Navigating Immigration Laws and Inheritance Rights in India: The Intersection of Refugee Status and Property Ownership

*by Sri Janani Seenivasan & Meemansha Choudhary

Introduction

Refugees today encounter a complex set of challenges related to property ownership and inheritance, often stemming from their displacement and growing legal complexities. While certain rights are recognized by international conventions, domestic frameworks vary significantly. In India, refugees can obtain citizenship after fulfilling specific criteria, which in theory, entitles them to the same inheritance rights as that of Indian nationals. However, various administrative hurdles and a keen focus on regularization instead of a rights-based approach, creates significant barriers in realizing this goal. Despite a broad interpretation of Article 300A of the Constitution of India, the Indian framework remains glaringly inadequate in addressing the property acquisition and inheritance rights of refugees.

The interplay of refugee laws and property rights is often an overlooked subject matter. In India, refugees are treated as ‘foreigners’ under the general immigration regulations, relegating them to a state of uncertainty. For millions of stateless refugees, a chance to live with dignity and self-reliance hinges upon them possessing economic stability. The lack of a consistent legal framework complicates their ability to acquire, own and inherit property, further marginalizing them.

This article attempts to, firstly, assess India’s legal framework governing property acquisition and inheritance for refugees. Secondly, it delves into the challenges faced by specific groups of refugees, like the Tibetan refugees and the recent moves by the Maharashtra and Delhi governments in granting a freehold status to the Punjabi and Sindhi refugees. Thirdly, it also addresses the implications of the Citizenship Amendment Act, 2019, on property and inheritance rights. Lastly, the authors emphasize the urgent need for an all-inclusive domestic refugee law that broadly addresses the rights of refugees, with a focus on streamlining the administrative process for acquiring citizenship and securing inheritance rights.

India’s Approach to Property Ownership & Inheritance Rights of Refugees

The Convention Relating to the Status of Refugees, 1951 (‘Refugee Convention’) and the Protocol Relating to the Status of Refugees, 1967 (‘Refugee Protocol’) defines a refugee as a person fleeing across the international borders because of the horrors of being victimized in one’s own country on the grounds of race, nationality, religion, political opinion or social group. However, India is not a signatory to the Refugee Convention and the Protocol. Further, it does not recognize the contribution of the United Nations Human Rights Commission (‘UNHCR’) and prefers to handle the issue of refugees on a piece-meal basis unilaterally, avoiding a one-size-fits-all approach.

In the absence of a specific refugee legislation, the Foreigners Act, 1946 (‘The Act’) can be best said to govern the entry, stay and exit of foreigners, including refugees. The Act does not distinctively recognize a person as a ‘refugee’ but rather treats all non-citizens as foreigners, granting broad powers to the government to regulate their movement. Further, India is known to discriminate between different marginalized groups. The Citizenship Amendment Act, 2019 (‘CAA, 2019’), has made religion the formal criterion for citizenship whereby all non-Muslim refugees from Bangladesh, Afghanistan and Pakistan are made eligible for Indian citizenship.

Under the current regime, refugees, categorized as ‘non-citizens’, face significant limitations when it comes to owning immovable property. Although the Supreme Court has extended the constitutional right to property under Article 300A to non-citizens, its practical application is severely restricted by the Foreign Exchange Management Act, 1999 (‘FEMA’), which governs property acquisition and transfer by non-citizens in India.

Under FEMA, only non-resident Indians (NRI); i.e., citizens of India who are residents outside India and persons of Indian origin (PIO), who has held Indian passport at any point of time or if their father or grandfather was a citizen of India, could hold immovable property in India. Citizens of countries sharing land borders with India, such as Pakistan, Sri Lanka, Nepal, China, Afghanistan, Bangladesh, Iran or Bhutan, cannot purchase immovable property. The general permission extends only to commercial and residential property, excluding agricultural and plantation land. 

Refugees, as foreign nationals, cannot purchase any sort of immovable property, unless the property comes by virtue of inheritance through a person resident in India. This means that they can inherit property from a person resident in India, but this is also subject to the approval from the Reserve Bank of India (RBI). This rule, again, does not apply to the citizens of countries sharing land boundaries with India, meaning that refugees like the Rohingyas from Myanmar and Bangladesh are effectively barred from inheriting property. In contrast, refugees from countries that do not share land borders may have limited inheritance rights, subject to RBI approval. Further, they may be permitted to take residential accommodation on lease for not more than five years, beyond which specific RBI permission is required. Therefore, refugees, as such, have very limited rights to own and inherit property in India. 

The Case of Tibetan Refugees & Punjabi and Sindhi Refugees

Under the Citizenship (Amendment) Act of 1986 (‘CAA, 1986’), Tibetan refugees born in India between 1950 and 1987 are eligible for Indian citizenship. Although various rulings by the judiciary mandate the government to grant citizenship to individuals who meet the criteria outlined under the Act, 1986, they face multiple administrative hurdles in obtaining the same, making the process difficult despite their eligibility. For instance, conditions such as cancelling their Identity Certificate (IC), not residing in Tibetan refugee settlements, and not receiving assistance from the Tibetan govt-in-exile, etc., discourages them from applying for citizenship.

In light of the challenges faced by the Tibetan refugees, the Central Government brought the Tibetan Rehabilitation Policy of 2014, which has resulted in several progessive changes ensuring property rights of refugees. By way of this policy, issuance of standardised lease agreements has been made mandatory for the state governments. This has allowed them limited rights to land use. State governments must sign a lease agreement for twenty years with the Central Tibetan Relief Committee (‘CTRC’),  through which the refugees can get access to land for residential, commercial and agricultural usage. However, the ownership of the land remains with the Government of India, which obstructs the inheritance of such property. In light of these administrative obstacles, the only way to ensure continous usage of the land is repeated lease renewal.

A positive step has recently been taken by the governments of Maharashtra and Delhi in this regard. The Maharashtra government has decided to grant ownership of the property allotted to the refugees under the Displaced Person (Compensation & Rehabilitation) Act, 1954. In a similar manner, the Delhi Development Authority (DDA) offers ownership titles to the families of refugees who migrated to India between 1950-60. The intention behind granting these ownership deeds is to resolve the ambiguous status of property of refugees. This step highlights the eagerness of the administration to regularise the ownership of properties across the territory. With ownership rights officially recognised, these families can now legally transfer these properties to their heirs. However, by remaining silent on clarifications regarding the stance of personal law, these decisions will have a limited impact, and the ambiguity surrounding inheritance continues to persist.

Impact of the Citizenship Amendment Act, 2019, on Property Inheritance Rights

The CAA, 2019, alters India’s approach to refugees by enforcing a religious criterion. It offers a fast-track path to citizenship for non-Muslim refugees from Pakistan, Afghanistan, and Bangladesh who arrived before December 31, 2014. Hindus, Buddhists, Sikhs, Jains, Parsis, and Christians granted citizenship under the CAA, 2019 are eligible to acquire and inherit property under the same laws as Indian citizens after five years of residency in India, as compared to the previous twelve-year requirement. This provides them with significant economic stability and improved property rights. However, refugees who do not qualify under the CAA, 2019, particularly Muslims, and those who have arrived after 2014, face stricter restrictions. As non-citizens, their ability to inherit immovable property is limited as compared to residents of India and requires prior RBI approval. The exclusion of Muslim refugees, such as Rohingyas and Bangladeshi Muslims, raises concerns about discrimination, leaving them without a clear path to citizenship or secure property rights. Thus, the CAA, 2019, enhances property prospects for certain groups, while reinforcing legal and economic challenges for others.

Conclusion

The decision of granting land ownership to the refugees in India is done by way of policies, schemes and other delegated legislations, rather than a statutory instrument, which questions the effectiveness of such a tool in presence of the capacity to pass a legislation otherwise. Furthermore, these policies are framed based on administrative convenience, rather than a focus on the rights of refugees. Hence, the authors suggest that the emphasis has to be shifted from administrative convenience to a rights-based approach. For this, India must enact a national refugee law that clearly encapsulates the rights of refugees, including their right to property, which can eventually get translated into inheritance and ownership. This law should also ensure that refugees are treated as right holders, and not as ‘passive recipients’ of administrative dynamics.

Additionally, the prospect of getting inheritance rights through Indian citizenship is nothing less than an illusion for many refugees. Though citizenship opens up direct access to property and inheritance rights, the complex bureaucratic and administrative processes, such as the requirement to cancel refugee documents and give up benefits, makes it increasingly difficult for most refugees to navigate and realise their rights. A framework that is ‘refugee-friendly’, taking into consideration the limitation of these communities is needed for addressing this grey area. It remains to be seen how the government will take stock of the situation and address it effectively.

*Sri Janani Seenivasan is a fourth-year law student pursuing a B.A. LL.B (Business Law Hons.) at the National Law University, Jodhpur.

*Meemansha Choudhary is a fourth-year law student pursuing a B.A. LL.B (Criminal Law Hons.) at the National Law University, Jodhpur.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.