Sunday, January 27, 2008

Refugee Protection and Indian Law

Tarunabh's recent post, below, makes for very interesting reading especially, on Republic Day. I very much appreciated his analysis. I was not aware that the Andhra Pradesh High Court has held that non-refoulement (an impossibly difficult term to pronounce correctly in Indian English) is part of Article 21. And I think that the Supreme Court's decision in the Arunachal Pradesh case is a fascinating one. That case deserves a lot more serious attention than it has received in critical constitutional examination. Inspired by Tarunabh's post, I would like to pose the following issues for my blog colleagues and co-authors to further consider.

1. It is most unfortunate, in my personal view, that India did not sign the 1951 Refugee Convention. Accession to that convention in the 1950s would have been a strong signal to our fledgling republic's commitment to human rights and human dignity. It is a bit hard to understand why India, having adopted a constitution that was directly influenced by Western constitutional traditions and ideas of human rights, would reject the Refugee Convention a year later. I'd welcome pointers on historical research about our refusal to sign the agreement.

2. Even though India is not a formal party to the 1951 Convention, it is bound by those principles of the convention that constitute customary international law. I recall that several writers and authors of international refugee law have argued that non-refoulement is one such principle. However, I am curious to know whether this argument has been made in any court given that our Supreme Court has previously invoked provisions of international conventions to which India had appended express reservations (the CEDAW Case).

3. Again speaking personally, I wonder whether one could argue that, once a foreigner or refugee is entitled to the same basic protection of constitutional rights and freedoms that a citizen enjoys, that foreigner or refugee cannot be subject to greater restrictions on those rights and freedoms than the restrictions that apply to citizens.
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