This slide is about the violence against refugee women and development of law over the period of time in relation to the refugee women. It also talks about the protection of refugees in India through the International Obligations, Constitutional provisions and the case laws.
2. VIOLENCE AGAINST REFUGEE
WOMEN
Women form the greater majority of the refugee
populations all over the world and are
especially vulnerable to violence and
exploitation. They face persecution through
sexual violence, rape, infanticide, genital
mutilation, forced marriage, slavery,
domestic violence and forced abortion.
4. CONCERNS OF REFUGEE WOMEN
• Depression, despondency, and feelings of
hopelessness.
• Lack of protection from violence and other forms of
abuse and exploitation.
• Changes in family relationships due to the uprooting.
• Lack of access to basic items needed for daily life.
• Lack of access to health care and other services.
• Inability to prove refugee status and insensitive
asylum hearings.
• Lack of recognition as independent beings with full
legal capacity.
6. 1951 UN Convention Relating to the Status of Refugees
Article 1:
“A person who owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a
nationality and being outside the country of his former
habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it."
7. DEVELOPMENT OF UNHCR
POLICY ON WOMEN
• The Executive Committee has adopted four
general conclusions relating specifically to
refugee women:
– Thirty Sixth session in 1985: Refugee Women and
International Protection- women persecution to be
considered as ‘particular social group’-host
government to give particular attention to the
international protection of refugee women.
– Thirty Eight session in 1987: The committee noted
that refugee women had protection and assistance
needs which necessitated special attention in order to
improve existing protection and assistance
programs.
8. DEVELOPMENT OF UNHCR
POLICY ON WOMEN
• Thirty Ninth session in 1988: Adopted a conclusion
entitled Refugee Women- to integrate and oversee
the assessment, reorientation and strengthening of
existing polices and programs in favor of refugee
women. There was also emphasis on the necessity for
the public information on the refugee women.
• Fortieth session in 1989: The committee adopted a
conclusion on refugee women reiterating concern about
physical safety and sexual exploitation. It also
concluded a need for female field workers to facilitate
the participation of refugee women.
9. UNHCR GUIDLINESS, 1991
• Women and Men be given equal opportunity.
• Sexual violence against women is a form of
persecution.
• Female field workers should meet the refugee
women.
• Honor killing, Bride burning and abduction
etc of women were recognized as persecution.
10. UNHCR Guidelines, 2002
• Gender related persecution- refugee claim.
• Trafficking of women for forced prostitution
or sexual exploitation is a form of
persecution.
• Recognition of Well-founded fear of
persecution on the basis of gender
persecution.
• Gender sensitive application of refugee law
especially in definition of Refugee.
12. REFUGEE PROTECTION IN INDIA
• India being a non-signatory to the 1951
Convention relating to refugees, the
protection of refugees in India is by the
followings:
International treaties and Conventions
Constitutional Provisions
Case laws
13. INTERNATIONAL OBLIGATIONS
• Universal Declaration of Human Rights
(UDHR) 1948
• International Covenant on Civil and Political
Rights (ICCPR) 1966
• International Covenant on Economic, Social
and Cultural Rights(ICESCR) 1966
• The Convention Against Torture And Other
Cruel, Inhuman Or Degrading Treatment Or
Punishment, 1984
14. INTERNATIONAL OBLIGATION
• Convention on the Elimination of All Forms of
Discrimination Against Women, 1979
• Convention on the Rights of the Child, 1990
• Genocide Convention,1948
15. PRINCIPLE OF NON
REFOULEMENT
• Non-Refoulement means a refugee's right not to
be expelled from one state to another, especially
to one where his or her life or liberty would be
threatened.
– The principle of non-refoulement ostensibly protects
persons from being expelled from countries that are
signatories to the 1951 Convention Relating to the Status
of Refugees, the 1967 Protocol Convention Relating to
the Status of Refugees, or the 1984 Convention Against
Torture.
– The principle has attained the status of jus cogens.
17. Article 14 of the Constitution of India
• Equality before Law – The State shall not deny to any
person equality before the law or the equal protection of
eh laws within the territory of India”
• National Human Rights Commission v. State of
Arunachal Pradesh, (1996 (1) SCC 742)
– Indian Constitution confer certain rights on every human being
and certain other rights on citizens. Every person is entitled to
equality before the law and equal protection of the laws. So also,
no person can be deprived of his life or personal liberty except
according to procedure established by law. This State is bound to
protect the life and liberty of every human being, be he a citizen
or otherwise and it cannot permit anybody or group or persons
e.g. the AAPSU, to threaten the Chakmas to leave the state.
18. Article 21 of the Constitution of India
• Protection of life and personal liberty - No
person shall be deprived of his life or personal liberty
except according to procedure established by law
• Chairman Railway Board and Others v. Chandrima Das
and Others (2000 (2) SCC 465)
– The Supreme Court held that since "LIFE" is also recognised as a
basic human right in the Universal Declaration of Human Rights,
1948, it has to have the same meaning and interpretation as has been
placed on that word by this Court in its various decisions relating to
Article 21 of the Constitution. The meaning of the word "life" cannot
be narrowed down. According to the tenor of the language used in
Article 21, it will be available not only to every citizen of this
Country, but also to a "person" who may not be a citizen of the
country
19. Article 51(C) of the Constitution of India
• Foster respect for international law and treaty obligations in the
dealings of organized peoples with one another; and encourage
settlement of international disputes by arbitration.
• Gramophone Company of India Limited v. Birendra
Pandey (1984 (SC) AIR 677)
The Supreme Court held that there can be no question
that nations must march with the international
community and the municipal law must respect rules of
international law just as nations respect international
conventions. The comity of nations requires that the
rules of international law may be accommodated in the
municipal law even without express legislative sanction
provided they do not run into conflict with Acts of
Parliament.
20. • Vishaka v. State of Rajasthan, 1997
– The Supreme Court held that in the absence of domestic law
occupying the field, to formulate effective measures to check
the evil of sexual harassment of working women at all work
places, the contents of international conventions and norms are
significant for the purpose of interpretation of the guarantee of
gender equality, right to work with human dignity in Articles
14, 15, 19 (g), and 21 of the Constitution and the safeguards
against sexual harassment implicit therein. Any international
convention not inconsistent with fundamental rights and in
harmony with its spirit must be read into these provisions to
enlarge the meaning and contents thereof, to promote the object
of the Constitutional guarantee.
22. Ktaer Abbas Habib Al Qutaifi v. Union of
India, (1999 Crl.LJ 919)
• Hon’ble Gujarat High Court showed a sympathetic approach
towards the petitioners.
• The court held that, “humanitarian jurisprudence is now an
international creed in time of peace and war.”
• The court also directed the state government to consider the
case from a humanitarian point of view. The High Court held
that the petitioners should not be deported from India until
their prayer was considered in accordance with law.
23. Premanand & Arn. v. State of Kerala (S.S.
Satheesachandran, J) 2013(3) KLJ 543
• The Kerala High Court held that a refugee stands
on a different footing from a foreigner or any
illegal emigrant who entered the country without
valid passport or travel document. And further
stated that the Supreme Court of India has in
number of cases stayed deportation of refugees
even where claim for refugees status was pending
determination, provided a prima facie case has
been made out for grant of “refugees” status.
24. State of A.P. v. Khudiram
Chakma[1994 Sup(1) SCC 615]
• That Supreme Court held that the state which
has granted him asylum must not later return
him to the country whence he came.
• Nevertheless, once lawfully admitted to a
territory, they are entitled to certain minimum
rights necessary to the enjoyment of ordinary
private life.
25. Jaffar Ullah and Anr v. Union of India
(W.P. ( C ) 859/2013)
– Fact finding on the conditions of Rohingya women and
children was conducted in Delhi and Haryana.
– PIL was filed at the Supreme Court to provided with
basic facilities for health care, water, sanitation and
education to the Rohingyas
– After a struggle of five years and three fact-finding
reports, the Supreme Court of India was forced to pass
an order on May 11, 2018.
– The court directed the appointment of nodal officers to
address the grievances of residents of the refugee
camps.
– The matter is still pending at Supreme Court of India.
