Indian law offers very weak, if any, legal protection to refugees. There are several categories of residents in a country — citizens, permanent residents, economic migrants, foreign visitors and refugees, with varying legal rights. The Foreigners Act of 1946 makes no distinction between a foreigner and a refugee. Its preamble provides ‘for the exercise by the Central government of certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom’. The Act effectively provides the Central government with complete discretion in its dealings with all foreigners; with an important caveat supplied by the Supreme Court in its judgment in National Human Rights Commission vs. Arunachal Pradesh (1996) — under Article 21 of the Constitution ‘... the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise — ‘ Therefore, even as a mere foreigner, the state is obliged to provide security to Taslima as long as she is within the country. But does she have a right to stay in India?

In many other countries, the treatment of foreigners is still largely a political decision, but refugees have been granted legal rights. Under international law, the Convention Relating to the Status of Refugees (1951), read with its 1967 Protocol of 1967, defines a refugee as someone who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ is outside her country of nationality and cannot return. There can be no doubt that Taslima was persecuted in Bangladesh for her political opinion and therefore qualifies as a refugee under this definition. As such, she can avail the rights of a refugee outlined in the convention in any of the member-states. One of the most basic of these rights is the ‘right to non-refoulement’ in that forbids the expulsion or return of a refugee to a state where her life or freedom will be endangered on account of her race, political opinion etc. Article 26 of the convention guarantees a refugee the freedom to move and reside freely within the territory of the country of refuge.

In 1951, India rightly refused to sign the convention. The application of the original convention was largely limited to ‘events occurring before 1 January 1951’ in Europe. It was not designed to handle the post-partition mass-movement of refugees that took place in the subcontinent and therefore had little practical value for India. However, the 1967 protocol to the convention removed this limitation and its adoption would have been an opportune moment for India to join the convention. Regrettably, India continues to be a non-member state. But this does not necessarily imply that Taslima has no legal rights in India.

Although India did not sign the convention, it did honour its civilisational tradition and allowed thousands of Tibetan and East Pakistani refugees to stay in the country. However, these decisions were acts of political generosity rather than legal obligation. Yet it appears that at least non-refoulement of refugees is now part of Indian law, even though it has not signed the convention. In Ktaer Abbas Habib Al Qutaifi v. Union of India (1999) the government wanted to deport two Iraqi men who had come to India escaping compulsory military service (at the pain of harsh and cruel punishments). The Gujarat high court admitted that there is a legal distinction between refugees and foreigners in India and that the principle of ‘non-refoulement is encompassed in Article 21 of the Constitution, so long as the presence of the refugee is not prejudicial to the law and order and security of India.’ Given how easy it is to manufacture a ‘law and order’ problem in India, the caveat is disappointing. Yet, this is an important ruling that should be confirmed by the Supreme Court (minus the caveat).

While progressive judicial pronouncements try to fill in for the legislative silence on the status of refugees, they can only go so far. India must sign the convention, and as the national human rights commission suggests, ‘a comprehensive national law ought to be devised, keeping in view the decisions of the Supreme Court as well as international instruments on the subject.’

And while we are at it, Taslima must be allowed to stay, provided with security without harassment, and her freedom of movement and speech should be respected. Citing ‘law and order’ problems to deny her these rights would only be a hypocritical façade for caving in to unfair demands of communalists.

The writer is a legal scholar at Oxford University