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INDIAS APPROACH IN NAVIGATING REFUGEE POLICY AND CLIMATE MIGRATION
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INDIA'S APPROACH IN NAVIGATING REFUGEE
POLICY AND CLIMATE MIGRATION
AUTHORED
BY - DIYA JOSEPH
ABSTRACT:
This paper explores
India's position in the complex
interplay of climate
change and refugee
policies. India faces unique
challenges in dealing with climate-induced displacement due to its geography
and demography. Though hosting a great number of refugees on its territory,
India is not a signatory to the 1951 UN Refugee Convention, for reasons that shall be discussed in the paper.
Against this backdrop, the paper analyzes the current legal framework dealing with
refugees in India and deficiencies within such legislation when applied to
climate migrants. Some of the recent judgments and the decisions have become
definitive milestones, like the Supreme Court's latest direction for the
extension of rights in a situation involving climate change to civic dignity.
For this reason, the study also looks at the domestic legislation that formally
attempts to recognize rehabilitation for climate migrants like the Climate
Migrants (Protection and Rehabilitation) Bill,
2022. The paper
further reflects on international debates
for an expansion of the definition of refugees to include those
displaced by environmental factors. It concludes by highlighting the need for
comprehensive legal response
to address the growing challenge of climate-induced migration, both within India and
internationally.
Keywords:
Climate change, climate refugees,
1951 refugee convention, environmental law
INTRODUCTION:
India is at
the forefront of climate change due to its demographics, topography, and
geographical location.[1]
While India's focus on economic growth may seem justified, the risks
posed by climate
change place it in a position where it stands
to lose the most. With a population exceeding 1.13 billion,
it is home to the largest
number of people
in the tropical and equatorial regions—significantly more than West Asia's 211 million, Southeast Asia's 554 million,
or even Africa's 922 million.[2]2Moreover India is home to a third
of the global poor, with over 40% of its population living on less than one
dollar a day.[3]
Majority of India’s poor are directly dependent on climate sensitive resources such as
agriculture, land, river water etc, making the poor the most vulnerable to the
aftermath of climate change. India also witnesses a wide range of
topographic variety, which also means that climate change affects different
regions differently. Events of glacier floods have become a regular occurrence
in the Himalayan region, leading to consequences of decreased water quality,
making villages more susceptible to vector borne diseases and sometimes even
extreme effects.[4]
Such climate-related challenges, including sudden environmental disasters and
gradual changes affecting farming and living conditions, are driving
significant population movements. This occurs both within countries and across
borders, particularly when nations lack sufficient systems and resources to
address these climate-induced issues effectively.[5]
Numerous
reports highlight that an average of a billion people could possibly face
permanent displacement due to global warming[6].
The Intergovernmental Panel on Climate Change (IPCC) in its fourth report
postulates that “the potential for population migration” shall be caused by rise in occurrence
of droughts and extreme tropical cyclone activities.[7] The most evident
drivers of forced
migration are war and political violence, yet countries
like Syria highlight how environmental disasters and backlash from development
projects can also result in migration.[8]
Population migration caused by environmental
changes are referred to as disaster-induced displacement. These shifts
can result from rapid environmental events like floods, storms,
or fires, as well as gradual changes such as droughts, deteriorating land
conditions, or rising sea levels. The Pacific Oceania region, with its many low-lying islands, is especially at risk from increasing sea
levels. India faces challenges in handling immigration, with its Law Commission
finding it difficult to enforce the existing, albeit inadequate, immigration
laws.[9]
The country's border control policies
and practices are not effectively handling current immigration flows. Without
comprehensive legal and policy structures at international, national, or regional levels
to address migration, India
is likely to see a significant rise in unregulated climate-driven immigration
or climate migrants. It would hence
be wise to note that climate related
migration could be an upcoming
global crisis wherein a large
number of persons are displaced from the comfort of their homes, forcing them
to flee. Though research and evidence majorly focus on identifying the quantum
of persons being forced to temporarily or permanently displaced from their
homes, the prominent question that needs addressing is whether such persons
shall be termed as climate refugees.[10]
The dawning fact pertaining to this question is that, there is no
internationally agreed upon definition for such a term nor an identifiable extent
to how such persons can be
considered a separate group. .
INDIA AND REFUGEES:
On an estimate
India lodges an approximate of 228,345 refugees from across the globe.[11]
The reason for such high rates has got to largely do with India’s
geographic location in South Asia and its readiness to set
aside political differences in order to provide assistance to those in need,
evident from its recent relief efforts in Turkey and the support it extended to
Tibetan refugees to state a few.[12]
Despite India's strong commitment to assisting refugees and asylum seekers
globally, the country has not signed the 1951 UN Convention Relating to the
Status of Refugees[13].
The status
of India being
a non signatory country has
never hindered its capability of hosting refugees. For several decades now,
India has been a haven for diverse groups that sought asylum away from strife
in neighboring countries. It started with the partition of India and Pakistan in 1947 and continues until
this day, as seen from the recent influx of the Rohingya Muslims
who left Myanmar.
Over the years, India has been a place of refuge, mainly for
persecuted groups who had to escape armed conflict and violence in neighboring
countries.[14]
Yet, it is not to say that such generosity has been devoid of its challenges,
like social economic and political tensions especially pertaining to regions of
Assam, Tripura, and Manipur that face breakouts between the local communities
and the migrants. However the greatest challenge faced by refugees is
statelessness which stems from there being no concrete refugee law in India. In 1951, the United Nations established
the Convention on the Status of Refugees, along with its 1967 Protocol, to
provide protection for refugees and create responsibilities for nations to accommodate them. While 146 countries have joined this agreement, several South Asian nations, including India, Bangladesh, Pakistan, Sri Lanka,
Malaysia, and Indonesia, are not yet signatories to the Refugee Convention.[15]
CLIMATE CHANGE
IMPLICATIONS IN INDIA:
As a
consequence of global warming and climate change, there would be a large
influx of environmental refugees into India’s
inland. Looking at the few Bangladeshis that have entered India so far, their
mere presence has become an explosive political issue.[16]
Recently, the north-east region has been facing an increase in the previously
receding insurgency trend as the aftermath of
migration from the Ganges delta states. Similarly there could be various
reasons and causes for the increase in climate immigrants in India, but this
comes at the cost of resource stresses and various other conflicts within
India.
In India
climate change shall have the consequence of displacement and migration mainly
due to drought, desertification, rise in sea level, water scarcity,
low food productivity and melting glaciers.
There has been no concrete findings of these effects but the phenomenon is supported by scientific evidence.[17] The major
environmental concern affecting India is the increased drought conditions,
especially in western India. There has been an approx of 3,00,000 laborers that
have migrated as a result of drought just in Bolangir district of Orissa.[18]
There has been a consistent increase in sea level affecting coastal regions of
India, leading to submergence of the Lohachara Island in India’s Sundarban region forcing people to move to
the nearby Sagar Island.[19]
The megacities face rising sea levels and storm surges
which induce an approx
of 76,40,416 people to migrate from near the sea.[20]
Flooding at present displaces around
5,00,000 people in
Bangladesh.[21]
It is disturbing to understand that these refugee numbers
shall only go higher, looking
at the increasing rate of global warming and climate change.
INDIA’S STANCE ON REFUGEES
IN RELATION TO INTERNATIONAL LAW
The nation
believes that there is no need for a specific organization that works
for the legal
protection of refugees. Moreover,
it is a signatory to many international conventions that aim at protecting individual rights and thereby extend positive obligations pertaining to refugee
rights as well.
There has been no
official reasoning being provided from India’s end to back up its firm refusal
to ratify the refugee
convention or its protocols. The Refugee Convention is seen as a product
of the post-World War II concerns of Europe, primarily developed without much notice on the calamity
the Global South experienced, here, the vast output
of flows that refugees resulting from the 1947 partition of India meant. It is a very old convention in nature. The Convention saw no major
changes since its inception, and therefore is unable to take on the new challenges in transportation and economic migration that have taken place at lightning-fast speeds around the globe. India
feels that ratifying the Convention would increase economic migrants into
India seeking the status of refugees. Geopolitical factors also come into the picture. India's present status
as a non-signatory state gives it flexibility in diplomatic relations with
neighbors even while accepting refugees.
Signing the Convention would dilute that relationship and compromise the autonomy of India
concerning its management of refugees.
Additional
issues are demographic and security concerns for India. The country
is already burdened
with an enormous population, very porous borders, and internal diversity
on cultural lines. The increasing influx of refugees alters local demographics
and could possibly lead to future security issues.
Legally a
refugee as defined in Article 1(A)(2) of the Refugee Convention, as amended by
the 1967 Protocol is someone who:
"owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail
himself of the protection
of that country; or who, not having a nationality and being outside the country
of his former habitual residence, is unable or, owing to such fear, is unwilling
to return to it [...[In the case
of a person who has more than one nationality, the term 'the country of his
nationality' shall mean each of the countries of which he is a national, and a
person shall not be deemed to be
lacking the protection the country
of his nationality, without any valid reason based on well-founded fear, he has not availed
himself of the protection of one of the countries
of which he is a
national."[22]
It is crucial to note the declaratory nature
of refugee status
as defined above.
An individual attains
refugee status upon fulfilling the criteria delineated in the
definition, irrespective of formal status determination procedures. This
principle establishes a presumption that individuals who have traversed
international borders to escape significant risks of harm in their country of origin should be accorded
refugee status and treated accordingly. The impetus
for forced migration
can be attributed to a diverse array of factors.
However, the most prevalent
catalysts include armed conflicts, internal
strife, persecution, human trafficking,
and displacement resulting from environmental degradation or natural disasters.
This
conceptualization of refugee status heavily underscores the importance of immediate recognition and protection for individuals fleeing adverse circumstances,
regardless of the formal bureaucratic processes involved in status
determination. It reflects a humanitarian approach
to refugee protection that focuses on the safety and legal protection of
displaced persons from the moment they seek asylum in a host country. India
also feels that the definition of a refugee under the Convention is too
restrictive and lays emphasis
on violations relating to civil and
political rights, and misses out on violations of economic, social, and
cultural rights and displacement caused by generalized violence or natural
disasters.
TIME
FOR A DOMESTIC LEGISLATION:
Regardless of
the various reasons that might prevent India from ratifying the convention and its protocol, those reasons do not justify
the absence of a domestic refugee law. India being a state hosting a wide range
of refugees, there arises a need to regulate their
rights and liabilities. The nation has so far relied on the Foreigners Act[23]
for addressing the concerns however it still holds inadequate considering the surging number of
refugees and the contemporary challenges that India faces.[24]
The other laws applicable to refugees are The Passport Act, 1967, the
Registration of Foreigners Act, 1946, and the Foreigners Order, 1946.
The Foreigners
Act does not, however, have such specificity to address the present scenario of refugees. Because even an implicit
provision for refugees is absent in the act, arbitrary and wide discretion vests in the Central
Government for deciding asylum seekers in India.[25] The plight of asylum seekers
worsens the same as it already
is, owing to the absence of a consistent framework over conferring refugee status
and due to the absence of a dedicated body to settle refugee matters.
The other
domestic laws governing foreigners also fail to differentiate between a foreign
national and a refugee, further complicating
the lives of refugees in India. Many refugees enter
the country without
valid documentation, and while the Passport Act[26]
does allow for the issuance of passports or travel documents to non-citizens in the public
interest, only Tibetan refugees have been granted valid passports by the
Central Government so far. Without proper identification, refugees are unable
to open bank accounts, obtain ration cards, purchase SIM cards, or secure housing,
severely limiting their
access to essential services.[27]
Under the Foreigners Order[28], the state government has the power to refuse entry to a foreigner for having an invalid passport.
The nation
believes that there is no need for a specific organization that works
for the legal
protection of refugees. The
current international organizations responsible for managing refugees
are overstretched and struggling to handle the
existing number of refugees.[29]
Yet there has been some progress with getting them to recognise climate
refugees, like, Biermann and Boss (2007) asked for the introduction of a
protocol to the UNFCCC on recognition, protection and resettlement of climate
refugees.[30]
The concept of
environmental refugees was brought about by Lester Brown of the WorldWatch
Institute in the 1970s.[31]
The concept gained popularity after studies by El-Hinnawi (1985)[32] and Jacobson (1988)[33]
on the forced migration of people due to environmental degradation and natural disasters. However there still
needs to be an international as well as a domestic definition for the same for
the purpose of identification and legal recognition.
Recent
developments in the Indian legal scenario have thrown up climate-induced
migration against the backdrop of policy discussions. There was a landmark
judgment made by the Supreme Court of India in
the case of MK Ranjitsinh And Ors. v.
Union of India And Ors 2023[34] wherein it has been held that citizens
have a fundamental right to be protected from the adverse effect of climate
change. This judicial verdict might eventually throw
open the doors for more climate litigation, particularly laborers since
they are going to suffer the worst scars from this crisis of global
climatic proportions. Laborers are often trapped within a cycle of
displacement, fleeing rural devastations caused by droughts and floods, only to
get caught in the extreme heat of urban centers.[35]
The need for
legislative action to protect the rights of climate migrants has gained
heightened urgency. This has been evident in India's parliamentary discourse,
as seen from the introduction of the Climate Migrants (Protection and
Rehabilitation) Bill, 2022, a private member's bill proposed by Pardyut
Bordoloi, a Member of Parliament from Assam.
This bill attempts
to formally recognize climate migrants
and, therefore, rehabilitate all of them. The bill recognizes acute climatic events
like flooding or cyclones but also observes slow
environmental changes by way of droughts, erosion, glacial melting, and
desertification. Bordoloi calls for the immediate establishment of a legal and policy framework to protect the
rights of those people displaced or forced to migrate due to climate-related
factors.[36]
The existing
framework of international refugee law could not deal with rights of displaced
people because of climate change. Debates have been raised regarding amendments
to the 1951 Refugee Convention, including the inclusion of provisions to
consider adding environmental degradation as one form of persecution. Debate
has continued and indicates increased recognition of climate-driven migration
as one of the salient
global issues requiring proper responses through
legal and policy
channels.
CONCLUSION:
In short,
vulnerability to climate change coupled with the increasing refugee population in India demands urgent attention to shutting
legal loopholes regarding
protection for refugees.
It is on account of a
150-year-old tradition of providing asylum that exacerbates the plight of
refugees and climate migrants and leaves them vulnerable in the absence
of a specific domestic legislation. As environmental challenges intensify, India faces a
growing crisis of displacement. It goes without saying that such complexities
of climate-induced migration call for urgent
legislation of domestic
and international adequacies that protect the
rights of such migrants, including those displaced through environmental
disasters.
[1] Neil Padukone, Climate Change in India: Forgotten
Threats, Forgotten Opportunities, 45 ECONOMIC AND POLITICAL WEEKLY 47, 47-54
(2010)
[2] United Nations, World Population
Prospects: The 2008 Revision, Population Division of the Department of Economic
and Social Affairs of the United Nations Secretariat, 2009 http://esa.un.org/unpp
[3] Shaohua, Chen and Martin Ravallion, "The
Developing World Is Poorer than We Thought, But No Less Successful in the Fight
Against Poverty", Development Research Group (DECRG), World Bank, World
Bank Policy Research Working Paper No 4703 (2008)=
[4] Abigail Blue, Colonial Fences
Make Contentious Neighbors:Policy, Law, and Climate Refugees in India, 24
HASTINGS ENVIRONMENTAL LAW JOURNAL 330, 331 (2018)
[5] Human mobility in the Context of Climate Change
Adaptation, Disaster Risk Reduction, and Sustainable Development Goals in the
Hindu Kush Himalayas, PLATFORM ON DISASTER DISPLACEMENT (Sept. 6, 2017),
[6] Christian Aid, Human Tide: The
Real Migration Crisis (London: Christian Aid), 2007 https://www.christianaid.org.uk/
[7] Intergovernmental Panel on
Climate Change (2007): "Summary for Policymakers" in M L Parry, O F
Canziani, J P Palutikof, P Jvan der Linden and C E H anson (ed.), Climate
Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working
Group II to the Fourth Assessment Report of the Intergovernmental Panel on
Climate Change (Cambridge, UK: Cambridge University Press), 7-22, p i8.
[8] André Bank and Christiane
Fröhlich, Forced Migration in the Global South:: Reorienting the Debate, 3 GIGA
Focus, (2018)
[9] Abigail Blue, Colonial Fences Make Contentious
Neighbors:Policy, Law, and Climate Refugees in India, 24 HASTINGS ENVIRONMENTAL
LAW JOURNAL 330, 331 (2018)
[10] Abigail Blue, Colonial Fences
Make Contentious Neighbors:Policy, Law, and Climate Refugees in India, 24
HASTINGS ENVIRONMENTAL LAW JOURNAL 330, 331 (2018)
[11] World Population Review,
Refugees by Country 2023 (20 March 2023) https://worldpopulationreview.com/country-rankings/refugees-by-country
.
[12] Ananya Gupta, India's Refugee
Governance on the Brink: Needs a National Law, 22 ISIL Y.B. INT'l HUMAN. &
REFUGEE L. 182 (2022).
[13] UN General Assembly, 1951
Convention Relating to the Status of Refugees & 1967 Protocol Relating to
the Status of Refugees, GA Res 429 (V), Treaty Series 1249 (14 Dec 1950,
adopted 28 July 1951).
[14] Garima Tiwari, Promoting Effective Refugee Protection
in India: Balancing National Interests and International Obligations, 10 ATHENS
J.L. 221 (2024).
[15] Janmyr, M. (2021).
'Non-signatory States and the international refugee regime', 67 Forced
Migration Review 39-42. https://www.fmreview.org/issue67/janmyr/
[16] Swain, Ashok (1996): "Displacing the Conflict:
Environmental Destruction in Bangladesh and Ethnic Conflict in India, 33
Journal of Peace Research, 189-204 (1996)
[17] Architesh Panda, Climate
Refugees: Implications for India, 45 Economic and Political Weekly 76, 76-79
(2010)
[18] Deshingkar, P, Improved
Livelihoods in Improved Watersheds: Can Migration Be Mitigated?" in
"Watershed Management Challenges:Improving Productivity, Resources and
Livelihoods, International Water Management Institute, Colombo (2003)
[19] The Telegraph, Vanishing Islands Displaced Climate
Casualties Underlying Truth, Calcutta, 30 October 2006
[20] Dasgupta, S, B Laplante, S
Murray and D Wheeler, Sea-level Rise and Storm Surges: A Comparative Analysis
of Impacts in Developing Countries, Policy Research Working Paper No 4901,
World Bank.
[21] Warner 2009
[22] Convention Relating to the Status of Refugees art.
1(A)(2), July 28, 1951, 189 U.N.T.S. 137.
[23] The Foreigners Act, No. 31 of
1946, INDIA CODE (1946).
[24] Ananya Gupta, India's Refugee
Governance on the Brink: Needs a National Law, 22 ISIL Y.B. INT'l HUMAN. &
REFUGEE L. 182 (2022).
[25] Id.
[26] The Passport Act, Act No. 15 of 1967. Sec 20.
[27] Ananya Gupta, India's Refugee
Governance on the Brink: Needs a National Law, 22 ISIL Y.B. INT'l HUMAN. &
REFUGEE L. 182 (2022).
[28] Foreigners Order 1948, Order
under The Foreigners Act 1946. Sec 3.
[29] Architesh Panda, Climate
Refugees: Implications for India, 45 Economic and Political Weekly 76, 76-79
(2010)
[30] Biermann F and Ingrid Boss, Protecting Climate
Refugees: The Case for a Global Protocol, Environment (2007)
[31] Black, Richard, Environmental
Refugees: Myth or Reality? Working Paper No 34, New Issues in Refugee Research,
UNHCR (2001)
[32] El-Hinnawi, Environmental
Refugees, United Nations Environment Programme, Nairobi (1985)
[33] Jacobson, Jodi, Environmental
Refugees: A Yardstick of Habitability, World Watch Paper No 86, WorldWatch
Institute, Washington DC.(1988)
[34] MK Ranjitsinh And Ors. v. Union
of India And Ors 2023
[35] Rishabh Shrivastava, The Case of Climate Refugees,
The Analysis, 2024 https://theanalysis.org.in/the-case-of-climate-refugees/
[36] Id.
Article Information
INDIAS APPROACH IN NAVIGATING REFUGEE POLICY AND CLIMATE MIGRATION
Authors: DIYA JOSEPH
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/04
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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