Faculty of Legal Studies

The grammar of regionalization of equitable development demands a continuum of cooperation and co-existence that subsumes the horizontal hiatus and vertical vagaries of geostrategic and lego-political nature which establish peace, progress and prosperity in this part of the world. The most important challenge for SAARC lies in moving from the gamut of ideas to the executable roadmap in realizing the vision of the grouping while maintaining an unprecedented regional momentum in commensurate with the changing scenario. This regional momentum must be spontaneous spurt paving the way of the peoples to be capable enough to harness the full potential of the South Asian region and to join the worldwide quest for economic growth and optimum development. However, SAARC should clinch its own rightful place among the comity of nations with its South Asian-ness approach that aspires to emulate the national standards, accountability, transparency-oriented policies reflected in the collectivity of action.

The pusillanimity of international law once again left the fraternity of international lawyers, academicians and think tanks shocked and shattered to the hilt. The role of Russia in Crimea has refreshed the mawkish memories of the cold-war era when international politics was hostage to bipolarity. However, in post-cold-war period, there has been substantial and progressive development of international law. But, unfortunately, 9/11 tragedy has put the international law entirely on a different trajectory that smacks of double standards in foreign policy priorities, international diplomacy doubts and international relations reservations by the comity of nations which have once again established that we, the People of the World, are still crawling under the bandicoots of majesties of the yore.

The world has been morphing, transforming and transiting in desire and discourse, grace and guidance, purpose and practicality, pace and propensity and terrorism and transcendentalism. But this transformation does not address the biggest contemporary challenges posed to international refugee law (IRL) in its present posturing. The national governments across the globe have given the cold shoulder to refugees in their itinerary of international obligations and duties as enunciated in the UN Charter and Universal Declaration of Human Rights (UDHR) along with the vast pool of human rights instruments. However, international community has been performing its refugee mandate in an ostensible manner that is insufficient and contemptuous to their basic rights and dignity. Today, refugees have been grappling with scorn, suspicion and skepticism of national governments in their quest for durable solutions to human displacement and migration. But, unfortunately, refugees are being squeezed in the state practices which are reflected in their autonomy of sovereignty, foreign policy preferences, international relation controls and geo-strategic choices that undermined the dignity, equality and liberty of the refugees.

The Government of India has dealt with refugee issues as an integral part of bilateral relations with neighbouring states.  The importance of administrative discretion in the government’s dealings with refugees is therefore governed by the practical consideration of relations between states.  However, this administrative discretion has been exercised in broad consonance with international refugee law norms. The Indian government believes that even in the absence of refugee specific legislation and in spite of being a non-signatory to the principal refugee conventions, adequate protection to refugees is being provided a generous asylum policy and administrative structure.  However, by not differentiating refugees from other aliens in the country gaps in their protection occur – particularly with regard to asylum seekers that enter the country illegally and with regard to the equitable regulation of their stay in the country. Under the current framework, no system of protection exists for such asylum seekers and if it was not for the intervention of a third party, these persons might have run the serious risk of being refouled at the expiry of their initial stay permits.  A legislative framework would clearly be beneficial in sealing these lacunae in the protection of refugees.  The experience of resolving the problem of the stateless persons of Indian origin in Sri Lanka indicates the importance of recognizing the inter-connectedness of refugee problems and solutions in the region. The Draft Regional Declaration on Refugees in South Asia is therefore a very useful first step in this regard. Repatriation of refugees under bilateral arrangements without full involvement of UNHCR can always be questioned. In the bilateral arrangement, despite the best of intentions of the country of origin and the host country, doubts about the voluntary aspect of the repatriation can always be raised and it can always be said that the refugees have been forced to repatriate contrary to the principal of non-refoulement. Therefore, full involvement of UNHCR is a necessary prerequisite in any refugee repatriation situation.

      The role of the UNHCR from a passive facilitator to that of active promoter has emerged in view of the complex refugee situation, the demands of the international community, overburdened host countries and in certain situations, the refugees themselves due to miserable life in the camps in the host countries.  Its role as an active promoter has evolved over time and the international community has accepted it and now there is no possibility of going back. Refugee repatriation as a concept and process has evolved over the years and helped in finding durable solution for millions of refugees.  This is the solution, which needs to be pursued vigorously with the cooperation of all concerned. It will require intense involvement and commitment of the country of origin, the country of asylum and the international community. The international community has also to address the causes of the refugee flow and adopt a pro-active role to bring about peace and reconciliation.  Adequate and timely reintegration assistance plays a very important role in the successful repatriation and therefore, should get the due attention of the international community.

India is one of the few countries in the world which has experienced refugee situation, time and again, and that too on a gigantic scale in the last less than half-a-century. History of India is marked by large-scale migrations of people from other countries and continents. These migrations had principally taken place across of two gateways-Hindukush mountains in the West and Patkoi range in East. From the times immemorial, people from different parts of the world have been coming to India in various categories such as travellers, invaders, settlers, refugees etc., and have made, this land their home with or without separate identity. In the first twenty-five years after independence India had to accept the responsibility of 20 million refugees. It was mainly because of the partition of the country. As a result of partition of the Indian sub-continent in 1947, India had to confront a gigantic task of providing relief assistance and rehabilitating displaced persons from West Pakistan. The Declaration of Independence in 1947 resulting in the creation of India and Pakistan caused the world " s largest uprooting and movement of population in recent history in the Indian sub-continent estimated at 15 million, nearly 8.5 million immigrations from India to Pakistan and 6.5 million the other ways round. At the initial stage, 160 relief camps were organized and the total expenditure incurred on relief up to the end of 1950 was Rs. 60 crores. Various schemes were prepared for the rehabilitation of the refugees. The Government of India took necessary legislative and administrative measures to meet the situation. The Rehabilitation Finance Administration Act, 1948 was passed in this direction. The two Governments (India and Pakistan) entered into a special treaty on April 8, 1950, regulating the flow of refugees and evolving modalities for settlement of claims of refugees over property, land and payments. The main features of the Agreement could be divided in four parts. The first part aimed at allaying the fears of the religious minorities by giving them an assurance about their basic human rights. The second part was concerned with the solution of the immediate problem by promoting communal peace and normalizing the disturbed situation. It was sought to be achieved by restoring confidence among the members of the minority community. The third part aimed at establishing a climate in which other differences could be solved amicably. The last part referred to the implementation machinery, which aimed at redressing the grievances of minority communities of the two countries.

The concept of State responsibility is as old as the human civilization. It has been the perennial responsibility of the State to protect the life and liberty of its citizenry. Today an individual has become central to the entire human rights discourse and is being regarded as a subject of International Law. Moreover, national boundaries are losing their meaning. Consequently a new world human order is being emplaced. The human rights of all individuals including that of refugees have become a polemical debate heralding a new premise whereat state concerns and individual rights are at loggerhead with each other. In this conspectus, it is incumbent upon the state to reconcile this paradox in an age of transnationalisation of human rights and civil liberties. Asylum countries are not as much responsible as country of origin. Thus, country of origin should squarely be held responsible for the refugees' flows and it is the responsibility of the refugee generating state not to create problems of galling proportions for the other states as it is contrary to the notion of a civilized state. The responsibility of the country of origin is higher than the responsibility of state of reception under the International Law.

Racism is a reality and it is being perennially practiced and blatantly bloated in all societies across the geo-political spectrum in World Wide Web of equality, liberty and fraternity. Racism attacks all-encompassing normative system and erodes all aspects of human values in life. Primarily, racism is the most callous and conspicuous negation of human equality ordained by the collective wisdom in divinities, spiritualties and mundanities. However, the citadels of racism are still alive and kicking in every nook and corner of the world and India is not an exception. Despite the fact, India has been a victim since its existential history of staggering stages of colonialism and imperialism whereunder racism was the inalienable part of governance trajectory. Though, today Indians in US, UK, Canada, Australia and other parts of the world are being subjected to racial crimes attributable to the emerging trends of far right-wing political discourse in these countries. Even then India is still indulges with this profane practice with impunity.

Global standards of refugee protection have insidiously been discarded into recidivism by the very governments who once espoused the cause of refugee protection in Europe and elsewhere in a post-World War-II era. Today, refugee protection has transcended all human susceptibilities and sensibilities to geo-political and ethno-cultural manifestations. India has always been home to a variety of immigrants, including refugees, since time immemorial and accommodated them in the best possible manner. But, off late, the geo-strategic response of India to refugee influxes is guided by the resurgence of majoritarian primacy and religion-driven policies which are deviant to the global standards of human rights and refugee law. However, the constitution-based approach that Indian courts have been required to follow has resulted in little if any divergence on the ground in terms of both who is recognized as a refugee, and what their rights are relative to the standards of the UN Convention. Thus, the Indian judiciary has been grappling hard to have an interpretative equilibrium between refugee protections and state concerns whilst measuring global standards of international refugee law. Whereas, state institutions adopt ad-hoc solutions based on procrastination for non-Hindu refugees and selectively puts refugee protection issues on tenterhooks. Therefore, the article broadly deals with desideratum of what is international refugee law in mobility becomes a profound intellectual consciousness in the transcendental order in the wake of paradoxes of changing face of forced human migration in its new dynamics, the failure of transcendental international refugee law consciousness and re-building the culture of forced minimalist primacy in state affairs of India by envisioning the functions of law, locating rights, exercising rights, encountering ambivalence of governance institutions and re-configuring the changing face of freedom of movement between resistance to the communal constructs of prescriptive functionalism and endurance of transcendental foundation of international refugee law consciousness that brings out the old dialectics and new dynamics to the fore for possible solutions at the anvil of Constitution-based Approach of the Indian Judiciary on refugee rights. Thus, this polemical premise has been examined hereunder in the wake of failure of transcendental institutionalism in India.

Statelessness is the absence of the right to have a legal connection between nationality and state. The state of nationality is an identity to enjoy a 'right to have rights'. Statelessness disrupts the enjoyment of all the rights which are generally perceived or purported to have been granted for all including inter alia the right to work, the right to vote, the right to health, the right to welfare benefits or welfare and a child's right to education. Statelessness precludes people from relocating and proliferates their chances of arbitrary arrest, confinement or detention with no adequate answers. Succinctly averring, statelessness demotes and generates a state of irrelevance among the people with no hope of their condition ever improving, no possibility for a better future for themselves or their posterity. The state of statelessness dismantles the idea of cohesive human existence in a civilized world. Therefore, statelessness is a deprivation of a range of rights and benefits that bestow upon individuals constitutional identity, national security and state protection popularly known as nationality or citizenship. Statelessness may be imputed to a catena of causes inter-alia administrative practices, conflict of laws, discrimination, denationalization, matrimonial litigation, non-registration of births, persecution, renunciation, transfer of territories, re-demarcation of new boundaries, state succession, terrorism, climate change and forced displacement and migration. But its magnitude and scale still remains to be mapped because the problem of statelessness is a new predicament for international law and its offshoots. It has emerged as an ordeal for the international community that has to attend to the plight of 10 million stateless persons worldwide. Thus, it is abundantly clear that the United Nations High Commissioner for Refugees' (UNHCR) mandate is well founded in light of the sheer amount of stateless persons. Furthermore, there are also at least 1.5 million stateless refugees and around 3.5 million stateless refugees from Palestinian origin whose problems have posed challenges to the international law framework. In this paper, an attempt has been made to decipher the miasma of statelessness while locating the right to nationality of stateless persons. Suggestions are made with respect to how to end and ensure the reduction of statelessness under the architecture of international law within and beyond the pragmatism of international relations, diplomatic narratives and orientations engrossed in Occidentalism and orientalism. *

The global nuclear justice quest has been culminated by adopting a new regime that intends to dilute the Westphalian Exceptionalism and tries to establish the Universal Constitutionalism based on UN Charter's goal of violence free world enunciated in its preamble. But its plausibility and pragmatism would be tested in the years ahead. The United Nations has voted to approve the text of a proposed draft for an international treaty on the Banning and Prohibiting Nuclear Weapons on July 07, 2017. The Draft Treaty is called Nuclear Ban Treaty (NBT) that shall formally be opened for signature in September 2017, and shall be binding as an international legal instrument provided it receives 50 th country's instrument of ratification that is duly deposited with the UN Secretary-General within 90 days of its opening as per the provisions of the impugned treaty. Unbelievably, the ensuing ratification of the treaty has consumed 73 years since the attacks on Hiroshima and Nagasaki in Japan to arrive at an international understanding for the nuclear arms free world. Under the auspices of the UN, the international community has made the use or threat of nuclear weapons prohibited unconditionally under Article 1 (e) of the framework of the multilateral treaty. Remarkably, state parties to the treaty have to bear the core and absolute obligation enunciated under Article 1 (a) of the Draft Treaty that is " prohibition of any possession, deployment, testing, transfer, storage and production " of the nuclear weapons and any connection whatsoever therewith or thereto or otherwise. The NBT is an unprecedented step beyond the rubrics of prohibition that must be interpreted by dismantling the geopolitical Doctrine of Nuclearism (DoN), and its proliferation and retention must not be content as an absolute necessity by the few international geopolitical entities. The positive resurgence of NBT has recalibrated an international impetuosity to untangle the murky clouds of geostrategic justifications of nuclear status quo which have rubbished the DoN and anti-nuclear perceptions of the many national governments. However, past assertions regarding the nuclear disarmament lack convictions of the nuclear states of US,

The idea of gender justice is the substantive recognition of equality in its ethical syntactics, but it remains in a vacuum unless and until it is manifested in pragmatics in the lives of the women and girls. The gender justice is the target to achieve full equality with equity among women and girls and men and boys in all spheres of human development. The gender justice is the result of men and women jointly defining and shaping the policies and structures on the anvil of equality in the civil society. The gender justice confronts the discrimination against women and girls that have been affecting the lives of women since time immemorial and is the most widespread and acute human rights violations. Discrimination prevents women and girls from accomplishing their socio-political, eco-cultural and lego-institutional objectives ordained in all regions, all constitutions and based on the ordinary prudence of equity, equality and a clear conscience. The gender justice makes available to women equal rights with men in all spheres of human life including matrimonial relationships that has been an institution of gender abuse, women subjugation, and women exploitation to the hilt among the Muslim community in India. However, other religious communities in India also have the privilege to demean their wives in different departments of life but Muslims in the name of Islam have denied and deprived Muslim women from their lawful claims, entitlements, and rights provided in the Holy Quran particularly their rights in conjugal causes by limiting their ability to access Quranic model of dissolution of Muslim marriage that invokes religious syntactics in interpreting their rights.

The protection of Internally Displaced Persons - popularly called IDPs - has come to dominate the contemporary debate in International Law, International Refugee Law (IRL), International Humanitarian Law (IHL) and International Human Rights Law (IHRL). But these fields of law have offered disappointing levels of protection. There are no protection provisions in IRL, IHRL and IHL dealing with IDPs and protection is limited to only those persons who cross international borders. But there is another legal framework called the UNHCR Guiding Principles on Internal Displacement, 1998 which were prepared for the UN Commission on Human Rights that provides protection and assistance to the IDPs. Internal displacement rose to prominence as an issue through the late 1980s and became an important priority in global affairs during the 1990s. Today, human displacement trends in homeland boundaries have acquired global concerns and ramifications and need aid and assistance at par refugees. IDPs have also been living in refugee-like situations that make them eligible for international protection in their country of residence. Thus, it is evident from the IDPs definition discussed hereunder that it does imply to have an idea of international protection for them but it also endures insufficiencies. However, IDPs is an international problem now and creates with international obligations. Additionally, the IDPs framework is not a legally enforceable mechanism and its operation and implementation exclusively depends upon national governments. The IDPs definition is extremely restricted and lacks international application and flagrantly deprives them of international protection. Therefore, an attempt has been made in this paper to analyse the existing IDP laws, to identify the IDPs protection gaps, challenges and their implementation in practice worldwide including India.