The Dichotomy of Refugee Protection Mechanism in India
Tanya Gupta, Student, The Law School, Jammu University
India’s geography, democratic polity, its geopolitical relations, multilingual and multi-ethnic society makes it a prominent refugee receiving country in the world. It has received a large number of people who came here seeking protection from human rights violations in their country of origin, thus, fleeing looking for a better life, to reach a safe zone where their lives, freedom or safety was not threatened.
Refugee- A Guest of Circumstances
According to United Nations refugee Convention, a refugee was a person
“...who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.”
India had offered shelter to around 195,891 refugees, and asylum seekers in 2018 and their entry, stay and exit in Indian territory was dealt with some legalities. At times these refugees entered the country with relevant travel documents that were forged, at other times they covertly crossed Indian borders by road or sea without any travel documents. In such cases, the customs officials handed over the accused refugees to the local police which further registered a First Information Report against him/her. The accused refugees were then produced before the local Sessions Court and kept under detention for long years. E.g., A 17-year-old Sri Lankan Tamil refugee, who was registered with UNHCR, was separated from his family in Madras and came to Delhi, where he was informed that his father was in London. In an attempt to reach London, he was deceived by a travel agent who fabricated a passport for him. The forgery was detected at New Delhi International Airport, and Winston Venojan faced horrendous atrocities of the authorities concerned.
Refugees in India were broadly classified into two categories as Mandate and Non-Mandate refugees. Mandate refugees were those who were under the protection of United Nations High Commissioner for Refugees. In contrast, Non-Mandate refugees were those refugees who came under the direct protection of the Indian Government. There was a fire-fighting framework relating to refugees in India as the attitude of the Indian authorities varied towards different classes of refugees and, thus, acted according to its diplomatic relations with the other nations as well as its political ideology. For e.g., the introduction of present Government’s Citizenship Amendment Act (CAA), to grant Indian citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the three Muslim-majority countries of South Asia viz., Afghanistan, Bangladesh, Pakistan; which depicted the varied attitude of the Indian Government towards these refugees on the grounds of their religion. On the contrary, the Tibetans who arrived in India in the late 1950s and the early 1960s were offered a welcoming attitude by the former Prime Minister Jawaharlal Nehru who granted political asylum to this helpless class of refugees facing persecution in their country of origin. They were provided with all the necessary amenities by the Indian Government, including residence permits, education, health care, economic activities and travel permits. Similarly, the Government of India and Tamil Nadu made individual administrative decisions relating to Sri Lankan refugees. There were about 59,000 Sri Lankan Tamil refugees in the 100-plus refugee camps in Tamil Nadu and nearly 30,000 outside the camps. The Government of Tamil Nadu facilitated these refugees by providing them with fiscal advantages, issuing ration cards and allowed the refugee children the right to education up to class XII.
In 1951, almost 2% of India’s population were refugees. Based on the 1951 census of displaced persons, 7,249,000 Hindus and Sikhs had moved to India from Pakistan.6 Several government schemes were provided for these refugees at all-India level relating to education, employment opportunities and easy loans to start businesses.
Therefore, India had provided Tibetan, Sri Lankan and Pakistani refugees ample financial aid and assistance owing to the healthy diplomatic relations of the Indian Government with them in the form of the concretised bilateral agreements with these classes of displaced persons. Nevertheless, the mandate refugees like Afghans, Bhutanese, Somalis, Sudanese, Iraqis were bearing serious disadvantages as Indian Government did not officially recognise them as refugees within its territory; instead, UNHCR recognised and protected them under its mandate. These refugees earned a living through self-employment in the informal sector and experienced difficulties in securing travel documents, cooking gas, school and university admissions. While the Indian Government had issued most of the Afghan refugees a valid residential permit, thus, allowing them to stay in the country until a durable solution was found, it had not provided residence permits to Somali refugees which constituted the most significant African community in India. On the other hand, UNHCR had registered 24 Sudanese, 52 Somalis and 21 Iraqis as on 30 June 2003.9 These communities found difficulty in finding housing amenities, seeking employment and having access to education and medical facilities in the country. Not only this, even though there were around 10,000 ethnic Nepalese Bhutanese refugees and asylum seekers settled in India the Indian Government had neither acknowledged their presence nor provided any assistance to them.
Refugee Law: A Lacuna in the Indian Legislative Framework
Our first Prime Minister Jawaharlal Nehru, chose not to ratify the 1951 Convention as he feared of unnecessary interference in the internal matters of the country which would come along the ratification of the said Convention. Also, he reserved certain inhibitions towards maintaining the minimum standards of hospitality and housing towards the people provided with the refugee status under the Refugee Convention owing to the struggling economy of the freshly freed nation from the clutches of the British authorities and the lack of efficient resources within the country to cater to their needs.
Thus, presently, India neither has any specific legislation that applied to all the refugees in the country, nor it was a signatory to any international instrument relating to the refugees, like, the United Nations 1951 Convention Relating to the Status of Refugees. The existing economic and security situation in India made it an implausible proposition for the Indian Government to accede to the international Treaty relating to refugees because of the prevalent moral turpitudes within the country, like, poverty, resource insufficiency and internal political issues. Despite this legal vacuum, India accorded shelter and protection to a diverse group of refugees from other countries in the region with an open heart.
However, India had signed several other world Conventions and regional Treaties dealing with human rights which also hinted upon the protection of refugees and other displaced persons, viz., Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination Against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition to the above instruments, India had also ratified two primary legal documents viz., UN Declaration on Territorial Asylum (1967) and the Bangkok Principles in 1966, which established the obligations of protection, asylum and the phenomenon of non-refoulment to refugees in India,18 thus, protecting the refugees from being returned to their country of origin where they still feared persecution. Additionally, India was also a party to the International Labour Organisation’s Convention No. 118 and had been a leading member of the Executive Committee of the High Commissioner’s Programme (EXCOM) since 1995, which indicates that India endorses a humanitarian standpoint on refugees since independence by choosing its administrative framework for dealing with the refugee communities residing within the country.
Indian authorities functioned sporadically as far as the protection mechanism of the refugees residing within its territory was concerned in the absence of any express legal instrument. Presently, various departments under the Central and State government were dealing with the influx of refugees and asylum seekers recognised by the Government of India through ad hoc administrative decisions based on political and security conditions. Even our database on refugees were significantly deficient, preventing monitoring on refugee flow and their parlous existence, and such paucity of data made it difficult for the Government to distinguish between bona fide refugees, asylum seekers, terrorists, criminal elements.
In the absence of clear cut guidelines, the established principles of the rule of law in India accorded protection to refugees or asylum seekers residing within the territory of India. These include Article 14 dealing with the right to equality before the law and equal protection of law to all persons, including citizens as well as aliens; Article 21 guaranteeing the right to life and liberty, Article 22 dealing with protection against arbitrary arrest and detention, Article 20 protecting respect of conviction of offences, Article 51(c) fostering respect for international law and treaty obligations in the dealing of organised people, Article 253 empowering the Parliament to make any law for the whole or any part of the territory of India for implementing any Treaty or Convention. In the absence of any domestic legislation relating to refugees, the Supreme Court referred to Article 21 to regulate and justify the state of refugees in India. For instance, The National Human Rights Commission v. The State of Arunachal Pradesh, a Public Interest Litigation was filed by the UNHCR seeking the Government of Arunachal Pradesh to enforce Article 21 in respect of 65,000 Chakmas residing in the state. The Supreme Court, thus, held that their application for citizenship under Section 5 of the Citizenship Act should be forwarded to the concerned authorities and not withheld. Additionally, India relied on general laws that addressed all foreigners in India for dealing with refugees, like, the Foreigners Act, 1946, empowering the state to regulate the entry, presence and departure of foreigners in India; the registration of Foreigners Act, 1939, dealing with the registration of foreigners in India; the Passport Act, 1920, laying down the power to grant or refuse permission to a foreigner entering or leaving India without passport; the Passport Act, 1967, dealing with the issuance of passport and other travel documents, and the Extradition Act, 1962.
The refugees had an impact on the economic, environmental, social, and political situation in the host country. These refugees may cause inflationary pressure on prices and depress wages of the host nation, in addition to the security problems, crime rates, theft, murder and even issues like prostitution and alcoholism which lead to inevitable strain on the functioning of the various authorities of a developing nation at the State level as well as Central level. For instance, the infiltration of the terrorists masked as refugees. Among the 26 accused in the incident of Rajiv Gandhi assassination case in 1991 sponsored by LTTE, the suicide bomber was revealed to be registered as a Sri Lankan refugee. Such unfortunate instances hindered the opportunity for the genuine refugees to seek for a durable solution in a country which had suffered massive setbacks at the hands of a handful of miscreants in their community, for e.g., India had identified and pleaded to deport around 40,000 Rohingyas based on national security threat, which was the most persecuted minority in the world and was predominantly Muslims.
Thus, a specific mechanism for the determination and treatment of refugees with greater transparency and accountability would enhance administrative control of the state and would establish greater consistency, clarity, predictability and guidance in the handling of issues relating to refugees and providing assistance to them. Specific legislation and appropriate cooperation amongst the various authorities of the country at the State level, as well as Central level, would enhance the protection mechanism of these refugees in India. Additionally, such a step of introducing a clear Statute dealing with the guidelines offering protection and durable solution to these refugees would also catalyse the cooperation between the host country and the country of origin vis-a-vis the eventual settlement of these refugees. It is a dire need of the hour to enact a uniform and comprehensive legislation exclusively dealing with refugees or asylum seekers in India as these defenceless people rightfully deserve a dignified livelihood where their identity is not questioned just by virtue of landing themselves across the international border in the moment of utter chaos for saving their lives. It is time that these classes of people were rendered a life of integrity, and the barbarities faced by them in the back-breaking struggle for a decent living comes to an end.
1. Convention Relating to the Status of Refugees,1951, Article 1(2)
2. http://reporting.unhcr.org/node/10314/y=2019#year; last visited on 13 May 2020
3. State vs. Winston, FIR No., 438/1993 under section 419, 420, 468 and 471of the Indian Penal Code.
4. R.K. Radhakrishnan, “Sri Lankan Tamil refugees in India, the nowhere people”, FRONTLINE, available at: https://frontline.thehindu.com/cover-story/article30328790.ece; last visited on 13 May, 2020
5. Arun Janrdhanan, “Explained: The Sri Lankan Refugee Question”, The Indian Express, available at: http://indianexpress.com/; last visited on 14 May, 2020
6. Vivek Shukla, “When Muslims left Pakistan for India”, The New Indian Express, available at: https://www.newindianexpress.com/opinions/2017/aug/14/when-muslims-left-pakistan-for-india-1642817.html; last visited on 14 May, 2020
7. Ragini Trakroo, et al., Refugees and the law, pp. 60 and 61, Socio-legal Information Centre, New Delhi.
8. P. Banerjee, “Falling Short: How India Treats Those Seeking Refuge”, Hindustan Times, available at: http://m.hindustantimes.com/india/falling-short-how-india-treats-those-seeking-refuge/story-Y96NXag08KXxzaNjkOND5M.html; last visited on 14 May, 2020
9. Supra, note 7 at, p. 59.
11. Dipankar De Sarkar, “Why India won’t sign Refugee Treaty”, liveMint, available at: https://www.livemint.com/Opinion/bePZQScFlq1wEWv9Tqt4QO/Why-India-wont-sign-Refugee-Treaty.html, last visited on 14 May.
12. Universal Declaration of Human Rights,1948, Articles 13, 14 and 15.
13. International Covenant on Civil and Political Rights ,1966, Articles 12(2), 12(4) and 13.
14. International Covenant on Economic, Social and Cultural Rights 1966, Article 1(1).
15. Convention on the Rights of the Child ,1989, Articles 7 and 22(2).
16. Convention on the Elimination of All Forms of Discrimination Against Women,1979, Articles 12, 14(1), 6, 9, 9(2), 10, 11, 12 and 15.
17. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , 1984, Articles 2 and 3.
18. Supra note 7, at p. 54
19. https://iasscore.in/current-affairs/mains/in-numbers-and-dimensions-the-global-refugee-crisis-and-indians-refugee-saga-from-1947-to-2017; last visited on 15 May, 2020
20. Supra note 7 at p.143
21. 1996 AIR 1234
22. Foreigners Act, 1946, Section 3(1), 3(2), 3-A, 3(2)(c), Section 11, 11(1), 12, 13, 14.
23. Registration of Foreigners Act, 1939, Section 4, Section 3; Rules 4, 4-A, 5, 6, 8, 9 and 16.
24. Passport (Entry into India) Act, 1920, Section 3, 3(c).
25. Passport Act, 1967, Section 20
26. UNHCR Standing Committee, “Social and economic impact of large refugee populations on host developing countries EC/47/SC/CRP.7”, The UN Refugee Agency, available at: https://www.unhcr.org/excom/standcom/3ae68d0e10/social-economic-impact-large-refugee-populations-host-developing-countries.html; last visited on 16 May, 2020.
27. S P Kodiyath and S P Veettil, “Invisible People: Suspected LTTE Members in the Special Refugee Camps of Tamil Nadu”, Refugee Survey Quarterly, vol. 36, March 2017, p. 127, Oxford University Press, Oxford, (2017)
29. https://www.iasparliament.com/article/indias-policy-on-refugees, last visited on 16 May, 2020.