18/December/2015

THE ASYLUM BILL, 2015

By DR. SHASHI THAROOR, M.P.

 —————— ARRANGEMENT OF CLAUSES ——————

 CLAUSES

 CHAPTER I

PRELIMINARY

1. Short Title, Extent and Commencement
2. Definitions
3. Principles of Refugee Protection

CHAPTER II

PRINCIPLES OF REFUGEE STATUS

4. Criteria for Recognition as a Refugee
5. Exclusion
6. Cessation
7. Cancellation and Revocation
8. Principle of Non-Refoulement
9. Provisions for removal from India

CHAPTER III PROCEDURE TO APPLY FOR ASYLUM

10. Application for Asylum
11. Commission to Determine Application for Asylum
12. Appeal to lie to the Appellate Board
13. Interview
14. Decision to be reasoned
15. Right to Legal Representation

CHAPTER IV

CONSTITUTION, FUNCTIONS AND POWERS OF AUTHORITIES

16. Establishment of National Commission for Asylum
17. Composition of the Commission
18. Functions of the Commission
19. Powers of the Commission
20. Establishment of the Appellate Board
21. Composition of the Appellate Board
22. Functions of the Appellate Board AS INTRODUCED IN LOK SABHA
23. Powers of the Appellate Board
24. Term of Office, Conditions of Service, etc. of the Chief Commissioner, Commissioners, Chairperson and the Members
25. Removal of the Chief Commissioner, Commissioner, Chairperson and Member from Office
26. Secretary, Officers and Other Employees of Commission or Appellate Board
27. Vacancies, etc. not to invalidate proceedings of the Commission and the Appellate Board
28. Chief Commissioner, Commissioners, Chairperson and Members to be Public Servants
29. Proceedings before Commission or Appellate Board to be Judicial Proceedings

CHAPTER V

MASS INFLUX SITUATIONS

30. Powers of the Central Government with respect to Mass Influx Situation
31. Registration of Mass Influx Refugees
32. Special Provisions with regard to Movement etc.
33. Modification of a Mass Influx Situation

CHAPTER VI

PROVISIONS RELATED TO VOLUNTARY REPATRIATION

34. Provisions for Voluntary Repatriation CHAPTER VII RIGHTS AND DUTIES OF REFUGEES AND ASYLUM-SEEKERS
35. Protection and General Rights of Refugees
36. Rights of Asylum-Seekers and Mass Influx Refugees
37. Identity and Travel Documents CHAPTER VIII TECHNICAL ASSISTANCE
38. Technical Assistance

CHAPTER IX FINANCE,

AUDIT AND ANNUAL REPORT

39. Grants by the Central Government
40. Accounts and Audit
41. Annual Report CHAPTER X MISCELLANEOUS
42. Power to make Rules
43. Empowerment of Concerned Authorities
44. Bar of Jurisdiction
45. Protection of Action taken in Good Faith
46. Act to have Overriding Effect CLAUSES

(ii) 1 THE ASYLUM BILL, 2015

By DR. SHASHI THAROOR, M.P.

 A BILL to provide for the establishment of an effective system to protect refugees and asylum seekers by means of an appropriate legal framework to determine claims for asylum and to provide for the rights and obligations flowing from such status and matters connected therewith;

WHEREAS, the Constitution of India requires all persons to be treated in a fair and just manner consistent with the guarantees of equality, fairness and due process of law; AND WHEREAS, the Supreme Court and the High Courts in India have extended the protection of certain fundamental rights to refugees and asylum-seekers;

AND WHEREAS, India has acceded to all major international human rights instruments and demonstrated its commitment to international law and human rights norms including the right to seek asylum and the principle of non-refoulement;

AND WHEREAS, India has a long tradition and experience of providing humanitarian assistance and protection to refugees and asylum-seekers;

AS INTRODUCED IN LOK SABHA

AND WHEREAS, there is a need to consolidate, streamline and harmonize the varied practices, policies and standards applicable to refugees and asylum-seekers in India. BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. (1) This Act may be called the Asylum Act, 2015.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification

in the Official Gazette, appoint.

2. (1) In this Act, unless the context otherwise requires—

(a) ‘‘Appellate Board” means the National Appellate Board of Asylum established

under section 20;

(b) ‘‘applicant” means an asylum-seeker who, after entering the national territory

of India, has filed an application for asylum under this Act;

(c) ‘‘application for asylum” means an application for the grant of asylum made

under section 10;

(d) ‘‘asylum” means refugee status recognized in terms of this Act;

(e) ‘‘asylum-seeker” means a foreigner who after entering the national territory

of India expresses an intention to seek a grant of asylum;

(f) ‘‘Chairperson” means the Chairperson of the Appellate Board appointed under

section 21;

(g) ‘‘Chief Commissioner” means the Chief Commissioner of the Commission

appointed under section 17;

(h) ‘‘child” means any person under the age of 18 years;

(i) ‘‘Commission” means the National Commission for Asylum established under

section 16;

(j) ‘‘Commissioner” means a Commissioner of the Commission appointed under

section 17;

(k) ‘‘country of origin” means the country of nationality of the refugee or asylumseeker,

or, if he has no nationality, the country of his former ordinary residence;

(l) ‘‘dependant” in relation to an asylum-seeker or a refugee, includes the spouse,

any dependant child, or aged or infirm family member of such asylum-seeker or refugee;

(m) ‘‘foreigner” means a person who is not a citizen of India;

(n) ‘‘hearing” means the proceedings before the Commission or the Appellate

Board, as the case may be, under the terms of this Act;

(o) ‘‘mass influx” means a situation where considerably large numbers of people

from a specific country or geographical area, arrive at, or cross, an international border

of India, and are notified as such under section 30;

(p) ‘‘Member” means a Member of the Appellate Board appointed under section

21 of this Act;

(q) ‘‘nationality” means the status of a person who is attached to a state by the

tie of allegiance and includes but is not limited to citizenship, membership of an ethnic,

linguistic or racial group.

Short title,

extent and

commencement.

 (r) “person” does not includes any company or association or body of

individuals, whether incorporated or not;

(s) “persons with special needs” include unaccompanied children, disabled

persons, aged or infirm persons, pregnant women, single mothers or single fathers

with accompanying child or children or persons who have been subjected to torture,

rape or other serious psychological, physical or sexual violence;

(t) “prescribed” means prescribed by rules made under this Act; and

(u) “refugee” means an applicant whose application for asylum has been

determined to meet the criteria under section 4 by the Commission or the Appellate

Board, as the case may be, under the terms of this Act or who has been declared to be

a refugee by a notification under section 30.

3. In exercising the powers conferred by this Act, regard shall be had to the following

considerations, namely—

(a) that all foreigners who have faced or are at risk of facing persecution in their

country of origin, and who enter India, whether directly from their country of origin or

indirectly, or who are already persent in India, are entitled to seek asylum;

(b) that care has to be taken to ensure that the principle of non-refoulement

mentioned under section 8 is upheld;

(c) that the determination of applications for asylum must be by a fair and

transparent system that must abide at all times with the norms of due process;

(d) that asylum-seekers are entitled to interim legal protection and shall not be

expelled or returned before a final decision on asylum is reached;

(e) that asylum-seekers and refugees are vulnerable persons deserving of basic

social and economic protection;

(f) that the repatriation of a refugee to his country of origin must be conducted in

a safe and dignified manner and only after ensuring that the decision to repatriate is

voluntary and informed; and

(g) that the unity of a refugee's family shall be maintained.

CHAPTER II

PRINCIPLES OF REFUGEE STATUS

4. (1) A person qualifies as a refugee for the purposes of this Act if such person—

(a) is outside his country of origin and is unable or unwilling to return to or avail

himself of the protection of that country because of a well-founded fear of persecution

on account of race, religion, sex, nationality, ethnicity, membership of a particular

social group or political opinion; or

(b) has left his country owing to serious and indiscriminate threats to life, physical

integrity or freedom resulting from generalized violence or events seriously disturbing

public order.

(2) Dependants of a person who qualifies as a refugee under sub-section (1) shall also

be deemed to be refugees.

(3) In the case of a person who has more than one nationality, the term country of

origin shall mean each of the countries of which he has nationality.

5. (1) A person shall be excluded from protection under this Act if—

(a) there are serious reasons for considering that—

(i) he has committed a crime against peace, a war crime or a crime against

Principles of refugee protection.

Criteria for  recognition as a refugee.

humanity, as defined in any international legal instrument dealing with any such

crimes which India has acceded to; or

(ii) he has committed a serious non-political crime outside India prior to

his entry into the national territory; or

(iii) he has committed inhuman acts for any reason whatsoever outside of

India; or

(iv) he has instigated, abetted or otherwise participated in committing the

acts mentioned in sub-clauses (i), (ii) or (iii); or

(b) he poses a serious threat to the public order or national security of India

and—

(i) has been convicted of an offence in India which is punishable by a term

of imprisonment of at least 10 years; or

(ii) has committed an act outside India that, if committed in India, would

constitute an offence punishable by a term of imprisonment of at least 10 years;

or

(c) he has been recognised by competent authorities of India as having the

rights and obligations of an Indian citizen.

(2) The exclusion of the applicant from protection under this Act shall not require the

exclusion of his dependants where none of the reasons for exclusion applies to them.

6. (1) A person shall cease to be a refugee for the purposes of this Act if—

(a) he can no longer refuse to avail himself of the protection of the country of his

citizenship, because the circumstances in respect to which he was recognised as a

refugee have ceased to exist; or

(b) he voluntarily re-avails himself of the protection of his country of origin; or

(c) he has acquired the citizenship of India; or

(d) he has acquired the citizenship of some other country and enjoys the protection

of that country; or

(e) he has voluntarily re-established himself in the country which he left, or

outside which he remained owing to fear of persecution; or

(f) he has voluntarily regained the citizenship that he had been deprived of; or

(g) he, having been stateless, is able to return to the country of former ordinary

residence as the circumstances in respect to which he was recognised as a refugee no

longer apply.

(2) In the assessment under clauses (a) and (g) of sub-section (1),—

(i) consideration shall be given to whether the circumstances upon which the

status was granted no longer apply or have changed significantly and permanently;

and

(ii) due consideration shall further be given to any compelling reasons presented

by the refugee concerned, arising out of previous persecution, for refusing to return to

his country of origin or his former ordinary residence.

7. (1) A person's status as a refugee may be cancelled for the purposes of this Act if—

(a) he, or a third party acting on his behalf, misrepresented or concealed facts

that were material to the determination of refugee status, with or without fraudulent

intent; or Cessation. Cancellation and revocation.

 (b) he is guilty of misconduct, including threats or bribery; or

(c) there was an error of fact or law in the granting of the status; or

(d) there was misconduct or administrative error at any stage in the hearing,

including the wrongful issuance of relevant documents.

(2) A person's status as a refugee shall be revoked for the purposes of this Act if he

subsequently engages in conduct that falls within the exclusion criteria under section 5.

8. No refugee present within the national territory of India shall be expelled or returned

in any manner whatsoever to any country where his life or freedom would be threatened on

account of his race, religion, sex, nationality, ethnicity, membership of a particular social

group or political opinion.

9. (1) Subject to section 8, a refugee or asylum-seeker may be removed from India only

if—

(a) the concerned authority of the Central Government has certified that the

refugee or asylum-seeker falls within the grounds specified under sub-section (1) of

section 5, or sub-section (1) of section 6 or section 7; or

(b) his application for asylum has been finally denied.

(2) The removal of a person on the grounds specified in sub-section (1) shall be

effected only after such person has been duly informed of the intention of the Central

Government to remove him and given the opportunity to show cause against such removal,

within such time and in such manner as may be prescribed, with regard thereto.

(3) Where an order is made for the removal of a refugee or asylum-seeker from India,

any dependant of such refugee or asylum-seeker, who has not been granted asylum, may be

included in such an order and removed from India:

Provided that before any order for the removal of a dependant is made, such dependant

shall be afforded a reasonable opportunity to make an application for asylum and he either

fails to apply or his application for asylum is finally denied by the Appellate Board.

(4) The Central Government may, by an order in writing, cause any refugee or asylumseeker

ordered to be removed from India, to be detained pending such removal.

(5) Where an order for removal is made, the concerned refugee or asylum-seeker will be

removed to his country of origin:

Provided that where such refugee or asylum-seeker wishes to be removed to a third

country, he shall be afforded reasonable time to obtain approval from such country, for his

removal to that country.

(6) An order for removal shall be made only by the concerned authority of the Central

Government in writing.

(7) An order for removal shall not be made until the final determination of an application

for asylum under this Act.

CHAPTER III

PROCEDURE TO APPLY FOR ASYLUM

10. (1) Every asylum-seeker shall have the right to make an application for asylum

addressed to the Commission in such manner as may be prescribed.

(2) Where a police officer or any other person exercising powers under the Foreigners

Act, 1946, intercepts a foreigner who is seeking entry into India at any port of entry or

international border and who expresses the intention to make an application for asylum, such

Principle of

Nonrefoulement. Provisions for removal from India.

Application for asylum.

police officer or person shall not deny entry into the national territory to such asylum-seeker

and shall give him the necessary information regarding the procedure for asylum, and assist

him in making an application for asylum under this Act.

(3) An application for asylum shall be made within sixty days following the asylumseeker's

entry into India:

Provided that the Commission may extend the period for making an application for

asylum if it is satisfied that the asylum-seeker was prevented for sufficient reasons from

filing the application:

Provided further that the Commission may, after due consideration, admit an application

for asylum after the said period of sixty days, where such application is based on a claim

arising as a consequence of events which have occurred in the asylum-seeker's country of

origin since his departure, or because of a significant intensification of pre-existing factors

since his departure, or because of a change in his personal circumstances:

Provided also that the Commission may, after due consideration, admit a fresh

application for asylum made by the asylum-seeker after the said period of sixty days, where

his previous application for asylum was finally rejected, provided however that such fresh

application for asylum must arise out of change in the asylum-seeker's personal circumstances

or change in the circumstances in his country of origin.

(4) The applicant may apply on behalf of accompanying family members who are not

his dependants but whose applications are on the same grounds, provided a written consent

of the adult family members is attached to the application made on their behalf.

(5) No asylum-seeker shall be detained or subjected to any penalty solely on account

of his illegal entry into, or stay in India, pending the determination of his application for

asylum.

(6) Every applicant shall, upon submitting the application for asylum, be issued a

registration document by the Commission in the prescribed form, valid for six months and

containing identity information of the applicant and, where applicable, the identity information

of his dependants and which shall enable those included in it to stay in India pending the

determination of the application for asylum, and shall be issued without being subject to any

fee:

Provided that where the decision on the application for asylum is not issued before the

expiry of the registration document, the document shall be renewed for a further period of

sixty days at a time, until a decision is issued.

(7) Where the application for asylum is rejected by the Commission, the registration

document shall be renewed for a period of sixty days from the date of such decision:

Provided that where the applicant files an appeal application before the Appellate

Board, the Commission shall renew the registration document as under sub-section (2) of

section 12.

11. (1) The Commission shall examine every application for asylum and, after giving an

opportunity to the applicant to be heard, and after making such further inquiry as is necessary

under this Act, determine whether the applicant is entitled to be recognised as a refugee in

accordance with the principles under this Act.

(2) During the hearing under sub-section (1), the applicant shall be informed of and

provided with the services of a competent interpreter and adequate opportunity to present

evidence in support of his case.

(3) The Commission shall, within three months of the conclusion of the hearing, issue

a decision in accordance with section 14, granting or denying asylum to the applicant.

(4) Where an application for asylum is accepted by the Commission, or where the

Commission to determine application for asylum.

appeal application is accepted by the Appellate Board, the Commission shall issue a refugee

certificate containing identity information and indicating the legal status of the refugee and

his dependants where applicable and which shall enable those included in it to stay in India

legally.

(5) Where an application for asylum is rejected, the Commission shall issue a rejection

letter containing detailed reasons for the decision.

12. (1) An applicant aggrieved by a decision of the Commission made under this Act,

may, within sixty days from the date of such decision and in such manner and form, as may

be prescribed, prefer an appeal to the Appellate Board:

Provided that the Appellate Board may accept an appeal application after the stipulated

time period if reasonable cause for the delay is shown.

(2) On receipt of an appeal application under sub-section (1), the Appellate Board shall

direct the Commission to renew the registration document issued under sub-section (6) of

section 10 for a period of sixty days at a time, until a final decision is issued.

(3) The appellate Board may, after giving an opportunity to the applicant to be heard,

and after making such further inquiry as is necessary under this Act, confirm, modify or set

aside the decision of the Commission.

(4) During the hearing under sub-section (3), the applicant shall be entitled to all the

rights set out in sub-section (2) of section 11.

(5) The appellate Board shall, within three months of the conclusion of the hearing,

issue a decision in accordance with section 14.

(6) Where an application for asylum is accepted at appeal, the Appellate Board shall

direct the Commission to issue a refugee certificate as under sub-section (4) of section 11.

(7) Where an appeal application is rejected, the Appellate Board shall issue a rejection

letter containing reasons for the decision.

(8) The decision of the Appellate Board shall be final.

13. (1) All hearings by the Commission under section 11 and the Appellate Board

under section 12 shall include an in-person interview with the applicant within ninety days of

the receipt of the application for asylum, with a view to reaching an effective and fair decision:

Provided that where the applicant is unable to be physically present for the in-person

interview, the Commission or, as the case may be, the Appellate Board, may alternative

arrangements to ensure that the applicant has the opportunity to be heard.

(2) During the asylum interview, the applicant shall be given the opportunity to express

himself in the best possible manner and upon the applicant's request, his lawyer shall be

permitted to attend the interview as an observer.

(3) The entire hearing shall be conducted under such principles of confidentiality as

may prescribed.

(4) Due consideration shall be given to the circumstances of persons with special

needs during the entire hearing.

(5) All asylum hearings shall be recorded in writing.

(6) Where dependants are included in the application for asylum, only those above

thirteen years of age shall be interviewed.

14. (1) All decisions of the Commission and Appellate Board shall contain, in writing,

the reasons for arriving at the decision, and a copy of the same shall furnished to the

Applicant.

Appeal to lie to the Appellate Board.

Decision to be reasoned.

 (2) The decisions, judgements, decrees or orders of the Commission and Appellate

Board shall be published, as prescribed, with due regard to principles of confidentiality.

15. (1) The applicant or refugee, as the case may be, shall have the right to seek the

assistance of a legal practitioner of his choice.

(2) Legal assistance shall include legal representation throughout the hearing conducted

by the Commission or the Appellate Board, as the case may be.

CHAPTER IV

CONSTITUTION, FUNCTIONS AND POWERS OF AUTHORITIES

16. (1) With effect from such date as the Central Government may, by notification in

the Official Gazettee appoint, there shall be established, for the purposes of this Act, a

Commission to be called the National Commission for Asylum .

(2) The Commission shall be a body corporate by the name aforesaid having perpetual

succession and a common seal with power, subject to the provisions of this Act, to acquire,

hold and dispose of property, both movable and immovable, and to contract, and shall by the

said name, sue or be sued.

(3) The head office of the Commission shall be at New Delhi and the Central

Government may direct that additional offices of the Commission be established in any

other location as may be necessary.

17. (1) The Commission shall consist of a Chief Commissioner, and not less than six

other Commissioners to be appointed by the Central Government.

(2) The Chief Commissioner shall be a person who has been a judge of a High Court

and shall be appointed in consultation with the Chief Justice of India.

(3) The Commissioners shall be appointed by the Central Government in consultation

with the Chief Commissioner and shall be persons of ability, intergrity and standing who

have special knowledge and professional experience of not less than ten years in refugee law

and policy, or not less than ten years of litigation experience in the field of human rights.

18. (1) The Commission shall determine:

(a) applications for asylum, in accordance with the principles under this Act;

(b) cessation of refugee status in accordance with section 6; and

(c) cancellation or revoacation of refugee status in accordance with section 7.

(2) The Commission shall issue documentation in accordance with section 10 and

section 11.

(3) The Commission may also inquire, suo moto or on an application presented to it

either by an asylum-seeker, refugee or by someone acting on their behalf, in respect of the

following—

(a) the detention of an asylum-seeker; or

(b) any conditions or consequent orders to be passed following the determination

of asylum; or

(c) the repatriation of a refugee; or

(d) any other order that may be necessary under this Act.

(4) The Commission shall maintain a record of the details, as prescribed, of applicants

who have been granted refugee status under the terms of this Act and shall make the same

periodically available to the Central Government.

(5) The Commission may consult agencies of the United Nations, non-governmental

organizations or experts for the purposes of this Act.

Right to legal representation.  Establishment of National Commission for Asylum.

Composition of the Commission. Functions of the Commission.

 (6) The Commission shall undertake such measures and give such directions or pass

such orders as are necessary for the purpose of discharging its functions under this Act.

19. (1) In the discharge of its functions, the Commission shall be guided by the

principles of natural justice and, subject to the other provisions of this Act and of any rules

made by the Central Government, the Commission shall have the power to regulate its own

procedure.

(2) The Chief Commissioner and the Commissioners shall have the power to delegate

to one another such powers or functions as may be prescribed.

(3) In particular and without prejudice to the generality of the foregoing provisions,

the powers of the Commission shall include the power to determine the extent to which

persons interested, or claiming to be interested, in the subject-matter of any proceeding

before it may be allowed to be present or to be heard, either by themselves or by their

representatives, or to examine witnesses, or otherwise take part in the proceedings:

Provided that any such procedure as may be prescribed or followed shall be guided by

the principles of natural justice.

(4) The Commission, for the purposes of any inquiry or for any other purpose under

this Act, shall have the same powers as vested in a civil court under the Code of Civil

Procedure, 1908, while trying suits in respect of the following matters, namely—

(a) summoning and enforcing the attendance of any person from any part of

India and examining him on oath;

(b) the discovery and production of any document or other material object

producible as evidence;

(c) the reception of evidence on affidavit;

(d) the requisitioning of any public record from any court or office;

(e) the issuing of any commission for the examination of witnesses; and

(f) any other matter which may be prescribed.

(5) The Commission may cause an inquiry to be made into the compliance of its orders

or directions made in the exercise of its powers under this Act, and may impose such penalties

as may be prescribed.

(6) The Commission, with a view to rectifying any mistake apparent from the record,

shall have the power to amend any order or direction passed by it under the provisions of

this Act:

Provided that the Commission shall not, while rectifying any mistake apparent from the

record, amend the substantive part of such order or direction.

(7) The Commission may, appoint such administrative, technical, and other staff as it

may consider necessary.

20. (1) With effect from such date as the Central Government may, by notification in

the Official Gazette appoint, there shall be established, for the purposes of this Act, a body

to be called the National Appellate Board for Asylum.

(2) The Appellate Board shall be a body corporate by the name aforesaid having

perpetual succession and common seal with power, subject to the provisions of this Act, to

acquire, hold and dispose of property, both movable and immovable, and to contract, and

shall, by the said name, sue or be sued.

(3) The office of the Appellate Board shall be at New Delhi or such other location as

directed by the Central Government.

Powers of the Commission.

5 of 1908

Establishment of the Appellate Board.

21. (1) The Appellate Board shall consist of a Chairperson, and not less than four

other Members to be appointed by the Central Government.

(2) The Chairperson shall be a person who has been a judge of the Supreme Court and

shall be appointed in consultation with the Chief Justice of India.

(3) A Member shall be appointed by the Central Government in consultation with the

Chairperson and shall be a person who has been a judge of a High Court, or has had at least

five years of experience as a Commissioner, or has special knowledge of and professional

experience of not less than fifteen years in, refugee law and policy.

22. (1) The Appellate Board may, suo moto or on the presentation of an appeal

application, examine, confirm, modify or set aside any decision, direction, judgment, decree

or order of the Commission.

(2) The Appellate Board may also inquire on an appeal application presented to it

either by an asylum-seeker or by someone acting on his behalf, in respect of any decision or

order given by the Commission under sub-section (3) of section 19.

(3) The Appellate Board shall direct the Commission to issue documentation in

accordance with section 12.

(4) The Appellate Board may consult agencies of the United Nations, non-governmental

organizations or experts for the purposes of this Act.

(5) The Appellate Board shall undertake such measures and give such directions or

pass such orders as are necessary, for the purpose of discharging its functions under this

Act.

(6) Subject to the provisions of the Rules, the Appellate Board shall have the power to

review any decision, judgment, decree or order made by it.

23. (1) In the discharge of its functions, the Appellate Board shall be guided by the

principles of natural justice and, subject to the other provisions of this Act and any rules

made by the Central Government, the Appellate Board shall have the power to regulate its

own procedures.

(2) The Chairperson and the Members of the Appellate Board shall have the power to

delegate to one another such powers or functions as may be prescribed.

(3) In particular and without prejudice to the generality of the foregoing provisions,

the powers of the Appellate Board shall include the power to determine the extent to which

persons interested, or claiming to be interested, in the subject-matter of any proceeding

before it may be allowed to be present or to be heard, either by themselves or by their

representatives, or to examine witnesses or otherwise take part in the hearing:

Provided that any such procedure as may be prescribed or followed shall be guided by

the principles of natural justice.

(4) The Appellate Board, for the purposes of any inquiry or for any other purpose

under this Act, shall have the same powers as vested in a civil court under the Code of Civil

Procedure, 1908, while trying suits in respect of the following matters, namely—

(a) summoning and enforcing the attendance of any person from any part of

India and examining him on oath;

(b) the discovery and production of any document or other material object

producible as evidence;

(c) the reception of evidence on affidavit;

(d) the requisitioning of any public record from any court or office;

(e) the issuing of any commission for the examination of witnesses; and

(f) any other matter which may be prescribed.

Composition of the Appellate Board.

Functions of the Appellate Board.

Powers of the Appellate Board.

 (5) The Appellate Board may cause an inquiry to be made into the compliance of its

orders or directions made in the exercise of its powers under the Act and impose such

penalties as prescribed.

(6) The Appellate Board, with a view to rectifying any mistake apparent from the

record, shall have the power to amend any order or direction passed by it under the provisions

of this Act:

Provided that the Appellate Board shall not, while rectifying any mistake apparent

from the record, amend the substantive part of such order or direction.

(7) The Appellate Board may, appoint such administrative, technical, and other staff

as it may consider necessary.

24. (1) At the time of appointing the Chief Commissioner, Commissioner, Chairperson

or Member, the Central Government shall satisfy itself that such person does not and will not

have any financial or other interest as is likely to affect prejudicially his functions as such

Chief Commissioner, Commissioner, Chairperson or Member.

(2) The Chief Commissioner, Commissioner, Chairperson or Member shall hold office

for a term of five years from the date on which he enters his office and shall eligible for

reappointment for a further term of five years:

Provided that no person shall hold office after he has attained the age of seventy

years.

(3) Notwithstanding anything contained in sub-section (2), the Chief Commissioner,

Commissioner, Chairperson or Member may—

(a) by notice in writing under his hand and addressed to the concerned authority of

the Central Government, resign from his office at any time; or

(b) be removed from office in accordance with the provisions of section.

(4) A vacancy caused by the resignation or removal of the Chief Commissioner,

Commissioner, Chairperson or Member under sub-section (3) shall be filled by fresh

appointment.

(5) In the event of a vacancy in the post of the Chief Commissioner or Chairperson, one

of the Commissioners or as the case may be, Members, as the Central Government may by

notification authorize in this behalf, shall act as the Chief Commissioner or Chairperson, till

such date on which a new Chief Commissioner or Chairperson, appointed in accordance with

the provisions of this Act, enters office.

(6) When the Chief Commissioner or Chairperson is unable to discharge his functions

owing to absence, illness or any other cause, such one of the Commissioners or as the case

may be, Members, as the Chief Commissioner or Chairperson may authorize in writing in this

behalf, shall discharge the functions of the Chief Commissioner or Chairperson, till such date

on which the Chief Commissioner or Chairperson resumes his duties.

(7) The salaries and allowances payable to, and the other terms and conditions of

service of, the Chief Commissioner, Commissioner, Chairperson and Member shall be

such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of

service of the Chief Commissioner, Commissioner, Chairperson or Member shall be varied to

his disadvantage after his appointment.

(8) The Chief Commissioner or Commissioner, upon ceasing to hold such office, shall

not hold any appointment under the Central Government or under any State Government for

a period of two years from the date on which he ceases to hold such office, except where he

is appointed to the Appellate Board, subject to the provisions of this Act.

Term of Office, Conditions of Service, etc. of the Chief Commissioner, Commissioners Chairperson and the Members.

 (9) A Member, upon ceasing to hold such office, shall not hold any appointment under

the Central Government or under any State Government for a period of two years from the

date on which he ceases to hold such office, except where he is appointed Chairperson,

subject to the provisions of this Act.

(10) The Chairperson, upon ceasing to hold such office, shall not hold any further

appointment under the Central Government or under any State Government.

25. (1) The Central Government may remove from office a Chief Commissioner,

Commissioner, Chairperson or Member, who—

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties

of his office; or

(c) is unfit to continue in office by reason of infirmity of mind or body; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted for an offence which in the opinion of the Central Government

involves moral turpitude; or

(f) has acquired such financial or other interest as is likely to affect prejudicially

the functions of his office; or

(g) has so abused his position as to render his continuance in office prejudicial

to the public interest.

(2) Notwithstanding anything contained in sub-section (1), neither the Chief

Commissioner or Commissioner, nor the Chairperson or Member shall be removed from office

on the grounds specified in clause (f) or clause (g) of that sub-section unless the Supreme

Court, on a reference being made to it in this behalf by the Central Government, has, on an

inquiry held by it in accordance with such procedure as it may be specified in this behalf, has

reported that the concerned Chief Commissioner, Commissioner, Chairperson or Member

ought, on such grounds, to be removed.

26. (1) The Central Government shall appoint a Secretary to the Commission and a

Secretary (by whatever name called) to the Appellate Board to exercise and perform, under

the control of the Commission or, as the case may be, Appellate Board, such powers and

duties as may be prescribed or as may be specified by the Commission or Appellate Board.

(2) The Secretary to the Commission or the Appellate Board, as the case may be, shall

have the powers of general superintendence, direction and control in respect of all

administrative matters of the Commission or Appellate Board:

Provided that the Secretary to the Commission or the Appellate Board may delegate

such of his powers, as he may think fit, to any other officer of the Commission or the

Appellate Board.

(3) The salaries and allowances payable to, and the conditions of service of, the

Secretary and other officers and employees of the Commission and the Appellate Board

shall be such as may be prescribed.

27. No act or proceeding of the Commission, or, as the case may be, the Appellate

Board, shall be questioned on the ground merely of the existence of any vacancy or defect in

the appointment of the Chief Commissioner, Commissioner, Chairperson or Member, or any

defect in the appointment of a person acting as the Chief Commissioner, Commissioner or

Member.

Removal of the Chief Commissioner, Commissioner, Chairperson and Member from Office.

Secretary, Officers and Other Employees of Commission or Appellate Board. Vacancies, etc.

not to invalidate proceedings of the Commission and the Appellate Board.

28. The Chief Commissioner, Commissioners, Chairperson, Members and other

permanent staff of the Commission and the Appellate Board shall be deemed to be public

servants within the meaning of section 21 of the Indian Penal Code, 1860.

29. The Commission and the Appellate Board shall be deemed to be a civil court for the

purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 and

every proceeding before the Commission or the Appellate Board shall be deemed to be a

judicial proceeding within the meaning of sections 193 and 228, and for the purposes of

section 196, of the Indian Penal Code, 1860.

CHAPTER V

MASS INFLUX SITUATIONS

30. (1) The Central Government may, by notification in the Official Gazette, declare

such group or category of persons in a mass influx to be refugees as defined under clause (o)

of section 2.

(2) The Persons who have crossed an international border as part of a mass influx but

are not declared to be refugees by a notification of the Central Government under subsection

(1) shall be allowed to make an application for asylum under section 10 of this Act.

31. (1) The Central Government may cause all mass influx refugees notified under

section 30 to register their names in such form and manner as may be prescribed.

(2) A refugee who has registered his name in accordance with sub-section (1) shall be

issued an identity card in such form and manner as may be prescribed, which shall entitle him

to all of the rights set out in section 36.

32. (1) The Central Government may, by order, impose reasonable restrictions on the

movement or location of mass influx refugees:

Provided that nothing in this sub-section shall impair the right of a refugee to seek and

enter employment outside the designated area in such manner as may be prescribed.

(2) The Central Government may, by order in writing, cause any refugee found violating

the restrictions imposed under sub-section (1) to be detained.

(3) Nothing in this section shall apply to any refugee who has been granted asylum in

India following an application for asylum made under section 10.

33. (1) The Central Government may, by notification in the Official Gazette, extend,

alter, substitute or withdraw a notification concerning mass influx refugees made under

section 30:

Provided that such extension, alteration, substitution or withdrawal shall apply only to

asylum-seekers arriving after the date of notification.

(2) Any action revoking or altering the grant of refugee status to mass influx refugees

shall be reviewed by the Commission.

CHAPTER VI

PROVISIONS RELATED TO VOLUNTARY REPATRIATION

34. (1) Subject to the provisions of this Act, the Central Government may repatriate

refugees to their country of origin.

(2) The Central Government shall carry out any voluntary repatriation activities in

cooperation with international organisations, public institutions and agencies, and civil

society organisations.

Chief Commissioner, Commissioners, Chaiperson and Members to be Public Servants.

Proceedings before Commission or Appellate Board to be Judicial Proceedings.

Powers of the Central Government

with respect to mass influx situations.

Registration of mass influx refugees.

Special provisions with regard to movement, etc.

Modification of a mass influx situation.

Provisions for voluntary repatriation.

(3) A refugee who wishes to be voluntarily repatriated to his country of origin shall

make a written application to the Commission in such form and manner as may be prescribed.

(4) No refugee may be repatriated unless the Commission is satisfied, after conducting

an inquiry, that the written application for repatriation is voluntary and genuine, and that

repatriation to the country of origin is possible in a safe and dignified manner.

(5) Any order of repatriation by the Central Government shall be placed before the

Commission for its information, and for such further orders or directions as may be necessary.

(6) No order of repatriation of the Central Government shall be implemented unless it

has received the approval of the Commission.

CHAPTER VII

RIGHTS AND DUTIES OF REFUGEES AND ASYLUM-SEEKERS

35. (1) A refugee whose grant of asylum was made in pursuance of an application for

asylum under section 10 shall be entitlted to—

(a) a formal written recognition of asylum, in such form and manner as may be

prescribed under section 11 and section 12 that constitutes an enforceable basis for

his continued residence in India;

(b) an identify document of the nature described in section 37;

(c) a travel document of the nature described in section 37;

(d) apply for a residence permit and other government documents for which he

may be eligible on the strength of the documents specified in clause (a) of this subsection;

(e) freedom from discrimination on the basis of race, religion, sex, nationality,

ethnicity, place of birth or any of them;

(f) fair and just treatment in accordance with due process and procedure

established by law;

(g) choose his place of residence and move freely within the territory of India,

subject to any reasonable restrictions that may be imposed in the public interest;

(h) seek and enter employment in the private sector;

(i) the same healthcare rights and services that apply to Indian citizens;

(j) free and compulsory primary education; and

(k) the right to move relevant courts of law by appropriate proceedings for the

enforcement of rights conferred by Part III of the Constitution.

(2) Every refugee and asylum-seeker shall be bound by the laws of India.

36. (1) An asylum-seeker whose application for asylum under section 10 is pending, or

a mas influx refugee notified under section 30 of this Act, shall be entitled to—

(a) a temporary identity document that constitutes an enforceable basis for his

continued presence in India;

(b) seek and enter employment in accordance with government policy;

(c) the same healthcare rights and services that apply to Indian citizens;

(d) free and compulsory primary education;

(e) freedom from discrimination on the basis of race, religion, sex, nationality,

ethnicity, place of birth or any of them; and

(f) the right to move relevant courts of law by appropriate proceedings for the

enforcement of rights conferred by this Act and Part III of the Constitution.

Protection and general rights of refugees.

Rights of asylum seekers and mass influx refugees.

 (2) The rights and benefits extended to refugees and asylum-seekers shall not be

construed to provide more rights and benefits than those accorded to citizens.

37. (1) All refugees and asylum-seekers shall be entitled to a legally enforceable

document of identity issued by the Central Government which shall mention—

(a) the identity number of the holder, issued in the prescribed manner;

(b) the holder's legal status in India;

(c) the holder's surname, forename(s), sex, date of birth, and place or country

where he was born;

(d) the country of which the holders is a citizen, if any; and

(e) a recent photograph of the holder.

(2) The document of identity shall be valid for a period of five years and may be

renewed for period as may be prescribed.

(3) Such document of identity shall bear the seal of the Government authority that

issues it.

(4) A refugee whose grant of asylum was made in pursuance of an application for

asylum under section 10 shall be entitled to a legally enforceable document authorising his

travel from and to India, subject to such restrictions as may be specified in this regard by the

Central Government.

CHAPTER VIII

TECHNICAL ASSISTANCE

38. The Central Government, the Commission or the Appellate Board, as the case may

be, may seek the good offices of the United Nations or other relevant agencies for its

expertise, technical assistance and guidance in relation to any matter arising under this Act.

CHAPTER IX

FINANCE, AUDIT AND ANNUAL REPORT

39. (1) The Central Government, shall after due appropriation made by Parliament, by

law in this behalf, pay to the Commission and the Appellate Board, by way of grants, such

sums of money as the Central Government may think fit for being utilised for the purposes of

this Act.

(2) The Commission and the Appellate Board may spend such sums as it thinks fit for

performing the functions under this Act, and such sums shall be treated as expenditure

payable out of the grants referred to in sub-section (1).

40. (1) The Commission and the Appellate Board shall maintain proper accounts and

othe relevant records, and prepare an annual statement of accounts, in such form as may be

prescribed by the Central Government in consultation with the Comptroller and AuditorGeneral

of India.

(2) The Accounts of the Commission and the Appellate Board shall be audited by the

Comptroller and Auditor-General at such intervals as may be specified by him and any

expenditure incurred in connection with such audit shall be payable by the Commission and

the Appellate Board to the Comptroller and Auditor-General.

(3) The Comptroller and Auditor-General or any person appointed by him in connection

with the audit of the accounts of the Commission and the Appellate Board under this Act,

shall have the same rights, privileges, and authority in connection with such audit, as the

Comptroller and Auditor-General generally has in connection with the audit of Central

Government accounts:

Identity and travel documents.

Technical Assistance.

Grants by the Central Government.

Accounts and Audit.

Provided further that the Comptroller and Auditor-General shall, in particular, have the

right to demand the production of books, accounts, connected vouchers and other documents

and papers, and to inspect any of the offices of the Commission and the Appellate Board.

(4) The accounts of the Commission and the Appellate Board, as certified by the

Comptroller and Auditor-General or any other person appointed by him in this behalf, together

with the audit report thereon, shall be forwarded annually to the Central Government by the

Commission and the Appellate Board.

(5) The Central Government shall cause the audit report forwarded under sub-section

(4) to be laid before each House of Parliament as soon as may be after it is received.

41. (1) The Commission and the Appellate Board shall prepare, once in every year, in

such form and at such time as may be prescribed, an annual report giving a full account of its

activities during the previous year, copies of which shall be forwarded to the Central

Government.

(2) A copy of the report received under sub-section (1) shall be laid, as soon as may be

after it is received, before each House of Parliament.

CHAPTER X

MISCELLANEOUS

42. (1) The Central Government may, by notification in the Official Gazette, make rules

for carrying out the purposes of the Act.

(2) In particular, and without prejudice to the generality of the foregoing provision,

such rules may provide for—

(a) the procedure for removing a refugee or asylum-seeker from India under

section 9;

(b) the detention of refugees or asylum-seekers;

(c) the procedure regarding an application for asylum, subject to the provisions

contained under this Act;

(d) the salaries and allowances and other terms and conditions of service of the

Chief Commissioner, Commissioners, Chairperson, and Members under section 24;

(e) the salaries and allowances and other terms and conditions of service of the

Secretary and other staff for the Commission and Appellate Board under section 26;

(f) the reception and registration of mass influx refugees, and all other matters

connected to the management of such refugees;

(g) the procedure for voluntary repatriation of refugees;

(h) the enforcement of the rights and duties of refugees and asylum seekers; and

(i) the effective implementation of this Act.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made,

before each House of Parliament, while it is in session, for a total period of thirty days which

may be comprised in one session or in two or more successive sessions, and if, before the

expiry of the session immediately following the session or the successive sessions aforesaid,

both Houses agree in making any modification in the rule of both the Houses agree that the

rule should not be made, the rules shall thereafter have effect only in such modified form or

be of no effect, as the case may be; so, however, that any such modification or annulment

shall be without prejudice to the validity of anything previously done under that rule.

43. The Central Government may by order empower the concerned authorities to

assist and cooperate with the Commission and the Appellate Board for the enforcement of

this Act.

Annual Report.

Power to make Rules.

Empowerment of Concerned Authorities.

44. On and from the appointed day, no court or authority shall have, or be entitled to

exercise, any jurisdiction, powers or authority in relation to matters specified in this Act,

except the Supreme Court and a High Court exercising powers under articles 32, 226 and 227

of the Constitution.

45. No suit or other legal proceeding shall lie against the Central Government,

State Government, Commission, Appellate Board or any person acting under the direction

either of the Central Government, State Government, Commission or Appellate Board in

respect of anything which is, in good faith, done or intended to be done, in pursuance of this

Act or of any rules or any order made thereunder.

46. The provisions of this Act shall have effect not withstanding anything inconsistent

therewith contained in any other law for the time being in force.

Bar of Jurisdiction.

Protection of action taken in good faith.

Act to have overriding effect.

STATEMENT OF OBJECTS AND REASONS

The recent refugee crisis in Europe has forced the world to stop and notice the precarious

and inhumane conditions of Syrian refugees. This is a moment for all countries, including

India, to re-examine their current response and preparedness to deal with refugees and

situations of mass movements.

India hosts more than two lakhs refugees and is at the centre of refugee movements in

the South Asian region. India has been a home to refugees from Tibet, Bangladesh,

Sri Lanka, Afghanistan, and Myanmar, as well as to Nepalese fleeing civil war. It had also

hosted the largest ever refugee crisis in human history when ten million fled persecution and

genocide by the Pakistan Army in East Bengal in 1971. Despite this, India is neither a signatory

to the 1951 UN Convention relating to the status of Refugees nor does it have a domestic

asylum framework. However, India's practice has been to adopt a humanitarian approach

towards refugees under the terms of the Universal Declaration of Human Rights (UDHR) and

the International Covenant on Civil and Political Rights (ICCPR). Our country implements a

refugee protection framework which is based on a combined series of executive policies.

The judiciary has also accorded constitutional protection to refugees in its judgment

in National Human Rights Commission vs State of Arunachal Pradesh & Anr. in 1996. The

Supreme Court held that the fundamental right to equality under article 14 and the right to life

and personal liberty under article 21 extends to all foreigners, including refugees. Apart from

protection under the Constitution, refugees also receive support from a body of

complementary law and practice such as the Right to Education Act, 2009 (RTE) and health

services.

The Government of India relies on the Foreigners Act, 1946 and the Registration of

Foreigners Act, 1939 to govern the entry, stay, and exit of all refugees. However, these

legislation treat refugees as foreigners and fail to take into account their special status on

humanitarian grounds or under international law. They are not equipped to support the

country's need to deal with asylum seekers and migration movements.

As a member of the Executive Committee of the United Nations High Commissioner for

Refugee (UNHCR), India is committed to protect refugees and has also offered its assistance

to refugees from Syria, Myanmar, and Afghanistan. Therefore, it has become increasingly

important to enact a structured framework to establish a clear and consistent regime. The

current global crisis clearly demonstrates that the lack of a legal framework does not so much

deter refugees in the face of a crisis as leaves the host country ill-equipped to deal with the

inflow. Even the National Human Rights Commission (NHRC) has under scored the need for

enacting such a domestic legislation. It is important to mention that in 1997 India had drafted

a model law on refugees under the guidance of Justice P.N. Bhagwati, the former Chief

Justice of India, but it was not enacted. In addition it is a glaring anomaly that India is the

only significant member of the UN without a refugee law, that too at a time when it is seeking

recognition as a responsible international power through a permanent seat at the UN.

The proposed Bill seeks to incorporate the current policy on refugees, the principles of

the Constitution, and India's international obligations. The provisions of the Bill provide

clarity and uniformity on the recognition of asylum seekers as refugees and their rights in the

country. It also seeks to end a system of ambiguity and arbitrariness which, too often, results

in injustice to a highly vulnerable populace. The Bill proposes to enable the Government to

manage refugees with more accountability and order, while balancing humanitarian concerns

and security interests of the State.

India has been, and continues to be, a generous host to several persecuted

communities, doing more than many countries who are signatories to the UN Refugee

Convention, 1951. The Bill, if enacted, will put India at the forefront of asylum management

in the world. It will finally recognise India's long-standing and continuing commitment to

humanitarian and democratic values while dealing with refugees.

Hence this Bill.

NEW DELHI; SHASHI THAROOR

November 13, 2015.

FINANCIAL MEMORANDUM

Clause 16 of the Bill provides for the establishment of the National Commission for

Asylum. Sub-clause 3 provides that the head office of the Commissions shall be at New Delhi

and enables the Commission to establish offices at other places in India.

Clause 17 provides appointment of a Chief Commissioner and six other Commissioners

in the Commission. Clause 19 provides for appointment of administrative, technical and

other staff to the Commission. Clause 20 provides for the establishment of the National

Appellate Board for Asylum.

Clause 21 provides that the Appellate Board shall consist of a Chairperson, and not

less than four other Members to be appointed by the Central Government. Clause 23 provides

for appointment of administrative, technical and other staff to the Appellate Board.

Clause 24 provides that the salaries and allowances payable to the Chief Commissioner,

Commissioners, Chairperson, and Members shall be prescribed by the Central Government.

Clause 26 provides for the appointment of a Secretary to the Commission and a Secretary

to the Appellate Board to exercise the powers of general superintendence, direction and

control in respect of all administrative matters of the Commission or Appellate Board. It also

provides for salaries and allowances payable to the secretary and other officers and employees

of the Commission and the Appellate Board shall be such as may be prescribed by the

Central Government.

Clause 35 provides that same healthcare rights which apply to Indian citizens and

service and free and compulsory primary education shall be provided to the refugee who has

been granted asylum. Clause 36 provides that same healthcare rights and services as applicable

to Indian citizens and free and compulsory primary education shall be provided to asylumseekers

and mass influx refugees.

Clause 39 provides that the Central Government shall provides grants of sums of

money to the Commission and Appellate Board for carrying out the purposes of this Act.

The Bill, therefore, if enacted would involve expenditure from the Consolidated Fund

of India. It is estimated that a recurring expenditure of about rupees fifty crore per annum

would be involve from the Consolidated Fund of India.

A non-recurring expenditure of about rupees twenty crore is also likely to involve.

20

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 42 of the Bill empowers the Central Government to make rules for carrying out

the provisions of the Bill. As the rules will relate to matter of detail only, the delegation of

legislative power is of normal character.

LOK SABHA

————

A

BILL

to provide for the establishment of an effective system to protect refugees and asylumseekers

by means of an appropriate legal framework to determine claims

for asylum and to provide for the rights and obligations flowing from such status and

matters connected therewith.

————

(Dr. Shashi Tharoor, M.P.)

GMGIPMRND—3088LS(S3)—10-12-2015

Source: http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/3088LS.pdf
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