A Critique of the Foreigners Act, 1946: A Legislation de Jure or de Facto?

Abstract

India, a country that has given shelter to a lot many refugees and has always welcomed one and all. Such a country is home to one of the largest refugee populations in the world. Mass human rights abuses, civil wars, internal strife, communal violence, forced relocation and natural disasters lead to the creation of refugees. It is the risk of human rights violations in their home country which compels the refugees to cross international borders and seek protection abroad. Consequently, safeguarding human rights in countries of origin is of critical importance not only to the prevention of refugee problems but also for their solutions.Since today’s refugee problem is global in nature and concerns not only individuals in their relations with states but also states in their relations with one another. Hence, we need a law which is not only a law relating to the legal status and protection of refugees but also encompasses the refugee problem as a whole, a law which is solution oriented. Human rights perspective of the refugee problem will be helpful in restructuring the present mechanisms of refugee law on these lines. Therefore, India needs to consolidate, modernize and harmonise into legislation, its long tradition and experience in accommodating the inflow of refugees and its commitment to uphold the principles of international human rights. The Foreigners Act, though it penalises the illegal entry and exit of the foreigners has not achieved the purpose which it should have achieved. A nation must protect the rights of its residents and of the refugees (Atithi Devo Bhava). There has become a lacuna, concerning legal status of refugees in India and the Constitution lacks provisions for refugees and they are considered as illegal immigrants according to the laws. Due to this, the refugees continue to be subject to arbitrary arrest and harassment. This phenomenon also unnecessarily tarnishes India’s image at the international level.Though, the Act is haphazard, it would unnecessarily tiresome on part of the Parliament to enact a new domestic refugee law. Therefore, there can be through amendment process, incorporated several provisions which would thereby protect the rights of the refugees all over.