Refugees and India’s Refugee Policy

Author:

Dushyant Mittal, Guru Gobind Singh Indraprastha University

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The paper discusses and defines the Refugee condition prevalent in India and how effectively and in accordance tot the International Standards has the country being able to manage the Refugee population. While examining the different refugee inbursts that the country has faced over the time and how it has responded. Finally, the last part and conclusion deals with why India doesn’t implement the International Laws in its own Municipal Law.

Introduction

The basic objective of immigration, where a person leaves his home, his origin country moving to a destination or foreign country is to gain citizenship or nationality of the aforementioned destination country. It requires paramount understanding and appreciation that a person become a refugee because of circumstances, which are beyond that person’s control, often poignant such as human rights violations, socio-economic and political insecurity etc.

Refugee

Refugee can be defined as “A person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership 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.”[1]

In the Case of INS vs. Cardoza Fouseca[2]“well-founded fear” was defined as “so long as an objective situation is established by the evidence, and there is no requirement to show that the situation will probably, result in persecution….”

The above was considered in R vs. Secretary for the Home department[3]that the ‘test’ should consider whether there is an evidence of a “real & substantial danger of persecution”

Illegal Economic Migrants

Any person who leaves his/her country of origin without due authorization from either the authorities in country of origin or the country of destination, with the sole motive of improving his/her economic prospects. Such person shall not be termed as a refugee.[4]

Internally Displaced Persons (IDP)

IDPs are persons who do not flee beyond the border of their origin country, but rather from on region to another of the county. They are not protected by International Law or eligible to receive many types of aid because they are legally still under the protection of their government.[5]

1951 Refugee Convention and 1967 Protocol

It gives a definition for the word ‘refugee’ and outlines the rights of refugees, and also provides the legal obligation of States to protect them. The core principle of the convention is ‘non-refoulment’, which states that a refugee shall not be returned to a country where they might face serious threats to their life or freedom.[6] The following has been implemented as a customary international law. It also formulates the legal framework for the United Nations High Commissioner for Refugees (UNHCR).

The 1967 Protocol relating to the Status of Refugees is an international treaty to be read with the 1951 Refugee Convention. It removes the Refugee Convention’s temporal and geographical restrictions so that the Convention may be applied universally.[7] 149 countries have become a part of the same.

Global Compact on Refugees

The Global Compact on Refugees (GCR) provides a framework for governments and International organizations to ensure support to the host countries for providing refuge and asylum.[8] India played a major part in drafting the GCR. It aims at easing the pressures on host countries, enhancing refugee self-reliance and expanding access to third-country solutions all the while enhancing international cooperation in response to refugee crisis.[9]

Influx of Refugees in India

The Indian Government faced an unprecedented scale of problem post India-Pakistan Partition in 1947. Social reformers like Kamladevi Chattopadhyay and many others played a crucial role in the rehabilitation of the refugees. In 1964-64 Chakma and Hajong people of Chittagong hills of Bangladesh migrated to India after facing religious persecution.[10]In 1959 Dalai Lama and his 1 lakh followers were granted asylum in India when they were persecuted by Chines authorities.

The military repression amidst the Bangladesh War in 1971 more than 10 million refugees migrated to India. The Sri Lankan Civil War led to migrations in huge numbers of refugees who settled in Tamil Nadu. According to the UNHCR, India has approximately 16000 registered Rohingya refugees who are the residents of Rakhine province of Myanmar. And even larger number of illegal Rohingya refugees.

India’s Refugee Policy

India has been over the time a home for a large and diverse number of refugees; however, it has not yet given a formal shape to the practices that it adopts in ‘refugee regime’ in the form of a separate statue. Further in absence of separate or specific laws to govern the refugees, laws like The Criminal Procedure Code, The Indian Penal Code, The Evidence Act etc. apply to refugees as well.

Constitution of India

The provisions relating to citizenship are defined under Article 5 to 11 in Part-II of the Constitution. It provides for single citizenship for the entire country. Article 5 states that at the commencement of the Constitution, every person who was born in territory of India, either of whose parents were born in India, or who has been a resident for the preceding five or more years, shall be a citizen of India.

Article 14 and Article 21 provide for equality before law and equal protection of laws and prevention of life and personal liberty of the persons except according to the provisions of law.

Standard Operating Procedures

Standard Operating Procedures are issued by the Ministry of Home Affairs to deal with the Foreign Nationals who claim to be refugees. It stipulates that the cases which prima facie appear to be justified on the grounds of a well-founded fear of persecution on any account can be recommended by either the Stare Government or Union Territory Administration to the Ministry for grant of Long-Term Visa (LTV) after due verification.[11]

India and UNHCR

Even though 149 countries have already signed the 1951 Refugee convention and are in direct coordination with the UNHCR, India still remains a non-party to the convention. UNHCR works in collaboration with the Government of India, particularly the Ministry of External Affairs and the Ministry of Home Affairs, including police authorities. UNHCR participates in the UNDAF process, particularly the clusters on gender, education, HIV and AIDS and disaster management.[12] This begs the question as to why India has not yet signed the Convention yet.

The 1971 exodus wherein the military repressions in then-East Pakistan led to almost 10 million people[13] seeking refuge in India. Further the absence of any aid being provided by the UNHCR to the Indian Government, along with UNHCR’s representative visit to East Pakistan continues to be a crucial event that till date determines India’s attitude towards the International Refugee Regime.

Further the Government of India goes beyond the duties conferred by the UNHCR relating to the mandate population i.e., the refugees from non-neighboring countries like Chins, Somalis, Iraqis, Palestinians and provides protection to even the non-mandates like Sri Lankans and Tibetans, that are excluded from the UNHCR’s mandate.

Many scholars have suggested that India does not have adequate infrastructure to undertake the responsibility of a large number influx of refugees, which may become a troublesome case for India if it signs the Convention and has to fulfil the commitment to the principle of non-refoulment. And the failure to which might attract international criticism for the host nations.

In Dongh Lian Kham vs. Union of India[14] the Supreme Court stated that “the principle of non-refoulement is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality.” The Supreme Court in the case of NHRC vs. Arunachal Pradesh[15]held that the “state is bound to protect the life and liberty of every human being, citizen or not.” NHRC prevented the state from repatriating over 30000 members of the Chakma community.

Conclusion

India although is not a signatory to the 1951 Convention or the 1967 Protocol, remains a signatory to the United Nations and World Conventions on Human Rights, and it is thus the latter which gives rise to the obligations in regard to refugees in India. India further voted in affirmation to the Universal Declaration of Human Rights (UDHR), which grants rights of all persons, citizens and non-citizens alike.

Also, it must be noted that India has always fulfilled its duty in regards to providing refuge and asylum to any and all that have entered the Indian territory and at times even going beyond the UNHCR mandate to provide protection to the non-mandates.

Although there is a need for a proper formal structure for asylum management with rising number of refugees in India. It needs to develop its own policy on refugees that adapts to the situation in South Asia without imitating those models designed in the West.

References

[1] Article 1 Para. 2 – United Nations Convention 1951 [2] 480 U.S. 421 (more)107 S. Ct. 1207 [3] EWCA Civ 5, 1 QB 26 [4] Available at (https://www.indianbarassociation.org/indias-refugee-policy/) [last visited on 01. Jan 2021) [5] Available at (https://www.unrefugees.org/refugee-facts/what-is-a-refugee/) [last visited on 31. Dec 2020) [6] Available at https://www.unhcr.org/1951-refugee-convention.html (last visited on 01. Jan 2021) [7] Available at https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol (last visited on 30. Dec 2020) [8] Available at https://globalcompactrefugees.org/article/global-compact-refugees (last visited on 03 Jan 2021) [9] Available at https://www.unhcr.org/the-global-compact-on-refugees.html (last visited on 03 Jan 2021) [10] Available at https://blog.forumias.com/indias-refugee-law-and-policy-an-analysis/ (last visited on 03 Jan 2021) [11] Available at https://pib.gov.in/newsite/PrintRelease.aspx?relid=108152 (last visited on 02. Jan 2021) [12] Available at https://www.unhcr.org/4cd96e919.pdf (last visited on 28 Dec 2020) [13] Available at https://amnesty.org.in/world-refugee-day-what-you-must-know-about-refugees-in-india/ (last visited on 30. Dec 2020) [14] WP (CRL) 1884 of 2015 [15] 1996 SCC (1) 742; Writ Petition (C) No. 720 of 1995

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