This note is an attempt to illustrate the role played by the Indian judiciary in protecting refugee children and their interests in the context of India not being a party to the Refugee Convention or its Protocol. Along with this, the efforts taken by the Supreme Court of India in bridging the gap between India's international obligations and domestic laws, both treaty-based and customary, are mentioned briefly. In doing so, the lack of focused discussion of article 22 of the Convention on the Rights of the Child in protecting unaccompanied and separated children and their interests is also mentioned. The article calls for a more meaningful discussion of these issues in the future.
Though India is not a party to the Convention on the Status of Refugees, 1951, or its Protocol, 1967, India has acceded to a number of international human rights instruments. Yet there is a gap between those international obligations undertaken and in realizing them through the domestic legal framework for effective implementation. Under such circumstances, the Indian judiciary has been playing a very important role in bridging the gap through their decisions from time to time. The nature and extent of the international obligations, their applicability, and the nature of reservation as well as the absence of domestic legislation have been discussed by the courts, in the context of constitutional rights and human rights jurisprudence. The primary objective of this short note is to identity some important decisions that seek to protect the rights and interests of refugee children. A few other important decisions of the Supreme Court as well as the High Courts in India are also discussed with a view to assessing the overall effect of those decisions in upholding human rights values in India. The importance of article 22 and other provisions of the Convention on the Rights of the Child in upholding human rights values in India will also be highlighted.
At the outset, mention must be made of Digvijay Mote v. Government of India and others, (1) in which a public interest petition was moved before the High Court of Karnataka. It was moved by an individual who acted on the basis of certain reports published in the newspaper as well as his personal visit to a school established exclusively for accommodating the refugee children from Sri Lanka. This school was established by an NGO, the Bright Education Society, registered in the state of Tamil Nadu (a province in India), in Bangalore, the capital city of the neighbouring state of Karnataka. This school, conceived as a boarding school, houses two hundred and fifty to three hundred refugee children from Sri Lanka exclusively. A majority of them were orphaned or have one of the parents living in the refugee camps in Tamil Nadu and not in a position to take care of the child. The school is administered from funds collected from various donors, individuals as well as organizations. The state of Karnataka also extended its helping hand in providing necessary supplies through its Ministry of Women and Social Welfare. However, when the government of Karnataka decided to stop its humanitarian assistance and the school found itself in a difficult situation, the public interest petition was moved before the High Court. Though rejected in the first instance, on appeal before the same High Court, notices were served to all the respondents including the government of Karnataka. On receipt of the notice...