Most countries are familiar with the word refugee but to understand the refugee saga in India it is important to know and understand its definition, as mentioned under the 1951 convention. Article 1(A)(2) of the convention defines refugee as, ‘who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group’. This definition of refugee and the laws governing this concept grew like the human rights law.
The roots of the modern refugee regime are considered to have been developed in the aftermath of the second world war. Refugees are guaranteed the right to seek asylum in foreign territory, in accordance with the state and international conventions.
Post-Partition refugees
Post-Partition in 1947 was the first time India saw the influx of refugees. People who crossed the newly formed boundaries of India and Pakistan - either by choice or forcibly, had to live as refugees. These refugees naturally became citizens of newly independent India. More than 100,000 Tibetans led by the Dalai Lama, fled Tibet and came to India seeking political asylum, which was granted to them on humanitarian grounds in 1959. This resulted in the souring of the Sino-Indian relations and war with China in 1962.
The third influx of refugees into India was during the Bangladesh war of independence, in 1971. They comprised Bengali refugees, including Bengali Hindus and Muslims, as well as tribal groups from East Pakistan and Bangladesh. The refugees were given the status of illegal immigrants and are used by political parties as their vote banks during elections.
Sri Lankan Tamil Refugees (1983, 1989, 1995) left their home due to the active discriminatory policies implemented by Sri Lankan governments. These refugees settled in south India, mostly in Tamil Nadu, without any voting or property rights. Refugees from Afghanistan also sought sanctuary in Delhi after their home country was invaded by the Soviets in 1979. India, for security reasons, was not in favour of granting refugee status to them, but the UNHCR issued refugee certificates to them.
The Rohingyas of Myanmar, one of the most persecuted refugee groups in current times, fled Myanmar in 2016 and 2017, after being subjected to gross abuse, violation of basic human rights, torture, persecution and statelessness. They mostly fled to Bangladesh and India. However, India has refused to grant them asylum on the grounds of threat to her security and has also stated that the policy of non-refoulement does not apply to India.
International laws on refugees & India’s policy
International law with respect to the protection of refugees is mainly contained in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol related to the same. The UNHCR (United Nations High Commissioner for Refugees) is the most important international body, taking care of and working for the protection of the refugees, by providing them assistance in the form of basic rights like food, shelter, medical and legal assistance.
However, one has to fall under the definition of ‘refugee’ as provided under the Article 1A (2) 1951 Convention read with the Protocol to get the said protection. This definition heavily relies on the phrase ‘well-founded fear’ and does not include persons who do not face such fear of persecution in their home country on the grounds of race, religion, nationality and membership of a particular social or political group.
India is not a party to, nor has acceded to the 1951 Convention and its Protocol. For this, the policy of non-refoulement is not binding on India. There is also an absence of specific national legislation on refugee matters. Despite this, India has been following the non-refoulement policy since 1947 and has given protection to a large number of refugees. She is also a party to certain core treaties which provide for this policy, thus making it her duty to provide and protect refugees’ basic human rights. Besides international protection, rights available to citizens under the Indian Constitution also apply to them, like Article 14.
The refugee situation in India is dealt with on an ad-hoc basis, which again, is tainted with political selectivism and political agenda. This is the foremost reason why India has been refusing to accept the Rohingya Muslims as refugees. The lack of legislation makes them an easy target for religious discrimination. The Citizenship Amendment Act, 2019, passed by the Modi government, is the best example of such religious discrimination.
Human rights of refugees (refugee rights v. citizen’s rights)
In India, refugee communities have been treated without clearly defined statutory laws and standards. This has led the subjects to seek inconsistent and arbitrary government policies. The government deals with such cases with laws of refugees on an ad-hoc basis. India is among the most prominent refugee-receiving countries in the world. She is not a signatory to the Refugee Convention of 1951, but has ratified a number of human rights treaties, which impose a positive duty on her in respect to providing protection to refugees.
Refugee law and human rights law are complementary to each other in nature and their main aim is to protect the individual. There are a few Articles of the Indian Constitution which apply equally to Indian citizens, as well as refugees on Indian soil. Article 21 is one such, which safeguards the right to life and personal liberty, irrespective of the fact of whether a person is a citizen or refugee. India has liberally decided to adopt the rules of natural justice, which allows the application of some of the Articles mentioned in the Constitution to the refugees as well.
India has ratified a number of international human right treaties on the basis of humanitarian grounds. Rights provided under Article 14, 21, 22, 25-28, 32 and 226 are provided to them. But rights such as right to employment or work permits cannot be guaranteed to refugees whereas, in the case of Indian citizens, the rights provided in Part III of the Indian Constitution are guaranteed to them. The six fundamental rights guaranteed under Part III to Indian citizens are the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights and the right to constitutional remedies.
Need for legislation
Firstly, in the light of humanitarian commitments and since India is not a signatory to the 1951 Convention and its 1967 Protocol, it is the dire need of the hour, to pass a well-defined policy/legislation that would protect refugee interests in general and offer them legal status.
Secondly, a major concern for refugees in India is the attitude and behaviour of citizens. They face discrimination and abuses even in India. This is why it is important to spread awareness regarding their refugee status, sensitisation of local institutions and neighbourhoods to accept them.
Lastly, India must follow a systematic process for refugee protection. This includes, most importantly, the determination of whether a person is a refugee or not, irrespective of their religion. This process must be undertaken together by both the UNHCR and India, without any discrimination on the grounds of religion, on a case-by-case basis.
It is important to determine whether a person is a refugee or an illegal immigrant because, even illegal immigrants and spies can enter India in the garb of a refugee. So, once it is determined that a person is a refugee, then they can be protected and assisted by India, and India will not send them back because although she is not a party to the 1951 refugee, she is a party to several core treaties which provides that states cannot send back people seeking asylum in India if they fear persecution in their country of origin like the UNCAT (UN Convention Against Torture), and this is binding on India.
The writer is faculty, ICRI Group, and Legislative Consultant of Member of Parliament Rajmohan Unnithan, Lok Sabha
