By Shristi Banerjee and Aditya Pattnaik, WBNUJS
Editor’s Note: This paper is in the form of a proposed draft for a bill titled the Protection of Refugees Bill. The Bill contains 48 sections and 14 chapters. The preamble states that it is a bill “to provide for the legalisation of asylum seekers, recognise and extending basic humanitarian rights to the refugees in the country, and for matters connected therewith and incidental thereto.”
THE PROTECTION OF REFUGEES BILL, 2014
A
BILL
to provide for the legalisation of asylum seekers, recognise and extending basic humanitarian rights to the refugees in the country, and for matters connected therewith and incidental thereto.
Bill no. _ of 2014
THE PROTECTION OF REFUGEE BILL, 2014
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ARRANGEMENT OF CLAUSES
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CHAPTER I
Preliminary
Clauses
1. Short Title and Extent
2. Definitions
3. Definition of ‘refugee’
CHAPTER II
Application for Status Of Refugee
4. Establishment of Checkpoints.
5. Procedure for Application
6. Non-denial of application.
7. Exclusion from the application.
CHAPTER III
Non- Refoulment
8. Prohibition
CHAPTER IV
Obligations of the Refugee
9. Obligations
CHAPTER V
Rights of the Refugees
10. Non Discrimination
11. Freedom of religion
12. Right to life and liberty
13. Right to residence and movement
14. Right to protection
15. Wrongful detention and criminal prosecution
CHAPTER VI
Situation of Mass Influx
16. Mass influx, Permit and appearance
CHAPTER VII
Duties of the State
17. Non justiciablility
18. Basic Amenities
19. Provision for Women
20. Work and employment
21. Children and elders
22. Camping facilities
CHAPTER VIII
Identity Documents
23. Identification proof
24. Non imposition of penalties
25. Pre-existing refugees
CHAPTER IX
Travel Documents
26. Documentation
27. Application
28. Validity
29. Languages
CHAPTER X
National Refugee Protection Board
30. Constitution of National Refugee Protection Board
31. Headquarters
32. Term of office
33. Delegation of power
34. Functions of the national commission for refugee
35. Functions of the national refugee appellate board
CHAPTER XI
State Refugee Protection Board
36. Establishment
37. Headquarters
38. Constitution of the state refugee protection board
39. Term of service
40. Functions of the state commission for refugee
41. Functions of the state refugee appellate board
CHAPTER XII
Voluntary Repatriation
42. Application and grant of voluntary repatriation
CHAPTER XIII
Cessation and Expulsion
43. Cessation of application of the act
44. Non expulsion
CHAPTER XIV
Miscellaneous
45. Application of other laws not barred.
46. Power to remove difficulties
47. Power of National Board to make rules
48. Power of State Board to make rules.
THE PROTECTION OF REFUGEES BILL, 2014
A
BILL
to provide for the legalisation of asylum seekers, recognise and extending basic humanitarian rights to the refugees in the country, and for matters connected therewith and incidental thereto.
Whereas the right to life and personal liberty is enshrined in Fundamental Rights guaranteed under Part III of the Indian constitution.
Whereas the right to seek asylum and enjoy refuge in other countries, from persecution, is laid down in Article 14 of Universal Declaration of Human Rights
WHEREAS India has an experience of inflow and a tradition of accommodating refugees from across the borders, upholding the faith in principle of non – refoulement.
WHEREAS the practice of violence against the asylum seekers and refugees, still persist in the society and the existing laws are not adequate enough for the purposes of conferment of rights and obligations and regulation of matters of matters connected therewith.
CHAPTER I
Preliminary
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1. (1) This Act may be called the Protection of Refugees Act, 2014.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:
Provided that the date so notified shall not be earlier than sixty days after the date of publication of the notification in the Official Gazette.
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2. In this Act, unless the context otherwise requires
(a) ‘Refugee’ means a ‘refugee’ as defined in clause 3 of this Act.
(b) ‘Migrant’ means a person of a different nationality, choosing the territory of India as their dwelling place for any reason, other than those applicable to refugees.
(c) ‘Persecution’ means a substantial prejudicial treatment towards a particular group of people affecting their legal and humanitarian rights to an extreme degree that makes difficult to endure survival.
(d) ‘Asylum’ means the protection which is granted by a state within its territoryto those who seek it on the basis of grounds mention in sub-clause (1) and (2) of Clause 3.
(e) ‘Asylum seeker’ means a person who seeks for protection and identification as a refugee in the territory of India.
(f) ‘Country of origin’ means the country whose nationality is possessed by a person at the time of seeking refuge.
(g) ‘Non-Refoulment’ means non rejection and non-expulsion of a refugee at the international frontier in situations where threat to life and liberty persists in the country of origin.
(h) ‘Appellate Board’ means the Refugee Appellate Board established by the Government under Clause 30 of this Act.
(i) ‘Commission’ means the National Commissionfor Refugees established by the Government under Clause 30 of this Act.
(j) ‘Repatriation’ means return of asylum seekers or refugees to their country of origin.
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3. A ‘refugee’ is defined as
(1). Any person is outside the country of his nationality of habitual, for a well-founded fear of persecution or a threat of persecution on account of race, colour, religion, political belief or membership of a particular political group, external aggression, foreign domination, occupation or any massive human rights violation, leaves the country and takes shelter in the territory of India, and is unable or unwilling to go back.
(2)Any person who, for the reasons of any natural calamity possessing a threat to the survival, is forced to leave the country of origin.
(3) Any person who is a lawful dependant of a refugee.
(4) Any person who is a migrant, and subsequently faces a well-founded fear of persecution as provided under sub-clause (1) of this clause.
CHAPTER II
Application for Status of Refugee
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4. The Government, shall by notification, establish checkpoint facilities at international frontiers, International airports, Sea ports and any other place which the government may deem fit, within six months from the date of commencement of this Act, for the purposes of admitting the asylum seekers into the territory of India
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5. (1) An asylum seeker, for the purposes of being granted the status of refugee, shall have to apply in the prescribed form at the checkpoints, at the time of arrival.
(2) A refugee shall at the time of application for the status of refugee as under sub clause (1) of clause 10, be issued with a provisional identity document which shall remain valid for all purposes till the issuance of identity documents by the refugee board.
(3) A refugee residingwithin territory of India, before the commencement of this Act, shall have to apply for legalisation of their status, in the prescribed format, to the State Refugee Board or any other competent authoritywithin the time limit provided by Clause 25 of this Act.
(4) An application for a minor, may be filed by the parent or the legal guardian, and in absence of both, by any Local Legal Service Authority or their representative or any other NGO involved in the field of welfare of the children.
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6. Subject to provisions under Sub clause (1) and (2) of clause 7 of this Act, the government shall not deny opportunity to the asylum seeker to file an application.
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7. A person shall be excluded from being granted the status of a refugee for all purposes in this Act if:
(1). He or she is involved in any criminal activity against peace orany war crime; or any crime against humanity or has been involved in any act of waging war against India.
(2)He or she possesses more than one nationality.
Explanation: The term “of which he is a national” would include all those countries of which he is a national. Protection would be implied from any such country of which he is a national unless well founded reason of fear is not established for not availing such protection.
(3) Any other reasons, which the Government may deem necessary, for the purposes of interest and the security of the nation.
CHAPTER III
Non Refoulement
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8. (1) If a person is claiming refuge resorting to lawful means and can be defined as a “refuge” under art 1, then he will be protected against rejection at the frontier and expulsion which would result in threatening his life or freedom on account of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion due to the existing fear of persecution.
(2) Nothing contained in this chapter shall prohibit the government from rejecting or expelling any such person whose presence would be a threat to the national security or public order, or who has been convicted in the final order of a judgement in a serious crime that constitutes danger to the community.
CHAPTER IV
Obligations Of the Refugees
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9. Every refugee, shall have the obligation, to conform to the laws and regulations in force in India.
CHAPTER V
Rights of the Refugees
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10.(1) The State shall not discriminate among the refugees, on the ground of sex, race, religion, country of origin, ethnic origin, membership of a particular social group or political group.
Explanation: State is prohibited from discriminating among the refugees on the aforementioned grounds, but not against the refugees.
(2) Nothing contained in this section, shall prevent the State in making any special provision in furtherance of the national policy of the country.
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11. (1) Subject to public order, morality, health and any other provision contained in any other law in effect, the State shall ensure, as that accorded to their nationals, the freedom to practice and profess their religion.
Explanation: The freedom to practice their religion shall include, the belief in worship, observance and forms of practice, managing their religious affairs and any other act which is indispensible to the religion
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12.(1) The State shall not deprive, any alien including refugees, the right to life and liberty, except according to the procedure established by the law.
(2) Notwithstanding anything contained in this section, the Parliament shall have the power to enforce reasonable restrictions, for the purpose of maintenance of integrity and the security of the nation.
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13.(1) Subject to the provisions contained in the Chapter, every refugee shall have the right of residence in any part of the country.
(2) Subject to the regulations, as deemed fit by the State, every refugee shall have the right to move freely throughout India.
Explanation: Refugee, as contained in this section, will not include the refugees who have not been granted legality by the competent authorities.
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14. The Government shall provide adequate protection to the refugees, legally residing within India, against violence.
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15.Subject to matters of national security and public order, no refugee, legally residing within the territory, shall be subjected to wrongful detention or criminal prosecution.
CHAPTER VI
Situations of mass Influx
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16.(1) The Government, at times of large scale influx of asylum seekers, shall have the power to issue an order allowing them into the country without the adherence to the provisions given under Clause 5 of the Bill.
(2) The refugees shall be permitted to reside in India, till the situation in their original country ceases to exist, or the Government decides on their status.
(3) A refugee, coming into India, under the provisions of this section, shall have to appear before the competent authorities within two months for purposes of getting the legal status, failing which he or she shall not cease to be refugee for all purpose under this Act.
CHAPTER VII
Duties of the State
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17. The provisions contained in this part, shall not be enforceable by any court of law, but the application of the rules laid down hereafter, shall be the duty of the state.
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18. The State shall strive to promote the welfare of the refugees by securing the access to basic education, health and other related services.
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19. The State shall endeavour for protection and improvement in the condition of refugee women within the territory of India, and would integrate measures to fulfil their needs.
| Work and Employment |
20. (1) The State, within its economic limitations, shall make provisions to provide the refugees with a source of employment and securing humane conditions of work.
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21. The state will make provisions to ensure that a child who takes refuge in the territory of India, whether accompanied or unaccompanied by his parents or by any other person shall receive appropriate protection and assistance in enjoying the rights granted to a refugee.
Explanation: the same would apply to the elderly refugees.
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22. (1) The Government shall make provisions for establishment of camps, in areas which it may feel necessary, to provide residence to the asylum seekers and refugees.
(2) The Government shall make provisions for basic amenities and sanitation facilities in such camps for a humane habitation of the asylum seekers and refugees and ensure family cohabitation of the refugees.
CHAPTER VIII
Identity Documents
| Proof of identity |
23. (1) Every refugee, after being granted legal status by the Commissioner of Refugee, shall be entitled to be issued with an identity document indicating their status.
24. (1) The State shall not impose penalties on the refugees, on the grounds of having entered the territory of India without authority, fleeing from the native countries under circumstances contained in Article 3.
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25. All refugees, residing within the territory of India, at the time of commencement of this Act, within a time period of six months shall have to present themselves before the authorities, failing which the State can impose penalties on them.
CHAPTER IX
Travel Documents
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26.(1)Subject to national security and public order, the State shall issue, within a year of issuance of the identity document, travel documents to the refugees for the purposes of travelling outside the country.
(2) The issuance of the travel document shall be made, subject to the condition, that the refugee shall not, in any case, use any such documents issued by the original country, for future travel purposes.
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27. The refugee shall have to apply, for the travel documents in the prescribed format, with the State Refugee Board.
| Validity |
28. The document shall have the validity of two years from the date of issuance, and shall be renewable thereafter.
| Languages |
29.The document shall be made out in two languages, English and Hindi.
CHAPTER X
National Refugee Protection Board
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30. (1)The Central Government shall, by notification, constitute a National Refugee Protection Board, consisting of a National Commission for Refugees and a Refugee Appellate Board, in accordance with the provisions of this section
(2) The National Refugee Protection Board shall consist of the following members, namely:-
(a) The Union Minister for External Affairs – Chairperson, ex-officio;
(b) A deputy chairperson, who shall be appointed by the President, in consultation with the Chairperson, in conformation with the provision of this section.
(c) Other officers, as may be necessary, who shall be appointed by the Chairperson after consultation with the deputy chairperson.
(3) The Refugee Appellate Board shall consist of the following members, namely:-
(a) A chairperson, who shall be a retired or sitting Supreme Court judge, and shall be appointed by the President, in consultation with the Chief Justice of India.
(b) A deputy chairperson, who shall be a retired or sitting High Court judge, and shall be appointed by the President, in consultation with the Chairperson of the Refugee Appellate Board.
(c) Three other members, who shall be appointed by the President, in consultation of the Chief Justice of India, will include a sitting or retired High Court judge and two other independent members with knowledge and experience of refugee issues and law.
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31. The National Refugee Protection Board shall be headquartered at National Capital, Delhi and its jurisdiction shall extend to the whole of territory of India, except Jammu and Kashmir
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32. Each member of the Refugee Protection Board, except the chairperson of the Commissioner of Refugees, shall serve for a term of three years
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33. The National Refugee Board and the State Refugee Board shall have the power to delegate the administrative functions to any other authority, as it may deem fit, for purposes of implementation of this Act.
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34.The functions of the National Commission for Refugees shall be –
(1) to issue the identity documents to refugees;
(2) to issue the travel documents;
(3) co – ordinate all the matters relating to admission and expulsion of the refugees;
(4) tomaintain the records of refugee population, births and deaths;
(5) to conduct surveys and developmental programmes for the refugees;
(6) to monitor the implementation of this Act;
(7) to advise the Central and the State Government on any matter regarding issues related to refugee, where its advise is sought.
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35. The functions of the National Refugee Appellate Board shall be –
(1) to admit and adjudicate on the legal issues relating to admission and expulsion of the refugees;
(2) to take cognizance of issues, on its own, in cases of gross violations of refugee rights;
(3) to admit and adjudicate on any complaints regarding contravention of the provisions of this Act.
CHAPTER XI
STATE REFUGEE PROTECTION BOARD
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36. The State Governments, in consultation with the National Refugee Board, shall, by notification establish, in their States, a State Refugee Protection Board in accordance to the provisions of this section.
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37. The State Refugee Protection board shall be headquartered at the state capital and the jurisdiction shall extend to the territory of the respective states.
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38. (1) Such board shall consist of two divisions, namely, State commission for refugees and State Refugee Appellate board.
(2) The State Commission for Refugee shall consist of the following members, namely:-
(a) The Chief Minister of the state– Chairperson, ex-officio;
(b) A deputy chairperson, who shall be appointed by the Governor, in consultation with the Chairperson, in conformation with the provision of this section.
(c) Other officers, as may be necessary, who shall be appointed by the Chairperson after consultation with the deputy chairperson.
(2) The State Refugee Appelllate board shall consist of members namely:
(a) The Chief Justice of the High Court of that state — Chairperson Ex- officio.
(b) A deputy chairperson, who shall be a retired or sitting High Court judge, and shall be appointed by the Governor, in consultation with the Chairperson and the National Refugee Appellate Board.
(c) Three other members, who shall be appointed by the Governor, in consultation with the chairperson and the National Refugee Appellate Board, will include a sitting or retired judge of the high court of that state and two other independent members with knowledge and experience of refugee issues and law.
| Term of Office |
39. Each member of the State Refugee Appellate Board, except the chairperson of the Commissioner of Refugees and the Chairperson of State Refugee Appellate Board, shall serve for a term of three years.
| Functions of the State Commission for Refugees |
40. The functions of the State Commission for Refugee shall be:-
(i) to conduct census for identification of the refugees in the given states, at least once in a year , and issue all the identified refugees with identity documents.
(ii) Assist the national commissioner for refugee in developmental programmes and surveys.
(iii) to assist the national commission for refugees in monitoring the implementation of the provisions of this act.
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41. The functions of the State Refugee Appellate board shall be-
(i) to act as the first appellate forum in relation to any legal issues of the refugees.
(ii)to act as a forum to admit of any grievances of the refugees.
(iii) to take cognizance of issues, on its own, in cases of gross violations of refugee rights within its jurisdiction;
CHAPTER XII
Voluntary Repatriation
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42.(1) A refugee, shall have the option of repatriation at his own volition, subject to condition that he has obtained the clearance from the competent authorities.
(2) The refugee, for the purpose of repatriation, shall have to apply in the prescribed format with the State Refugee Commission. The Government shall provide for the clearance only after requisite verifications.
CHAPTER XIII
Cessation and Expulsion
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43.This act would cease to apply to any person defined under section 3 of this Act, if
(1) He is involved in any criminal activity against peace, war crime, crime against humanity and waging war against India.
(2) He has voluntarily re-availed himself of the protection of the country of his nationality. It would be inferred from the acquiring of nationality again voluntarily.
(3) He has subsequently taken up the nationality of any other country voluntarily.
(4) If he procured the status of refugee on the basis of false information, forged documents or cheating that influenced the decision of national authority to grant him such status.
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44. A refugee cannot be expelled by the government to his country of origin, to frontiers, or to any other country where his right to life and freedom would be threatened on account of race, colour, religion, political belief or membership of a particular political group, external aggression, foreign domination, occupation or any massive human rights violation.
CHAPTER XIV
MISCELLANEOUS
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45. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
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46.(1)If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions or give such directions, not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of the period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid as soon as may be, after it is made,before each House of Parliament.
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47. The National Refugee Protection Board, in consultation with the Central Government, shall have the power to make rules in furtherance of this act.
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48. The State Refugee Protection Board, in consultation with the National Refugee Protection Board, shall have the power to make rules in furtherance of this Act.
Edited by Hariharan Kumar
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