Blog post by Shahriar Yeasin Khan, Barrister-at-Law, The Honourable Society of Lincoln’s Inn


Background to the 1947 Partition

The partition of British India in 1947 to form independent India and Pakistan (comprising of West Pakistan and East Pakistan; in 1971 East Pakistan gained independence and became Bangladesh), resulted in the displacement of an estimated 15-16.7 million people. The boundaries of these newly formed States were demarcated based on the so-called Radcliffe Line as adopted by the then Boundary Commission. Whilst the idea was to divide these countries according to Muslim-Hindu population demographics, in reality, the partition reflected a political compromise, particularly in the division of the Bengal and Punjab provinces amongst Pakistan and India. The partition was hurried and chaos ensued with Muslims, Hindus and other minorities scrambling to get across to the other side.

India did not sign the 1951 UN Refugee Convention and its 1967 Protocol, and to date remains a non-signatory. It did however enact a series of legislations to deal with the large-scale displacement situation. This article will look at some of those legislations to understand how non-signatories such as India may seek to use domestic legislation to manage inflows and outflows of refugees. This article will seek to provide a brief overview of these laws, as detailed commentary is outside the purview of this paper.

It should be kept in mind that most of the laws mentioned in this paper relate to the displacement of persons specifically due to the 1947 partition, as will be seen further below. They were enacted in highly contextualised circumstances, and after almost 76 years since the partition, their use is no longer in vogue. Nevertheless, it is hoped that researchers and academics will analyse the content and purpose of these laws to gain a more contextual and holistic understanding of India’s internal policies and political considerations, and how these materially affected the refugees/displaced persons. This will help relevant stakeholders to give informed and pragmatic solutions for the at least 48,000 officially registered refugees and asylum-seekers (from Sri Lanka, Tibet, Myanmar, Afghanistan & others) in India as of October 2022, a number which is constantly growing.

It is also to be noted that just the year before the partition, British India enacted the Foreigners Act, 1946 [Act No. 31 of 1946]. Under this act, refugees/displaced person, unless protected by some other legal provisions, will be deemed as simply ‘foreigners’ – they will not enjoy sufficient legal protection and will have strict limitations on movement, residence, etc. It is in this context the laws promulgated after 1947, as cited below, should be examined.

The Laws Promulgated Post Partition

There are various other legislations in relation to refugees/displaced persons which were enacted immediately after the partition. A discussion of all such laws goes beyond the purview of this paper.

A brief overview of some of the important laws that were enacted after the 1947 partition are provided below. It should be noted that the terms ‘displaced person’ and ‘refugee’ has been used essentially in the same context the Acts below, and with different definitions, which will be explored later in this paper.

Institution of suits and adjustment of debts

Certain laws were enacted to allow displaced persons to bring claims relating to property and to for those who are not able to pay back debts to have their debts adjusted.

Displaced Persons (Institution of Suits) Ordinance, 1948 [Ordinance No. XVIII of 1948]

This Ordinance provides for the institution of civil suits relating to claims to property, but not immovable property, i.e. land. It allows a displaced person living in India to bring a suit against another person, the territorial jurisdiction of which would have been in the territories Pakistan before 15 August 1947 (independence of India).

Considering the displacement due to the 1947 partition may have materially affected the displaced persons from instituting a suit within the ordinary period of limitation, this Ordinance provides an extension of the period of limitation if the plaintiff is able to satisfy the Court that because he was displaced he could not institute the suit within time.

A lacuna under this law is that a displaced person cannot institute a suit against another displaced person. What if two persons living in India, who were previously displaced from within the territories of Pakistan, were to bring a case against each other? The law does not provide a solution to such a scenario.

Displaced Persons (Debt Adjustment) Act, 1951 [Act No. 70 of 1951]

This Act provided for displaced persons, who on account of their displacement cannot properly pay back their debts, to make an application to a Tribunal for adjustment of their debts. Displaced creditors can also apply to the Tribunal against others (but not displaced persons).

Acquisition of land

As will be seen below, certain laws were enacted for very speedy acquisition of land, which were used by the Government to rehabilitate displaced persons.

Resettlement of Displaced Persons (Land Acquisition) Act, 1948 [Act No. 60 of 1948], which repealed the Resettlement of Displaced Persons (Land Acquisition) Ordinance, 1948 [Ordinance No. XX of 1948].

This act is very interesting. It provides that the State Government may by “notice” acquire any land (except a school, orphanage or hospital, or religious sites of worship) for the resettlement of displaced persons. The notice shall be served on the owner or occupier of the land or otherwise published in the official Gazette, and after service of the notice the land shall become the property of the State Government, which may after 48 hours’ notice to the occupier proceed to take possession of such land. Only after the land has been vested in the State Government, objections to acquisition can be made, which must be filed within 1 month of the acquisition. After acquisition, requisite compensation shall be paid to the entitled party.

The possibility here is that land belonging to people who left India and went to Pakistan can be very quickly taken over by the Government, and people who came to India as displaced persons under the Act can be resettled in such land. Whether this was done is debatable, and details are scarcely available.

United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948 [U. P. Act No. 26 of 1948]

This Act has similar provisions to the Land Acquisition Act 1948 above. It allows the State Government to make a ‘requisition’ of any property by serving a notice or by officially publishing the notice if the owner or occupier is not traceable. After acquisition, requisite compensation shall be paid to the entitled party. The land can then be used for erecting houses, shops and workshops for the rehabilitation of refugees.

Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act, 1950 [Act No. 38 of 1950]

Similar to the two Acts above, this Act also provides for the acquisition of land by notice for the rehabilitation of displaced persons in the context of the State of Bihar.

East Punjab registration of claims, and resettlement of refugees in evacuee property

In East Punjab, certain laws were enacted to register claims by displaced persons in India of property they had lost or abandoned in Pakistan. This was a way to at least keep a record of the rights of the India refugees that belonged within the territory of Pakistan. But whether these claims could be proven is debatable.

There were other acts that were enacted to take over properties abandoned by refugees who left India for Pakistan. In this case, India chose to take over the property rights of Pakistani refugees. These properties were then given to the refugees who came from Pakistan to India.

East Punjab Refugees (Registration of Claims) Act, 1948 [Act 8 of 1948]

This Act allows refugees in India to make a claim to an appointed Registrar of the State Government in relation to any property in Pakistan, lost or abandoned by him, or of which he has been deprived of, since 1 March 1947. The Registrar may take evidence, and will keep a record of the claim in a register. However, this registration of the claim by itself does not automatically confer any right on the refugee to ask for any compensation or relief from the Government.

East Punjab Refugees (Registration of Land Claims) Act, 1948 [Act 12 of 1948]

This Act allows refugees in India to make a claim about any loss or damage suffered since 1 March 1947, specifically in relation to land within the various territories in Pakistan such as Punjab, Sind, Baluchistan, and others. Similar to the Act above, the State Government will keep a record of these claims.

East Punjab Displaced Persons (Land Resettlement) Act, 1949 [Act No. 36 of 1949]

This Act essentially seeks to provide legal protection to refugees in India who has been allotted land by the Government through Notification No. 4892-S of 8 July, 1949, under section 22 of the East Punjab Evacuees (Administration of Property) Act, 1947.

As mentioned earlier India enacted laws relating to refugees who left India for Pakistan, and had to abandon their lands, thus becoming evacuees. Their lands were subsequently obtained by others living in India through a Custodian under the laws relating to evacuee property, which was later consolidated through the Administration of Evacuee Property Act, 1950 which extends to the whole of India except certain territories.

Definitional Aspects of Refugee/Displaced Person

As mentioned earlier, in the aforementioned Acts both the terms ‘displaced persons’ and ‘refugees’ were used, essentially in the same context, though it is unclear why. The exact definitions are provided in the table below. They are generally very similar in some aspects – they all essentially relate to persons who were displaced due to the 1947 partition. However, there are slight but important variations as to what constitutes a displaced person/refugee.

In most cases, but not all, displacement due to “civil disturbances or the fear of such disturbances” were mentioned as a requirement. This requirement is not present in the 1950 Bihar Rehabilitation Act; but here migrants also fall under the definition of refugees, which is not a feature of the other laws cited above [except the 1948 United Provinces Land Acquisition Act]. In the three laws relating to East Punjab – both the terms ‘displaced person’ and ‘refugee’ are used but with three definitional variants; in two of them the displaced person/refugee must be a land-holder; and in all three some form of property or land is related to the definition. In the 1951 Debt Adjustment Act a displaced person has to be from West Pakistan, but not from East Pakistan.

ActTermDefinition
Displaced Persons (Institution of Suits) Ordinance, 1948 [Ordinance No. XVIII of 1948]“displaced person”“any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or fear of such disturbances in any area now forming part of Pakistan, has been displaced from or has left his place of residence in such area after the 1st day of March, 1947, and who has subsequently been residing in India”  
Displaced Persons (Debt Adjustment) Act, 1951 [Act No. 70 of 1951]  “displaced person”“any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances in any area now forming part of West Pakistan, has, after the 1st day of March, 1947, left, or been displaced from, his place of residence in such area and who has been subsequently residing in India, and includes any person who is resident in any place now forming part of India and who for that reason is unable or has been rendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, but does not include a banking company”  
Resettlement of Displaced Persons (Land Acquisition) Act, 1948 [Act No. 60 of 1948]  “displaced person”Same as the Displaced Persons (Institution of Suits) Ordinance, 1948 (above)
United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948 [U. P. Act No. 26 of 1948]  “refugees”“any person who was a resident in any place forming part of Pakistan and who, on account of partition or civil disturbances or the fear of such disturbances, has on or after the first day of March, 1947, migrated to any place in the Uttar Pradesh and has been since residing there”
Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act, 1950 [Act No. 38 of 1950]  “displaced person”“a person displaced from the territories now comprised in Pakistan, who is, for the time being resident in the State of Bihar and- (i) who has been registered under Section 4 of the Bihar Refugees Registration and Movement Ordinance, 1948; or (ii) who in the opinion of the State Government, or of such authority as may be prescribed from time to time by the State Government has migrated from Pakistan after the first day of March, 1947”  
East Punjab Refugees (Registration of Claims) Act, 1948 [Act 8 of 1948]  “refugee”“a person domiciled or ordinarily resident in, or owning property in, or who carried on business within the territories now comprised in Pakistan and who has, since the first day of March, 1947, left or been made to leave his place of residence or has abandoned or been made to abandon his property or business in the said territories on account of civil disturbances or the fear of such disturbances or the partition of the country”  
East Punjab Refugees (Registration of Land Claims) Act, 1948 [Act 12 of 1948]  “refugee”“a land-holder in the territories now comprised in the Province of Punjab in Pakistan, or who or whose ancestor migrated as a colonist from the undivided Punjab since 1901, to the Provinces of North-West Frontier Province, Sind or Baluchistan or to any State adjacent to any of the aforesaid Provinces and acceding to Pakistan, and who has since the 1st day of March, 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country”  
East Punjab Displaced Persons (Land Resettlement) Act, 1949 [Act No. 36 of 1949]  “displaced person”“a land-holder in the territories now comprised in the province of Punjab in Pakistan or a person of Punjabi extraction who holds land in the Provinces of North-West Frontier, Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to Pakistan, and who has since the 1st day of March, 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances or the partition of the country”  

Incoherence of the Laws and Lessons to be Learnt

It can be seen from some of the examples above that the Indian Government was quick to enact a series of legislations to deal with the refugee situation after the 1947 partition. This highlights their extensive capabilities, when the political will is present.

However, the incoherence of the various definitions of displaced person/refugee are perplexing at the very least. It seems that in different areas of India, different laws were promulgated for different political and social reasons, and the definitions vary accordingly. This is rather unfortunate and it is obvious that displaced persons/refugees must have faced discrimination in different contexts and locations because of these different definitions. In any event, all these definitions fall far short of the definition of a refugee under Article 1 of the 1951 Refugee Convention.

On a positive note, whilst the principle of non-refoulement is not specifically mentioned in these Acts, there are no express provisions contrary to this principle.

Nevertheless, these Acts do not provide for the rights of refugees such as access to education and other fundamental rights. Most of these Acts provide certain mechanisms through which refugees can register property claims or receive support from the government in relation to evacuee property as well as debts adjustment when they are unable to make payments.

It is also concerning to see how, through some of the laws mentioned above, land was acquired by the Government through the service of a mere ‘notice’. Although compensation was required to be given, it seems that people who left India for other countries, particularly Pakistan, could have possibly had their lands acquired without them having the possibility of receiving any compensation.

In any event, more research can be done on the nature of these laws, and the effect they had on-ground at the time. A better understanding of those events may help humanitarian advocates to highlight the good things as well as mistakes of past practices, and the lessons that can be learnt from them can provide a catalyst for India to move towards either signing the 1951 Refugee Convention, or to create or amend national laws which are inherently consistent, and at the very least, in harmony with customary international law.


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