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“Vasudhaiva Kutumbakam – ‘the world is one family” is often used to elucidate India’s global outlook. But we speak more, do less. Four years ago, a writ petition 1 was filed in the Supreme Court of India to prevent the forced return of Rohingya refugees. This year in April, the court while rejecting the plea, observed in its order that since “India is not a signatory either to the United Nations Convention on the status of Refugees 1951 or to the protocol of the year 1967, the principle of non-refoulement is inapplicable” .The court also cited “national security ramifications” and considered the arrival of refugees as “a continuous threat of influx of illegal immigrants” (para 10).

As per the UNHCR data, India is home to approximately 3 lakh refugees and almost all of them are from our neighbouring States like Sri Lanka, Tibet, Myanmar, and Afghanistan.  Recently there was a military coup in Myanmar which has led to influx of thousands of refugees from there to India. Mizoram while going against the Union government is accepting and seems willing to help refugees as both shares deep ethnic identity in Chin community. These numbers will keep increasing with the time as the refugee flow to India is unlikely to end any time soon given the geopolitical, economic, ethnic, and religious contexts of the region and conflicts arising thereto.

  • Who is a Refugee?

People, who have been forced to flee their country due to risk to their safety and life, move to another country because their own government either cannot protect or will not protect them. These people leave everything behind just to be able to live. These are not to be confused with illegal immigrants, who infiltrate mainly to find better standard of living and jobs. Refugee involves humanitarian and human rights aspects.

The 1951 Refugee Convention defines a refugee as: someone who is unable or unwilling to return to their country of origin owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. In the near future climate change also might aggravate this displacement.

  • Laws Governing Refugees

India lacks specific legislation to deal with problem of refugees. All those who are not Indian citizens are considered as foreigners and are governed by the Foreigners Act 1946, the Passport Act and the Citizenship Act. Foreigner is a wide term which includes refugees, illegal immigrants, tourists, travellers etc. It is important to distinguish Refugee from any other category of foreigner so that we can sensitize the people in our society. The Foreigners Act does not differentiate between refugees and other category of foreigners and has provisions that give Union government power to deport any foreign citizen.

  • 1951 Convention relating to the Status of Refugees

India is neither a signatory to the 1951 Refugee convention nor its 1967 Protocol. The 1951 convention defines who is a ‘refugee’, outlines refugee’s rights such as right to freedom of religion and movement, right to education, right to work etc. It also contains obligation of refugees to host countries such as to follow their law and order. One of the key provisions is the principle of non-refoulement which affirms that refugees should not be returned, or refouled, to a country where he or she fears persecution. Article 33(1) of the 1951 Refugee Convention states that “ No State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The word shall make it mandatory for the member countries to to adhere to it. According to the United Nations High Commissioner for Refugees (UNHCR), this principle is considered part of the customary international law. But since India is not a party to the convention it can shy away from its humanitarian responsibility. India has deported many refugees including ones who hold UNHCR issued ID cards.

Constitutional Protection

Foreigners are entitled to limited constitutional protection. Fundamental rights such as right to equality under Article 14 and protection of life and liberty under Article 21 of Indian Constitution are available to non-citizens. They are also entitled to the protection of right recognised under Articles 20, 22, 25, 28 and 32. Article 20 deals with Ex post facto law (a law with retrospective effect), right against double jeopardy and right against self incrimination. Article 22 deals with right against arrest and detention. Article 25 deals with right to freedom of conscience and free practice and propagation of religion. Article 32 grants the right to move to Supreme Court for enforcement of fundamental rights.

  • Ad-hoc measures by Government

Myanmar Refugees

In the absence of legal framework refugee policy is mostly guided by ad hoc measures which leads to policy ambiguity and often discrimination and violation of human rights. The ambiguity is evident when 40,000 Rohingya fled to India, government had allowed the UNHCR to carry out verification and approximately 17,000 were provided identity cards to be recognized as a refugee. But government has detained and jailed many refugees despite holding UNHCR issued cards.

Two years ago, a 14 year old Rohingya girl was detained while entering Assam. This year the state government tried to deport her to Myanmar despite knowing that she has no family there and was separated from her parents in Bangladesh refugee camp. Myanmar refused to accept her.

And now since the military coup in Myanmar, many pro democratic activists have fled to India, majority taking refuge in Mizoram. Zoramthanga’s government is providing them refuge, neglecting central government’s order because these new influxes of refugees belong to the Chin community who share deep ethnic ties with Mizoram. Mizoram is also ensuring education of the children of refugees on humanitarian grounds.

There are more such instances which reflect ambiguity not just in dealing with Myanmar refugees but in cases of handling refugees from other nations as well.

Sri Lankan Refugees

During the civil war in Sri Lanka, Tamils who fled to India were kept in camps in Tamil Nadu and Orissa. The camps in Orissa were heavily and strictly monitored. This was because with the increasing militant activities in Tamil Nadu, since the government refused to grant asylum to militant cadres of outfits such as Tamil Eelam Liberation Organisation (TELO), Eelam National Democratic Liberation Front ( ENDLF) and Eelam People’s Revolutionary Liberation Front (EPRFP), they were sent to the camps in Orissa. The Indo-Sri Lanka Peace Accord in 1987 allowed for voluntary repatriation but the assassination of Rajiv Gandhi, the then Prime Minister of India, brought change in policy and refugees were forcibly repatriated. The policy lacked uniformity, was ambiguous and carried out by local officials.

Afghanistan Refugees

Due to the recent Taliban takeover in Afghanistan many refugee have fled to India. Approximately 500 refugees who are based in Delhi started protesting in front of UNHCR office in Vasant Vihar in Delhi, demanding the status of refugees. They even threatened to go on a hunger strike. No permission to organize protest was taken by them. The residents in the locality faced lots of inconvenience on their account. Police and administration sorted out their protest only when Delhi High Court intervened. Such gatherings prove to be a challenge for local administration for security and health reasons as the protest can become super spreader of Covid-19. Had there been a proper refugee system in India, such incidents could be easily handled without requiring judicial interference.  

  • Challenges faced by refugees

No one chooses to be a refugee. They cross borders with just a pile of clothes on their backs leaving behind their homes, dreams and everything. Their plight is such that they find this easier than to see their children and loved ones die. They have to fend for themselves in a strange country. Many of them due to fear of being deported do not wish to get themselves verified by the officials. Their ambiguous legal status leaves many out of purview of government relief programs and medical facilities. They face difficulty in making a living because of general xenophobia among the population and reluctance to hire a refugee. So they make a living doing odd jobs such as working on construction sites. They might have had dreams for their children to become doctors and engineers but find it difficult to get their children educated in the host country. In the present pandemic scenario they would be last ones to get vaccinated, if at all.  They face discrimination, lack shelter, health facilities, and educational facilities and often they have to live in poor hygienic conditions. They become devoid of the very basic human needs and rights that we may take for granted.

  • Challenges faced by Government

Handling refugees brings lot of unprecedented challenges for the government. Firstly, modern migratory patterns are so complex that government faces daunting challenge in demarcating foreigners into ‘genuine refugees’ and ‘illegal immigrants’. The number of Bangladeshi ‘illegal immigrants’ that have infiltrated India has made it difficult to separate them from Bangladeshi ‘refugees’. Secondly, there will always be apprehensions of security threat because militant, terrorists and spies can infiltrate in disguise. India has a long and porous border which makes it humanly impossible to man every inch of it.

Verification becomes a huge challenge because the ground reality is that often refugees enter without any valid documents so they are detained by the officials for getting their verification done.

The refugee issue poses not just security risks but also puts a burden on the economy. This issue also affects India’s diplomatic relations with other countries. For instance in 1959 when India granted asylum to Dalai Lama along with 1 lakh Tibetans, little did it know that helping them would be a trigger for the 1962 Sino-Indian war. India’s relations with Sri Lanka and Bangladesh have also been affected.  

Refugees bring about demographic changes as it can be seen in North-Eastern states. Local communities and tribal groups living in Assam, Tripura and Manipur have alleged that they have become a minority in their homelands because of refugees and illegal immigrants from Bangladesh. The ground reality is that in such a scenario riots are likely to happen as was witnessed in the recent Kokrajhar riots in Assam in 2012.

Way Forward

A legal framework is required that can differentiate between ‘refugees’ and other categories of foreigners. Giving refugees permanent protection might not a necessity but government should focus on the fact that refugees should be protected and included in health, education and sport. This can be done with the help of UNHCR. It is true that humanitarian work alone cannot act as a substitute for political action in solving future refugee crisis. ‘Voluntary repatriation’ of refugees to their country of origin should be India’s preferred solution, as it has been for UNHCR.

Policy should be on the lines of fulfilling refugee’s basic human necessities but not at the cost of security and national interest. Practical and balanced approach between ensuring their humanitarian rights and security of nation should be the key focus for government in framing a refugee policy.               

Author: Prabha Kumari, Faculty of Law, University of Delhi

Editor: Kanishka VaishSenior Editor, LexLife India.Advertisements

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