Ghapter No.

National flnd International

Standards for IDP's
 Chapter'3

NATIONAL AND INTERNTIONAI, STANDARDS FOR IDPS

3.L Introduction
Millions of people have been internally displaced as a result
of several reasons including forcible movements to unwelcoming
areas, civil wars in which villages have been demolished and
cultural harassment through government policies. However the

difficulty of internally displaced persons is a problematic that is not

directly talked by any international instrument, thus causal to the ad
hoc flora of the international community's response to such

predicaments. The catastrophe of the international community to

discourse this unruly may result in a danger to the internal stability

of states, since those persons who are not assisted and protected in

their own country often seek such assistance and protection as

refugees in other countries. In doing so, they join the already

swollen ranks of the approximately 17 million refugees.r Assumed
the current discriminating consciousness of the grief tolerated by
internally displaced persons, it is time for the international
community to address this problem from a legal standpoint.

L Report onRefugees, Displaced Persons and Returnees, Prepared by Mr. Jacques

Cuenod, Consultant, U.N. ESCOR, 2d Sess., Annex, Provisional Agenda ltem 12,
U.N.Doc. E / 1,09 / Add.1 [ 1991).

127
 .lnternally displaced persons have been forced from their
homes by armed conflict or internal strife. they remain within the

borders and t,nder the domestic jurisdiction of their countries. they

are nearly always destitute and acutely in need of international

protection without legal or institutional bases for receiving
protection and assistance from the international community.z

In modern days, there is shift of the problem of refugee to the

internally displaced person. The recent trends has shown that the
incidences of the refugees has declined to great extend due to

establishment of the stable government in most of the part of the

world, except the African region. On the other hand, Internally

Displaced Persons flDPsJ present the most compelling crises
confronting the international humanitarian assistance community
today. Each year the number of countries reporting internal

displacement increases; the past few years have witnessed a change

from large-scale refugee movements to increasing internal

displacement.a Thus the focus in modern days has been given on the

study of IDPs. As the most of the trends with regards to the

displacement is similar and the problem faced by the both refugees

and IDPs are identical, the study of problem and its solution can be

compared and taken on the same iootings.

2 Armacost, Michael, from the Introduction of The Forsaken People, edited by Roberta
Cohen and Francis M.Deng, Washington, DC: Brookings Institute Press, 1998.
3 Schmeidl, Susanne. Comparative trends in forced displacement: IDPs and refugees,
1964-96. In Internally Displaced People: A Global Survey. Norwegian Refugee
Council. London: Earthscan Publications t,td.

t2B
 Until about twenty years ago, refugees and displaced persons

were discussed as separate issues on the international plane.a

Refugee issues ra.rely appeared in human rights deiiberations of the

UN political or expert bodies, although the human rights violations

that caused the refugees to flee their countries sometimes did.s

Forced displacement as it appeared today, was not debated as a

human rights problem, and expert bodies rarely explored the

linkages between causes, symptoms, and solutions.6 The internal
displacement within the national territory was issue for the

domestic country and shall be dealt with the national or local laws

meant for it. Additionally, issues surrounding forced movements of

persons, in particular those occurring inside a country, rarely

surfaced during these talks.T There are several reasons why the

problem of IDPs has not surfaced at international level. Firstly

because they do not crossed the border, no issue between two

nations occurs. Therefore, no attention has been takes place. It

4 An example of the fact that refugee concerns were not considered to be part of the
human rights realm is reflected in the very limited references to refugee law. United
Nations, United Nations Action in the field of Human Rights (1.994; Quoted from
Maria Stavropoulou Source: Human Rights Quarterly, Vol. 20, No. 3 [Aug., 1998), pp.
515-554 Published by,The fohns Hopkins University Press Stable URL:
http: / / www.jstor.org/stable / 7 627 7 B Accessed: 11- 12-2017
5 Once outside his or her country of origin, the refugee became largely an object of
charity, rather than a subject of legal rights, with the exception "non-refoulement,"
the normative quality of which was increasingly recognized. Quoted from Maria
Stavropoulou Source: Human Rights Quarterly, Yol.20, No.3 (Aug., 1998J, pp.515-
554 Published b].' The Johns Hopkins University Press Stable URL:
http / / www. j s to r. o rg/s t able / 7 627 7 8 Acces s ed : 1, 1, - 1,2 -2 0 17
:

6 See generally Maria Stavropoulou, The Right Not to Be Displaced, 9 AM. U.l. INT'L L. &
POL'Y 689,706-17 & nn.81-L33 (199+). See also various contributions in INT'L f.
REFUGEE L. [Special Issue 1990]
7 One exceptional example was that of the internally displaced in Cyprus. See S.C. Res.
68/361, adopted 30 Aug. 1974, U.N. SCOR, 179sth mtg., U.N. Doc. S/RES/68/361
(1.e74).

1,29
does not become the international issue. When the citizen of one

country cross the bo"der of his own nation and entered into other, it

immediately grab attention of media, nation, security agenc),; peace

keeping force and also highlight the internal disturbance within the

nation from which this population compelled to some other nation.

On the other hand, the displacement of IDPs does not attract the

media attention, and most of the time it remain upto the local media

only. International community hardly takes cognizance of it and no

debate takes place. Again such issues are considered to be common

and internal matter therefore hardly discussed at the international

level. Therefore, it is considered that the problem of IDPs are

remain latent and does not surfaced. Therefore there appeared the

slow progress in the development of standards at national and

international level for the IDPs.

This state of affairs of the internally displaced persons now

need serious attention. The democratic state cannot overlook the

problem of their citizens, and that too, which has been created due

to the State made actions. As discussed in the previous chapter,

there is clear demarcation between refugees and internally

displaced persons and both shall not be confused on any of the

criterion. Thought it has been seen that the problem of refugee has

been taken on international front quite from the inception of

international law, the problem of internally displaced persons has
been ignored considering it as domestic. Therefore, it is essential to

examine that what are the international efforts has been made, and

130
cognizance taken to highlight, address, and compel the state
mechanism to take note or the problem of internally displace person

at international level. Keeplng this issue under focus, the researcher

has attempted to evaluate the national and international standards

set up for the internally displaced person. In this chapter the

researcher has also explored her second objective entitled, "The

IDPs rights are blurring ideas at international and domestic level.

This create problem in execution of their rights and ascertain the

aicountability of different components" and further to attempt to
test the validity of her third hypothesis, that since, the IDPs has been

much confused phenomenon with refugee, there is lack of attention,

attraction and ignorance for the standards at national and

international level for this affected population. Again, since the
causative factors of IDPs are so latent, the displacement occurs as

undercurrent. The ignorance, inability and non-availability of

proper forum compel the voice of IDPs population withered in air.
In most of the instances government itself plays vital role in
violation of rights of IDPs. Since displacement of population is
human right violation, it cannot be remained the matter for the

national concerned only. The internal disturbance within the

national cannot be ignored merely because it is the matter of

severing country and any external intervention is unwarranted. In

fact, in modern civilized world, every incidence of human rights

violation is concerned for entire humanities. It shall be borne in
mind that in most of the important issues, the level and standard for

131
law and action has been determined by international community.
Though the issue may be remained for the concern of the domestic

country but it has to be evaluateci from the point of view of

international standards" In this case also, therefore, it is essentlal
to give a thought to such standards dealt with the IDPs. In this
backdrop, it is essential to evaluate the national and international
standards discussed and decided in case of IDPs. It is necessary that

the national and international standards shall be examined.

Therefore, in the present chapter, the researcher has attempted to

examine, evaluate and explore the national and international

standards set up for the IDPs. Similarly, the researcher has also

attempted to achieve her second objectives and testified her second

hypothesis.

This chapter has focused upon to evaluate the standards at

national and international level for the internally displaced persons.

3.2 Issues and challenges for international community

Because no UN agency has the overall responsibility for

providing protection and assistance to internally displaced persons,

the response of the international community has been ad hoc.lDPs,

by definition, remain within national borders, meaning that their

own governments are responsible for meeting their protection
needs. Unfortunately, their governments are often unable to provide

protection, or may even be responsible for the displacement. In

Colombia, internally displaced persons suffer attacks and arrests by

1,:12
pararnilitary forces, drug cartels and government forces. The

government has.does little to protect them. Worse yet, assistance

agcrrcres are often reluctant to interfere arrd risk the anger of the
host government, so the issue of protection may be ignored
altogether. Greater advocacy efforts are needed to stress that the
situation of IDPs is a legitimate concern to the international
community because of the universal human rights issues ihvolved.e
Thus, at the first stance, even today, the international community

has little scope, and locus standi to take direct attention of IDPs. No

problem that international community can create pressure, provide

standards so that the domestic government cannot ignored the

same, and at time, which help in expedite the assistance to IDPs.

However, it is reality that international community cannot directly

activate for IDPs assistance.

3.3 Complexities of problem and legal issue of IDPs

The singularity of internal movement has slowly become

globalized, and the cause behind this drift is not far to pursue. The

incidence of internally displaced persons within national territory

means that their own government tolerates main accountability for

consultation their defense and help wants.

The mockery of this is obvious, since more often than not, it is

these very governments that cause or, to a lesser level of fault,

B Judy A. Benjamin, The Gender Dimensions of lnternal Displacement: Concept Paper

and Annotated Bibliography, Women's Comn.rission for Refugee Women and Children
pc. 3

133
tolerate such internal displacement.e Thus, in maximum incidents,
they are unable to get protection from government as well their
human rigkts were violated. This has led tc' the international
communit5,', inter-governmental and non- governmental

organizations taking up the cause of these hapless people.l0

Internal displacement is the inordinate calamity of our eras.

The internally displaced people are among the most helpless of the

human family. The number of internally displaced persons flDPs),

i.e. persons who need to leave their homes for related motives as
refugees, but who never achieved to cross international borders, has

long enlarged the number of refugees. The United Nations Secretary

General has called the phenomenon of internal displacement one of

the world's greatest humanitarian challenges." Ho*ever, there is

still no satisfactory protection for this group of people.

Till last two decades, there was complete vacuum of

international standards for the IDPS thought with regards to refugee

there is well defined standards, mandate and mechanism exists.

This is because,

Refugees by definition have crossed international borders to

seek a safe haven, most often they are fleeing conflict, and have

suffered violations of their human rights. Refugees are eligible for

9 Nair Promod, Towards A Regime For The Protection Of Internally Displaced Persons,
available at www.worldlii.org/int/journals/ISILYBIHRL/2001/l0.rtf access on
1.2/0s/201.7
10 The mandate of the Representative of the Secretary- General on Internally Displaced
Persons, Mr. Francis Deng, and his work on behalf of the UN Commission on Human
Rights is an instance ofthe increasing international concern in this regard.
11 UNOCHA OCHA Message

t34
international protection and assistance under the mandate of the
United Nations High Commissioner for: Refugees. Internally
displaced persons may sufier systematic violations 0f their human

rights, conflict, ethnic or religious oppression,.but remain within the

borders of their own country and have no institutional or legal

mechanism for receiving international assistance. They remain
under the jurisdiction, and responsibility, of their governments. The

system responsible for upholding the rights of IDPs may also be the

system responsible for their displacement and the violations against

their rights.tz Thus in this regards, the standards, scheme and

protocol that provide the machoism to deal with the refugee can be

taken as reference with IDPs.

It has been observed that the number of internal conflicts

based on ethnic and religious differences are on the rise since the

end of the Cold War. Programs for IDPs lack a framework for
assistance and protection comparable to those that exist for
refugees. The United Nations High Commissioner for Refugees

IUNHCR) has a clear mandate supported by international refugee

and humanitarian laws.to protect and assist refugees. No such

framework exists, however, for assisting and protecting IDPs.

Certain UN.agencies may take on, or be assigned, the role of lead

agency for a particular IDP situation. Once designated, that agency

12 Judy A. Benjamin, The Gender Dimensions of Internal Displacement: Concept Paper

and Annotated Bibliography, Women's Commission lor Refugee Women and Children
p9.12

135
deals with the emergency by assuming overall responsibility for the

displaced population. To date, UN response has been more or less

ad hoc depending on. the particular interests, expertise,.anC agenda

of the different agencies.

Humanitarian agencies normally respond to IDP emergencies

by providing the basic or most urgent needs. Although it is not

necessarily their objective or intent, these agencies may also
become involved in protecting the physical safety of IDPs

particularly women and girls and ensuring that their fundamental

human rights are guaranteed.13 However, the instahces and

examples are very less and international interventions has been

observed very little, as reflect in case of refugee. Till last two

decades, the IDPs mechanism was completely absent from the

international scenario. And even at national level, hardly there

exists any plan to deal with such cases, and sometime, even the

government show lethargic approach to deal with such issue.

The home country is responsible for the care of its displaced

people. Sometimes, governments simply lack the resources to

provide assistance. In many cases, however, the ruling authority is

the source of suffering and will not aid IDPs. The eye-opening events

are exhibited from the few part of the world, though not reported

from India, but similar allegations leveled against the Gulrat

13 Cohen, Roberta. The Displaced FallThrough World's Safety Net. The Christian Science
Monitor, Feb 6, L997. Quoted from, Judy A. Benjamin, The Gender Dimensions of
Internal Displacement: Concept Paper and Annotated Bibliography, Women's
Commission for Refugee Women and Children pp. 8-9

136
government for aiding the communal violence and taking bias
approach during. and after the Post-Godhara events, where
government authorities either become mute spectator or takeir

active role in aidirrg and abetting the communal violence. Till date
the matter is subjudice, but it has created tainted image of the

government.

The similar incidences at international level are also

observed. The Sudanese government has been accused of

systematically persecuting certain displaced ethnic groups fmainly

Christians from the south). In Afghanistan, thousands of displaced

Afghan women many of whom are widows suffer under the

restrictive regime of the Taliban, and have lost most of their basic
human rights.r+ Whenever such incidences occur, it create serious
problem for the displaced population, because from whom the hope

for security has been expected for displaced population, they are
acting as an agent against them. In such circumstances neither the

assistance reach to such group, nor have they left with any remedy.

The present Rohingya crises is burning example where they left the

country as the government authority itself play vital role against

them.

14 Judy A. Benjamin, The Gender Dimensions of Internal Displacement: Concept Paper

and Annotated Bibliography, Women's Commission for Refugee Women and Children
pc.9

137
 In the case of IDPs, such ntechanisms do not yet exist. The

Guiding Principles on Internal Displacementls identi$r the rights

and guarantees relevant to the protection of the internally displaced

and offer a basis for protection and assistance. Although not a

binding legal instrument, the Principles provide practical guidance

to governments, NGOs and other agencies working on behalf of the

internally displaced. The Guiding Principles are derived from extant

human rights and humanitarian law, as well as refugee law by
analogy.r6 However it shall be noted down that the case of refugee

and rights they are entitled for, are having completely different
package and refugee, are different than citizen and most of the time,

only human rights are available to them. In case of refugee, the

State in which such refugee entered, always demand for their
eviction and returning them to their home country. Thus, the
refugees are only provided the shelter by the host country,, and

generally does not extend them the right of citizenship.tz But this is

not the case with the IDPs. They are the citizen of the country and

entitled and guarded with all those rights available to citizen.

International instruments provided protection to internally

displaced people. UNO and its organs provide sufficient protection

15 Guiding Principles on Internal Displacement, Feb. l'1,, 1998, United Nations

E/CN.4/1ee8/s3/Add.z
16 Judy A. Benjamin, The Gender Dimensions of Internal Displacement: Concept Paper
and Annotated Bibliography, Women's Cornmission for Refugee Women and Children
pg. 3
17 However, it shall be noted down that in case of "Tibetan" the Government of lndia has
extended them some more facilities, and also offer them the citizenship, which is not
accepted by this refugee group.

138
in this regard. International laws concerning humanity provide
protection to displaced people. International law also provides edge

to the effects of armed struggle and to defend persons who are not
or are no longer contributing in the conflicts. At globe level various
treaties and conventions provides protection not only to the

displaced people but also provide protection against attacks, ill-

treatment, destruction of property, sexual violence and restricted

access to health care and other essential services. Talking about
displaced, these groups fight to meet indispensable needs among

aggravated poverty and they may face individual coercions, such as

tension between them and multitude societies, settlement in

insecure or unfit locations, and compulsory return to unsafe areas.

After careful study of existing international instruments it is

observed that, there is no specific or universal instrument which

provides special protection to internally displaced people. And no

any instrument keep any binding force which compel the country
where the problem exist to take action as per the mandate given by

the international community. Logically and jurisprudentially, it

involve the question of legitimacy. How far the international
community hold power on the sovereign country to direct them to

take measure for and against their own citizen? And how far such
manJate will have binding force? In case of refugee, one can
understand that the human rights philosophy may work, but in case

of IDPs how far it is feasible?

139
 . Remarkable, the efforts were taken in 1998 by the UN
General Assembly and the UN Ccmmission on Human Rights

proviCes some regulatory Principles on Internal Displacement. It is

interesting to note that, these all guiding Principles do not establish

a binding instrument, despite, that it has received large support

from the international community. More. recently, in 2009, the

African Union adopted the Kampala Convention on IDPs.18 This

provincial instrument is a significant step advancing in the

safeguard of and backing to IDPs in one of the continent's most

pretentious by disarticulation. The present crises of Sudan has again

best explained the problem of IDPs where there is urgent need of

international standards.

There is rather great change in the role of international body

in shaping the protection mechanism of human rights at domestic

level. By constant persuasion, the international bodies has

developed the pressures on the domestic nations on the issue of

human rights violation including the issue of IDPS. In present

scenario, international human rights law has had an ever-growing

impression on local legal systems of the world, and thus this

developing legal condition, the true magnitudes of which could
barely have been predicted half a century ago, needs each State
anxious, a:rd also the relevant legal occupations, prudently to reflect

ways in which real application of the State's legal human rights

18 African Union Convention for the Protection and Assistance of lnternally Displaced
Persons in Africa, fKampala Convention). Adopted by the Special Summit of the Union
held in Kampala on 22 October 2009.

1,40
responsibilities can preeminent be protected. This may in many
cases found a task to legal practitioners, owing to the contradictory
necessities . of diverse laws, lack of access to inforrnation, and the
need for further exercise. Thus taking in to consideration the

researcher has explored the various relevant provisions about

displaced people from international perspectives, as these

standards in due course of time percolate in the national legal

system to develop the national standards.

3.4 Emergence of International concern for IDPs

After two world-wars there are gradual change in the role of

State, and international bodies. The concept of Human rights has

dramatically modified the approach of State towards its citizenries.

Again on every corner of the world, the colonial rule comes to an

end that initiated the process of government of choice in different

parts of the world. Thus, the internal conflict of local people with

colonial government has decreased gradually. In the result, as

general terms, the prevention of violations of human rights would

lead to a decrease of IDPs as a result of armed conflict. Aggressive

displacement is prohibited, whether within the borders of a country

or across international borders. Displacement of civilians can be

considered, exceptionally and temporarily., when justified by
considerations'of their security or imperative military necessity.
IDPs shall be allowed to return to their place of origin as soon as the

L4l
security concerns have ceased to exist in the affected area.le
Currently the United Nations Guiding Principles ,on Internal

Displacement can be used as a tool to deal with the'problems of

IDPs. According to the definition as stated in Guiding Principles

inside exiled persons are the persons or group of persons who have

been forced or obliged to flee or leave their homes or places of

habitual residence in particular as a result or in order to avoid the
effects of armed conflicts, situations of generalized violence,

violations of human rights or natural or human made disasters and

who have not crossed an internationally recognized border.'o Thus

by clearly defining the IDPs it helps to identified this group even

from international perspectives. It further helps to highlight the
circumstance and develop assistance mechanism.

The arguments about persons or groups of persons as used in

the definition means internal shifted can affect people in specific or

a whole group. The most important fact is that dislocation is pressed

or instinctive. The term displacement in the definition not only

include actions of people consecutively away from instant danger

but can also take the form of ready and prearranged leaving in

expectation of dangers of removal. There are certain shared causes

of instinctive movements such as armed conflicts, violence, human

rights violations and ciisasters. These causes give no choice to the

19 ICRC, Customary International Humanitarian Law, Henckaerts, Jean-Marie and Louise

Doswald-Beck, ICRC-Cambridge University Press, UK, 2009 Third Edition.
Z0 See,
http://shodhganga.inflibnet.ac.in/bitstream/10603 /29219 /10 /10_chaptero/oZlZ.pdf
access on1,O/12/2015

142
people but to leave their honres and deprive them of the protection

mechanisms such as community network, access to services and

more importantly livelih:ods. Habitual residence as mentione,l,irr

the definition is not necessarily a house or building but can also be
land on which groups traditionally live.2r The effect on displaced
person is very vital. The people were exploited and suffer mental

and economical loss which cannot compensate in term of money.

The basic human rights of these people are violated and

misused by the authorities and state. Whereas the act of
displacement them self often may disrupt the human rights of

those pretentious, the succeeding damage of entree to homes, lands,

livelihoods, personal documentation, family members, and social

networks can negatively affect the ability of IDPs to assert and enjoy

an entire range of fundamental rights.22 Utmost palpable, IDPs

directly dependent on others for their basic needs such as shelter,

food and water which cannot fulfill by the state and common people.

Incidentally, their helplessness may be augmented by obstacles to

retrieving health care, education, employment economic

activities, and democratic government in their areas of

dislocation. Furthermore, the lengthier dislocation endures; the
better is the risk that outdated family and social constructions
disruption down, leaving IDPs needy on external aid and susceptible

2l IDMC," Who is an Internally Displaced person?", Available at www.internal-

disolacement.org, Access on 22.09.20 17
22 Erin Mooney, "The Concept of Internal Displacement and the Case for Internally
Displaced Persons as a Category of Concern," Refugee Survey Quarterly 24, no. 3
[2005): p.e-26.

143
to financial and sexual abuse. Such enslavement, in fit, decreases

the probabilities of tough "esults and supportable rehabllitation

into society once political and, security situations have changed to ,..

enable such solutions to take place.

With the end of the cold fighting among states at international

level, the United Nation has taken precautionary steps to secure the

rights and protection to internal displacement done the benevolent

support provided by its explicit actions but also through the

documentation of the rules of international law that rule all
situations' replies to movement.z3 These all principles of Human
Rights are helpful to displaced people for the protection of their

basic rights.

3.5 National and International Standards for Protection

Of IDP

With the development of various protective laws in India and

human rights at globe level provides series of protection to
displaced people. The Constitution of India provides fundamental

rights to every citizen except any discrimination. The UN various

conventions provide protection relating to the Status of Refugees.

23 The first RSG, Dr. Francis Deng, was appointed in 1992 with a mandate to compile
international standards composing the normative framework for addressing internal
displacement. The result was the Guiding Principles on Internal Displacement, which
were presented to the UN Commission or^ Human Rights in 1998. These principles
reflect and are consistent with international human rights law and international
humanitarian law and restate in greater detail guarantees relevant for the displaced
that are implicit in the more abstract prescriptions of these bodies of law.See, Walter
KAlin Representative of the UN Secretary-General on the Human Rights of Internally
Displaced Person, Protecting Internally Displaced Persons: A Manual for Law and
Policyrnakers October 2008 available to http://www.unhcr.org/50f955599.pdf
access on1,O/L2/2016

1,44
Additionally, it provides chance to share a few views on the notion

of safety of intern ally displaced persons, the political factors

original the difficulty of translation and its carirrg insinuations. In
modern centuries, we have perceived the emphasis of kindness of
the international community; States, United Nations agencies and

international governmental or non-governmental organizations

turn to a new dimension of population displacement. Movement

within a nation as a outcome of non-international battle. The early
1990s and the end of the Cold War carried a explosion of a new kind

of inner fight, and with them a piercing upsurge in the number of

people displaced within their own countries. The terms "conflict

based on identities", "ethnic conflict", or "religious conflict" are now

used in an attempt to characterize the nature of these new

confrontations. In States of great strategic importance but with a

weakened central authority, the political or religious causes of

conflicts are in fact often obscured or manipulated to serve infinitely

more profitable economic interests. Control of natural resources

has, often with foreign support, become more than ever an objective
for parties to conflict.2a In short the international instruments and

national polices may take efforts in protection of internally

displaced people.

. The protection of Human Rights and other fundamental rights

were state with the sincere efforts made in 1992, the United Nations

24 Human Rights in the Administration of f ustice: A Manual on Human Rights for Judges,
Prosecutors and Lawyers

145
Commission on Human Rights demanderi to Secretary General to

assign a Representative on the issues of Human Rights of Internally

Displaced Persons.zs This efforts has been ma-terialized and specific

attention has been started to be given for by appointment of

representative for Internally Displaced persons.

These efforts are fruitful in terms of basic Human Rights.

Basic human rights are those rights and freedoms that all people are

entitled to irrespective of race, sex, national or ethnic origin,

religion, language, or other status. Human rights are considered as

worldwide and democratic, with all people having equal rights by

virtue of being human. These rights may exist as natural rights or as
legal rights, in both national and international law. The term human

rights is a somewhat contemporary creation. It shields under its

canopy three different types of rights:

o the fundamental freedoms or classical civil liberties,

o ethnic and religious rights

o Socio-economicrights

Indian constitutions have itemized as fundamental rights of

individual. Human rights means the fundamental rights that humans

have by the fact of being human, and that are neither created nor

can be abrogated by any government. "lt is a fallacy to regard

fundamental rights as a gift from the State to its citizens. Individuals

25 Accordingly Francis Mading Deng was appointed as a Representative on Internally

Displaced Persons to undertake work for enhanced sympathetic of problems faced by
displaced persons.

t46
possess basic human rights independently of any Constitution by

reason of the basic fact that they are members of the human race."26

In niitshell, it has been observed that despite there is lack of

international instrument for IDPs, however, the reference can be
even made to some of the international instrument which indirectly

made applicable to the deal with the drastic situation of the IDPs.

The chief legal defense available to the internally displaced persons

is start in two legal instruments firstly the Geneva Conventions

1949 and the additional protocols accepted there under and

secondly the thirty Guiding Principles adopted by the United

Nations. The Geneva Convention 1949 which is very important

from several respects has been analyzed here.

3.6 Geneva Conventions, Protocols and aftermath

The International Human Rights protective Laws provide

certain safeguard to internally displaced persons in circumstances
of armed conflict whether worldwide or non-international.

Conversely, in circumstances of inner armed conflict, most soldiers

unluckily are averse or have failed to grant expatriate persons the

important safeguards under human rights law.

The fourth Geneva Convention, 1949, bequests defense to

certain categories of civilians qualified as 'protected persons' which

provides, 'Persons protected by the Convention are those who, at a

given moment and in any manner whatsoever, find themselves, in

26 The observations of the Constitution Bench of the Hon'ble Supreme Court in M

Nagaraf & Ors. Vs. Union of lndia & Ors. [2006) B SCC 212, (para 20)

147
case of a conflict or occupation, in the hands of a Party to the conflict

or Occtrpying Power of which they are not nationals'.27 The defense

under the Convention is allowed not only to refugees, but also

internalllr displaced people" But the absence of exact reference to
this group may place the IDPs in more susceptible place in times of
war, compared to refugees. The present Rohingya crises that
become the hot debatable issue in India can be considered on these

principles to sort of their problem. One yet another problem arises

with regards to the IDPs, as compare to refugee that they hardly fall
within the meaning of 'protected persons', they are allowed to basic
assurances as provided for individuals to be treated with humanity

in all circumstances.

Individual or mass forcible transfers, as well as deportations

of protected persons from occupied territory to the territory of the

occupying Power or to that of any other country, occupied or not,

are prohibited, regardless of their motive. Nevertheless, the

occupying Power may undertake total or partial evacuation of a

given area if the security of the population or imperative military

reasons so demand. Such evacuations may not involve the

displacement of protected persons outside the bounds of the

occupied territory except when for material reasons it is impossible

to avoid such displacement.ze Persons thus evacuated shall be

27 Article 4 of 4th Geneva Convention 1949

28 This can be interpreted, used and executed in India in two cases, first, in case of
Kashmiri Pandits, who has flee away from Kashmir due to the specific prevailing
situation. Their right to return, and their rehabilitation can be resorted from this

t4B
transferred back to their tromes as soon as hostilities in the area in
question have ceased. The Occupying Power undertaking such

transfers or evacuaticrs shall ensure, to the greatest practicable

extent, that proper accommodation is provided to receive the
protected persons, that the removals are effected in satisfactory

conditions of hygiene, health, safety and nutrition, and that

members of the same family are not separated. The Protecting
Power shall be informed of any transfers and evacuations as soon as

they have taken place. The Occupying Power shall not detain

protected persons in an area particularly exposed to the dangers of

war unless the security of the population or imperative military

reasons so demand. The Occupying Power shall not deport or

transfer parts of its own civilian population into the territory it

occupies.2e

Additional Protocol I of 1977 provides an element absent

from the fourth agreement that defends noncombatants against

hazards arising from military operations as well as from

indiscriminate attach which do not distinguish between civilians

and combatants. Protocol I also elaborates on the Fourth Geneva
Conventions provision that relief actions be undertaken if a civilian

population living in areas other than occupied territories is not

provision. Again in case of Rohingya with respect to which the present political
scenario is become debatable. In both the case, this protocol can be taken into
consideration.
29 Article 49 of the Geneva Convention IV prohibits displacement of civilians during
armed conflict

149
adequately provided with the basic supplies essential to its

survival.3

The chief unequivcrcal treaty provision regarding tti'e

protection of protected persons in non-international armed conflicts

or civil conflicts is found in Common Article of L949 Geneva

Conventions. Under the international law, insurrection is
documented only when it contents circumstances firstly, rebels
must have employed control over a substantial part of the land.
Secondly, a popular of people living the territory must lend support

to the rebels out of their own free will. Thirdly, the insurgents must

be accomplished and willing to carry out international obligations

imposed upon them. Lastly, civilian disorder should reach a certain

degree of intensity and period. In other words battle or forcefulness

may not just contain of uprisings or irregular acts of short-lived

viciousness.

One of the compensations of International Humanitarian Law

over human rights law is that, in inner armed conflicts, common

Article 3 and 7977 Additional Protocol II are also binding on armed
obstruction groups. Moreover, there can be no derogation from the
rules of international humanitarian law. The basic principle of the
Common Article 3 to the four Geneva Conventions is to ensure

human treatment without adverse discrimination. The Article also

calls for the basic obligation to collect and care for the wounded and

30 Article 70(L)

150
sick.3l It make some arrangement to provide better protection to

internally displaced people.

As per the provisions -uf Human Rights and other

international instruments which insure the internally displaced

people against dams, dykes and nuclear power stations if they may

result in severe civilian losses.32 Likewise attacks on objects

necessary for the existence of the civilian population such as

products, agricultural crops, livestock, drinking water installations

and supplies, and irrigation works are prohibited. Additionally

starvation of civilians as a method of combat is also prohibited. If
compulsory displacement is needed to be assumed for security or

vital military reasons then such displacement are to be carried out

after taking all possible measures so that civilian population may
receive satisfactory conditions of shelter, hygiene, health, safety and

nutrition.

3.7 Guiding Principles on Internally Displaced persons

These Guiding Principles speak about specific needs of

internally displaced persons worldwide. Its classify rights and

assurances relevant to the protection of persons from involuntary

shifted from their habitat, either due to violence, arm conflict,

ethnicity, development project or natural disaster and provide the

31 Mridula Dhekial Phukan Internally Displaced Persons and their Protection

International lournal of Scientific and Research Publications, Volume 3, Issue 7, l:ulry
201.3
32 See Article 15 Protocol ll,1977

151
mechanism to their defense and help through displacement as well

as during reappearance or relocation and rehabilitation.

For-the purposes of these Principles, internally displaced

persons are persons or groups ofpersons who have been forced or

obliged to escape or to leave their homes or places of habitual

residence, in particular as a result of or in order to avoid the effects

of armed conflict, situations of generalized violence, violations of

human rights or natural or human-made disasters, and who have
not crossed an internationally recognized State border. As

discussed already in the opening part of this chapter, the internally

disaplced persons are to be considered on different footing than

other categories as the agency to provide them the help assistance,

support, relief and opt the mechanism of rehabilitation, reallocation,

and resettlement is difference and responsibility also different on

context and reference.

a. General Principles
Principle 1- : Internally displaced persons shall enjoy, in
full equality, the same rights and freedoms under
international and domestic law as do other persons

in their country. They shall not be discriminated

against in the enjoyment of any rights and freedoms

on the ground that they are internally displaced.

This principle laid down the very basic ideology for no-

discrimination and speaks about the freedom. In principle it speaks

r52
about the equal treatment clause, and clariff that the Internally

Displaced person shall be entitled, and must be capable to enjoy all

those righb^, privileges, freedom liberty and assurances which are

available to their fellow citizens. Principles are without prejudice to

individual criminal responsibility under international law, in

particular relating to genocide, crimes against humanity and war

crlmes.

Analyzing this standards laid down by this principles at

domestic level, the comparative provision is also available in the

Constitutional guaranteed. The above rights are also provided

under the constitution of India. Art. 14 provide equality of law and

equal protection of law. The state has no right to make

discrimination among displaced people and common people. At the

same time Art. 20 also provide right to life and personal liberty. Art.

20 of constitution of India secure freedom of individual including

freedom against discrimination and arbitrary actions. If the state did

not follow the same the state is liable for the compensation to
displaced people. The national law including Indian Penal Code,

1860, Constitution of India and other protective laws provides

series of protection of the individual particularly internal displaced

people. The state cannot be defined in a limited sense. Government

departments, legislature, administration, and therefore the

exercise of jurisdiction over the local authorities, but it is not
statutory authority does not include non-statutory or private
bodies, including. For example: Company, autonomous bodies and

153
others. It means every state authority is duty bound to protect the

rights of displaced people. The broad interpretation of right to life

defined under :onstitution of India, right to life meaningful and

dignified means complete right to life which is essentials for every
individual. In other words right to life does not mean it is restricted
and narrow meaning. It is something more than being alive or
animal existence. In other words it is the duty of state to provide
better protection to individual against all kind of discrimination.
The displaced people are also are within the ambit of this provision

which provides better protection against all kind of discrimination.

In the landmark case33 the Supreme Court held that, reshape

the principle of right to life and human dignity. The court advocates

and include in the right to life

7 Right to go abroad

2 Right to privacy

3 Against solitary confinement) is fine.

4 Against hand cuffing

5 Against delayed execution is correct.

6 Right to Shelter. Against the death in custody

7 Right against public hanging

After careful scrutiny of the above principle it is clear that,

right has not narrow meaning it something widened which provides
protection to every individual. With this interpretation the court

33 Unni Krishnan v. State of AP 1993 AIR 2178

1.54
included new dirnensions from time to time have been

added to the scope of Art.21. control which imposed a limit

on the process, arbitrary whimsical and dreamy. Insults to
human dignity, executes preventable torture and reduces the level

of an animal, which would be arbitrary and must be treated in

the industry may be under question.

Thus, so far the practical issues are concerned, the equality

clause present in the Indian legal system. The problem lies for its

execution mechanism. The factual position reveals that whenever

the displaced persons flee from their place and occupy any

municipal area, take shelter of industrial area or form slums, or hold

the space under bridge, railway track, they are always get treatment

of adversely possessed population which is unwarranted for

municipalities and local self-government. Though they are hardly

have any choice, the government takes years together to legalese

their status, and hardly recognized their rights for basic amenities.
The efforts of getting water and resources for this community
experience constrain from the authorities. There are hardly any

example which shows that the local authorities have welcome this

populations and support them with equal clause.

Principle 2 : l) These Principles shall be observed by all

authorities, groups and persons irrespective of their

legal status and applied without any adverse

distinction. The observance of these Principles shall

155
 not affect the legal status of any authorities, groups

or persons involved

2) These Frinciples shall not be interpreted as

. restricting, modifying or impairing the provisions of

any international human rights or international

humanitarian law instrument or rights granted to
persons under domestic law. In particular, these
Principles are without prejudice to the right to seek

and enjoy asylum in other countries.

Human rights including constitutional protection which

guaranteed right to life enshrined under Article 21 of the right to life

meaningful and not merely the existence of creatures are included.

Include the right to life is the right to live with human dignity's Right

to life under Article 21- has been confirmed as a fundamental human

right. Facility and would like the opportunity to Due to the residence
and the right to settle in rural and urban poor is an illusion. Articles

38, 39 and Status Inequalities in income and opportunities and

minimize the social, economic justice as well as the economic

policies of the 46 commandment's positive social, economic
justice to the reality of the article 46 The weaker sections of the
society envisaged under the largess of the state and a meaningful

life worth to live with digrrity and equality of status and

continuecl to operate in order to enhance excellence.s* It means the

34 Ahrnedabad Municipal Nagarpalika vs case. (1,997) 11 SCC 121

156
authorities are bound to protect the rights to life and human dignity

of all. The administrative authority has not any exception under the

umbrella of discretionary power:s. Additionaily, it was also observed

and held that, the Court is also bound to recognize the status of

downtrodden sections. The judges of the Court have a duty to

redeem their constitutional oath and do justice no less to the
pavement dweller than to the guest of the five star hotels.35

Principle 3 : 1) National authorities have the primary duty

and responsibility to provide protection and

humanitarian assistance to internally displaced
persons within their jurisdiction. 2) Internally
displaced persons have the right to request and to

receive protection and humanitarian assistance from

these authorities. They shall not be persecuted or

punish for making such a request.

As per the constitutional mandate the state is bound to

provide protection to displaced people. Not only this, the

administrative authorities are duty bound to provide protection and

assistant to internally displaced people. The state bound to provide

assistance as well protection to displaced people through

administrative authorities. Asking for help is not crime or offence
under any law. This protection buiid confidence among displaced
people to seek remedy from appropriate authority.

35 Randhir Singh v. Union of India & Ors. [1982') 1 SCC 61.8,1982 AIR 879, 1982 SCR [3J
29

1.57
 Principle 4 : l) These Principles shall be applied without

discrimination .of any kind, such as race, colour, sex,

language, religion or belief, political or other opinion,

national, ethnic or social origin, legal or social status,

age, disability, property, birth, or on any other

similar criteria. 2) Certain internally displaced

persons, such as children, especially unaccompanied

minors, expectant mothers, mothers with young

children, female heads of household, persons with
disabilities and elderly persons, shall be entitled to
protection and assistance required by their
condition and to treatment which takes into account

their special needs.

As per this principle the state shall not deny as well

discriminate among common people and displaced people merely
on the ground of sex, religion, place of birth, language, and political

and other opinion etc. the special people like children, women and

old age people provided special protection in this regard. The

constitution of India provides wider protection in this regards. Art.

14 provides Equality before law, the State shall not deny to any
person equality before the law or fhe equal protection of the laws

withir, the territory of India Prohibitiorr of discrimination on

grounds of religion, race, caste, sex or place of birth. It means the

state is bound to treat every individual equally. The state shall not

make any discrimination among displaced people and common

158
people. Thus, equality before law is adverse appeal from the State

i.e. not to distinguish while equal security of laws strains a added

optimistic deed from the State i.e. to take all citizens on'an equal
footing. It needs that the state should make distinctive provisions
for the defense and developments of

deprived/distinguished/susceptible sectors of society. In other

word, the state is bound to provide equal protection to all people.

The state has no rights to make distinction between internally
displaced and normal people.

In most of the developing countries, especially modern

democracies like India it is mandate on State to not just 'not
discriminate'but also to make distinct provisions for their deprived
and unprivileged people. It can take numerous methods such as
positive action, special provisions for sectors etc. The guarantee of

equality before the law is an aspect of what Dicey calls the Rule OF

Law in England. It means that no man is above the law and that
every person whatever be his rank or condition is subject to the
jurisdiction of ordinary courts. Rule of law require that no person

shall be subjected to harsh, uncivilized or discriminatory treatment

even wherr the object is the securing of the paramount exigencies of

law and order.l6 It means everyone is under the law. Nobody is

above the laru and law should be applicable equally. If it so, then the

36 http: / /www.legalservicesindia.com/article/article/reasonable-classification-under-
article- 14- 1 06 1 - 1.html access on 01, / 08 / 20L6

159
question will not arise for discrimination among internally
displaced people and cornmon people.

Art. 1.i does not mean that all laws must be common in
appeal and applicable to all or that every larv must have worldwide

application, for, all people are not, by nature, accomplishment or

conditions, in the same It means the people may treat
places.

unequally at particular time or place. The same principle is

applicable to internally displaced and common people. Sometime
the displaced people may discrimination but same is only for
securing their interest. The State can treat different persons
differently if circumstances justiff such treatment. In fact, equal

treatment in unsatisfactory conditions would amount to disparity.

The government must possess power to group persons, objects and

dealings with a view to attain specific aims. So, a sensible

organization is not allowed but essential if society is to

development.

"Whenever we find arbitrariness or unreasonableness there

is denial of rule of law". Art. 14 enact primarily a guarantee against

arbitrariness and inhibit state action, whether legislative or

executive, which suffers from the vice of arbitrariness. "Every state

action must be non-arbitrary and reasonable. Otherwise, the court

would strike it ciown as invalid."s' Article L4 speciahy provides

protection against arbitrariness.

37 Bachan Singh V. State of Punjab, AIR 1980 SC B9B

160
 Art 15 of the constitution provides

ij. The State shall not discriminate against any citizen on

grounds only of religion, race, qaste, sex, and place of

birth or any of them.

i
ii). No citizen shall, on grounds only of religion, race, caste,

sex, place of birth or any of them, be subject to any

disabiliry liability, restriction or condition with
regard to

(a) access to shops, public restaurants, hotels and

places of public entertainment; or

(bl the use of wells, tanks, bathing ghats, roads and

places of public resort maintained wholly or

partly out of State funds or dedicated to the use

of the general public.

iii). Nothing in this article shall prevent the State from

making any special provision for women and children.

iv). Nothing in this article or in clause (2J of article 29 shall

prevent the State from making any special provision

for the advancement of any socially and educationally

backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.

vJ. Nothing in this article or in sub-clause [g) of clause {1i

of article 19 shall prevent lhe State from making a:r;"

speeiai provision, by law, for the advancernent of an';

1.61
 socially and educationally backward classes of citizens

or for the Scheduled Castes or ttre Scheduled 'l'ribes in

so far as such special provisicns relate to their

admission to educational institutions including private

educational institutions, whether aided or unaided by

the State, otler than the minority educational

institutions referred to in clause (1) of article 30.

This article specifically provides special protection to

children, old age person and educationally and socially baclnarard.

The state must secure and provide equal protection to displaced and

common people. This article did not make any distinction between

displaced and common people.

Principle 5 : All authorities and international actors shall

respect and ensure respect for their obligations

under international law, including human rights and

humanitarian law, in all circumstances, so as to

prevent and avoid conditions that might lead to
displaceme nt of perso ns.

As per the provision of constitution of India which mandate

on government to follow the principles and rule framed by the

international instrument. The laws and polices declared by the

international instruments are binding on the state and state is
'bound
to observed and follow the same, The laws and polices passes

162
through various conventions and treaties relating to internally
displaced people as well refugees are binding to the state.

ArL 51 : Promotion of {nternational Peace anC Security; the

state shall endeavor to -
a. promote international peace and security

b. maintain just and honorable relations between

nations

c. foster respect for International Law and Treaty

obligations in the dealings of organized people

with one another; and

d. encourage settlement of International dispute by

arbitration.

In other sense the state shall promote and maintain

international peace and secunty by the instruction of expose{ just
and honorable relations between nations, by the firm formation of

the sympathies of International Law as t}re actual rule of conduct

among administrations and by the upkeep of justice and dependable

admiration for agreement responsibilities in the contacts of

organized people with one another.

It is significant to note here that Article 51 finds place in

Chapter IV of the Constitution which provides for Directive

Principles of State Policy and are non-justiciable by virEue of Article

37" Even thougii as one oi the directive principie of state policy, Ar-t.

51 is not enfort:eable thror-rgh a court of iaw, Dr.B.R. .Arnbeoka-r ha-d.

ttr J
said in the Constituent Assembly that the intention was that the
executive and legislature should not only pay.lip service to these

directive principles but "tJrey should be made the basis of all

executive and legislative action that may be taken hereafter in the

matter of governance of the country"38 though it provides mandate

under directive principle of state policy but the state is bound to

obey and provide protection to displaced people.

Additionally, Article 253 provides and sanction legal effect to

international agreements the article run as "Not withstanding

anything in the foregoing provisions of this Chaptec Parliament has

power to make any law for the whole or any part of the Territory of

India for implementing any treaty, agreement or convention with

any other country or countries or any decision made at any
International Conference, Association or Other body."

Principle 6 : i.) Every human being shall have the right to

be protected against being arbitrarily displaced from

his or her home or place of habitual residence" iiJ

The prohibition of arbitrary displacement includes
displacement: [a) When it is based on policies of
apartheid, "ethnic cleansing" or similar practices

aimed at/or resulting in altering the ethnic, reiigious

or racial composition of the affected population; (bl

In situations of armed conflict, unless the security of

3B fagadish S. liaiashetti, The Status of International Law under the Constitution of India,
available ar https://www.legalindia.com/the-status-of-internatjona!-!ar.rr-under-the-
constitution-of-india/ access on 17 /051201G

164
 the civilians involved or imperative military reasons

so dem;rnd; [cj In cases of large-scale development

overriding public interests; [d) In cases of disasters,

unless the safety and health of those affected

requires their evacuation; and (eJ When it is used as

a collective punishment. 3) Displacement shall last

no longer than required by the circumstances.

In short it can summarized that, no person has the right to

encroach, by erecting a structure or otherwise, on footpaths,
pavements or any other place reserved or ear- marked for a public

purpose like; in an interesting case the court observed that, we have

referred to the assurances given by the State Government in its

pleadings here which, we repeat must be made good. Stated briefly,

pavement dwellers who u/ere to be censured in 1976 should be

given, though not as a condition precedent to their removal,

alternate pitches at Malavani or at such other convenient place as

the Goyernment considers reasonable but not farther away in terms

of distance; slum dwellers who were given identity cards and whose

dwellings were numbered in the 7976 census must be given

alternate sites for rheir resettlemenU slums which have been in
existence for a long time, say for twenly years or more, and which

have been improved and developed will not be removed unless the

land on w,hich they stand or the appurtenant land, is required for a

pubirc purposes, in whlch case, alternate sites cr acf,oririlodatien

1{t"
I DJ.
will be provided to them, the 'Low Income Scheme Shelter
Programme' which is proposed to be undertaken with the aid of the

World Bank will be pursued earnestly; and, the Slum Upgradation

Programme (SUP)' under which basic amenities are to be given to

slum dwellers will be impiernented without delay. In order tr:

minimize the hardship involved in any eviction, we direct that the

slums, wherever situated, will not be removed until one month after

the end of the current monsoon season, that is, until October

31,1985 and, thereafter, only in accordance with this iudgment. If

any slum is required to be removed before that date, parties may

apply to this Court. Pavement dwellers, whether censured or

uncensored, will not be removed until the same date viz. October 31,

L985. 3e Arbitrary displacement of the people is not allowed. The

every citizen has right to reside on the allotted land. Merely on the

ground of development or progress these people should not be

displaced.

Principle 7 : i) Prior to any decision requiring the

displacement of persons, the authorities concerned

shall ensure that all feasible alternatives are

explored in order to avoid displacement altogether.

Where no alternatives exist, all measures shall be

taken to minimize displacement and its adverse

effects. IiJ The authorities undertaking such
displacement shall ensrlre, to the greate-:t

39 Olga'l'ellis & Ors. vs. Bornbay 14unicipal Corporation & Ors. etc. 1986 AiR l-g$

L56
prccticable extent, that proper accommodation is

provided to the displacecl persons, that such

displacenrents are effected in satisfactory couditiors

of safety, nutrition, health and hygiene, and that

members of the same family are not separated. Iii] If
displacement occurs in situations other ttran during

the emergency stages of armed conflicts and

disasters, the following guarantees shall be complied

with: a] A specific decision shall be taken by a State

authority empowered by law to order such

measures; b) Adequate measures shall be taken to

guarantee to those to be displaced full information

on the reasons and procedures for their
displacement and, where applicable, or
compensation and relocation; cJ The free and

informed consent of those to be displaced shall be

soughq d) The authorities concerned shall

endeavour to involve those rtfeclted, particularly
women, in the planning and management of their

relocation; eJ Law enforcement measures, where

required, shall be carried out by competent legal

authorities; and fJ The right to an effective remedy,

including the review of such Cecisions Lry

appropnate judicial authorities, shaii be respecte'i.

.LC! J
 These principles provides protection to internally displaced

people which ensure. that, every state' is bound. to provide

appropriate place of residence to displaced people. The state must-

inzure the safe and convenient place of residence for displaced

people.

Principle B : Displacement shall not be carried out in a

manner that violates the rights to life, dignity, liberty

and security of those affected.

Same rights are guaranteed under Art 21 of constitution of

India secure right to individual irrespective of any discrimination

among displaced and common people.

Principle 9 : States are under a particular obligation to

protect against the displacement of indigenous
peoples, minorities, peasants, pastoralists and other

groups with a special dependency on and attachment

to their lands.

Principle 10 : (1). Every human being has the inherent

right to life which shall be protected by law. No one
shall be arbitrarily deprived of his or her life.

Internally displaced persons shall be protected in

particular against (a) Genocide; (bJ Murder; {cl

Summary or arbitrary executions; and idJ Enforced

disappearances, including abduction cr

unacknow'ledged detention, threatening cr r*sulting

i68
 in death. Threats and incitement to commit any of
the foregoing acts shali be prohibitetl. (2). Attacks

or ottier act:'of violence against internaily dispiac".d

persons who do not or no longer participate in

hostilities are prohibited in all circumstances.

Internally displaced persons shall be protected, in
pamicular, against (a) Direct or indiscriminate

attacks or other acts of violence, including the

creation of areas wherein attacks on civilians are

permitted; (b) Starvation as a method of combat;

(cJ Their use to shield military objectives from at[ack

or to shield, favour or impede military operations;

(dJ Attacks against their camps or settlements; and

(e) The use of anti-personnel landmines.

Principle 11 : (L). Every hurnan being has the right to

dignity and physical, mental and moral integrity. [2).

Internally displaced persons, whether or not their

liberty has been restricted, shall be protected in
particular against: (aJ Rape, mutilation, torture,
cruel, inhuman or degrading treatment or
punishment, and other outrages upon personal

dignity, such 1s acts of gender-specific violence,

forced prostitution and any form of indecent assault;

{bJ Slavery or any contemporary form of siavery,

sueh as sale into marriage, sexual expiartation, ci'

161]
 forced labour of children; and (c) Acts of violence
intended to spread terror among internally
displaced persons. Threats and inciteurent to
commit any of the foregoing acts shall be prohibited.

Principle L2 : 1") Every human being has the right to

liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. 2) To give

effect to this right for internally displaced persons,

they shall not be interned in or confined to a camp.

lf in exceptional circumstances such internment or

confinement is absolutely necessary, it shall not last

longer than required by the circumstances. 3)

Internally displaced persons shall be protected from

discriminatory arrest and detention as a result of

their displacement.

ln no case shall internally displaced persons be taken

hostage.

Principle 13 : [r] In no circumstances shall displaced

children be recruited nor be required or permitted

to take part in hostilities. Ii) Internally dispiaced

persons shall be protected against discriminatory

practices of recruitment into any armed forces cr

grCIups as a result of their displacemenl lil

particuiar any cruel, inhuman or degrading practrces

170
 that compel compliance or punish non-compliance
with recruitment.are prohibited in all circumstances.

Principle' i4 : t. Every internally displaced perSou has the

right to liberty of movement and freedom to choose

his'or her residence. 2. In partictilar, internally
displaced persons have the right to move freely in

and out of camps or other settlements.

Principle 15 : Internally displaced persons have: [aJ The

right to seek safety in another part of the country;

[b) The right to leave their country; [cJ The right to

seek asylum in another country; and (dJ The right to

be protected against forcible return to or

resettlement in any place where their life, safety,

liberry and/or health would be at risk

Principle t6 :1,. All internally displaced persons have the

right to know the fate and whereabouts of missing
relatives. 2. The authorities concerned shall
endeavour to establish the fate and whereabouts of

internally displaced persons reported missing, and

cooperate with relevant international organizations

engaged in this task. They shall inform the next of

kin on che progress of the investigation and notify
them of any result. 3. The authorities concerned

shall endeavour lo collect and ieientify the rnortal

!7'L
 remains of those deceased, prevent their
. despoliation or mutilation, and facilitate the refurn

of rtrcsc remains to the next of kin or dispose+rf them

respectfully. 4. Grave sites of internally displaced

Irersons should be protected and respected in all

circumstances. Internally displaced persons should

have the right of access to the grave sites of their

deceased relatives.

Principle !7 lt. Every human being has the right to

respect of his or her family life. Z. To give effect to

this right for internally displaced persons, family

members who wish to remain together shall be

allowed to do so. 3. Families which are separated by

displacement should be reunited as quickly as

possible. All appropriate steps shall be taken to
expedite the reunion of such families, particularly

when children are involved. The responsible

authorities shall facilitate inquiries made by family

members and encourage and cooperate wi& the
work of humanitarian organizations engaged in the
task of family reunification. 4. Members of
internally displaced families whose personal liberty
has been restricted by internment or confinement in

camps shail have the right to remain together"

1-72
t- ., t*.
 Principle 18 : 1. All internally displaced persons have

. the right to an adequate standard of living. 2. At the

. rilinimum, regardless of the cifcumstallces, and

without discrimination, competent authorities shall
provide internally displaced persons with and

ensure safe access to: (a) Essential food and potable

water; (b) Basic shelter and housing; [c]

Appropriate clottring; and [dJ Essential medical
services and sanitation. 3. Special efforts should be

made to ensure the full participation of women in

the planning and distribution of these basic supplies

Water and food are basic need of every human being. Without

water and food individual will not suryive. Art 21, of the

constitution of India guaranteed the right to life including right to

life as human being. But after considerable time lapse after
independence where the people has no sufficient and suiable

drinking water and food.

"...[t is a matter of great concern that even after

half a century of freedom, water is not available to all

citizens even for their basic drinking necessity violating

the human right resolution of U.N.O. and Article 21of the

Coustitution of India...."ao like water and food the shelter

is necessity of every human being. Without sheiter the

40 Narmada Bachao Andoian vs Union Of India And Others, 2000 AIR 3751

.t .7.)
a ,' .i}
 existence of people is only like as animal existence which

is not expected in Human Right perspective. The right to

shelter v/3s accepted as a part of the right to life as laid

down by the Apex Court. "The fundamental right to Iife

which !s the most precious human right arrd which forms

the arc of all other right must therefore be interpreted in

a broad and expansive spirit so as to invest it with

significance and vitality which may endure for years to

come and enhance the dignity of the individual and the

worth of the human perSsn".41 Food, shelter and healthy

drinking water is basic human rights of every individual.

The state shall not deny the same merely on the ground

of distinction. The situation is very critical when these

basic rights are not available to internally displaced
people. Fortunately, the constitutional provision makes

it mandatory on the state to provide such basic need of

human being. Additionally speaking "Right to shelter is

a fundamental right under Article 1,9 (11 of the

Constitution. To make the right meaningful to ttre poor,

the State has to provide facilities and opportunity to

build house. Acquisition of the land to provide house

sites to the. poor houseless is a public purpose as it is a

constitutional duty of the State to provide house sites to

41 Francis Coralie Mullin, vs. The Administrator, Union Territory of Delhi and Ors., A!R
1981 SC 746

1-,i
L!+
 the poor."42 It is duty of state to provide suitable shelter

to ev.ery needy anci houseless people. Same rule is

applicable in case of internally displaced pcople.

Principle 19 : 1. All wounded and sick internally

displaced persons as well as those with disabilities

shall receive to the fullest extent practicable and

with the least possible delay, the medical care and
attention they require, without distinction on any
grounds other than medical ones. When necessary,

internally displaced persons shall have access to

psychological and social services. 2. Special

attention should be paid to the health needs of

wome& including access to female health care
providers and services, such as reproductive health

care, as well as appropriate counselling for victims of

sexual and other abuses. 3. Special attention should

also be given to the prevention of contagious and

infectious diseases, including AIDS, among internally

displaced persons.

Principle 20 : 1. Every human being has the right to

recognition everywhere as a person before the law.

2. To give effect to this right for internally displaced

persons, the authorities concerned shall issue to

42 State of Karnaiaka & Ors. Vs. Narasimhamurthy & Ors1996 AIR 90

1aa
l-l,J
 them all documents necessary for the enjoyment and

exercise of tleir legal rights, such as passports,

:. personal identification docurrents, birlh certificates

and marriage certificates. In particular, the

authorities shall facilitate the issuance of new

documents or the replacement of documents lost in

the course of displacemeng without imposing

unreasonable conditions, such as requiring the

return to one's area of habitual residence in order to

obtain these or other required documents. 3. Women

and men shall have equal rights to obtain such

necessary documents and shall have the right to

have such documentation issued in their own names.

Principle 2L :1. No one shall be arbitrarily deprived of

property and possessions. 2. The property and

possessions of internally displaced persons shall in

all circumstances be protected, in particular, against

the following acts: (aJ Pillage; (bl Direct or
indiscriminate attacks or other acts of violence; [c)

Being used to shield military operations or

obiectives; (dj Being made the object of reprisal;
and [eJ Being destroyed or appropriated as a form
of collective punishment. 3. Property and

possessicns left behind by internaliy dispiaced

perserrrs should be protected against destruction and

| "it:
 arbitrary and illegal appropriation, occupation or
use

Fci the survival of human life property play vital role.

Without property the human being will not srrryive. For the smoot}
human life every one need property. Our constitution protects the

properryr of every individual And for the reason possessing the

property is human rights of every individual. Arficle 300-4 is not

only a constitutional right but also a human righl+s In other word
possessing the property is every man's rights. The person has
liberty to possess and enjoy the property as per his choice. India
ought to specifically recognize through statutory instrument the
right of IDP to protect it's property from being destroyed as a result

of revenge or punishment to IDP. tDP ought to find their respective

properties safe and secure on their return to the place from where

they were dislocated.

Principle 22 : l.lnternally displaced persons, whether or

not they are living in camps, shall not be

discriminated against as a result of their

displacement in the enjoyment of the following
rights: (a) The rights to freedom of thought,
or belief, opinion and
conscience, religion
expression; tbl The right- to seek freely
opportunities for employment and to participate in

43 Lachhman Dass v. Jagat Ram & Ors., (20071 10 SCC 448:

4 -rn
 economic activities; [c) The right to associate freely
and participate equally in communify- affairs; (dl

, The right to vote and tr.i partrcipate in governmental

and public affairs, including the right to have access

to the means necessary to exercise this right; and

(eJ The right to communicate in a language they

understand.

India being multi lingual and diverse in nature it is becomes

very categorical to protect rights of IDP pertaining to language.

Children of IDP

Need to be taught in their language to facilitate education and

communication.
Principle 23 : L. Every human being has the right to
education. 2.To give effect to this right for internally

displaced persons, the authorities concerned shall

ensure that such persons, in particular displaced

children, receive education which shall be free and

compulsory at the primary level. Education should

respect their cultural identity, language and religion.

3. Special efforts should be made to ensure the full

and equal participation of r4/omen and girls in

educational programmes. 4. Education and training

facilities shall be made available to internally

dicnl:ro,-l na?.cnne, in particular adolescents anC

 women, whether or not living in camps, as soon as

conditions permil

Principle 24 : 1. All hu.rnanitarian assistance shall be

carried out in accordance with the principles of
humanity and impartiality and without

discrimination. 2. Humanitarian assistance to

internally displaced persons shall not be diverted, in

particular for political or military reasons.

Every person should be treated with human dignity and

respect which is necessary and guaranteed by the constitution. The

person should not be discriminated merely on the ground of

displaced people. Now obviously, the right to life enshrined in
Article 21 cannot be restricted to mere animal existence. It means
something much more than just physical survival.+a In this case

again court emphasize on the quality of life covered by Article 21.

By the term "life" as here used something more in meant than mere

animal existence. The inhibition against its deprivation extends to

all those limbs and faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body or amputation of an arrn

of leg or the putting out of an eye or the destruction of any other

organ of the body through which the soul communicates with the

oute: would."aS Every human being has right to enjoy his life and
iiberry with utmost freedom which is guaranteed by the constitutian

44 Yamkhomang Haokip vs State Of Manipur And Ors {2003) 3 GLR 409

45 Sunil Batra v. Delhi Admin. (L979) 1 SCR 392 at P. 503;

1?O
of India. The interpretation of Art 21 make it clear that, neither any

limb or abiiity can be completely demolished nor cair it be partiy

iniurcd, Moreover it is every king of ciepri'vation at is hit by Article

21 whether such deficienry is enduring or provisional and, also,

deficiency is not an act which is broad once and for all: it is a
ongoing act and so long as it lasts, it must be in agreement with
procedure established by law. It is therefore clear that any act which

damages or injuries of delays with the use of, any limb or ability of a

person, either enduringly of even provisionally would be in the

reticence of Article 2lProtection as part of the citizen

Principle 25 : 1. The primary duty and responsibility for

providing humanitarian assistance to internally

displaced persons lies with national authorities. 2.

International humanitarian organizations and other

appropriate actors have the right to offer their

services in support of the internally displaced. Such

an offer shall not be regarded as an unfriendly act or

an interference in a State's internal affairs and shall

be considered in good faith. Consent thereto shall

not be arbitrarily withheld, particularly when

authorities concerned are unable or unwilling to

provide the required humanitarian assistance. 3. Att

authorities concerned shall grant and facilitate the

tree passage cf humanitarian assistance and grant

pers{lns engaged in ihe provision of such assistanr:=

ii-'li I
 rapid and unimpecied access to the internally
displaced

Principle 26 : Perscns engaged in humanitarian

assistance, their transport and supplies shall be

respected and protected. They shall not be the

cbiect of attack or other acts of violence.

Principle 27 :1. International humanitarian organizations

and other appropriate actors when providing

assistance should give due regard to the protection

needs and human rights of internally displaced

persons and take appropriate measures in this

regard. In so doing, these organizations and actors

should respect relevant international standards and

codes of conducl 2. The preceding paragraph is

without prejudice to the protection responsibilities

of international organizations mandated for this
purpose, whose services may be offered or
requested by States.

Principle 28 : 7. Competent authorities have the primary

duty and responsibility to establish conditions, as

well as provide the means, which allow internally

displaced persons to return voluntarily, in safety and

with dignity, to their homes or places of habitual

residence, or to resettle voluntariiir in another part

rina
a:1
 of the country. Such authorities shall endeavour to
facilitatg the reintegration of returned or resettled

internally displaced: p€rsors- 2. Special efforts

should be made to ensure the full participation of

internally displaced persons in the planning and

management of their refurn or resettlement and
reintegration.

Principle 29 : 1. Internally displaced persons who have

returned to their homes or places of habitual

residence or who have resettled in another part of

the country shall not be discriminated against as a

result of their having been displaced. They shall
have the right to participate fully and equally in
public affairs at all levels and have equal access to
public services. 2. Competent authorities have the

duty and responsibility to assist returned and/or

resettled internally displaced persons to recover, to

the extent possible, their properry and possessions

which they left behind or were dispossessed of upon

their displacement When recovery of such property

and possessions is not possible, competent

authsrities shall provide or assist these persons in

obtaining appropriate compensation or another

form of just reparaticn.

l'.-r4
 All human beings are born with some fundamental and non-
alienahle rights like life, liberty and quest of joy. The status of these

' accepted rights can be found in tlte fact that tlese are vital for tleir
proper zurvival and no other right can be enjoyed without the
presence of right to iife and liberty.

Life bereft of liberty would be without honor and dignity and

it would lose all significance and meaning and t}e life itself would
not be worth living. That is why "libert5z" is called the very
quintessence of a civilized existence.

Origin of "liberty"' can be traced in the ancient Greek

civilization. The Greeks distinguished between tJre liberty of the
group and the liberry of the individual. ln 431 8.C., an Athenian
statesman described that the concept of liberty was the outcome of

tlvo notions, firstly, protection of group from attack and

secondly, the ambition of the group to realize itself as fully as

possible through the self-realization of the individual by way of

human reason. Greeks assigned the duty of protecting their liberties

to the State, According to Aristotle, as the state was a means to fulfill

certain fundamental needs of human nature and was a means for

development of individuals' personality in association of fellow

citizens so it was natural and necessary to man. Plato found his
"republic" as the best source for the achievement of the self-
realization of the people.
 It is very difficult to define the "liberly''. It has many facets
and meanings. The philosopners and moralists have praised
freedom and liberEy but this. tcrm is difficult to define because it

does not resist any interpretation. The term "liberty" may be

defined as the affirmation by an individual or group of his or its own

essence. It needs the presence of three factors, firstly,

harmonious balance of personality, secondly, the absence of
restraint upon the exercise of that affirmation and thirdly,
organization of opportunities for the exercise of a continuous
iniriative."a6

Constitution of India is wholesome and apt to recognize and

interpret fundamental rights and directive principles to protect

rights of IDP. It is pertinent that even before judiciary interprets

fundamental rights to protect rights of IDP; statutory instruments

be enacted to specifically define rights to return etc., a mechanism at

disfrict, state, and national levels to protect rights and more

importantly remedies in violation of rights of IDP. State is bound by
human rights covenants and Constitution to protect fundamental
human rights but non state actors are not obliged by Constitution

per se. Hence it is the responsibility of State to protect IDP from

atrocities of non-state actors. NGO, civil society and corporates
under CSR activity can play a great deal of work for IDP and hence

46 Siddharam Satlingappa Mhetre vs State Of Liaharashtra And Ors. decided an 2

December, 2010 in connection with Crirninal Appeal No. 2271 of 2010. (Arising
such actors are to be promoted in reallocation and rehabilitatian of

IDPs'.

Principle 30 : All authorities concerned shall grant and

facilitate for international humanitarian

organizations and other appropriate actors, in the

exercise of their respective mandates, rapid and

unimpeded access to internally displaced persons to

assist in their return or resettlement and

reintegration,"

It is to pertinent to note that the court has also resorted to

these principles while dealing the case of Kashmiri Pandits,4T who

had been flee away from the Kashmir as militant had given them the

threat The court observed,

"The petitioners are members of the larger group

from their community which stands forcibly evicted from

one part of the country rendering them homeless and

resourceless. They are without resources at the place of

their relocation and are faced with the threat of forcible

eviction from their accommodation. The international
conventions recognise shelter as a basic human right. The

Guiding Principles reiterate the same rights and

responsibilities of the state so far as IDPs are concernsd.

4? Vnior Of India & Ors. vs Vijay Mam LPA No.332 of 2Ci-1

i a1-t
 Consideration of the petitioners rights, therefore, would

necessarily involve ensuring the objectives and

declarations madq ir t}e above international irutruments-,

especially those endorsed by India reiterated by the

Guiding Principles for IDPs."

The court further reminded the obligation of the State under

the Human Rights Protection Act, 1993. The Protection of Human

Rights Act, 1993, Section 2t1)(dl whereof defines Human Rights as

the rights relating to life, liberty, equality and dignity of the

individual guaranteed by the Constitution or embodied in the

International Covenants and enforceable by Courts in India. Thus in

Indi+ this declaration and principles embodied in it are accepted

and applicable. Further highlighting the importance of these

principles court observed,

"lt is noteworthy that there is no specific law,

rule, regulation or instrument providing for treatment

of IDPs or setting out any minimum standards for their

protection, rehabilitation and relocation. The Guiding

Principles on Internal Displacement reiterate the very

right to shelter constitutionally guaranteed and

recogaized as a basic human right in the international

instruments. These Guidelines thus consolidate and fill

gaps in national and international law relating to such

displaced persons. They also pror,,ide a valuabie

benchrnark for what must be ensured as part of the

:Lg+
 basic human rights security of such persons and would

guide consideration of the rights ....D48

Thus, these princlpies are complimentary and suppleineniary

to the existing law and provisions and thus make the complete
standards for the Internally displaced population.

3.8 Pros and cons of problem of IDPs if remaind

unattended

Issues surrounding IDP if not handled properly may become

source of chaos and threat to law and order.

tal Displaced population is in want of basic amenities.

Absence of such amenities adequate food and hygiene

has the chances spread in contagious diseases which

may result in pandemic, thus posing threat to health

majority population. Infant mortality rate increases

and death toll may rise. Outbreak of pandemic is not

easy to control and affects trade, economy etc.

(b) Displaced population in want of fuel may consume

natural resources posing threat to environment.

Absence of proper waste disposal leads polluting

environment.

[cJ Inadequacy of factors of sustenance may lead displaced

person towards criminality posing threat to law and

maintenance. Affected IDP are prone to joinir:g Naxanlte

48 Unicn Cf india & Ors. vs Vijay Mam LPA No.332 o12011 [para 51j

18?
 or terrorist forces and in future they may prove threat

to national integrity and security.

(dl lDPrshould be provided with employrnent according to

their skills and qualification.

(e) IDP are vulnerable and are dependent on

governmental schemes for sustenance and hence are

easy prey to corruption.

(0 IDP may be thrown to the gallows of poverty when are

devoid of employment thus inviting all the problems

associated with poverty.

Orderly reallocation of IDP or their return has many benefits

to sffer the State.

[a] Most prominently the integrity of State remains intact

It does not adversely affect GDP in long run as IDP may

function productively when provided with adequately.

tbl If displacement was due to developmental project and

if displaced population is taken well care off it proves
to be incentive for the State to undertake further such
profects thus contributing towards national

development. Undertaking developmental projects

such as coal mines, nuclear plants etc. are dependent

on geographic location of the natural resources,

Natural i'esources are scaiteied and scarce. i:: such
ccnditians il is very significant that the population

1.88
 which is about to displace reposes faith in government
This not only helps.in orderly setting up developmental

proiecls but also eases the task of evacuation.:

[ci Consent of IDP are necessary before they are

reallocated and this consent comes smoothly when the

State has successful history of rehabilitation of IDPs',

td] Successful recognition and then implementation of

IDPs' helps in reducing public interest litigations
against goyernment in the absence of which image of

State is at stake both at national and international

level. It also reduces cost on the government to litigate

such matters. Similarly successful rehabilitation of IDP

is an indicative of healthy democrary.

(e) Reallocation of IDP in war affected areas and areas of

military conflict proves boosting factor for national

security especially among national borders. Security at

national borders directly affects sovereignty of the

State.

Violation of human rights being condemnable at international

forums, successful protection of human rights enhances image of

State internationally strengthen international relations. IDP issues

when tackled diligently. IDP may result from developmental

projects, military or non-military objectives, ethnic cleansing etc.

.t89
IDP when relocated have certain necessities at individual/family

level and certain at community level.

After relacation following requirements ought to be ensured

at indir,'idual:

(al Place r:f residence

{bl Ration Card/AADHAR/any other proof is given in the

name of address of the residence

(c) Adequate compensation fincase displacement has

occurred due to developmental project by government,

military activity and like nature)

(d) Facilities bettering residence like approach road,

sewage system, interrupted Electricity, adequate Water

supply etc to every family displace.

At community level following requirements are to be

provided:

(aJ Schools and Vocational training centers,

tbl Library

[c] Public Hospital

td) Places of worship (Community wise)

[e] Burial place/Crematory etc.

(0 Ration shops

igj Public toilets

{hi Banks, post office and credit ar"railabilif-v

ig0
 (0 Irrigation system

t,l Public transpoft

"Roads and Streeflights

[kJ' '

0) Network connectivity

(m) Telephone booths

[n) Connectivity to urban area

ioJ Accessibility to police station and Courts

3.9 Indian Constitution and International Policies

Taking in to consideration the relation and contribution of

Indian Constitution and international polices it is seem that,

municipal law is brain child of international polices. In other words

the municipal law and international law are most related with each

otheCs. The municipal laws are based on international norms and

policy. Additionally one can say that, law is given by the common

people of that legal system to govern them. In this sense, States are

the main providers of international law. They also accept principles

from international law into their local systems in order to bring
them in alter with modern international standards and practices.
Consistency in law nurtures well international relations. Though,

other issues of international law also pay attention to the

development of international law, our main anxiety here is the

interaction and interrelationship between municipal iaw and

interneticnai law. This reiative is two-irr,'ay, that is, rvarldwide la.*r

191
derives values from domestic law and vice-rrersa, and this relation

should be examined as such.

india's contribution to internationai lari', especially in the

field of development of Human Rights, environment protection,
technology and trade laws, is worth gaining. These horizons of
protection is outcome of provisions contains under constitution of
India. These protection are provided through various provisions

contain under the various part of constitution of India. At the same

time, India has accepted from international law to achieve its

international promises. Projecting in this conversation are human

rights, environmental laws, the intellectual property laws,

arbitration law and space laws. The relation between India and
international law can be analyzed in two main pafis relative with
Indian Constitution and the relation with other laws.

A brief aspect at the practice of India in relation to

international law would be relevant here. India's method to
international law can be observed at from two perspectives

iJ. Indian law vis-a-vis treaties and

ii). Indian law vis-a-vis international customs.

The courts have detained that treaties to which India is an

affii-rnative party should be reaiized in good faith, but at the same

time, the administrative authorities cannot be absorbed to follcw

the treafv in absence of a domestic 1aw, Generally, treaties are

consid*red self-executing, unless it reqr.iires an amendmeat to ihe

192
Constitution or an existing law, or a new law is obligatory to be

passed. 'fherefore, the Courts can take aid of the treaty principles

not inconsistent with the provisions of lavrs'of"l;rdia. Customary

inGrnational law is not considered to become part of municipal law

mechanically. Therefore, where there is a clash between municipal

law and customary international law, the former will prevail.

The relation between constitution law and internafional

polices and treaties were date back to the pre-independence days.

India was the distinet member of the League of Nations. It is also the

founding-member of the United Nations. tn this section, we will see

the general scheme of the Constitution with reference to

internatisnal lar,v and further proceed to analyses other provisions

and aspects.

As mentioned above Article 51 is considered the real facility

dealing with the relative of Indian Constitution and international

law. The Preamble, Part III and Part IV of the Constitution. The

Preamble enumerated certain basic values that India guarantees to

its citizens and strives to atlain. These standards are putative

common and basic by most nations through the world. The essentiai

rights in Part III and the positive directives to the State in form of
Directive Principles can be associated with the Universal

Declaration of Human Rights and unities can be iraced. Further,

Article 51A gives effect to the declaration in Article 29itJ cf the

{-lniversa! Declaraticn of Human Rights, ivhiich emphasis ti:e drig cf

iiiriivicliials ta the cornmuniW.

1?,1.,.1
 Arricle 51", which mandates the State to attempt to stimulate
international peace and security, to uphold good relatives with

othe:'. ,rtations, to admiration internatioru,l Jaw and to settle

international dispute by peaceful means is inspired from the

Declaration of Havana adopted on 30th November, 1939. The
Announcement declared the 'unshaken faith' of the parties in

international co-operation and promoting international harmony

and safety. This Article is the most significant provision while we

study the reiation with international law. Clause {c) obliges India to

deference international law. A joint reading of this with Part III of

the Constitution enabled the judiciary in developing human rights

and environmental jurisprudence in India.

Clause (d) of the Article provides for 'settlement of

international disputes by arbitration'. The understanding of using

the term arbitration is disbelieved. Most countries do not fayor

arbitration to other means and in fact the repetition of numerous
States shows that arbitration is not the first choice of dissimilar
nations. India too has not preferred arbitration as the first means to

settle international disputes. The UN Charter too proposes

nume.rous means like negotiation, enquiry, mediation, conciliation,

arbitration, judicial settlement, option to local supports or

preparations, or other passive means. In these conditions, it is clear

that the habit of the term arbitration is misplaced,

In context with the internationai standards laid doi,r'n in

sevei'al dccuments and guiding principies, lhe Inriian 'position is

194
quite frustrating. One of the most significant and scathing lacunae

in India is lethargy and ignorance in providing identification

docurncr,ts to IDP. Identification document: shall he passport,

AADHAR Card, Marriage Certificate, Ration Card. Etc. In Indian

scenario a person finds immensely difficult to survive with dignity

in absence of such documents as bank accounts are linked to

AADFIAR and supply of essential commodities under public

distribution system etc. are dependent on showcasing AADHAR

card. In the process of relocation there are high chances of origina!

and existing document being lost. In such cases IDP should be

identified and issuance of identifiable documents be issues as early

as possible to IDP. AADHAR not being conclusive proof of

citizenship enables public schemes facilitated by government to

reach to IDP. This not only add to their suffering, but also make
them nowhere in this process due to lack of their identity and claim.

3.10 Provision under UNHCR4e

UNHCR provides protection and safeguard woridwide against

action taken by refugees. This organization was working since 1951

by United Nations Convention Relating to the Status of Refugees.

Thus UNHCR's unique mandate does not exactiy protection

internaily displaced persons. However, because of the agenry's
expertise in the field of displacen-rent, it has for many years

49 United Nations High Commissioner for Refugees, UNHCR, the UN Refugee Agency, is a
United Nations programme with the mandate to protect refugees. forcibly displacea
communities and stateless peoDle, and assist in their vo!untary repatriation, locai
integraticn or resettlement to a third country

1q5
assisting millions of displaced population. UNHCR assist tDPs
either on a specific request made by the UN Secretary General
or wii-h . fhe consent of tle state concerned. 'Ihe mandate of the

UNHCR was extended by the drafters of the Statute subject to two

uonditions: firstly, approval of the General Assembly and

secondly, availability of funds for conduct of operations.So

Initially there was resistance for extension of mandate to IDPs.

Despite that in1972, the General Assembly authorized UNHCR

to provide protection to'refugees and displaced persons',

which referred internally displaced.

UNHCR's role with respect to internally displaced persons has

been under discussion and in the year 2000 it reviewed and revised
its policy as regards the internally displaced persons. According to

the poliry UNHCR's involvement in a specific situation relating to

protection and assistance of IDPs require fulfillment of certain
conditions.sr But in 201t, UNHCR has come forward to address the

defense concerns of IDPs, immigrants and other inhabitants

pretentious by &e floods with the help of Governments and other
partners. In addition, UNHCR has collaborated with UNIFEM and

50 ArL 9, Stahrte of the Office of the United Nations High Commissioner for Refugees,
1950.
51 UN Doc EC/5A/SC/INF.2, 20 June 2AAO,p.Z,The Report of the Executive Committee oi
the High Commissioner's Programme, The UNHCR's involvement in a specific
operation requires: [iJ a request or authorization from the Secretary General or a
competent principal organ of UN;(ii) consent of the state concerned, and -'vhere
appllcable, other entities in a conflict; [iiiJ access to the affected papulation; [iv]
adequate security for staff of UNHCR and implementing partnersi (vj clear lines of
respcnsibility and accountability with the abilily to intervene directly ou prcrecti*n
mafter=; and [vii] adequate resources and capacif-v

ffih
UNICEF to reinforce existing gender-based 'riolence and child
protectiou referral mechanism

3,17. Geneva Conventions and Frotocols

. The international human rights protective laws provide some

protection to internally displaced persons' through various

instruments. These protections are available in connection to armed

conflict, at international or domestic level. Nevertheless, in

situations of internal armed battle, most fighters inappropriately

are unwilling or failed to grant displaced persons the fundamental

protections under international human norms.

The fourth Geneva Convention, 1949, grants security to

certain categories of citizens fit as 'protected persons'. The
protection under the Convention is granted not only to refugees, but

extended even to the internally displaced people. But the lack of

exact reference to this group may place the IDPs in more susceptible

location in times of war, when compared to refugees. Though the

IDPs do not come within the meaning of 'protected persons', tttey

are entitled to basic guarantees as provided for individuals to be

treated humanely in all circumstances.

Ar1.49 of the Geneva Convention IV prohibits displacement of

civilians during armed conflict. The first clear treaty provision

regarding the protection of protected persons in non-internatio*al

equipped conflicts or public conflicts is found in Comrnorr Afticl=- 3

oi 1949 Geneva Conventions. There are positive standards w'irich

L97
are careful crucial for appiication of Common Article 3 to categorize

a state ot qiolence as internal armed conflict and not as internal

disturbance or tension. Under the internationa! law insurreclion is

documented only when it contents certain conditions such as

insurgents must have occupied conffol over a substantial part of the

territory. Secondly, a popular of people lirring the territory must

loan support to the rebels out of their own free will. Thirdly, the
insurgents must be capable and willing to carry out international

obligations imposed upon them.s2 Lastly, civilian disorder should

reach a certain degree of intensity and duration. In other words

conflict or violence may not simply consist of riots or sporadic acts

of short-lived violence.s3 One of the compensations of IHL over

human rights law is that, in internal armed conflicts, common
Article 3 and 1977 Additional Protocol II are also binding on armed
opposition groups.

s.LZ Present scenario

Recently in 2013 the government of Indian has proposed new

legislation namely the Right to fair compensation and transparency

in the Land Acquisition, rehabiiitation and resettlement Ac",2AB.

The preamble itself clarify that the present act has to ensure, in

consultation with institutions of local self-government and Gram

Sabha's established under the Constitution, a humane, participative,

52 Agarwal, H.O, International Law and Human Rights, New Delhi, Central Law
Publication, 2005, p.110.
53 illapham, Andrew,, "Human rights obligations of non-state actors in confiict
siiuations', International Review of the Red Cross, Vol, BB No.863, September 2006,
p.492.

1 cr8
informed and transparent process for land acquisition for
industrialisation, development of essential infrastructural facilities

and urhanisation with the least.di-sturbance.to the owners of the

land and other affected families and provide just and fair
compensation to the affected families whose land has been acquired

or proposed to be acquired or are affected by such acquisition and

make adequate provisions for such affected persons for their
rehabilitation and resettlement and for ensuring that the cumulative

outcome of compulsory acquisition should be that affected persons.

become partners in development leading to an improvement in

their post-acquisition social and economic status and for matters
connected therewith or incidental thereto. Thus the objectives laid

down are quite loudable.

It has been enacted that the provision of the Act has been

related land acquisition, compensation, rehabilitation and

resettlement shall apply, when the appropriate Government

acquires land for its own use, hold and control, including for Public

Sector Undertakings and for public purpose, thus the rider has been

made clear that whenever the government has any plan to acquire

the land for its own use, hold and control for public purpose.
Further the list of the categories has been defined and specified u/s

2 of the Act. This further made clear that even the privet
entrepreneur can also acquire land with the consent of government.

Ttre act has aisc defined the basic noticns like 'aftectu*
famiiies', 'cost of cornpensation', authority', 'disDiaced iamiiv'
199
Other louding aspect of the act is that it has made it compulsory that

wheneyer the land acquisition is to be processes, the preliminary

investigation for determination of social impact and public purpose

shall be done.s+ it further made it clear that the assessment -shall be

done by the expert group.ss

Chapter III of the act further prescribed that State is bound to

safeguard food security and the provision has been made in that
respecl Therefore the land acquisition has to be done by the expert
group and it must be exceptional process subject to several aspects

taken into consideration.

Most important provision for damages assessment has been

made. But even more important is the S. 16 of the Act which

provide for preparation of Rehabilitation and Resettlement Scheme

by the Administrator. The argument can be made that since the

entire scheme has been done by the administrator, there shall be
some involvement from the independent agency and there must be

inclusion of NGO and reputed expertise in the group. No doubt that

S. L7 further provide the platform for review of the Rehabilitation

and Resettlement Scheme and prescribed that the Collector shall
review the draft Scheme submitted under sub-section {6) of section

16 by the Administrator with the Rehabilitation and Resettlement

Committee at the proiect level constituted under section 45. In

addition to that S. 18 provide that the approved ReLrabilitation and

54 See, S. 4, 5 & 6 of the Land Acquisition, rehabilitaticn and resettiement Act, 2013.
55 S. 7 the Lanci Acquisition, rehahilitation and resettlement Act, ?il13.

200
Resettlement Scheme has to be made public in the affected areas, in

such manner as may be prescribed, ancl uploaded on the website of

the appropriate Governrnen'L Yet another glaring provision of the

act is S. 24 which provide that land acquisition process under Act

No. 1 of 1894 shall be deemed to have lapsed in certain cases and

these cases has been elaborated under the respective section.

Collector has been empowered by the act to determine the value of

the land and amount of compensation.

Hcwever, the result and outcome on the act has not yet been

visible in India. it has been blamed that the too much depends upon

the executive in this act and again more power has been given to the

government. Very less involvement of independent assessment

agency and bodies working in public interesL In days to day, the

effect of such legislation would be visible and apparent

3.13 Sum up
Taking in to consideration above all factors and circumstance

it is pertinent to note here that, all these guiding Principles provided

at international level and corresponding articles under constitution

of Indian and in various international instruments are evident that,

in some what extent success to provides protection to internally
displaced people at tl:e national and international level. Again, the

issue of IDPs has been on the agenda of various authorities, and due

to media attentian the national consensus and opinion has been

stated ia developed. This has been specificaily e:,."ide:rt tro.r th*

?01 o0
6q
movement like Narmada Bachao events which national population

got attention on the rehabilitation and resettlement issues of

displacement of tlose peopie who haye lost their habitat iue'to

Sardar Sarovar dam.

A cumulative number of Gcvernments polices and laws, in all

regions of the world, are creating use of the principles, in specific in

growth of national law and policy on internal displacement and

displaced people. Several Governments like Angola, Burundi,
Liberia Uganda, Peru and Turkey have made explicit references to
the Guiding Principles in their rules and laws on internal

displacemenl Some other countries are in the procedure of

developing or revising their displacement-related laws and policies"

The Government of tndian incorporated the Guiding Principles into

its law through various judicial decision as well the constitutional

mandates. The Supreme Court of India cited the Guiding Principles

as a basis for its decision in support of internally displaced persons.

Today major challenge before the international community is

the upsurge in the number of inside displaced persons all over the

world and the number has been continuously increasing superior

the number of refugees. There is no official organization to keep
region of the internai movement of the population both in the states

and international level. The institutions which keep account tend to

vary from one organizatron to another. Guiding Principles are not

iegally binding document and that may be considereC as sericus

lacuna ior the protectiori and assistance of IDPs.

1n)
,'J4-
 There are a number of provisions in the Geneva Conventions,

L949 and 1977 Protocols which apply to internally displaced

.l perscns in situations ot conflicl But these international insti-uments

often difficult to apply in circumstances of internal conflict as t}re

States worried are uuwilling to know them as non-international

fortified conflict and termed such conflict as law and order situation

or internal turbulences.

The Indian government has recurrently spoken misgivings in

global for a about the UN Guiding Principles on Internal

Displacement, which it sees as trespassing its national dominion.

India has no national IDP policy targeting conflict induced [DPs, and

the accountability for IDP aid and defense is often vicarious to the

Sate governments.

Thus the forgoing analysis has shows that the development of

standard at national and international level has recently got paced.

Thus the researcher has successfully achieved her objective of

examining the national and international standards. Furrher she

has also proved the second hypothesis in affirmation.

The next chapter, the researcher has focused upon the

constitutional provisions and its applicability to the IDPs.