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REFUGEE LEGISLATION IN INDIA: NEED OF THE HOUR.
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REFUGEE
LEGISLATION IN INDIA: NEED OF THE HOUR.
AUTHORED BY
- SHRISTI SHIKHA &
SHRUTI
KUMARI
The year 2023 was a crucial year for
India with its opportunity to showcase its leadership and diplomatic skills on
the world forum as it took over the presidency of G20. No wonder the theme of
this year’s summit was Vasudhaiva Kutumbkam or “One Erath. One Family. One
Future” which affirms the value of all life and their interconnectedness on the
planet Earth. Be it, Jawaharlal Nehru or Narendra Modi, numerous leaders have
reiterated the principle of “The World is One Family” on the world stage and
endorsed India as the brand ambassador of the ideology.
However, the past couple of years has
been dotted with numerous instances that set forth a different reality. Indian
Government’s attitude towards Rohingya Muslims, the victims of ethnic cleansing
in Myanmar, has been criticized unequivocally by the International Community.
The Government’s adamance in deporting the Rohingyas who were facing repressive
measures back home was questioned by human rights enthusiasts who saw it as a
failure of moral leadership. Another prominent development in this regard was
the passing of the Citizenship Amendment Act of 2019 under which religion was
made a formal criterion for state protection and all non-Muslim refugees from
Afghanistan, Pakistan, and Bangladesh were made eligible for Indian
citizenship. India also failed to grant
the promised number of e-visas to people in Afghanistan subsequent to the
Taliban takeover. There was a global outcry at this failure and India’s
credibility was once again maligned on the global platform.
Juxtaposing India’s ideological
stance to its actions on the ground, one would wonder as to what allows India
to circumvent its highly endorsed policy and act antithetically to human rights
obligations. The answer to this essentially lies in the fact that there is an
absence of a formal law or a refugee policy to govern the refugee problem. The
lack of a systematic mechanism allows the government to deal with the refugee
groups on an ad-hoc and arbitrary basis and not according to humanitarian, constitutional
or international mandates. This strategic ambiguity in refugee policy gives way
to geopolitical and diplomatic incentives, electoral mandates and
socio-cultural dynamics to take the front seat while determining government’s
attitude towards the issue.[1]
WHO IS A REFUGEE
The Merriam-Webster dictionary
defines a refugee as "one that flees; especially: a person who flees to a
foreign country or power to escape danger or persecution." The Convention
relating to the Status of Refugees defines refugee as “a person who is outside
his or her country of nationality or habitual residence; has a well-founded
fear of being persecuted because of his or her race, religion, nationality,
membership of a particular social group or political opinion; and is unable or
unwilling to avail him— or herself of the protection of that country, or to
return there, for fear of persecution.” Thus, refugees form a special class of
people distinct from such people who voluntarily leave their home country for a
variety of reasons. The term, however, is defined rather narrowly in the
convention than in common parlance. For instance, to be qualified as a refugee
to avail the protection under the convention, one must flee to a foreign
country to escape persecution that should be on account only of the grounds
enumerated i.e., “race, religion, nationality, membership of a particular
social group or political opinion” leaving little room for victims of natural
disasters to seek protection under the convention.
INDIA’S HISTORY OF REFUGEE PROTECTION
While India has produced its fair
share of refugees, it has mostly been in the receiving end of the refugee
conundrum.
India had acted as a home for refugee
communities like Parsees and Jews, even before any international law or
convention was put in place for regulating the problem of refugees. As
nationhood for India was materializing into reality, she witnessed extreme
cruelty to her people in the face of a barbarous partition. Among other things,
partition had led to the influx of an enormous number of refugees i.e., Hindus
and Sikhs from Pakistan and erstwhile East Pakistan (now Bangladesh). A decade
later in 1959 Dalai Lama along with a host of Tibetan refugees fled Tibet in
the wake of Chinese aggression and took refuge in India. In 1971, a wave of
Bengali refugees had entered India in the aftermath of a genocide and a war
with Pakistan. The civil war in Sri Lanka had induced many Tamils to seek
refuge in India. Other refugees who have sought refuge in India include Afghans
who first fled the Soviet invasion, the Taliban regime and then the U.S. “War
on Terror”, the Rohingyas who fled the military’s repression back in Myanmar,
Chakmas, and Hajongs, etc.
CONVENTIONS AND OBLIGATIONS
The primary international document
that deals with refugee protection is the Convention Relating to the Status of
Refugees (1951) which among other things defines the term refugee, their rights
and the protections accorded to them. Further, the Protocol Relating to the
Status of Refugees (1967) adopted by 147 nations brought under its ambit all
the communities who were forcibly displace ddue to conflict and persecution
over and the World War 2 refugees of Europe. The Convention and its protocol
grant several right to the refugees which can be broadly classified into two
categories. The category includes the most basic and significant right of all
i.e., the right of non- refoulement. This right prevent nations from returning
a refugee to persecution in his or her home country. Secondly, it grants those
rights to the refugees that, after seeking refuge in a different country, are
necessary to sustain a living. These rights include right to education, right
to occupation, right to property etc. Overall, the Convention and the Protocol
together establish a comprehensive framework of rights of the refugees that the
participating states must honour to provide protection to the refugees that
enter their territories.
India, however, is not a party either
to the convention or the protocol for several reasons as cited by experts and
government from time to time.It is argued by several observers tht India
abstained from signing the Convention as it was very Eurocentric and India
viewed it and UNHCR as products of Cold War.[2]
India also had a fear of “indefinite legal responsibility for the vast number
of people seeking shelter” because of its geopolitical location. Another
argument was that that It was not possible for a poor and developing country
like India to provide basic amenities to its own people and it could hardly afford
to host another set of people in such a scenario. It also slammed the Western
nations for failing to acknowledge the problem of infiltration and terrorism
that India ad been facing ever since partion. The the signing of te Convention
has ever since been a “subject of review” for India.
HOW IS THE REFUGEE PROBLEM ADDRESSED
IN INDIA
As discussed above, the refugee
crisis has been one of the oldest crises for India since the day of its
independence. As per the data of Refugee International India is host s a total
of 3,30,000 refugees with a whopping 1,43,000 Sri Lankans many of whom fled Sri
Lanka following the 1983 anti-Tamil riots, 1,10,000 Tibetans who are currently
living in settlements in Dharamshala and other parts of the country, 52,000
Chin from Burma an estimated 11,400 refugees from Afghanistan, a massive number
of minorities from Bangladesh most of whom sought refuge in India during the
Bangladesh Liberation War, and more than 500 from other countries including
Nepal, Bhutan, Myanmar, Somalia, Sudan and Uganda.
Judging by the numbers we can
conclude that India has been a graceful host and has followed international
norms of refugee protection although it is not formally bound by any of the
major international agreements in this regard. Many scholars also argue that
the principle of non-refoulement so enshrined in the Convention is alive in
India even without having signed any major agreement. Nonetheless, India has n
numerous instances deviated from its commitment of traditional hospitality
under the garb of national security as in the instances discussed above.
A critical analysis in this regard
would reveal important facts and figures that would unravel India stand on the
question of refugees.
DOMESTIC LAWS GOVERNING REFUGEES
The modern refugee regime in India is
governed not by one comprehensive framework but from a number of scattered
sources and authorities which lack intrinsic coherence. Firstly, the
Constitution of India itself contains several articles that extend important
rights to the refugees. Secondly, refugees in India are primarily governed by
certain legislation which, though do not specifically talk about them, are
taken to govern them along with other “foreigners.” Finally, we have
institutions like the United Nations High Commissioners for refugees and
National Human Rights Commission that look into the human rights aspect of this
problem.
CONSTITUTIONAL PROVISIONS
The Constitution makers while
drafting a new Constitution for India did not fail to incorporate the spirit of
the Universal Declaration of Human Rights into the Constitution[3].
Article 14 of the Constitution grants
the Right to equality not only to citizens but also to non-citizens. It states
that the state shall not deny to any person equality before law or equal
protection of the laws within the territory of India. The right prevents any
kind of discrimination between people or classes of people without any
reasonable classification. In the case of The State of West Bengal v Anwar Ali
Sarkar the Court had held that discrimination will be permitted between
different individuals only where there is reasonable classification and the
basis of the discrimination should have a nexus with the objective of
classification.
Article 21 grants the Right to Life
and Personal Liberty and any breach in this regard should be according to
procedure established by law. This protection available to aliens and not only
to citizens. In Louis De Raedt vs Union of India[4],
the Court had reiterated the stance confirming the availability of the right to
foreigner as well thereby expanding the scope of this right.
Article 51 of the Constitution is a
directive principle that underlines the dual importance of national as well as
international law by directing the government to respect international laws.
It reads as follows: “The State shall
endeavor to ... foster respect for international law and treaty obligations in
the dealings of organized people with one another.” The courts, time and again,
have interpreted Article 51 to demand adherence to international law when there
is no clear conflict with domestic law.
JUDICIAL DECISIONS
The role of the Judiciary in
upholding the rights of the refugees has been of utmost significance. The
Indian Courts have decided in a number of cases that the constitutional right
of life and liberty must be extended to the refugees.
In the landmark case of the National
Human Rights Commission vs the State of Arunachal Pradesh[5],
the Supreme Court prevented the Chakma refugees from being deported. It had
directed the State Government to ensure that the Chakmas are forcibly ousted in
contravention to the procedure established by law. It upheld the constitutional
right of life and liberty of the Chakma refugees. This decision was hailed by
many and was read as envisaging the right of non-refoulment under article 21 of
the Constitution.
In Visakha vs state of Rajasthan[6],
the Court upheld the harmonious construction of international law and domestic
law when it is consistent with fundamental rights.
The Supreme Court has, among other
things, acknowledged the plight of deported refugees and has reiterated the
importance of following the process of law while dealing with the refugees and
granting them the protection of life and liberty. In the case of Abdul Majid
Mohd. Jad Al-Hak v Union of India[7]
the Court had held that food and medical care should be provided to refugees as
the bare minimum essentials for survival.
The Court has also passed various
judgements restraining the deportation of refugees as in the case of Maiwand’s
Trust of Afghan Human Freedom vs. the State of Punjab[8]
and ND Pancholi vs. State of Punjab and Others.
Even the High Courts have actively
sought to protect the rights of refugees through various decisions and
judgments. In Zothansangpuri vs State of Manipur, the court ruled that the
refugees shall not be deported if their life was in danger. In Bogyi vs Union
of India, the court had ordered the temporary release of a Burmese man from
detention allowing him to apply to the UNHCR for the refugee status. In Ktaer
Abbas Habib Al Qutaifi v Union of India, the Gujarat High Court gave a
progressive ruling by bringing the principle of non-refoulment under the ambit
of article 21 of the Constitution while deciding not to deport two Iraqi
nationals and handing them over to the UNHCR.
Thus, it is evident from the numerous
case laws above the Indian Judiciary has proactively worked towards protecting
the rights of the refugees and upholding the spirit of human rights
obligations.
STATUTES
There exist in India a number of
statutes that have been passed by the Legislature to govern immigration. These
laws include the Passport (Entry into India) Act of 1920, the Registration of
Foreigners Act of 1939, the Foreigners Act of 1946, the Foreigners Order of
1948, and the Citizenship Act of 1957.
The Foreigners Act as well as The
Foreigners Order empower the Indian Government to restrict and regulate the
movement of aliens inside India. Article 3(1) of the Foreigners Act allows
India to block entry of any and all foreigners, which stands in direct
opposition to the right of non-refoulment as all refugees are clubbed with
other categories of non-citizens under the term “Foreigners” in disregard of
their special circumstances.
PROBLEMS OR GAPS IN ADMINISTRATION
India, owing to its location in south
Asia, surrounded by countries either facing ethnic or political violence as in
Myanmar and Sri Lanka or any other sort of conflict as in Afghanistan or China,
has often been in the center of refugee movements. However, India’s handling of
the problem explains that the Indian mechanism does not consider the human
rights paradigm of refugees. The topic of refugee law has been a victim of the
State’s neglect. The confusion between a refugee and an illegal migrant has led
to legislative gaps in the Indian refugee law as a whole.
The primary legislation that the
authorities rely on is the Foreigners Act, of 1946. This Act, however, is not
without its share of shortcomings. It fails to give any separate definition of
refugee clubbing them under the broad definition of a foreigner which is
defined under section 2 (a) of the act as anyone who is not a citizen of India.
The Act fails to recognize the refugees as a class and thus grants the
government discretion to deport any foreign citizen at any point in time.
Other acts that deal with refugees in
Indi are the Passport Act of 1967, the Extradition Act of 1962, and the Illegal
Migrant (Determination by Tribunals) Act of 1983. Even under these laws the
refugees are not treated as a separate class but as foreigners who enter India
voluntarily without any fear of persecution.
The lack of distinction between the
term “refugee” and “foreigner” has worked to aggravate the plight of the
refugees in India who in such a case are not viewed as a part of human rights
violations where the acts of the refugees are completely involuntary.
Further, the Foreigners Act, of 1946
deals with the matters of "entry of foreigners in India, their presence
therein and their departure therefrom". Paragraph 3(1) of the Foreigners
Order, 194825 lays down the power to grant or refuse permission to a foreigner
to enter India.
A complete reliance on the
constitutional provisions too fails to provide any relief. It has often been
observed that the article fails to provide the protection of life and liberty
when it is in conflict with “national security.” In the case, Railway Board vs
Das[9] the right
of the refugee could be upheld only when it was found that the State had no
interest in the matter.
The failure to provide protection
when violation comes at the hands of a non-state actor is another roadblock in
this regard. Article 21 thus fails to
guarantee the right of non-refoulement to each and every refugee. Finally, the
Supreme Court has confirmed in many instances that a nation’s interest in
national security outweighs refugees’ right to life and personal liberty[10].
Hence, article 21 does not provide the right of non-refoulement as a
fundamental right. Article 51 of the Constitution too fails to make any
difference on the ground for it merely being a directive principle and
unenforceable.
The Indian Judiciary has given
numerous progressive judgments but every case can be said to be matched by
parallel tales of non-interference. There have been no set or defining
standards for implementing judicial decisions which adds insult to injury for
the refugee community. The Courts have actively tried to uphold the rights
enshrined in the Constitution. However, the enjoyment of these rights has
remained a pipe dream for the refugee community due to inconsistent and arbitrary
government policies directed more by political exigencies than legal
imperatives.[11]
The United Nation High Commissioner
for Refugees, a committed body for the protection of the rights of refugees has
failed to realize its full potential or do justice to the refugees in India due
to its limited presence in India. Wherever there is a mass influx of refugees
UNHCR seeks help of to provide information on the crisis. This makes UNHCR’S
function tough in India where NGOs with their limited manpower and finances are
not updated with the true information on refugees. Moreover, UNHCR can work
efficiently only when it has the full support of the government of the country
in question, which in the case of India is very little or almost absent. The
NHRC has till now not played any substantive role in refugee protection apart
from filing PILs on behalf of the aggrieved and making suggestion for the
modification of the existing refugee policy. Its suggestions and directions are
non-binding in nature which allows the government to continue to act in an
arbitrary manner.
It is clear that alternative
approaches to governing refugees have proven unsustainable substitutes for a
coherent and comprehensive domestic legislation for governing refugees. The
state has ignored its obligations by virtue of it being a party to the
Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights.
The absence of a well-defined refugee
mechanism has also led to the transmission of half-baked knowledge on the
matter of refugees to the local population. Such lack of knowledge can lead to
local populations turning hostile to the refugee community. The increase in the
number of people fleeing persecution from Afghanistan and Myanmar during the
last few years has placed an undue burden n the Indian economy, leading to a
rise in racism and xenophobia. Overemphasis on national security and the
adoption of populism has also had serious averment for the conflict-ridden
refugees.
AD-HOCISM IN POLICY
By maintaining deliberate
ambiguity around its refugee policy, India attempts to retain
control over which refugees it protects and to what extent, evading legal
responsibility and heightened international scrutiny.[12]
The Indian Government has many a time
been accused of adopting an ad-hoc and arbitrary policy in the treatment of
different groups of refugees. For instance, in 1959 the Tibetan refugees were
welcomed with open arms and allowed to settle in India with complete state
support and protection. This stance of India was associated with the
government’s desire to capitalize on the anti-China sentiment. Even the Sri
Lankan refugees were allowed to seek refuge in India. Whereas the Rohingyas
witnessed the worst fate of all and were neither granted state protection nor
any support in the face of life-threatening situations back home. This has been
attributed to the anti-Muslim stance of the government in power. The
government’s response to the Rohingya crisis has been accused of having
communal undertones.
The dangers of this ad-hoc treatment
have been exacerbated in recent times in face of a growing number of Afghan
refugees and people fleeing Sri Lanka’s dire economic crisis. India’s failure
to grant the promised number of e-visas to the Afghan refugees and its
suggestion to prioritise Hindus and Sikhs had once again raised eyebrows in the
international community. The discriminatory CAA policy of the government had
fuelled concerns that India’s selective asylum policies are based on
geopolitics and religion.
SOLUTION
Signing the Refugee Convention may
not be a practical possibility as, in the face of India’s neighbours not
adhering to the Convention, India will have to bear the disproportionate burden
on this issue. Greater commitment from its neighbors would likely push India to
consider it position on joining the Convention.
Although refusal to join the
Convention does not absolve the country from honouring human rights
commitments. The right of refugees to non-refoulement has been recognised, even
if with some reservations, as a part of customary international law.[13]
Even though India is not a signatory
of the Convention n the Status of refugees India is party to the Universal
Declaration on Human Rights (udhr) 1948 and has joined the International
Convention on Civil and Political Rights (iccPR-1966) and the International
Convention on Economic, Social and Cultural Rights (icESCR-1966) since 1979. It
is also a signatory to the Convention on the Elimination of all forms of Racial
Discrimination (cERD-1965) and the Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (Torture Convention-1984) which
puts an obligation on the country to act in accordance with the principles of
humanitarian laws.
However, going by the current
scenario, it is no doubt that the formulation of a refugee law through the
perspective of judicial decisions, constitutional provisions and international
obligations is of paramount importance.
WAY FORWARD
The Indian legal framework needs to
be upgraded under the paradigm of human rights law at par with internationally
accepted norms and in the spirit of the Constitution. A domestic law would
protect the refugees from becoming victims of the whims and fancies of parties
and politicians. Reliance on vague acts as such the Foreigners Act of 1946 will
place India in a precarious situation on the global stage. Therefore, this act
and all other acts discussed in this article should not be used to govern the
refugee issue. With judicial oversight, cooperation with civil and
international organizations, and attention to the international status quo, a
standard refugee policy would provide legal pathways to asylum and prevent
unjust administrative actions.
The first step in the process of
formulating a refugee law is to draw a distinction between a foreigner, an
illegal migrant, and a refugee. Refugees are people who have faced persecution
in their home country or have a well-founded fear of persecution. They are not
bereft of the ideas of social and economic development, unlike other migrants
who come to India voluntarily seeking a better life[14].
The domestic legislation should
clearly define refugees as a distinct class and defines their rights of
education, housing, food, security, and dignified life. Civil societies and
NGOs should cooperate with the government and Institutions like the UNHCR AND
NHRC to identify and rehabilitate refugees. Refugees should be granted refugee
status via a simple fair and transparent process as per the law. Special
provisions relating to women and children should be formulated to protect the
most vulnerable group of people.
CONCLUSION
With growing economic crises, climate
crises, and the advent of new and deadly diseases, even the international
framework on the refugee convention needs an overhaul to effectively deal with
the emerging problems of the world. The definition of who is a refugee needed
to be broadened and the responsibility to house the refugees should be equally distributed
across different counties with adequate support from the world organizations in
terms of resources to deal with the crisis.
India, on the other hand, should
redeem its reputation as a tolerant and secular state. A domestic refugee
legislation would not only be beneficial to the refugees but also to India, who
through its inclusive policy can strengthen its leadership in the world.
[1]
Mahika Khosla, The Geopolitics of India’s Refugee Policy, Stimpson.org,
September 22, 2022, https://www.stimson.org/2022/the-geopolitics-of-indias-refugee-policy/
[2] Saurabh Bhattacharjee, India needs a
Refugee Law, 43, no. 9 Economic and Political Weekly, pg. 71-75
[3] United
Nations, Universal Declaration Of Human Rights, 1948.
[4] 1991 AIR 1886, 1991 SCR (3) 149
[5] 1996 AIR 1234, 1996 SCC (1) 742
[7] Criminal Writ Petition No. 60 of
1997; Crl. W. 60/97
[8] (1991) 3 SCC 544.
[9] Chairman, Railway Board vs
Chandrima Das, (2000) 2 SCC 465; MANU/SC/0046/2000
[10] Mohammad Sadiq vs Government of
India, 2004
[11]Saurabh Bhattacharjee,
India needs a Refugee Law, 43, no. 9 Economic and Political Weekly, pg.
71-75
[12] Shivangi Seth, Why India needs a
Refugee Law, 25th July, 2022, The Lowy Institute, https://www.lowyinstitute.org/the-interpreter/why-india-needs-refugee-law
[13]Saurabh
Bhattacharjee, India needs a Refugee Law, 43, no. 9 Economic and Political
Weekly, pg. 71-75
[14] Omar Chaudhary. “Turning Back: An
Assessment of Non-Refoulement under Indian Law, vol. 39, no. 29 Economic and Political Weekly,
2004, pp. 3257–64.
Article Information
REFUGEE LEGISLATION IN INDIA: NEED OF THE HOUR.
Authors: Shristi Shikha
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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