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DAILY NEWS ANALYSIS

  • 25 August, 2021

  • 25 Min Read

Refugee crisis In India: Essay

Introduction

  • There are numerous aspects pertaining to refugees which are of major importance both to India, as a country and to the refugees, particularly in the context of law enforcement.
  • Given the security scenario prevailing in the country, particularly arising out of the role of some of the neighbours in this regard, an utterly humanitarian matter like the ‘refugees’ has come to be influenced by considerations of national security.
  • While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government.
  • This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement.
  • Also, all policies governing refugees are laid down by the Union government though the impact of the refugee problem as such has to be borne by the State administration to a greater degree if not wholly.
  • A proper understanding of the circumstances pertaining to specific refugee situations by the concerned law enforcement agency or even by an individual official, would pave the way for taking care of both the security as well as the humane aspects- from both the humanitarian as well as the human rights angle.
  • At the same time, knowledge on the part of all those who handle refugees- whether they are part of the government machinery or outside it (including international agencies, NGOs etc) of the laws of the land and also how the security and enforcement personnel function, would considerably facilitate looking after the refugees.

Definition of Refugee

  • The term ‘Refugee’ has a particular meaning in international law and its legal definition is laid down in the United Nations 1951 Convention relating to the Status of Refugees (to be referred to as “1951Convention”) and its 1967 Protocol.
  • Article 1 para. 2 of the 1951 Convention defines the ‘refugee’ 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.”
  • Therefore, the need to give due importance to humanitarian and human rights aspects in dealing with refugees cannot be over-stressed.
  • Thus, it may be noted that there are well-defined and specific grounds, which have to be satisfied before a person can qualify to be a ‘ refugee’.

What is the difference between Refugees and Other Foreigners?

  • While all persons who are not Indian citizens are ‘Foreigners’ including refugees, it is necessary to clearly distinguish the latter from other categories of ‘foreigners’.
  • Unless the distinction between the ‘refugees’ on the one hand and all other categories of ‘foreigners’ on the other, is clearly brought home, our attempts to sensitise people in the various strata of our society will remain inadequate.
  • There are at least three well-defined groups of foreigners who are different from ‘refugees’.

A. Temporary Residents, Tourists and Travellers

  • Persons under this category come to India for a specific purpose and duration with the prior permission of the Government of India.
  • However, in certain circumstances any one in this category could become eligible for being a refugee, if, during their sojourn in India, the situation in their country of origin becomes such as to endanger their lives and liberty if they were to return to their country.
  • Many Iranians who had come to India for studies during the regime of the Shah of Iran, have stayed back in India as refugees after the fall of Shah of Iran and a revolutionary government took his place in 1978.
  • Even many Afghans who are stranded in India due to Taliban offensive of 2021 are facing the same situation.
  • It should be mentioned that no one can automatically claim the right for ‘refugee status’ under this category.
  • It is the prerogative of the Indian government to satisfy themselves and decide each case according to merits and circumstances.

B. Illegal Economic Migrants

  • Any foreigner who might have left his or her country of origin without due authorisation from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee.
  • After all, there is no element of persecution or coercion compelling the individual to leave the country of origin.
  • Illegal migrants from Bangladesh are examples of this category.
  • Such persons have to be treated as illegal and unauthorised entrants into the country and dealt with under the appropriate laws applicable to foreigners like Foreigners Act, Indian Passport Act etc. besides the IPC, Cr.PC etc.

C. Criminals, Spies, Infiltrators, Militants etc

  • None of these can ever become eligible to be refugees.
  • They have to be dealt with under the provisions of the Indian criminal laws as well as any other special laws in force even though some of them may be in possession of valid travel documents.

D. Internally Displaced Persons (IDP)

  • Those persons who are fleeing persecution and human rights violations from one region of the country and have sought refuge in another region of the same country, fall under this category.
  • Such persons cannot be categorised as ‘refugees’ as they have not crossed any international border.
  • Moreover, they have the protection of their national government.
  • These persons are categorised as ‘internally displaced persons’ (IDP).
  • Kashmiris who have been forced to flee from Jammu and Kashmir and who have settled in other parts of India fall under this category.
  • Incidentally, in many African countries, the IDPs are also treated as ‘refugees’ within the ambit of the 1951 Convention.

Refugee Crisis in India

  • India has been home to refugees for centuries.
  • From the time when almost the entire Zorastrian community took refuge in India fleeing from the persecution they were then subjected to on religious grounds in Iran, India has, from time to time continued to receive a large number of refugees from different countries, not necessarily from the neighbouring countries alone.
  • The most significant thing which deserves to be taken note of is that, there has not been a single occasion of any refugee originating from the Indian soil except the transboundary movement of the people during the partition of the country in 1947.
  • On the other hand, it has invariably been a receiving country and in the process, enlarging its multi-cultural and multi-ethnic fabric.
  • In keeping with its secular policies, India has been the home to refugees belonging to all religions and sects.
  • It is relevant to point out that since its independence India has received refugees not only from some of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.
  • The South Asian sub-continent has often witnessed situations where refugees from one or the other neighbouring countries have crossed over to India.
  • Considering the sensitivities of national and regional politics in the sub-continent, the problem of refugees crossing over to India cannot be totally disassociated from the overall security issues relevant locally.
  • At the end of 1999, India had well over 2,51,400 refugees, who do not include those from countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.

How does India accord Refugee Status?

  • Even though India has been the home for a large number and variety of refugees throughout the past, India has dealt with the issues of ‘refugees’ on a bilateral basis.
  • Refugees are no doubt ‘foreigners’. Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners.
  • This is because there is no separate law to deal with ‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis.
  • UNHCR often plays a complementary role to the efforts of the Government, particularly in regard to verification about the individual’s background and the general circumstances prevailing in the country of origin. That agency also plays an important role in the resettlement of refugees etc.
  • It may be restated for purposes of clarity and understanding that a refugee is defined as one who is outside the country of nationality (or even country of habitual residence) due to one of the five grounds, namely, a well-founded fear of persecution on the basis of religion, race, nationality or membership of a political or social group.
  • In some countries, a person who flees his home country because of armed conflicts or wars or other generalised violation of human rights and who may not be targeted on account of any of the five grounds specified above, is excluded from the purview of the above definition of ‘refugee’.
  • In many countries a difference is sought to be made between persecution effected by State agents and the one effected by non-state agents as may be the case in places where ‘rebel’ ‘terrorist’ and such other groups are active. Under such circumstances it is only those who are affected by the action of the State agents who are held to fulfill the definition of ‘refugee’ and not the latter.
  • One of the principal elements to satisfy a claim to refugee status is that the claimant must be ‘genuinely at risk’. Various legal “tests” have developed which concern the standard of proof that is required to satisfy what constitutes being genuinely at risk or having a genuine well founded fear of persecution. Some of these tests have been articulated by courts in a number of countries.
  • In the case of India, the decision as whether to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it.
  • The Government of India (GOI) may be often seen as following a policy of bilateralism in dealing with persons seeking to be refugees.

Afghanistan Refugees

  • For example, Afghan refugees of Indian origin and others, who entered India through Pakistan without any travel documents, were allowed entry through the Indo-Pakistan border till 1993.
  • Most of the refugees had entered India through the Attari border near Amritsar in Punjab.
  • Subsequent to 1993, the Government altered its policy of permitting Afghan refugees freely into India.
  • In the case of a large number of them (many of them were Afghan Sikhs and Afghan Hindus) who had to flee from Afghanistan under circumstances which fulfilled one or more of the grounds specified earlier for being treated as a ‘refugee’, the GOI did not officially treat them as refugees.
  • However, the UNHCR with the consent of the GOI, recognised them as refugees under its mandate and is rendering assistance to them.
  • In such cases, even though the local Government is kept in the picture, the UNHCR becomes responsible to look after them as well as ‘administer’ them and also to ensure that such refugees do not in any way violate the code of conduct governing them.

Myanmar and Sri Lankan Refugees

  • In contrast, in 1989, when the Myanmar authorities started suppressing the pro-democracy movement in that country and about 3,000 nationals of that country sought refuge in India, the GOI declared that in accordance with well accepted international norms defining refugee status, no genuine refugee from Myanmar would be turned back and in fact, they were accepted as refugees by the GOI.
  • Similar is the case of Sri Lankan Tamil refugees crossing the sea to enter the southern Indian State of Tamil Nadu. The Government of India followed a specific refugee policy regarding Sri Lankan refugees and permitted them entry despite the fact that the refugees did not have travel documents.
  • In cases where the Government of India recognises the claim of refugee status of a particular group of refugees, there is minimal interference if any, caused to the refugees. This is the case even though there may be no official declaration of any policy of grant of refugee status to that group.
  • However, there are instances where refugees recognised by the Government of India and issued with valid refugee identity documents by the government, are later prosecuted for illegal entry/over stay.
  • The National Human Rights Commission had taken up successfully the cause of a number of Sri Lankan Tamil refugees who had been likewise prosecuted.

India’s Refugee Law

  • India does not have on its statute book a specific and separate law to govern refugees.
  • In the absence of such a specific law, all existing Indian laws like The Criminal Procedure Code, The Indian Penal Code, The Evidence Act etc. apply to the refugees as well.
  • Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, India is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters.
  • India’s obligations in regard to refugees arise out of the latter.
  • India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves and supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates particular interest and greater commitment to refugee matters.
  • India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all persons, citizens and non- citizens alike. Article 13 of the Universal Declaration of Human Rights guarantees ‘Right to Freedom of Movement’, Article 14 ‘Right to Seek and Enjoy Asylum’ and Article 15 the ‘Right to Nationality.’
  • India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967.
  • India ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the International Convention on Economic, Social and Cultural Rights (ICESCR) in 1976. Article 12 of the ICCPR deals with ‘Freedom to leave any country including the person’s own’ and Article 13 ‘Prohibition of expulsion of aliens except by due process of law’.
  • India ratified the UN Convention on the Rights of the Child in 1989. Under Article 2 A of the UN Convention on the Rights of the Child, the State must ensure the rights of “each child within its jurisdiction without discrimination of any kind”; Article 3 lays down that “In all actions concerning children the best interest of the child shall be a primary consideration”; Article 24 relates to ‘Right to Health’; Article 28 to ‘Right to Education’ and Article 37 to ‘Juvenile Justice’.
  • India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1974 under which Article 1 imposes legally binding obligation.
  • India accepted the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.
  • Refugees encounter the Indian legal system on two counts. There are laws which regulate their entry into and stay in India along with a host of related issues. Once they are within the Indian territory, they are then liable to be subjected to the provisions of the Indian penal laws for various commissions and omissions under a variety of circumstances, whether it be as a complainant or as an accused. These are various constitutional and legal provisions with which refugees may be concerned under varying circumstances.

Constitutional Provisions for Refugees

There are a few Articles of the Indian Constitution which are equally applicable to refugees on the Indian soil in the same way as they are applicable to the Indian Citizens.

  • The Supreme Court of India has consistently held that the Fundamental Right enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens.
  • The various High Courts in India have liberally adopted the rules of natural justice to refugee issues, along with recognition of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role in the protection of refugees.
  • The Hon’ble High Court of Guwahati has in various judgements, recognised the refugee issue and permitted refugees to approach the UNHCR for determination of their refugee status, while staying the deportation orders issued by the district court or the administration.
  • In the matter of Gurunathan and others vs. Government of India and others and in the matter of A.C.Mohd.Siddique vs. Government of India and others , the High Court of Madras expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will.
  • In the case of P.Nedumaran vs. Union Of India before the Madras High Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees who did not want to return to continue to stay in the camps in India.
  • The Bombay High Court in the matter of Syed Ata Mohammadi vs. Union of India , was pleased to direct that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The Hon’ble Court further permitted the refugee to travel to whichever country he desired. Such an order is in line with the internationally accepted principles of ‘non-refoulement’ of refugees to their country of origin.
  • The Supreme Court of India has in a number of cases stayed deportation of refugees such as Maiwand’s Trust of Afghan Human Freedom vs. State of Punjab; and, N.D.Pancholi vs. State of Punjab & Others .
  • In the matter of Malavika Karlekar vs. Union of India, the Supreme Court directed stay of deportation of the Andaman Island Burmese refugees, since “their claim for refugee status was pending determination and a prima facie case is made out for grant of refugee status.”
  • The Supreme Court judgement in the Chakma refugee case clearly declared that no one shall be deprived of his or her life or liberty without the due process of law. Earlier judgements of the Supreme Court in Luis De Raedt vs. Union of India and also State of Arunachal Pradesh vs. Khudiram Chakma, had also stressed the same point.

Arrest, Detention and Release

  • There is yet another aspect of non-refoulment which merits mention here.
  • The concept of ‘International Zones’ which are transit areas at airports and other points of entry into Indian territory, which are marked as being outside Indian territory and the normal jurisdiction of Indian Courts, is a major ‘risk factor’ for refugees since it reduces access of refugees to legal remedies.
  • This legal fiction is violative of the internationally acknowledged principle of non-refoulement.
  • In the matter of a Palestinian refugee who was deported to New Delhi International Airport from Kathmandu was sent back to Kathmandu from the transit lounge of the Airport.
  • He was once more returned to New Delhi International Airport on the ground of being kept in an ‘International Zone’.
  • Such detention is a classic case on the above point barring legal remedies to the detained refugee. The only relief in such a case is through the administrative authorities.

  • The Indian Constitution does not contain any specific provision which obliges the state to enforce or implement treaties and conventions.
  • A joint reading of all the provisions as well as an analysis of the case law on the subject shows international treaties, covenants, conventions and agreements can become part of the domestic law in India only if they are specifically incorporated in the law of the land.
  • The Supreme Court has held, through a number of decisions on the subject that international conventional law must go through the process of transformation into municipal law before the international treaty becomes internal law.
  • Courts may apply international law only when there is no conflict between international law and domestic law, and also if the provisions of international law sought to be applied are not in contravention of the spirit of the Constitution and national legislation, thereby enabling a harmonious construction of laws.
  • It has also been firmly laid that if there is any such conflict, then domestic law shall prevail.

Role of Border Guarding Forces and Law Enforcement Officials

  • It will be useful to acquaint oneself with the realities on ground when a refugee attempts to cross or actually crosses over to India.
  • The Border Security Force (BSF) which guards the India-Pakistan and the India-Bangladesh borders, the Indo-Tibetan Border Police Force (ITBPF) which is deployed along the India-Tibet (China) border and the Assam Rifles (AR) which is deployed along the India-Myanmar border, are usually the first representatives of the Indian system which refugees may encounter when they enter or exit India by land routes.
  • Vastness and, sometimes even the treacherous nature of the border terrain make it difficult to physically man the entire international borders of India.
  • The gaps in the border left unguarded, are often used by refugees to illegally enter/exit the Indian territory.
  • If caught while entering illegally, the authorities may return the refugee across the border, sometimes even without ascertaining relevant refugee claims of persecution in the country of origin, though this is not in strict conformity with the internationally acknowledged principle of non-refoulement.
  • When this happens, the refugee may face ‘forced return’ to the country where he/she came from.
  • In the alternative, the border guarding force may interrogate and detain the person as permissible under the law of the land, at the border itself, pending decision by the administrative authorities regarding his plea for refuge/ asylum.
  • In all such cases, the person will have to be ultimately handed over to the local police who will exercise their powers under relevant provisions of the Criminal Procedure Code (Cr.PC).
  • It goes without saying that there will be circumstances and occasions when the authorities may have to be satisfied about the bona fides of the person concerned.
  • It is part of the duty and responsibility of the authorities to rule out any criminal or anti-national taking the plea of a ‘refugee’ and entering the country for mala fide purposes.
  • If caught while illegally exiting India, the person (refugee) may be handed over to the local police for investigation and for further action according to law.
  • In cases where the refugee is found in possession of invalid travel documents or in cases of violation of any other Indian law, the refugee may be detained by the border authorities at the border post itself and handed over to the local police for investigation.
  • In all such instances, after the registration of a case on the basis of a First Information Report, the police would lodge the accused refugee in the area prison and produce him/her in the local court for trial in conformity with the provisions of CrPC..
  • Immigration and Custom officials come into the scene at the point of entry into India through seaports and airports. In cases where a refugee is detected while entering/ exiting established seaports and airports on Indian territory, without valid travel documents, he/she is immediately detained by the Immigration/ authorised Custom officers and prima facie investigated.
  • In cases of illegal entry, the immigration authorities usually take steps to deport the refugee immediately to the country where he or she last came from. This, it may be mentioned, is not in conformity with the principle of non-refoulement.

Source: T. Ananthachari


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