India’s Refugee law and policy- An Analysis

Context: World Refugee Day- June 20^th

Who is a refugee?

A person who has been forced to flee his/her country because of persecution, war, or violence

Other important terms:

• Migrant: Migrants are people who move to another place or country attracted by better life prospects.
• Asylum Seeker: Persons who seek the protection of the government however the claim of refugee is not yet determined. The government is therefore not obligatory to provide rights enjoyed by refugees.
• Illegal Migrant: Illegal migrants are those people who have either entered the country with fake passports, or have stayed after the expiration of their visa

International Conventions, Protocols and Agreements:

UN Convention Relating to the Status of Refugee, 1951

• Defines what the term ‘refugee’ means

Refugee- A person who is outside his/her country of nationality or habitual residence; fears persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.

• Outlines a refugee’s rights such as freedom of religion and movement, the right to work, education and accessibility to travel documents
• Principle of Refoulement: Refugees should not be returned (refouled) to a country where he/she fears persecution.

Protocol Relating to the Status of Refugees, 1967

• Under the 1951 Convention, mainly Europeans involved in events occurring before 1 January 1951 could apply for refugee status.
• The 1967 Protocol removed these geographical and temporal restrictions

• Important Note: India is not a signatory to 1951 UN refugee convention, or its 1967 Protocol

New York Declaration for Refugees and Migrants, 2016

• 193 members of the United Nations adopted the New York Declaration on Refugees and Migrants in 2016
• Non- binding in nature

Major Highlights

1. Comprehensive Refugee Response Framework (CRRF):

Objectives:

• Ease the pressures on host countries and communities;
• Enhance refugee self-reliance;
• Expand third-country solutions; and
• Support conditions in countries of origin for return in safety and dignity.

2. Global Compact on Refugees (GCR)

• The first draft of GCR (released in Jan 2018) is based on the CRRF and sets out practical measures that can be taken by different stakeholders to enhance international cooperation in response to refugee crisis.

3. Global compact for safe, orderly and regular migration

• Aims to enhance coordination on international migration and present a framework for comprehensive international cooperation on migrants and human mobility.

Refugee in India

• According to UNHCR, as of 2015, India has1 lakh people of ‘concern’ of whom more than 2 lakh people were refugees and 6000 were asylum seekers
• Over the years India has given shelter to Tibetans, Chakma and Hajongs from Bangladesh, ethnic Tamil refugees from Sri Lanka, people from Afghanistan and Pakistan

Sri Lankan Tamil Refugees:

• Broadly classified as “camp refugees” and “non-camp refugees” based on socio-economic parameters.
• Do not have the right to vote or own land
• They are issued individual and family identity cards
• Also issued refugee certificates by the revenue inspector of their camp, which is required for their return to Sri Lanka

Tibetan Refugees

• Tibetans seeked asylum in India after Dalai Lama fled Tibet in 1959 after a failed uprising against the Chinese occupation
• Do not have citizenship rights
• Granted Residence Permits by local authorities

Pakistan, Bangladesh:

• Provided long term visas

• Long-term visa gives them right to work in private sector and access to education and banking

Chakma and Hajongs

• Chakmas and Hajong are ethnic people who lived in the Chittagong hill tracts of Bangladesh.
• In 1964-65, they migrated to India after facing religious persecution and losing their land to the development of the Kaptai Dam on the Karnaphuli River
• At present, they don’t have citizenship and land rights but are provided basic amenities by the state government.
• Complying with the Supreme Court order of 2015, the Centre in September 2017 had decided to grant “limited citizenship” to the Chakma and Hajong refugees living in Arunachal Pradesh

Rohingya Muslims:

• Rohingyas Muslims are ethnic people who reside in the Buddhist majority Rakhine province of Myanmar.
• According to the Human Rights Watch Report 2017, the ethnic cleansing campaign which has been on since June 2012 has been the most serious and widespread form of violence against the Rohingyas
• According to the UNHCR, India has approximately 16000 registered Rohingya refugees. However, there are large numbers of illegal Rohingya refugees

Legislation:

• India is not a signatory to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol
• Further it does not have a legal framework and national refugee status determination system.
• No clear definition of refugees

1. Foreigner’s Act, 1946

• Asylum seekers and refugees are covered under the Foreigner’s Act of 1946
• The Foreigner Act makes the undocumented physical presence of a foreigner in India a crime.
• It also empowers the government to detain a foreigner illegally living in the country till that person is deported.

1. Asylum Bill, 2015

• In 2015, Congress MP Shashi Tharoor introduced the Asylum Bill, 2015 (Private Member’s Bill)

Objectives:

1. To formally define-

• a refugee,
• eligibility for asylum,
• rights of refugees, asylum seekers
• entitlements and obligations

2. set a time-bound legal framework for naturalization
3. Proposes the establishment of an autonomous National Commission, which will assess and determine claims for asylum in India.

Refugee Status Determination in India:

• Indian government determines refugee status for asylum-seekers from Tibet and Sri Lanka
• India also allows UNHCRto recognize, register, and protect certain groups of people after recognizing them as refugees
• The UNHCR carries out a Refugee Status Determination (RSD) procedure
• The procedure starts with registration as asylum seekers and is followed by an interview
• The claims are evaluated on a case-by-case basis

Constitutional Safeguards:

1) Article 14: Requires India to “not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

2) Article 21: prevents the state from allowing any person to be “deprived of his life or personal liberty except according to procedure established by law.”

3) Article 51(c): State is to foster respect for International laws and treaties.

Why did India not sign the 1951 Refugee Convention?

No official reason stated by India. However, scholars highlight the following reasons:

1. Narrow Definition of Refugee:

• The Indian representative raised this concern at the 54th session of the Executive committee meeting of UNHCR in 2003.
• India stated that the definition fails to recognize “the fundamental actors which give rise to refugee movements”.

2. 2. Problems of South Asian countries different:

• India believed that the 1951 Convention and Protocol were designed to meet the requirements of the post-war European Countries. The conditions in the South Asian subcontinent were very different.
• According to scholar Myron Weiner, borders in south Asian region are porous and each country in the region does not have the political, or administrative to enforce strict rules on the population entry.
• The cross border movements affect the political stability and internal security of the country

3. Migration is a bilateral matter:

• India considered that migration is a matter of bilateral and not multilateral relations. International agreements can restrict their freedom of action

4. Security Concerns:

• Fear of uncontrolled infiltration of terrorists and criminals

5. Resources:

• India which is still a developing country does not have enough resources to support refugees and cannot be considered as a place of permanent safety for refugees

The need for a National Refugee Policy:

1. Humanitarian issues:

• The Foreigners Act does not recognise refugees as a special category deserving of humanitarian protection.
• Lack of a refugee law makes it difficult to combat human rights violations
• The UNHRC and National Human Rights Commission (NHRC) plays a pivotal role in ascertaining rights of refugees
• For example: in the 1996 case “National Human Rights Commission vs State Of Arunachal Pradesh & Anr where the NHRC prevented the state of Arunachal Pradesh from repatriating over 30,000 members of the Chakma community

2. Enumeration of Refugees:

• Lack of refugee law makes it difficult to track the exact numbers of refugees and ascertain their conditions

3. Inconsistency:

• India’s ad hoc policy has led to inconsistency in dealing with refugees of different nationalities

4. There is a need for a proper formal structure for asylum management with rising number of refugees in India
5. Need to develop own policy on refugees that adapts to the situation in South Asia without imitating those models designed in the West. It is important to ensure legislated rights, freedoms and basic standards of living to refugees