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.

... contd.