India has not signed 1951 Refugee Convention. There is no specific domestic legal framework to protect the rights of refugees and asylum seekers in India. This has led to legal insecurity of refugees’ status and difficulty to access in refugee rights. At international human rights forums, India asserts to have a permanent seat in the UN Security Council, but disregard of refugees’ rights at home weakens her claim. As a result, there is unequal treatment to refugee groups argues Amit, in this in-depth research article, which is a part of the special feature on World Refugee Day by Different Truths.
India is a home of millions of refugees and asylum seekers such as Tibetans, Afghani, Burmese, Pakistani, Bangladeshi, Sri Lankans and Africans. Antonio Guterres, United Nations High Commissioner for Refugees has applauded India’s refugee’s policy 1 . In fact, Indian hospitality of welcoming foreigner is rooted in ancient Indian tradition of ‘Athithi Devo Bhav’ meaning Guest is (our) God. However, ironically, this kind gesture has not been translated into the legal protection and equal treatment towards to all groups of refugees taken shelter in India. All is not well with India’s legal gesture towards its refugees and asylum seekers.
India has not signed 1951 Refugee Convention (which is legally binding principals for refugee protection) and there is no specific domestic legal framework to protect the rights of refugees and asylum seekers in India. This has led to legal insecurity of refugees’ status and difficulty to access in refugee rights. Though, at international human rights forums, India asserts to have a permanent seat in the UN Security Council, however, disregard of refugees’ rights at home weakens India’s claim.
This article highlights the importance of legal status of refugees and advocate for a national policy on refuges in India. The article underlines that the refugees’ treatment in India must be based on International standards to avoid unequal treatment to refugee groups and for better protection of refugees’ rights.
In September 2014, union home minister Rajnath Singh made a statement that requests from refugees for long-term visas and citizenship in India would be processed within two months, if all documents are in place. This is a welcome move towards the protection of the refugees’ rights 2 . However, what is troubling is that the current move is directed towards only Sindhi and Bengali communities from neighbouring countries, who have taken refuge in India. Not all groups of refugee and asylum seeker are met with such equal treatment such as refugees from Afghanistan, Myanmar and Somalia. Their existence got stuck in uncertain legal limbo.
Who are Refugees?
According to the 1951 Refugee Convention, a refugee is 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, is unwilling to avail himself of the protection of that country’.
Defining the Term
Currently, a refugee is an undefined term in India since there is no national policy on refugees. This is essential for any legislation making any provision for refugees, since the term is not easily defined.
Why this Situation Prevails?
The Registration of Foreign Act, 1939, the Foreigners Act, 1946, and the Foreigners Order, 1948, are the primary legal documents dealing with the treatment with foreigners in India (Nair, 2007, p.6). Due to the absence of specific laws related to refugees, refugees and asylum seekers are regulated under the Foreigners Act, 1946.
However, the problem with this act is, it does not take special situation of refugees and refugees’ rights and treats refugees and asylum seekers with tourist, illegal immigrants, economic immigrants alike. Point to be noted here that the Foreigners Act, 1946, and the Foreigners Order, 1948, grant Indian government the power to restrict the movement of foreigners inside India, to limit employment opportunities and ability to return – a foreigner who violate these laws. These are clear violations of 1951 Refugee Conventions thus violations of refugees rights. Due to the lack of specific refugee policy, in most cases, fate of refugees depends upon the ad hoc decisions taken by Ministry of Foreign Affairs.
The Indian legal framework has no uniform law to deal with its huge refugee population, it chooses to treat incoming refugees based on their national origin and political considerations, questioning the uniformity of rights and privileges granted to refugee communities. This results in unequal treatment towards refugee groups. This treatment is reflected in how refugees from China are well received compare to refugees from Somalia in India.
Tibetan and Sri Lankan asylum seekers are granted refugees status and Indian citizenship easily compared to Pakistani and Afghani refugees. Though recently, Indian Citizenship laws have been amended to accommodate specifically Hindu refugees from Pakistan and Bangladesh, ignoring other groups of refugees in need of protection. This step of Indian government seems motivated by the nationalist politics rather than humanitarian concern as many have blamed.
Refugees from Myanmar and Somalia are often ignored by the Indian policy makers, since these nationals do not serve geo-political purpose, as refugees from China (or share ethnic similarity as in the case of Hindu refugees from Pakistan and Bangladesh). There is hardly any concrete legal protection measures for Rohingya refugees in India even though they have been declared genuine refugee by the United Nations.
In the absence of specific refugee policy, Indian government takes administrative decision on ad hoc basis keeping the national security in mind, however, ad hoc decision is more guided by the national security interest rather than protecting the rights of all refugees within India’s jurisdiction.
How the Absence of Legal Status and lack of Specific Refugee Policy makes Refugees more Vulnerable?
- Unequal treatment towards refugees group, (by the Indian government) to certain extant, is due to lack of specific refugee policy or legal framework. India does not accept 1951 Refugee Convention relating to the status of refugees or the 1967 Protocol. Refugee Convention provides the principles regulating legal instruments governing the protection of refugees. In the absence of International commitment to refugees’ rights, various groups of refugees are being treated differently resulting in unequal treatment as noted in this paper earlier.
Indeed, the National Human Rights Commission (NHRC) has submitted numerous reports urging the promulgation of a national law, or at least, making changes or amendments to the outdated Foreigners Act, 1946, which is the current law consulted by authorities with regard to refugees and asylum seekers. However, due to lack of political will and national security concern, protection of refugees is not the top priority of the Indian government.
- Inability to protect Rights of Refugees: The primary and most significant lacuna in this law concerning refugees, Foreigners Act, 1946, does not contain the term ‘refugee’; consequently under Indian law, the term ‘foreigner’ is used to cover aliens temporarily or permanently residing in the country. This places refugees, along with immigrants, and tourists, in this broad category, depriving them of privileges available under the 1951 Refugee Convention.
- India is a signatory to various international and regional treaties and conventions relating to universal human rights and refugees such the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights. India is also a member of Executive Committee (ExCom) of the UNHCR, which approves and supervises the material assistance programmes of the UNHCR; all this without actually supporting or acknowledging the role of the UNHCR on its own territory. Lack of special mechanism to protect rights of refugees, inconsistent refugee status determination (RSD) process, and in the absence of international refugee protection standards open the way for the violation of refugee rights in India. Example, preferential treatment conferred upon Tibetan and Hindu and refugees is also questionable. It is imperative to exercise consistency in the application of refugee law and regional politics shall be avoided. The current ad hoc arrangement dealing with refugees based on administrative, political and economic calculations, do not meet international the requirement of refugee protection.
- Vulnerability to refoulement: The principle relating to refugees in international law needs to be recognised in the Indian law — that of non-refoulement, which means non-expulsion or non-extradition to the place from which the refugee has fled as long as the compelling circumstances for fleeing persist. The Foreigners Act penalises those who enter the country without valid identity documents, or may prohibit entry of such persons into India. This implies that refugee and asylum seekers are liable to be returned to the country they are fleeing from. Exceptions must be carved out for those legally recognised as refugees, implementing the principle of non-refoulement, in the same statute. Absence of legal framework concerning the principle of non-refoulement leaves the fate of refugee on the whims of administrative decision, taken on ad hoc basis, in India. Although, usually India does not forcibly return refugees to its country of origin.
- The act of granting asylum shall be being governed by law rather based on ad hoc decision. Enactment of protection for refugee legislation will help to avoid friction between the host country and country of origin. If India provides legislations on refugee, then its decision accepting or rejecting refugees are most likely to be seen (by Country of Origin) the decision based on a judicial system rather than a hostile political gesture.
- Lack of standardised documentation for refugees, trafficked person, and asylum seekers has led to difficulties in their access to basic facilities, such as decent living conditions, employment, free or subsidised medical facilities and education.
According to the data collected by the United Nations High Commissioner for Refugees (UNHCR), India has close to two lakh refugees living within its territory with the number constantly rising. However, unofficial reports place the figure at above 4.5 lakh.
Formulating a comprehensive refugee policy would secure the legal status of refugees thus enabling easy access to enjoy basic human rights and privileges. The National Human Rights Commission (NHRC) of India has also suggested that India should set up a legal regime for refugees, a national refugee policy consistent with its international law obligations, would be able to secure and protect the rights of refugees and asylum seekers in India. Usually ad hoc decisions to deal with the refugee situation would lead to the unequal treatment and human rights violations of various refugee groups, since such decisions are politically motivated.
The protection of refugees and asylum seekers shall be guided by the humanitarian concerns rather than matter of foreign affairs, national security and narrow politics of vote bank. If India is serious to claim is permanent position in United Nations Security Council and wants to provide able leadership to the world, then it must set good example in South Asia by providing a secure legal protection to its refugees and asylum seekers by signing the 1951 Refugee Convention.
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Feature pic: AP Photo/Rahmat Gul
Afghanistan Pakistan Refugees
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