Understanding India’s Approach to Refugee Law: A Comprehensive Analysis by - ROHAN STHANU
UNDERSTANDING
INDIA’S APPROACH TO REFUGEE LAW: A COMPREHENSIVE ANALYSIS
AUTHORED BY - ROHAN STHANU
ABSTRACT
India has welcomed many different
types of refugees from neighboring nations since gaining independence in 1947.
These groups include refugees from the partition of former British Indian
territories that are now Pakistan and Bangladesh; Tibetan refugees arrived in
1959; Chakma refugees from modern-day Bangladesh arrived in the early 1960s;
other Bangladeshi refugees arrived in 1965 and 1971; Sri Lankan Tamil refugees
from the 1980s; and most recently, Rohingya refugees from Myanmar It was
reported in 1992 that India was housing 400,000 refugees from eight different
nations.[1]
Through detailed study of legal
frameworks for refugees in India, one learns about their background, their
current problems, and the way in which the law has been constructed. India
manages a complex interplay between the requirements of national security,
human rights, and global politics in its stance of the refugee issues. Once
significant laws, court rulings,government strategies are reviewed, the nature
of India’s refugee regime is examined within this complex system.
The 1951 Refugee Convention and its
1967 Protocol, International and all other legal instruments on refugee
protection, are not ratified by India. India has however failed to immunise the
refugees fully but when it comes to protection they have done better. India has
an ethical background of assimilation and at the same time, acceptance of
varied cultures.[2]
This paper covers the factors, e.g.
the contradiction with international agreements, bilateral agreements,
negotiations, regional dynamics and more, that impact India’s reaction to
refugee crises. This literature review is aimed at articulating the gaps and
strengths that exist in India’s refugee protection and policy framework with
the hope that it will help to understand the direction of the country's
changing role in the global refugee context. The objective of this paper is to
critically assess the existing scenario of refugees & asylum seekers in
India.
RESEARCH
QUESTIONS
- How does the existing legal
framework protect refugees in India?
- What is the stratergy adopted by
India to accept and protect refugees?
- What is the principle of non –
refoulment?
- What is the way forwad with legal
legislation for refugees?
REFUGEES IN
INDIA
Hardeep Singh Puri, the Indian
Minister of Housing and Urban Affairs, ignited a Twitter debate on August 17 on
the number of Rohingya refugees living in the nation's capital. Puri tweeted that
the Rohingya population in New Delhi would be moved from camps that resembled
slums to apartments in the Bakkarwala neighborhood. They would also be given
UNHCR cards, basic facilities, and security from the Delhi police. This
"landmark decision," however, was quickly overturned. The Ministry of
Home Affairs tweeted within hours that the decision was never granted and that
the Rohingya refugees will be returned to camps for detention before being
deported to Myanmar, where they would face terrible persecution due to their
ethnic and religious beliefs. Despite its seemingly little nature, the Twitter
feud attracted national and international media attention since it was
indicative of both ineffective government apparatus and India's refugee policy.[3]
India has no national or
international refugee policy, which is surprising for a nation whose history is
rooted in the forced migration caused by the 1947 Partition and which is home
to over 200,000 refugees. Despite the fact that India has long been known as a
"safe haven," the lack of a formal law permits the state to handle
refugee groups arbitrarily and on a case-by-case basis, guided more by local
socio-cultural dynamics, geopolitical and diplomatic incentives, and domestic
electoral mandates than by humanitarian, international, or constitutional
considerations.
HISTORY OF
REFUGEE IN INDIA
India's refugee affairs are unique
and therefore composed of a complex history with many different influences such
as conflicts, colonialism, wars and geopolitics in general. In India’s past
there were examples when not only it was a refuge for those who wanted to
escape from persecution, but it also happened to be one of the places where
there was an internal movement of people. It was one of the main streams of
literature that comprised the story of the depression of laws and regulation
concerning refugees which was meant to cater for all the displaced masses.
·
The
impact of emancipation and imperial legacy during the colonial period can be
seen in modern Asian countries (pre-independence).[4]
The idea of refugees in india existed
right in colonial time, especially that when india was divided from british
india at 1947. Once British rule ended, the split of India and Pakistan into
two nations triggered one of the most massive human migrations where millions
of people moved across their tribes and religions.
·
Foreigners
Act (1946) –
The Foreigners Act of 1946 was passed
by the British colonial authority in order to give the British government a
controlled input to the final settlement. It created the legal system for
determining whether a foreigner is legally entitled to enter, stay within and
leave the country. Although it might be mentioned that when the division
happened the legislation was not especially for refuges, this law played a key
role in managing and coordinating the movement of the displaced population both
in the period of the division and even after.
·
Tibetan
Refugee Crisis (1951)
Emphasize the fact that the 1951
Refugee Convention came at the height of the Tibetan Refugee Crisis but stayed
relevant in history.
India, although it did not sign the
Refugee Convention of 1951 or its Protocol of 1967, has upheld the
non-refoulement principle in most cases according to which no refugee should be
sent back when there is an imminent risk of either life or liberty. This
concept was brought into sharp relief through the Dalai Lama fleeing to India
following the Chinese occupation of Tibet, and millions of Tibetans who
followed him into exile. The Dalai Lama along with his co-religionists found
the shelter in India thanks to which they also could establish their community
across the Indian country.[5]
·
Bangladesh
Liberation War (1971) and Indo-Pakistani Wars were the two significant
conflicts that directly or indirectly affected the borders of India.
Neighboring countries' political
unrest necessitated India to undertake not one but multiple refugee crises.
Millions of Bengali people who became refugees were forced to cross the border
and seek sanctuary in India due to the Pakistani Army's persecution and
brutality during the 1971 War of Bangladesh independence. India armed the
liberation movement and offered humanitarian aid to the refugees which
ultimately lead to creation of Bangladesh. Besides, the other migrations and
movements of people were also brought about by wars between India and Pakistan
that took place in 1947, 1965, and 1971 with some of them fleeing to other
nations near India.[6]
·
The
Tamil Refugee crisis, in Sri Lanka.
When Sri Lanka experienced its civil war
particularly 1980s and 1990s, there was a huge refugee crisis in the history of
India. Numerous refugees of Tamil ethnicity who were seeking a shelter from the
violence and persecution have settled in the camps in southern state of Tamil
Nadu, India. A vast number of Sri Lankan Tamils found safety in India, which
was also crucial in peace keeping efforts to end the insurgency.
·
The
Precarious Situation of the Rohingya Refugees
The huge numbers of the Rohingya
Muslims that are being oppressed in Myanmar are still coming to India. And this
is the main cause of the Rohingya refugee crisis. The fate of these refugees
appears gloomy as they crowd the congested camp while all the facilities of
basic amenities and legal status are absent. Indian reactions to the country
have been mixed: while there are officials calling for mercy and humanitarian
help, others are more worried about national security issues and are supportive
of their deportation. The case raises the question on how to handle such a
large group of refugees in the country's complex social and political
background and to reconcile humanitarian goals with security needs.[7]
FACTORS
CONTRIBUTING TO INDIA'S REFUGEE CRISIS
In quest of protection in areas like
India, refugees usually flee from harsh persecution they face in their own
countries. India has been accepting migrants since 1947 even though it is not a
party to the 1951 Refugee Convention, demonstrating its accommodating strategy.
That include people from Afghanistan, Bangladesh, Tibet, and so on.
Strong social links are fostered with
many foreigners by India's multireligious, multicultural, and multiethnic
nature. For example, the Tamilian Bond during the civil war encouraged Sri
Lankan Tamils to think of moving to India. Similar to this, Manipur's love for
Myanmar is luring migrants to India from Myanmar. They facilitate travel to
India even though they don't directly affect it. Numerous people from Myanmar
were able to enter India as a result of the open border.
The government's directive to halt
the refugee crisis from Myanmar was not effectively implemented. The Assam
Rifles have too few battalions to adequately guard the border. Most of the
refugees from Myanmar are still living in the region under the Free Movement
Regime. A 16-kilometer area on each side is open to unrestricted access, under
an agreement between the two nations.
India's bordering countries have
faced a range of challenges since their formation.
Human rights breaches have occurred
in Sri Lanka following the civil conflict. The Bangladesh Liberation War and
the subsequent military dictatorship are examples of comparable incidents.
There is some strategic ambiguity in
India's policy reaction because there is no domestic refugee strategy. India
has to muster the political will to enact new refugee legislation in order to
have a consistent, impartial, and predictable administrative approach to
refugees given the rising numbers of forced migration in the region as a result
of both conflict and climate change.[8]
THE REFUGEE
LAW OF INDIA IS AMBIGUOUS STRATEGICALLY
The 1951 Refugee Convention and its
1967 Protocol, which set up who is a refugee and the host nation
responsibility, are not ratified by India. Additionally, India directly manages
the refugee situations on its own and declines to acknowledge the presence of
the UNHCR's administrative authority in its internal borders.
Of the 200,000 refugees in India only
around 46,000 are receiving legal protection from the UNHCR office in Delhi and
the rest are either government-recognized or undocumented from the inaugural.
These developments have exacerbated the fact that refugees are now the priority
for international and national actors, thus, making it harder for them to
articulate their political or economic needs, gain access to basic necessities
and get a consistent recognition by the state.
Though India has always had the
reputation of a "safe shelter", the country does not have a formal
law that provides the government with an opportunity to relate with incoming
refugee groups in any arbitrary and on an as-needed basis.
The principal regulation regarding
the treatment of the non-citizens in the Indian subcontinent is the 1946
Foreigners Act. Nevertheless, this law is directed at political and
administrative levels and treats them legally and judicially in equal footings
with unauthorized migrants, visitors, and foreigners. It has no well-defined
"refugee" category which would provide necessary rights. Judicial
intervention is infirm and insufficient in light of a violation of the Center’s
Constitutional rights, so the need for (or) legal definitions arise. The
increasing political talk around migration and rising anti-Muslim sentiment
under Modi Prime Minister's tenure makes the confusion between refugees and
"illegal migrants" more numerous.
Moreover, India's policies of alleged
"foreigners" were also affected because of the way Indians themselves
dealt with their marginalized groups. As was the case with the example of the
1955 Citizenship Act, which was at first amended in response to the Assam
Movement of 1985, requiring all immigrants entering since 1971 to be deported
while providing for naturalization for all immigrants who came before 1971. In
2019, the amendment of the CAA (Citizenship Amendment Act) has recognized
religion as a condition for the protection issued by the state for all the
non-Muslim refugees from Afghanistan, Pakistan, Bangladesh. Considering that a
revolt against a single-pattern policy is somewhat understandable, the fact
that the different refugee groups are discriminated against is unavoidable due
to the state having no moral mandate together with the all-pervasive
anti-Muslim sentiments.
"NAVIGATING
THE LEGAL LANDSCAPE: REFUGEE LEGISLATION IN INDIA"
India has a complex framework
governing refugee issues within the country. India, lacking a specific refugee
law, relies on a combination of historical precedents, administrative measures,
and international conventions to address the needs of displaced populations.
The Foreigners Act of 1946 act as a foundational piece of legislation and
examines how India's approach to refugees is shaped by humanitarian concerns,
security considerations, and diplomatic relations.
There are also other acts such as the
Citizenship act and Passport act which helps to deal with refugees present in
Indian border.
- Foreigners Act (1946) –
The Imperial Legislative Assembly
passed the Foreigners Act, 1946, giving the Interim Government of India certain
authority over problems pertaining to foreigners residing in India. The Act was
passed prior to India's independence.Therefore this act was applicable on the
present parts of Pakistan and Bnagladesh as before independence there were part
of the British India.
According to the Act, "a person
who is not a citizen of India" is considered a foreigner. According to
Section 9 of the Act, it is the responsibility of the individual in question to
prove whether or not they are a foreigner if their nationality is not obvious,
as stated in Section 8 of the act.
In accordance with the Foreigners
(Report to the police) Order, 2001, which was made in accordance with the
Foreigners Act 1946, any individual who has reason to believe that a foreigner
entered India without proper documentation or is remaining in the country
longer than permitted must notify the nearest police station of the foreigner's
presence within 24 hours of the foreigner being accommodated in a location that
is occupied, owned, or controlled by the foreigner.
The Foreigners Act gives the Indian
government the authority to hold someone in custody until they are deported
back to their nation of origin.
In the context of Indian refugees,
particularly those displaced due to conflicts, persecution, or natural
disasters, the Foreigners Act has been invoked both to regulate their presence
within India and to manage their return or resettlement. However, the act's
primary focus on regulating immigration and maintaining national security has
sometimes led to challenges in addressing the unique needs and vulnerabilities
of refugees.
India has a history of offering
asylum and support to displaced people, even in spite of the Foreigners Act's
limits in directly addressing refugee issues. As it navigates the legal
framework established by the Foreigners Act, India has attempted to support
refugees through administrative procedures, humanitarian initiatives, and ad
hoc measures.
The Foreigners Act and refugee issues
have gotten more intricate in recent years, as India has encountered new
difficulties with regard to migration, displacement, and asylum. The necessity
for comprehensive laws and policies designed especially to address the rights
and protection of refugees within India's legal system is becoming more and
more apparent as the nation struggles with these problems.
- Passport Act (1967) –
The Indian Parliament's Passport Act
of 1967 specifies the conditions of passport issuance, usage, and all related
issues. The Immigration Act in some way highlights the conditions of Indian
refugees and those within the country who are seeking asylum, and it is not
just about passport management alone for Indian citizens.
1.
Refugee
Travel Documentation: Laws like the Passport Act and related enactments as well
as regulation structure are aimed at giving the legal right to travel to anyone
residing in India, including refugees. Through persecution, displacement, or
many other circumstances, those who are forced into refugee status very seldom
have valid passports of their home country. Through this, the Indian
authorities would be in a position to provide identity certificates to Indians
or special travel permits that could allow them to move both inside and outside
of India.
2.
Identification
and Status: India does this through the Passport Ordinance, which establishes
the identification and status of refugees. However, even though they may not
have Indian passports, certain Indian authorities may have issued them other
documentation, like residency permits or refugee IDs. These documents work as
identification belongings and allow making decisions to grant access to social
services and workplaces, education and other rights and privileges.
3.
Travel
limitations: The protection of public order and national security is the key
for Indian authorities to apply restrictions on traveling for people, such as
refugees, under the Passport Act. The mobility of refugees within India is
sometimes restricted, and there are times when they become the subject of
travel restrictions meant for them too or surveillance measure[9]
- Citizenship Act (1955) -
A vital part of the Indian law that
defines a citizen is The Citizenship Act, 1955. It elaborates on various ways
one can become a citizen, for example through birth, descent, and registration
as well as naturalization. Similarly, the act contains provisions regarding
citizenship termination and renunciation. It has experienced several revisions
throughout history so as to reflect the development in society and aspirations.
The principle task of this agency is to regulate citizenship, to make sure that
citizenship is in accordance with the law.[10]
- The Citizenship Amendment Act,
2019 (CAA)- has been seen as granting preferential treatment to non-Muslim
immigrants from Pakistan, Bangladesh, and Afghanistan, while excluding
Muslim minorities.
With the inclusion of the Citizenship
Amendment Act in the Citizenship Act, it introduced two clauses regarding the
granting of citizenship to certain religious minorities from Afghanistan,
Bangladesh, and Pakistan, namely Hindus, Sikhs, Buddhists, Jains, Parsis, and
Christians, who had arrived in India even before December 31, 2014 because of
religious persecution[11]
THE
IMMIGRANTS (EXPULSION FROM ASSAM) ACT, 1950
From the British colonial era
forward, Assam had been witnessing a massive influx of immigrants from all over
the country. As people moved to the state in quest of fertile land, Bengal
turned into one of the main sources of immigration. Following 1947, the reason
for the migration wave from Pakistan's eastern areas was the sectarian rioting.
The government was concerned about this migration since it put their resources
at danger, which prompted them to create the Immigrants (Expulsion from Assam)
Act, 1950.
The statute allows for the removal of
those immigrants who came to the state of Assam and then relocated to other
regions of the nation. These immigrants' permanent residence ended up being a
burden and harm to the nation. The interests of India's general populace were
jeopardized. This is the rationale
behind the creation of the Act, which granted the government the power to drive
illegal immigrants off Assamese territory.
- Definition of illegal
immigrants:-
A person who enters another country
illegally, whether to engage in illicit activity there or for political or
economic reasons, is considered an illegal immigrant. According to Section 2(b)
of The Citizenship Act, 1955, an illegal migrant is a foreign national who
entered India illegally and did not have a valid passport or any other legal
travel documents, OR a foreign national who entered the country legitimately
and had valid documentation but stayed longer than allowed.
- Verification of illegal
immigrants:-
The 1951 Census served as the source of data
for the establishment of the National Register of Citizens since Assam had the
highest concentration of undocumented immigrants. The plan was to detect
illegal immigrants by first gathering information from every resident living in
Assam as part of the 1951 Census.
In 2002, the Supreme Court of India
struck down a separate tribunal mechanism that Assam had implemented for the
purpose of identifying illegal migrants, citing constitutional violations as
the reason. Following Partition, an inflow of refugees from what was then East
Pakistan led to the enactment of the Immigrants Act 1950. It turns out that the
NRC procedure is more intricate than the Ministry of Home Affairs would have
people think. The government did not take any significant action until 1965.
- Objective and scope of the Act:-
The legislation was passed in order
to provide for the removal of specific immigrants from Assam. The Central
Government is now empowered by the Act. The central government believed that
their presence would be harmful to the interests of the Indian people as a
whole or any group within any Assamese Scheduled Tribe.[12]
CRITICAL
ANALYSIS OF THE ACT
A great deal of strain has been
placed on the land by the immigrants. In light of the government's ongoing
massive expenditures to support a sizable portion of the illegal immigrant
population, they made up very little of the government's earnings.
Eliminating the country's population
inflow has become crucial. The real
amount of illegal immigrants identified and deported was quite low.
This necessitated increased border
patrols and temporary population movement restrictions. Many unlawful voters
have their names illegally added to the voting list as a result of illegal
immigration.
Better checks needed to be made for
the presence of legal documents; while this wouldn't aid in the deportation of
all illegal immigrants, it would have undoubtedly eased the state's load
significantly.
Principle of Non - Refoulment
A key tenet of international law is
non-refoulement, which states that a nation accepting asylum seekers cannot
send them back to a place where they would likely face persecution due to their
"race, religion, nationality, membership in a particular social group or
political opinion" ("refoulement"). In contrast to political
asylum, which is granted to those who can demonstrate a legitimate fear of
persecution due to their membership in a certain category, non-refoulement is
the general repatriation of individuals, including refugees, into conflict
areas and other disaster-prone areas. Since it is applicable to governments
that are not parties to the 1951 Convention Relating to the Status of Refugees
or its 1967 Protocol, it is a principle of customary international law.
Presently, individuals are
purportedly shielded against deportation from nations that have ratified the
1951 Convention Relating to the Status of Refugees, the 1967 Protocol
Convention Relating to the Status of Refugees, or the 1984 Convention Against
Torture by the principle of non-refoulement. Nevertheless, some signatory
nations have continued to circumvent the idea of international law by
repatriating or expelling individuals, so placing them in the hands of
potential attackers.[13]
INDIA AND
PRINCIPLE OF NON-REFOULEMENT
Due to the ongoing conflicts and
internal issues in the nations that border India, a large number of people
cross the border to seek safety here. Nevertheless, India lacks both a domestic
legal framework for asylum protection and ratification of the 1951 Refugee
Convention.
India is not a signatory to the 1951 Refugee
Convention. However, it is a signatory to the 2016 New York Declaration for
Refugees and Migrants, which implicitly recognizes the principle of
non-refoulement. It has ratified the UN Declaration of Human Rights, which
acknowledges the "right of asylum-seekers from persecution" and has a
provision akin to the non-refoulment clause. The Indian government has
accommodated the entering migrants through its acts, even in the lack of a
specific statute for refugee protection. The Indian judiciary has rendered
decisions upholding the non-refoulement concept.[14]
In the case of Ktaer Abbas Habib Al Qutaifi and Anr. v
Union of India, the Gujarat High Court held that Article 21 of the Indian
Constitution incorporates the essence of the principle of non-refoulement.
In the case of Louis De Raedt v Union of
India, the Court iterated that even the non-citizens have right to life,
liberty and dignity.
The legal and political assurance
that a refugee won't be returned to their home country, where they risk
persecution, is a criticism leveled at Indian law pertaining to refugee
protection. The fact that the nations surrounding India are not signatories to
the Refugee Convention is one of the arguments put forth to show why it is
impractical for India to do so. If India does sign, then all asylum-seekers
arriving in south Asia will be seeking refuge in India. India has been giving
asylum to numerous people from its neighboring countries for many years.
HOW TO
PROCEED
India might also take a lesson from
how it handled significant refugee arrivals in the past. There is limited
opportunity for innovative policies because host states are only able to
respond to refugees through repatriation, assimilation, or resettlement in a
third nation under the terms of the international humanitarian framework.
India's reliance on the discriminatory Citizenship Amendment Act of 2019 and
the antiquated Foreigners Act of 1946 contradicts its international reputation.
Thus, it is essential to have a comprehensive framework that complies with both
international customary law and Indian constitutional law.
India can also adopt some lessons of
how it has claimed large numbers of refugees in the past. Notwithstanding,
there is a limited room for innovative policies because only re-patriation,
assimilation, or resettlement in the third state proved to be the response
available to the host states under the international humanitarian framework of
aid.
In the Tibetan example, the relative
isolation of Tibetan settlements in the steep parts of Himachal Pradesh
prevented both market saturation and local hostility. Cooperation between India
and quasi-autonomous groups like the Central Tibetan Administration (CTA)
promoted political self-governance, cultural preservation, and a sense of
homeland. Despite being highly context-specific, the Tibetan situation provides
a paradigm for cooperation between host countries, civil society organizations
in the countries of origin, and international organizations to seek creative
solutions outside of the international triadic framework.
India refuses to take such approach,
centered on its religious bias and geopolitical motivations, ignoring the need
for a coherent refugee policy enduring more than a mere short term. Though,
India has to prepare for the unification of its refugee law so that it complies
not only with the constitutional law of India and international customary law
but also to tackle the security risks because of the presence of unauthorized
migrants. A standard refugee policy must make sure the system will have a
number of solutions, like providing citizens with legal paths to asylum, and to
stop unfair administrative actions like the National Registry of Citizens, from
being implemented at the national level, with judicial supervision, cooperation
with civil and international organizations, and consideration of international
acceptance norms. This will not only help non-nationals of India who get the
benefits but readers who hold the citizenship on nominal basis like Dalits,
Muslims, the poorest and the people without official documents, who face a
challenging legal terrain.
CONCLUSION
Despite having accepted a large
number of refugee groups even before international regulations for refugees
were formed, the lack of a clear domestic statute and the ad hoc management of
asylum status could undermine its soft power and undermine its credibility in
the international arena. Chief among the concerns is also a lack of strong
political will. Since political parties can exploit these groups during
elections, the problem of illegal migration becomes crucial. India must amend
its laws to conform to international law as one of the developing nations and a
worthy contender for permanent membership in the UN.
This is due to the fact that, even in
the absence of local legislation, India is constantly faced with a flood of
refugees from many nations, and it has frequently handled these situations in a
very humanitarian manner—Tibetan and Sri Lankan refugees being two prime
examples. For a variety of reasons, migration is only increasing. India has to
enact legislation to address these concerns and ensure openness in
administrative processes. It's also unclear how one determines who qualifies as
a refugee. The UNHCR office in New Delhi handles asylum seekers from foreign
nations, while the Indian government handles those from Tibet and Sri Lanka.
The Indian government and UNHCR need to work together more closely.
BIBLIOGRAPHY
4. https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpMmMWO/Indias-refugee-saga-from-1947-to-2017.html
[10] https://www.drishtiias.com/loksabha-rajyasabha-discussions/75-years-laws-that-shaped-india-the-citizenship-act-1955
[11] https://blog.ipleaders.in/citizenship-amendment-act-2019-everything-important-you-should-know-about/#Who_all_are_left_out
[12] https://blog.ipleaders.in/citizenship-amendment-act-2019-everything-important-you-should-know-about/#Who_all_are_left_out