INDIA AND ITS REFUGEES
It is an unfortunate reality that conflict and war have captivated humankind across borders. Persecution of individuals and groups is taking place in various jurisdictions based on their caste, gender, ethnicity, religion, and political opinion. The dimensions of anthropological migration have been many, but in the case of refugees, persecution has deprived them of their fundamental life security in their country of origin. Since time immemorial, India has been home to many refugees. But lately, India’s response to refugee influxes and their subsequent protection hasn’t been in accordance with the constitutional norms and the global standards of refugee law. Thus, this paper broadly deals with India’s standpoint on refugees, and examines India’s failure of absorbing refugees from diverse backgrounds along the lines of the international refugee law.
United Nations High Commissioner for Refugees (UNHCR) has defined refugees as people crossing international borders and finding safety in another country to escape war, persecution, or violence in their country of origin (Maguire, 2017). The problem with the current framework for international refugee protection is two-dimensional. One dimension relates to the security narrative wherein refugees are alleged as a threat to national security. The second dimension is the humanitarian and the human rights narrative in which refugees are seen as anti-national objects of human right defenders. They are seen as anti-national also because the government in power of their respective countries turn apprehensive to render the financial support required for refugee protection (Ahmad, 2017). Bearing in mind these conundrums, it wouldn’t be wrong to say that the 1951 UN Refugee Convention that pertains to the international refugee protection framework stands as a strong foundation for the status of the refugees across the globe. This key Convention is seen as Eurocentric which was initially limited to protect European refugees before 1951. India is not a party to the 1951 Refugee Convention as it abstained against the resolution by United Nations General Assembly (UNGA) for creating the office of UNHCR. During that time, the 1951 Refugee Convention was understood to be less incorporative and hence, it was amended by its 1967 Protocol. 1967 Protocol removed the time and geographical limits stated in the 1951 Refugee Convention and despite this, India did not become a party to the Convention and Protocol. Though India is not a signatory to the Refugee Convention and its Protocol, it is a signatory to the 1984 Convention Against Torture (signed in 1997) and New York Declaration for refugees and migrants which comprises the element of non-refoulement. Non-refoulement entails that India cannot force any asylum seekers and refugees to return to the country where they faced persecution.
India does not have a specific law to govern refugees. Law and order come under the State subject in accordance with the Indian Constitution while international relations and international borders are under the jurisdiction of the Union government. As a result, there is a dual governance to deal with the refugee influx into India (Pooja, 2019). The refugee crisis is a humanitarian issue wherein the Union and the State administration have to work together to strike a balance between national security and human rights. Year after year, India has seen incoming of large number of refugees. India’s independence and the succeeding partition in 1947 resulted in the creation of millions of refugees who fled to India from Pakistan for safety. This refugee influx was happening at a time when India was not being able to sustain its own population in terms of food and other basic amenities. Nevertheless, India welcomed the partition refugees and continued to receive refugees from across the world. In the late 1950s, Dalai Lama and his disciples took political asylum in India as they were politically and religiously persecuted in Tibet after an unsuccessful uprising against the Chinese occupation of Tibet. India also saw a refugee influx during the 1971 Bangladesh War of Independence. For many years, India has attempted to absorb refugees from diverse backgrounds, for example, Chakma refugees who escaped Bangladesh mainly to the north-eastern states starting 1964, Tamilian refugees who were persecuted because of ethnic violence beginning 1983, and several others (Anoushka, Simran, 2020). Statistically, India has 1,95,103 refugees currently residing within its territory (UNHCR, 2019).
The absence of national legislation for refugee protection has led to an unparalleled relationship between the Indian government and the UNHCR. The refugees in India are bifurcated into two parts. First is the ‘mandate’ population which involves the refugees from the non-neighbouring states and Myanmar such as Somalis, Palestinians, Eritreans, Chins, and Iraqis. These refugees can apply for refugee status under the UNHCR and are omitted from the support of the Indian government. The other population of refugees is the ‘non-mandate’ population which avails support from the Indian government, such as Sri Lankan and Tibetan refugees (Amnesty, 2020). All the foreigners in India including the persecuted refugees are covered under the Foreigners Act, 1946. This Act covers all the foreigners entering India from the lens of national security and it makes no differentiation of refugees on humanitarian grounds. Refugees in India are sheltered under Articles 14, 21, and 25 of the Indian Constitution which are fundamental rights of equality of law, of life and liberty, and of practice and propagate one’s own religion, respectively. This protection given to refugees under the India Constitution has barely strengthened their status in India. Refugees in India face hurdles in accessing education and health services. This happens primarily because of linguistic barriers, complex process of documentation, and the notion of intolerance against the refugees. Refugees in India are also not allowed to work in the formal sector as there is a lack of work permits from the Indian government. This leaves the refugees open only to the unstable informal jobs which ultimately impacts their maintenance in a country where they came with virtually nothing. Countries such as Uganda has succeeded in displaying consistent interests to protect its refugees with its robust refugee protection system. And in contrast, India has hardly provided any opportunities to its refugees to earn and reconstruct their lives. One noteworthy step taken in India in the direction of refugee legislation was Shashi Tharoor’s Asylum Bill, 2015. It defined a refugee as someone who left the country because of a threat to life, physical integrity, or freedom resulting from generalised violence and events disturbing public order (The Asylum Bill, 2015). This bill was perceived by scholars as far from ideal as a refugee law. The interpretation of the Asylum Bill, 2015 was professed to be very tricky and broad as it was very indefinite to visualize what constituted public order, generalised violence, and physical integrity.
The key objective of the refugees after fleeing their country of origin is to gain citizenship in another country. With the introduction of the Citizenship (Amendment) Act, 2019 (CAA) by the Narendra Modi government, debates over who is an Indian citizen have resurfaced. The CAA which is an amendment to the Citizenship Act, 1955 concentrates on giving prompt Indian Citizenship to Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis encountering religious persecution in Afghanistan, Pakistan, and Bangladesh, and who entered the territory of India on or before 31st December 2014 (Links, 2019). Supporters of the CAA have argued that the Citizenship (Amendment) Act, 2019 opens an opportunity for the persecuted minorities in the Indian neighbourhood as CAA provides citizenship by naturalization in six years to those who came to India on or before December 31st, 2014. However, the Act includes only Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis, and citing this, CAA has been argued as a refugee law on the basis of hate as it encompasses religion as the criterion for citizenship. The main stated condemnation of CAA is that it goes straight to citizenship and disregards the basic protection and rights that are required for the citizens. The efficacy of CAA has been interrogated for a lot of pertinent issues that it inherently bears, such as – what are the implications of CAA on other refugees in India who remain uncovered on the basis of religion by the Act? If it is assumed that CAA is indeed concerned about persecuted minorities, then which population is left out? Does CAA assume that every religious minority in the specified countries is subjected to persecution? What about refugees who have fled their countries of origin on other grounds? These are a few questions that particularly need to be enquired and brooded upon. Many critics have expressed that CAA violates the fundamental right to equality for every individual of the Indian Constitution (Article 14) as it evidently discriminates against persecuted Muslims and Jews of Afghanistan, Bangladesh, and Pakistan, for instance, Ahmadiyya of Pakistan. The CAA also overlooks refugees of the Indian subcontinent who do not belong to the Muslim-dominated countries, for instance, Sri Lankan Tamils and Rohingyas from Myanmar. The Citizenship (Amendment) Act, 2019 when clubbed with the government’s intention to implement the National Register of Citizens (NRC) and National Population Register (NPR) will lead to large scale expatriation of refugees who will not be covered under CAA and NRC (Kamdar, 2020). Along with this, unlike the non-Muslim refugees of Afghanistan, Bangladesh, and Pakistan, the Muslims will not be protected by the CAA. The Act is ambiguous as what constitutes the ‘persecuted minority’ remains unclear and this leaves India, which already lacks a refugee framework, in an unfortunate state. There is not only an ardent need to have a domestic refugee law but to have a national legislation for refugees that is all-inclusive.
The Indian government’s unwillingness to sign the 1951 Refugee Convention and rolling-out a domestic refugee legislation leaves the refugees in India to be treated by the government of India on a case-by-case basis. This treatment continues to alter with the change of government in power and it is disappointing to see how refugees are exposed to the impulses of the government in power. India violated its deeply-held principle of non-refoulement when the Central government argued for the deportation of 40,000 Rohingyas located in India based on the suspicion of their ISI linkage. UNHCR has pronounced the Rohingyas as the most persecuted community across the globe. In 2017, 70,000 Rohingya refugees fled Myanmar’s Rakhine state because of state-sponsored mass killings of Rohingyas in the region (BBC, 2020). There is a whole bunch of evidences of animosity when it comes to Rohingya refugees in India. These refugees are predominantly being targeted by social media and hate speech which has in due course led to their side-lining and forcible returns to Bangladesh where the situations for refugees is not very promising. This scenario is supposedly due to religion biases and unproven ISI threats by Rohingyas. Furthermore, the claims from Indians for asylums and refugee recognition in other countries have been increasing. Studies have shown a significant increase in the Indian asylum seekers and refugee claimants from 4,722 in 2008 to 51,769 in 2018 (Mint, 2019). This is a consequence of poor economic and employment prospects, political instability, and implementation of CAA and NRC.
Trans-border mobility is exponentially growing and, in this view, it is significant for host countries to have a specific refugee protection law. The diverse challenges concerning the refugee crisis need different responses from the global fraternity. In light of these challenges, it becomes considerable for India to become a party to the 1951 Refugee Convention. In doing this, India will not only conform to its refugee and humanitarian practice but will certainly see support for the permanent seat of the UN Security Council. Under the present system for refugees, if it had not been for the third-party intervention, these refugees in India would have had serious refoulement risk. With an eye towards responding to the refugee crisis, consistent and resilient working is needed by the international and national governance institutions without disregarding the economic burden of India. The need of the hour in the country is a well-built framework that will be advantageous to the refugees to shut the gap pertaining to their protection.
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About the author: Poorva Israni is currently in her 1st year of Master's in Public Policy from JSGP. She is keen on exploring the domains of Renewable Energy, Public Health, and Refugees.