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8 King's Student L. Rev. 30 (2017)
The Constitution-Based Approach of Indian Judiciary to the Refugee Rights and Global Standards of the UN Convention

handle is hein.journals/kinstul8 and id is 30 raw text is: 




The   Constitution-Based Approach of Indian Judiciary to The Refugee Rights
                    and  Global  Standards of the UN Convention

                                      Nafees Ahmad*


Abstract


Global standards of refugee protection have insidiously been discarded into recidivism by the very
governments  who  once espoused the cause of refugee protection in Europe and elsewhere in a
post-World War-II era. Today, refugee protection has transcended all human susceptibilities and
sensibilities to geo-political and ethno-cultural manifestations. India has always been home to a
variety of immigrants, including refugees, since time immemorial and accommodated them in the
best possible manner. But, off late, the geo-strategic response of India to refugee influxes is guided
by the resurgence of majoritarian primacy and religion-driven policies which are deviant to the
global standards of human rights and refugee law. However, the constitution-based approach that
Indian courts have been required to follow has resulted in little if any divergence on the ground in
terms of both who is recognized as a refugee, and what their rights are relative to the standards
of the UN Convention. Thus, the Indian judiciary has been grappling hard to have an interpretative
equilibrium between refugee protections and state concerns whilst measuring global standards of
international refugee  law. Whereas,   state institutions adopt ad-hoc  solutions based  on
procrastination for non-Hindu   refugees and  selectively puts refugee protection issues on
tenterhooks. Therefore, the article broadly deals with desideratum of what is international refugee
law in mobility becomes a profound intellectual consciousness in the transcendental order in the
wake  of paradoxes of changing face offorced human migration in its new dynamics, the failure of
transcendental international refugee law consciousness and re-building the culture of forced
minimalist primacy in state affairs of India by envisioning the functions of law, locating rights,
exercising rights, encountering ambivalence of governance institutions and re-configuring the
changing  face of freedom  of movement   between  resistance to the communal  constructs of
prescriptive functionalism and endurance of transcendental foundation of international refugee
law consciousness that brings out the old dialectics and new dynamics to the fore for possible
solutions at the anvil of Constitution-based Approach of the Indian Judiciary on refugee rights.
Thus, this polemical premise has been examined hereunder in the wake offailure of transcendental
institutionalism in India.






* Ph.D. (International Refugee Law & Human Rights), LL.M. (International Law & Human Rights), LL.B. (H) B.A.
[(H)-Anglo-American English Literature], Assistant Professor of International Law, Faculty of Legal Studies, South
Asian University, New Delhi, India.


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