Legal Services Clinic Blog, Uncategorized

Legal Aid: Foreign Nationals and Refugees

Apurva Singh explains how legal aid in India works for foreign nationals and refugees:

Legal Aid is provided under Article 39A[1] of the Constitution and is a right of the poorer and weaker sections of the society.[2] The Legal Services Authority Act[3] was enacted by the Parliament to ensure that there is uniform legal aid across the nation and the National Legal Services Authority was established under this Act for the purposes of monitoring and evaluating the implementation of legal aid.[4] Free legal services include the payment of court fees, providing lawyers, preparation of appeals and other court-related work and is a right of children, women, member of a Scheduled Caste or Scheduled Tribe or any person who fulfills the criteria given under Sec. 12.[5]

The term “refugee” or “foreign national” is not specifically mentioned in Sec. 12. A refugee is a person who has been forced to flee his country in order to escape persecution or conflict.[6]The existing legal framework in India has no uniform law to deal with its refugee population. The term ‘foreigner’[7] is used to cover aliens temporarily or permanently residing in the country.[8] Not being a signatory to the 1951 Refugee Convention and 1967 Protocol, India, so far, has not adopted any definition of the term ‘refugee’ in any legislation. However, refugees have rights certain rights under the Constitution of India. Refugees and foreign nationals are protected under Article 21 of the Constitution.[9] In Mohd. Hussain Julfikar Ali v. The State (Govt. Of Nct) Delhi,[10] it was held that it is the duty of the Courts to provide foreigners legal aid from the State’s expense if they do not have the capacity to afford it.[11] The current position of the law as regards foreigners is the same. Foreigners and refugees can avail of legal aid when they cannot afford it as by judicial construction of Article 21, which covers both foreigners and citizens.

Although the Legal Services Authority Act may be silent as regards providing legal aid for foreigners and refugees, the United Nations High Commissioner for Refugees (UNHCR) protects refugees and their interests. In New Delhi, refugees are provided with legal assistance to refugees under the UNHCR mandate by the Socio-Legal Information Centre.[12] When a refugee seeks legal aid for himself or his dependants, UNHCR may provide the assistance or recommend a lawyer. In cases where the refugee is to be deported back to his native country, the UNHCR can recommend the Central Government to halt the deportation proceedings, pending UNHCR attempts at resettlement of the refugee in a safe country. If any local NGO is available and willing, their services may also be sought to help out the refugee.[13]

The legislature really needs to step up with a robust legislation to protect the growing refugees and foreign nationals population. Judicial activism can only do so much as to protect their interests in case of legal infarction. The Parliament ought to come up with a legislation protecting their rights of settlement, shelter and other fundamental needs.

[1] Art. 39A, The Constitution of India, 1950.
[2] See http://www.archive.india.gov.in/citizen/lawnorder.php?id=10.
[3] See The Legal Services Authority Act, 1987.
[4] Chapter II, The Legal Services Authority Act, 1987.
[5] Sec. 12, The Legal Services Authority Act, 1987.
[6] See http://www.unhcr.org/refugees.html.
[7] Sec. 2(a), The Foreigner’s Act, 1946.
[8] Rajeev Dhavan, “On the Model Law for Refugees: A Response to the National Human Rights Commission (NHRC),” NHRC Annual Reports 1997- 1998, 1999-2000 (New Delhi: PILSARC, 2003).
[9] ¶16, National Human Rights Commission v. State of Arunachal Pradesh and Another, W.P (Civil) No. 720 of 1995 (The Supreme Court of India).
[10] Mohd. Hussain Julfikar Ali v. The State (Govt. Of Nct) Delhi, (2012) 9 SCC 408 (The Supreme Court of India).
[11] ¶6, Mohd. Hussain Julfikar Ali v. The State (Govt. Of Nct) Delhi, (2012) 9 SCC 408 (The Supreme Court of India).
[12] See http://www.unhcr.org.in/index.php?option=com_content&view=article&id=18&Itemid=103.
[13] See http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html.

Apurva Singh (II Year) is a law student at the National Law School of India University, Bangalore (NLSIU) and can be contacted at singhapurva7@gmail.com 

Leave a Reply

Your email address will not be published. Required fields are marked *