By Pulak Chugh
“No one leaves home unless / Home is the mouth of a shark / You only run for the border / When you see the whole city running as well.” — Warsan Shire
Donald Trump, 45th President of the United States, recently ordered a four-month suspension of America’s refugee programme which has shaken the world. The executive order also temporarily suspended all immigration for citizens of seven Muslim-majority countries. Stories and pictures from war-stricken Syria continue to haunt us.
In these troubled times, the present Pope, Pope Francis, has been a beacon of hope. His appeal to every Catholic parish, religious community, monastery and sanctuary in Europe to take in one refugee family that has fled “death from war and hunger” is what has reinstated our hope.
As the disturbing images emerging from Europe indicate, it is the lack of preparation that can lead to unwanted chaos both for the host country and refugees.
Atithi Devo Bhava (the guest is equivalent to God) is a well-revered and followed ideal in India. Guests have always been treated with utmost respect and warmth since time immemorial in India.
With respect to those who have sought refuge here, India’s stand dates back to the 16th/17th century when it welcomed the Parsis with open arms. It has since kept this tradition of being an accepting host, taking in Tibetan refugees in 1959, Bangladeshi refugees in 1971, the Chakma influx in 1963, and the Tamil exodus from Sri Lanka in 1983, 1989 and 1995.
Currently India hosts over 205,000 refugees like Myanmarese, Sri Lankans, Somalis and Afghans (UNHCR 2014). However, it is such a sorry state that refugees in India are still faced with a legal vacuum where the nature and extent of their rights remain vague.
Hence, without a uniform refugee law for the country, the historical warmth of India as an all-encompassing and welcoming society is wearing thin.
Status Quo of the Current Refugee Laws in India
Although India has always been kind and humane in its behaviour towards refugees, it is a shocker that the country is still to sanction a rational and uniform law regarding the subject of asylum. The refugees who have taken refuge in India are usually dealt with by the Government on a bilateral basis.
The United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention) describes a refugee as a person who, owing to a 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.
India is not a signatory to the 1951 Refugee Convention or its 1967 counterpart. Some reasons for India not being a party to the Convention can be that the Convention is very Eurocentric in approach, the borders between India and its neighbours are extremely porous and any conflict can result in a mass movement of people which can add stress to an already over-populated country.
Despite India’s reservation with signing the Refugee Convention, it has international humanitarian commitments. As the country complies with a great number of international conventions and treaties, which by definition are also pertinent to refugees, the Government of India is expected to respect refugees’ human rights.
India is a party to the 1966 International Covenant on Civil and Political Rights (ICCPR), where it has made a special provision for Article 13 in relation to the eviction of a person lawfully present in the territory of the State.
India also accepted the 1963 Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Apart from that, India has acceded to the 1989 Convention on the Rights of the Child and ratified the 1984 Convention against Torture (CAT).
It is to be highlighted here that India has accepted the 1948 Universal Human Rights Declaration (UDHR), Article 14(1) of which states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
Being a member of the Asian-African Legal Consultative Organization (AALCO), India is a party to the Bangkok Principles on the Status and Treatment of Refugees, adopted on 24 June 2001 at the 40th session of AALCO in New Delhi.
Constitutional Protection
Because of the lack of national legislation for refugee protection, the judiciary has extended some provisions of the Constitution to refugees. Consequently, it has offered the guarantee of Article 14 (right to equality) and Article 21 (right to life and liberty) to non-citizens, which includes refugees.
In National Human Rights Commission v. State of Arunachal Pradesh and Another (1996), the Supreme Court held that “all ‘refugees’ within Indian territory are guaranteed the right to life and personal liberty enshrined in Article 21 of the Constitution”.
Hon’ble Justice Ahmadi in his judgment declared that the State is bound to guard the life and liberty of each human being, whether he or she is a citizen or otherwise, and it cannot allow a person or group of persons to threaten the refugees. No State Government is supposed to stand such threats by one group of persons to another; it has a duty to protect the threatened group from such attacks, and failing to do so will infer that it has failed to perform its constitutional and statutory obligations.
Moreover, foreigners are also entitled to the protection of rights recognized in Articles 20, 22, 25 to 28 and 32 of the Indian Constitution. Article 20 provides the right against prosecution under ex-post-facto legislation, the right against double jeopardy and the right against self-incrimination.
The procedural protection against arbitrary arrest and detention, provided in Article 22(1) and (2), is also applicable to refugees. Refugees are allowed the freedom of religion. If the fundamental rights of refugees are violated, they have the right to move the Supreme Court for the enforcement of these rights under Article 32.
Identifying the Lacunae: Factors Leading to the Need of Refugee Law in India
Significant protection loopholes exist in the Indian legal system for dealing with refugees. For starters, India has no central government body, other than the Foreigner Regional Registration Offices (FRRO), under the Bureau of Immigration India, to work with the issue of refugees.
Due to a lack of governing provisions of law, FRRO officials deal with asylum seekers and refugees on the basis of ad hoc rules. Moreover, FRRO does not differentiate between asylum seekers and refugees.
The Government of India gives permission to UNHCR to conduct registration and refugee status determination (RSD) and to give assistance to those refugees who are not extended direct assistance by the Government.
UNHCR offers them de facto protection because refugees recognized under the UNHCR mandate are not considered refugees under Indian law. So, people escaping persecution from their country and asking for refuge in India are usually left at the goodwill and sympathy of the Indian Government’s ad hoc policies regarding the situation or the specific refugee group, along with the limited operations of UNHCR.
In general practice, the authorities take cognizance of UNHCR’s Refugee Certificates and allow most refugees an extended stay in India if there is no political opposition. Here, the contradiction of India’s refugee policy is highlighted in relation to its ties with UNHCR.
While it appears that there is no official arrangement existing between the Indian Government and UNHCR, the country continues to chair the UNHCR’s Executive Committee annual session even when it has no intention to sign or ratify the main legal instrument of UNHCR.
It is a fact that illegal immigrants have been extensively exploited by vote-seeking parties to secure a seat in the Central and State legislatures. Opportunist units of political parties in areas of high refugee density have tried to use illegal immigrants as vote banks by trying to legalise their stay.
India’s ad hoc and politically convenient approach allows it to treat refugees as political pawns, leaving them exposed to abuse.
It is argued that the Foreigners Act, 1946 offers the primary threat to the security and protection of refugees in India. Under Indian law, the term “foreigner” is the only reference to aliens of any kind; this places refugees, immigrants and tourists in the same broad category.
The Act, which is essentially an immigration law document, confers wide discretionary powers on the executive to use against those who are caught without a valid passport or visa. Since the Act contains no exclusive categories for refugees, a refugee, like any other overstaying/illegal foreigner, may be caught, detained and deported.
When any of these refugees is detained or arrested by the Indian authorities, there would always be a danger of refoulement, repatriation or deportation. Those refugees who are arrested for illegal stay can be detained unlawfully under administrative orders without charges.
The Foreigners Act vests powers in the hands of the Central Government to expel foreigners from the country. The Supreme Court of India in Hans Muller of Nurenburg v. Superintendent, Presidency gave “absolute and unfettered” power to the Government to throw out foreigners. The judgment was again upheld in Mr. Louis De Raedt & Ors. v. Union of India. In the said judgment, it was held that foreigners have a right to be heard.
However, the Foreigners Act, 1946 reserves specific provisions for exclusive cases. Legislation has been passed regarding specific groups of refugees in India, such as Tibetans or Ugandans of Indian origin, concerning issues related to their rehabilitation.
This type of exception to the rule, made only towards a specific category of refugees, highlights the fact that the Foreigners Act, 1946 has for too long been inadequate legislation for regulating the needs of asylum seekers and refugees in India and that a proper framework has to be brought for anyone to have equal rights and opportunities when seeking refuge in the country.
Closing the Loophole: Conclusion
India’s reception of refugees has been praiseworthy, but its geopolitical position in the subcontinent makes it a favoured destination for asylum seekers and migrant workers. Furthermore, India’s status as the only stable democracy in the region and growing economy makes it a lucrative destination for refugee seekers.
This explains the frequent cross-border movement into India, which should serve as an incentive to form a national refugee law. Asylum seekers from Sri Lanka, Tibet and Myanmar will continue to seek refuge as the political chaos in these countries has not ceased and no such plans can be seen in the near future as well; the possibility of repatriation also remains bleak.
Dr. Shashi Tharoor, a Member of Parliament and former head of UNHCR, had introduced a comprehensive Asylum Bill, 2015 as a private member’s bill in one of the sessions. This was one of the three Bills presented in Parliament that year.
The Bill strives to combine the various policies that apply to refugees in India and give India recognition for its long-standing obligation to refugee protection. However, a year gone and no signs of any proposed refugee Bill being adopted into any law can be seen.
Another Bill doing the rounds is the Citizenship (Amendment) Bill of 2016, a short, three-page document which seeks to amend Section 2(b) of the Citizenship Act. The Citizenship Act is concerned with the acquisition and termination of Indian citizenship. Section 2(b) defines the term “illegal immigrant”.
The proposed Bill amends the definition to exclude certain minority-religious individuals from Muslim-dominated countries, specifically Afghanistan, Bangladesh and Pakistan, from coming under the ambit of an “illegal immigrant”.
The uniform treatment of refugees is a necessity as long as India continues to accept asylum seekers across its borders. The limitations and unequal treatment imposed on refugees by the Indian Government are unfair and stain its human rights record.
Therefore, a uniform and defined national refugee law would allow the Government to maintain its massive non-citizen population with more responsibility and order, apart from letting refugees enjoy uniform rights and privileges.