Abstract
Seeking asylum or refuge is a right belonging to non-citizens to repair the damage done when the protection of one’s own government fails (Hanna-Mari Kivistö, “Rights of Non-citizens: Asylum as an Individual Right in the 1949 West German”, 9 Contributions to the History of Concepts 61 (Summer 2014).). India is one of the major refugee-receiving countries in the world, handling refugee issues ever since the mass migration triggered by its partition in 1947, and continues to accommodate refugees from its South-Asian neighbours even today. However, India is not a party to the Refugee Convention, 1951 and does not have a domestic legal policy to specify the rights and treatment of refugees. It has been dealing with them through temporary legislations and the existing legal framework, which does not recognise refugees as a separate category. The absence of a refugee policy coupled with the conflicting judicial decisions on refugee rights creates a legal grey area which enables rule by executive decree. Therefore, the legal framework concerning refugee protection in India needs codification, which would eliminate uncertainty while addressing humanitarian concerns on refugee rights. To guide the formulation of a policy on refugees in India, Gandhi’s political philosophy becomes relevant due to its emphasis on sarvodaya which means, “progress of all”, satyagrah which means truth force and the idea of dharm which is duty. In this backdrop, this chapter explores how these core concepts of Gandhi’s political philosophy and his experiences with refugees during the partition of India in the 1940s can contribute as guiding principles for future refugee policy by interpreting Gandhi’s ideals in the practical realm of refugee rights.
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Notes
- 1.
Nazeem Goolam, “The changing face of German asylum law-a critical reappraisal”, 34 The Comparative and International Law Journal of Southern Africa 51 (March 2001).
- 2.
India was home to 1,98,665 refugees as of June 2014 and had 4,718 pending cases of asylum seekers, bringing the total population of concern to 2,03,383, available at https://www.thehindu.com/news/national/india-home-to-200000-refugees-in-first-half-of-2014-unhcr/article6771040.ece (last visited on June 25, 2020).
- 3.
Arun Sagar and Farrah Ahmed, “The Model Law for Refugees: An Important Step Forward?”, 17 Student Bar Review 74 (2005).
- 4.
On 29 March 1971, it is reported that nearly a million refugees had entered India, fleeing the military repression in East Pakistan. By the end of 1971, figures provided by the Indian government to the United Nations indicate that this total had reached 10 million, available at: https://www.unhcr.org/3ebf9bab0.pdf (last visited on June 24, 2020).
- 5.
Omar Chaudhary, “Turning Back: An Assessment of Non-Refoulement under Indian Law”, 39 Economic and Political Weekly 3257 (July-2004).
- 6.
Tapan K Bose, Protection of Refugees in South Asia: Need for Legal Framework, 27 (South Asia Forum for Human Rights, Kathmandu, 2000).
- 7.
International Convention Relating to the Status of Refugees, which entered into force on 22 April, 1954, is the most important document on international refugee protection.
- 8.
Convention Relating to the Status of Refugees, 1951, has been subject to only one amendment in the form of a 1967 Protocol, which removed the geographic and temporal limits of the 1951 Convention. The 1951 Convention consolidates previous international instruments relating to refugees and provides the most comprehensive codification of the rights of refugees at the international level available at: https://www.unhcr.org/3b66c2aa10 (last visited on July 30, 2020).
- 9.
J.N, Saxena, “Problems of refugees in Developing Countries and Need for International Burden- sharing” in K.P. Saksena, (ed.), Human Rights: Perspective and Challenges 356 (Lancers Books, New Delhi 1994).
- 10.
Taylor H. Garrett, “Refugee Protection In International Law: UNHCR's Global Consultations on International Protection”, 25 Michigan Journal of International Law 751 (2004).
- 11.
Article 1 (2) OAU Convention on Refugee defines the term “refugee” available at: https://www.unhcr.org/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html (last visited on June 15, 2020).
- 12.
Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 22 November 1984 available at: https://www.unhcr.org/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html (last visited on July 2, 2020).
- 13.
Ravi Nair, “Refugee Protection in South Asia” 51 Journal of International Affairs 201 (Summer 1997).
- 14.
Sagar and Ahmed, supra note 4.
- 15.
India was home to 1,98,665 refugees as of June 2014 and had 4718 pending cases of asylum seekers, bringing the total population of concern to 2,03,383 available at: https://www.thehindu.com/news/national/india-home-to-200000-refugees-in-first-half-of-2014-unhcr/article6771040.ece (last visited on June 5, 2020).
- 16.
Rule 5 of Foreigners Order, 1948 provides that foreigners may be detained when permission to enter is refused.
- 17.
Section 3 (1) of the Foreigners Act provides “the Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein..” available at: http://legislative.gov.in/sites/default/files/A1946-31.pdf (last visited on June 5, 2020).
- 18.
Article 14 of the Constitution of India provides “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
- 19.
In National Human Rights Commission v. State of Arunachal Pradesh 1996 SCC, Supreme Court of India upheld that Chakma refugees cannot be forcibly sent back to Bangladesh because their life is under threat and sending them back against their will be violation of Article 21 of the Constitution of India. In Ktaer Abbas case, 1999 CriLJ 919, the Gujarat High Court declared that principle of non-refoulement is enshrined in Article 21 of the Indian Constitution, as long as presence of refugee does not create threat to national security of India. Principle of non-refoulement further recognised on Dongh Lian Kham v. Union of India, 2015 SCC as a part of Article 21 of Indian Constitution.
- 20.
In Hans Muller v. Superintendent Presidency Jail, Calcutta, AIR 1955 SC, the Supreme Court of India gave “absolute and unfettered” discretion to the government to expel foreigners. Further, in case of Mohd. Sediq v. Union of India, 1998 SCC court granted permission Central Government to deport foreigners from India keeping in mind paramount interest of government.
- 21.
India’s track record in the treatment of Chakmas has not been particularly great as compared to that of the Sri Lankan Tamil refugees and the Tibetan refugees. In an answer to a question in Parliament, Minister of State for Home Affairs Mr. Hansraj Gangaram Ahir explained various welfare schemes run by Indian government specifically for Sri Lankan and Tibetan refugees available at: http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=56854&lsno=16 (last visited on June 16, 2020).
- 22.
Nair, supra note 14.
- 23.
Article 33 of the 1951 Convention provides that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”.
- 24.
Article 51(c) Constitution of India has been incorporated as a Directive Principles of State Policy (DPSP) in Part IV of the Constitution. It obligates the state to foster the respect for international law and treaty obligations.
- 25.
In Jolly George Varghese and another v. The Bank of Cochin AIR (1980) SC Justice Krishna Iyer upheld that “until the municipal Law is changed to accommodate the treaty, what binds the courts is the former not the latter”. See Prabhash Ranjan, Anmolan and Farheen Ahmad, “Is the Supreme Court Confused About the Application of International Law?” available at: https://thewire.in/law/supreme-court-international-law (last visited on June 16, 2020).
- 26.
Supra note at 3263.
- 27.
First in Calcutta, then in Delhi in 1947–48.
- 28.
Gandhi’s selected works, available at: https://www.mkgandhi.org/ (last visited on June 16, 2020).
- 29.
Ibid.
- 30.
“The light has gone out of our lives” were Jawaharlal Nehru’s words in the radio address announcing M.K. Gandhi’s assassination on 30th January, 1948.
- 31.
“The Story of My Experiments with Truth” is Gandhi’s autobiography.
- 32.
Abraham Joseph, “Gandhism and International Criminal Law,” in Morten Bergsmo and Emiliano J. Buis (eds.), Philosophical Foundations of International Criminal Law: Correlating Thinkers 545 (Torkel Opsahl Academic E publisher, Brussels, 2018).
- 33.
A. K. Ghosal, “Sarvodaya Gandhian philosophy and way of life”, 20 The Indian Journal of Political Science 24 (1959).
- 34.
Satish Sharma, “Problem Resolution Through Social Reconstruction: An Exposition of the Sarvodaya Principles”, 21 Peace Research, Canadian Mennonite University 30 (August 1989).
- 35.
Ibid.
- 36.
Supra note at 24.
- 37.
Sharma, supra note at 35.
- 38.
A. Parel, “Gandhi and the state” in Judith Brown and Anthony Parel (eds.) The Cambridge Companion to Gandhi (Cambridge Companions to Religion) (Cambridge University Press, 2011).
- 39.
M.K. Gandhi, “The Collected Works of Mahatma Gandhi” Publications Division, Ministry of Information and Broadcasting, Government of India (New Delhi 1958–94).
- 40.
Jolly George Varghes case, supra note at 26.
- 41.
Ibid.
- 42.
B.N. Ganguli, Gandhi's Social Philosophy (New York: John Wiley & Sons, 1973).
- 43.
Michael Emin Salla, “Satyagraha in Mahatma Gandhi's political philosophy” 25 Peace Research Canadian Mennonite University 55 (February 1993).
- 44.
‘There was no dharma higher than truth’ and ‘no dharma higher than the supreme duty of non-violence’. available at: https://www.mkgandhi.org/articles/freedom.htm (last visited on June 16, 2020).
- 45.
“Gandhi believed that the suffering a Satyagrahi (one who practices Satyagrah) would voluntarily undergo to convert an opponent was consistent with the pursuit of Truth, and was certain to ‘melt the hearts of even the most implacable of opponents” (see Supra note 44).
- 46.
“I believe, and everybody must grant, that no Government can exist for a single moment without the cooperation of the people, willing or forced, and if people suddenly withdraw their co-operation in every detail, the Government will come to a stand-still”.
available at: https://www.gandhiheritageportal.org/ghp_booksection_detail/Ny0yMjYtMg%3D%3D (last visited on June 22, 2020).
- 47.
Devi Prasad, “Satyagraha: The Way”, 32 India International Centre Quarterly 46 (Summer 2005).
- 48.
“This ahimsa is the basis of the search for truth. I am realising every day that the search is vain unless it is founded on ahimsa as the basis… Ahimsa is the means; Truth is the end. Means to be means must always be within our reach, and so ahimsa is our supreme duty…” (see Gandhi, Selected Works available at: https://www.mkgandhi.org/ebks/SWMGandhi.pdf (last visited on June 29, 2020).
- 49.
“Satyagrah was described by Gandhi as the path to sarvodaya; in other words, the search for truth is the path leading to the uplift of all”.
- 50.
“Austin’s idea of “absolute duties” and denial of “rights and duties are co-relatives” is criticised by Salmond stating that, “there can be no duty without the existence of right” available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/3/03_chapter%201.pdf (last visited on June 29, 2020).
- 51.
Ryan (2012).
- 52.
Mark Lindley, “Gandhi on corresponding duties—rights” available at: https://www.mkgandhi.org/articles/gondutiesrights.htm (last visited on July 2, 2020).
- 53.
Rights and Duties, available at: http://egyankosh.ac.in/bitstream/123456789/63124/2/Unit-5.pdf (last visited on July 2, 2020).
- 54.
Selfless Service Available at: http://www.gandhimemorialcenter.org/selfless-service (last visited on June 27, 2020).
- 55.
G. N. Sarma, “Gandhi's Concept of Duty”, 42 The Indian Journal of Political Science 228 (June 1980).
- 56.
Ibid.
- 57.
Quotations by Dr. Martin Luther King Jr. available at: https://www.mkgandhi.org/Associates%20&%20Disciples/quote_king.htm (last visited July 2, 2020).
- 58.
‘The principle of Non-refoulement’ i.e. the principle of international law which requires that no state shall return a refugee in any manner to a country where his or her life or freedom may be in danger is also embodied in Article 33(1) of the United Nations Convention on the Status of Refugees, 1951.
- 59.
Ktaer Abbas Habib Al Qutaifi v. Union of India 1999 CriLJ 919.
- 60.
Sharma, supra note 35.
- 61.
Parel, supra note 39.
- 62.
R. P. Mishra, Hind Swaraj: Gandhi's vision and ground realities available at: https://www.mkgandhi.org/articles/gandhi_vision.htm (last visited on June 27, 2020).
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Yadav, A., Khan, N. (2022). Immortality of the Vision: How Gandhi Can Guide the Future of India’s Refugee Policy. In: Mittal, R., Singh, K.K. (eds) Relevance of Duties in the Contemporary World. Springer, Singapore. https://doi.org/10.1007/978-981-19-1836-0_9
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