due process under Article 21.

Diminished Substantive Rights in National Security matters

Even assuming those aliens retain some substantive rights under Article 21, those substantive rights are minimal when important matters of state are concerned. For instance, even though courts have ruled that Article 21 protects the substantive rights of prisoners, the Supreme Court has upheld the death penalty (by hanging) on numerous occasions. In a recent case, involving a tourist's (non-citizen's) right to 'life and personal liberty', the Supreme Court stated the following:

The primacy of the interest of the nation and the security of the State will have to be read into ... every article dealing with Fundamental Rights ... including Article 21 of the Indian Constitution.

In the above mentioned case, Railway Board v. Das, involved a Bangladeshi woman visiting India. Several employees of the Indian railways raped her at a station and the court upheld her claim that the state-run Railway Board breached her fundamental rights. The case was truly decided on substantive grounds, then the above language used by the court can be seen as a warning to future litigants that fundamental rights of aliens will not be upheld in every situation as it was in that case. As a result, the outcome of Das is simple: since the individual's; right is being deprived, and since the state has no interest, the individual, dual's right to personal liberty should prevail. The court implies, however, that the state's interest must be weighed against the interest in individual rights. This process of weighing interests, the nation and security assume the highest priorities. Non- Refoulement under Article 51

Article 51 is a 'Directive Policy' and likewise is not enforceable upon the courts. Instead, Article 51 has merely been a way for courts to construe legislative intent, assuming that Parliament does not intend to violate international law unless given indications otherwise. The courts do not operate under compulsion of law to effectuate the language of Article 51. In the face of an 'occupied field', a statute in direct opposition to the guarantee of non-refoulement, and a clear policy of avoiding the Refugee Convention, Indian courts would not disrupt the practice of upholding the status quo of domestic law.

Conclusion

A sober assessment of Indian law reveals that refugees are not entitled to non-refoulement. First, institutional structures provide neither a legal nor a practical guarantee that refugees will not be returned to harm. Second, Article 21 of the Constitution does not include non-refoulement as a fundamental right to refugees. Finally, the Constitution's Article 51 does not incorporate the principle of non-return into Indian municipal law. At the same time, India performs on the political and moral obligation to cure the 'tragedy of the commons' that results from cross-border refugee flows. Instead of regretting the lack of participation from other countries in the region, India fosters cooperation.

References

1). (2000) 2 SCC 465

Profile of the Author

[Author’s Profile: Kunwar Bir Singh, 3rd year B.A.LL.B.(Hons.) student from University Institute of Legal Studies, Panjab University, Chandigarh.]