Since Independence, India has hosted a huge influx of refugees and asylum seekers from various countries across the world. However, with such influx, India is still lacking a common legal framework to deal with issues of refugees and asylum seekers in India. The main objective of the paper is to examine the current status of refugees coming from the neighbouring countries and circumstances that caused the issue. Primarily this paper focuses on the legal status, issues and challenges faced by the refugees.
Key Words: Refugees, Legal Framework, Constitutional Provisions, CAA.
Introduction
According to the United Nation High commission for Refugees UAS, at the end of the year 2022, there were 108.4 million people forcibly displaced worldwide due to the conflict, violence, and persecution or human rights violations. Out of these 62.5 million people are internally displaced, 35.3 million are refugees, 5.2 million are stateless and 5.4 million are asylum seekers. At the end of 2023, more than 114 million1 peoples were forcibly displaced. The Israel-Hamas conflict began following the terrorist attack by the Palestinian Islamist militant group Hamas during Supernova Sukko music festival On 7 October 2023 also contributed to the displacement2. Even if, we are living in 21st century, it's very grave situation that millions of people are deprived of their natural rights across the world. They are subject to different sorts of discriminations and torture based on race, religion, nationality, language, place of birth, membership of particular social group or political opinion. In this respect, India has adopted open door refugee policy without limiting itself to any legal framework and hosted millions of refugees from various countries. India being not signatory to the refugee Convention of 1951 as well as additional protocol of 1967 still India is hosting millions of refugees from various countries. Most of the refugees in India are from neighbouring countries like Sri Lanka, Bangladesh, Afghanistan, Bhutan, Chin, Myanmar etc. As on 31 January 2022, more than 46,000 urban refugees3 and asylum-seekers were registered with UNHCR India. The primarily they were from Somalia, Afghanistan and Myanmar. Refugees and asylum-seekers in India primarily live in urban settings. Basic reason for this is that the United Nations High Commissioner for Refugee (UNHCR) India does not have any mandate with respect to rural refugees or rural asylum seekers. Due to this these urban refugees live alongside the host communities mostly in Delhi, Chennai, Hyderabad, Mumbai, Srinagar etc. Out of these 46% refugees are women and girls, 36% are children. UNHCR supports the efforts of the Government, community groups and NGOs working for the urban refugees located across 11 states. From 2002 to February 2022 around 17,933 Sri Lankan refugees returned voluntarily3 to their hometown with the assistance of UNHCR. The everyday life of the urban refugees is very difficult. They undergo through variety of difficulties every now and then like severe weather during the cold season or summer season. They do face different challenges during the rainy season and are also subject to State rules changed from time to time, influence of international organisations, private foundations, private companies, and their financing approaches or mechanisms. Since India is not party to the refugee convention, it is not obligatory to India to implement all the provisions mention in the convention.
Constitutional and Legal Provisions for the Refugees
The Convention of 1951 has clearly defined the term ‘refugee’. The Article 1 of the 1951 Refugee Convention4 says, “as a result of events occurring before 1st January 1951 and owing to well-founded fear of being persecuted for the reason of race, religion, nationality, membership of particular social group or political opinion, is outside country of his nationality and unable or unwilling to seek protection from that country and unwilling to return to it, is a refugee.” India is neither signatory to the Convention nor has any refugee specific national law. However, India is home to larger number of refugees in the world, hence it is necessary to understand the legal status of refugees in India. The refugees in India are broadly divided into two categories: mandate refugees and non-mandate refugees. The legal status of mandate refugees is determined by the UNHCR office, in Delhi, based on the existing local laws, guidelines issued by the Ministry of External affairs and Home Ministry from time to time and the guidelines mentioned in the 1951 Convention and 1967 Protocol.The refugees coming from Iran, Iraq, Afghanistan, Syria, Sudden, Somalia, Myanmar etc. come under the mandate refugees. The refugees coming from India’s immediate neighbours like Pakistan, China, Sri Lanka, Bangladesh, Bhutan come under the category of non-mandate refugees and directly controlled by the Indian government. Due to the porous borders, deep common history and culture, close linguistic, racial, ethnic linkages and sensitive political relations with some of its neighbours, the legal status of the refugees from these countries is determined by bilateral treaties and domestic laws. So, the legal status of the asylum seekers and refugees in India is determined by the Registration of Foreigner Act 1939, Foreigners Act 1946, and Citizenship Act5 1955 which deals with conferring the citizenship to its own as well as foreign individuals who fulfil the criteria mentioned in the constitution. All these laws do not make any distinction between the foreigners and genuine asylum seekers or refugees. These laws treat all the individuals, other than its own citizens, as foreigners. They are at the mercy of Indian government to distinguish them as foreigners and refugees according to the bilateral relations. So, the Asylum seekers in India for refugee status from different countries enjoy different legal status. For instance, in legal term, Tibetans are foreigners, their rights and status is governed by Foreigners Act 1946 and Registration of Foreigners Act 1939. The Foreigners Act authorizes the central government to make provisions with respect to all foreigners or with respect to any specific class, group, community or country. This Act empowers the government to prohibit, regulate and restrict the entry of foreigners into India or their departure from India. It limits freedom of movements, prohibits from association with a person designated description and furnishes proof of identity. However, if anybody’s life is threatened, Indian Government and Supreme Court has upheld the principle of non- refoulement under the article 21 of the Indian Constitution, e.g. NHRC6 vs Arunachal Pradesh Case7 1996. The Registration Certificate is issued to the Tibetan by the Central Tibetan Administration with the permission of Home Ministry. Online application facility is also available to the Tibetan urban asylum seekers for refugee status. The Tibetan refugees have right to get permission from Indian government to travel abroad which is not permitted in the case of other refugees. The legal status of Sri Lankans urban refugees in India is governed by the Foreigners Act 1946 and Citizenship Act 1955 which deals with foreigners or aliens present on Indian soil without permission or any valid documents. They are considered as illegal migrants, but Indian government has taken into account the violent situation in Sri Lanka from time to time and accordingly provided protection to them. As far as refugees from Pakistan are concerned, the Citizenship Amendment Rule8 2004 provides that they can apply for the citizenship those are consistently staying in India for 5 years instead of 12 years. Further, the Citizenship Amendment Act 2019, provides that the persecuted religious minorities from Bangladesh, Pakistan and Afghanistan those have enter in India before 31st December 2014, and living in different urban areas are eligible to apply for citizenship.
United Nations High Commissioner for Refugee (UNHCR) and India
Under the agreement of UNDP, UNHCR has granted permission in 1969 to provide vocational training to the Tibetan refugees. It has played very significant role after the establishment of its office in India9 in 1981. With its limited mandate, it has to work in accordance with the guidelines of Ministry of External Affairs (MEA) and Ministry of Home Affairs. The UNHCR in India cannot start on its own, the process of giving refugee status to asylum seekers from any country. It is prerogative of the Indian government. With limited mandate, UNHCR in India does the Refugee Status Determination (RSD) work by verifying the documents and interviews of the asylum seeker. The task of individual refugee status determination is done by UNHCR and not by Indian government. Beyond the local laws, Indian government permits UNHCR to determine the refugee status in some cases of classes under the 1951 refugee convention and give them Registration Certification, i.e. Rohingya. Indian government recognises such certificates for temporary residence permit in India. But under the Article 1(F) of the Refugee Convention, an individual is not eligible who has committed a crime against peace, war crime, serious non-political crime outside of the country or declared guilty by United Nations.
Apart from this, the UNHCR in India helps refugees for voluntary repatriation. In this regard, it has played very significant role for Sri Lankan refugees. It also looks after the livelihood, rehabilitation and tries to end the statelessness. Nevertheless, UNHCR and urban Refugees in India face many problems due to different rules and regulations for the RSD for different refugees. Particularly Rohingya10 refugees who have completed refugee status determinations with the UN Refugee Agency are not allowed to get permission for exit for resettlement in third countries. They are as follow:
• Due to the lack of common national law for urban refugees, UNHCR has to treat different refugees differently as per the guideline of the government of India. So, there is feeling of discrimination by UNHCR among the refugees.
• The porous borders and flow of mixed population from neighbouring countries in India during the conflict also makes UNHCR difficult to identify the real asylum seekers for refugee status and illegal migrants for economic opportunities.
• The shortage of fund and human resources to deal with huge refugee population is big concerned for UNHCR. Lack of medical staff particularly during any pandemic makes UNHCR helpless deal with health issues of urban refugees and asylum seekers. It has already expressed grave concerned over the emergence of corona virus (Covid 19) to assure social distance and provide medical facilities to the urban refugees staying in different camps.
• UNHCR has very little or no access to the refugees living in remote areas, it is able to work only for urban refugees with limited mandate.
• UNHCR finds it difficult to provide space for the urban refugees due to unavailability of land in urban area. Landlords frequently evict the refugees on the ground of late payment of rent, so they are forced to live in small, overcrowded houses in cities or slum areas, on railway stations or under the bridges without proper water, electricity or sanitary arrangements.
• The children of urban refugees do face the discrimination in the schools from the school fellows. They are looked upon down, they are unable to pay the school fees so they dropout the school.
• Most of the Rohingya asylum seekers for refugee status enter in India from the northeast states but very few of them reach to Delhi to register with the UNHCR. Most of them stay back in northeast states and they are considered as illegal migrants. So, they are subjects to violence, fine, arrest, detention and deportation.
Citizenship Amendment Act (CAA) 2019 and Refugees in India
The Citizenship Amendment Bill11 has been passed by the Indian Parliament in December 2019. It has made changes in the Citizenship Act, 1955, in section 2. The changed Act reads as, "Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 ………… there under, shall not be treated as illegal migrant for the purposes of this Act". The bill is aimed at conferring citizenship to the religious minorities from Afghanistan, Bangladesh and Pakistan. The bill has generated debate within the country as well as outside of the country among the intellectuals, journalist, academician, political community, religious groups and common people on the issue of millions of people are going to be stateless in India, particularly from Muslim community. The Prime Minister and the Home Minister have told in the parliament and outside of the Parliament that this bill/Act is not applicable to the Indian citizens. It is applicable only to the communities mentioned above from Pakistan, Afghanistan and Bangladesh. India is a very responsible country and being the signatory of many international human rights treaties like UDHR 1948, Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination against Women, International Covenant on Civil and Political Rights etc., India won’t make such legislation which shall make people statelessness. The Government of India has always adopted generous approach and open-door policy towards refugees and asylum seekers. India has always shown liberal and tolerant attitude towards refugees and asylum seekers by making changes in its domestic laws.
The Citizenship Amendment Act 2019 is a positive step in the direction of liberalization of its domestic laws in respect of naturalization process of refugees. India has given citizenship to the millions of people over the period of time. Most of the states in the world have been started talking about the rights of refugees only after the Refugee Convention of 1951, but India had started protecting the rights of refugee when ‘Refugee’ word was rarely known to the world. In the 7th and 8th century when Arab invaded Persia (now Iran) and started persecuting the Parsi people on religious, cultural and linguistic grounds, they sought shelter in the present state Gujarat, India. According to Qissa-i-Sanjan12 (Story of Sanjan) after their arrival, the king of Gujarat Jadi Rana had offered them with a full glass of milk conveying the message that there was no space in the glass. The Parsi people added a spoon of sugar in it and said we would live like sugar in a full cup of milk and not spoil it. Jadi Rana liked it very much and gave them shelter on the conditions that they would learn local language, wear local clothes and their marriage ceremony would take place in the evening only. The Parsi people very quickly accepted these conditions and assimilated with the locals. Other countries need to learn from India the process of naturalization and assimilation with local culture and people without legally tying its hands to any treaty. The people who were displaced due to development project in her neighbourhood also sought shelter in India, and in due process they also became the citizens of India e.g. Chakma people from the then East Pakistan now Bangladesh. Nafees Ahmad13 says, according to the UN Refugee Agency, as of 2014, more than 200,000 refugees were living in India from different countries.
The question, why only these three countries? First, these three countries are officially Islamic countries and people from other than the Islamic faith are unable to practice their own religious and cultural rights. There are many cases of forceful conversion of Hindu and Christian girls to Islam in Pakistan. There are cases of forceful marriages with the girls from religious minorities in Pakistan. Just an example, Huma was abducted by a Muslim man, married to her, converted her to Islam when she was just at the age of 14 years. When her parents approached to the court, the Sindh High Court14 gave verdict that even if she is underage, but she had already first menstrual cycle, so the marriage is valid! This is complete violation of the Article 16 of UDHR15 1948, which says, “men and women of full age without any limitations due to race, nationality, or religion has the right to marry and found family”. Further, “marriage should be entered into only with the free and full consent of intending spouses”. This approach of the Pakistan government, judiciary and executive has resulted in continuous declining of minority population in Pakistan. Farahnaz Ispahaniin her writing pointed out that at the time of partition, the minority population in Pakistan was 23 per cent which today reduced to 3 per cent. According to Minority Rights Group International16, in Bangladesh it is reduced from 14 per cent in 1971 to 9.4 per cent in 2018. The minority communities are continuously facing the discrimination, physical violence, abductions, attacks on places of worship and war crimes. Hamoodur Rahman Commission Report17 says that there was an official order in writing to kill Hindus during 1971 Bangladesh liberation war. Second, if at all, any individual from these countries is facing well-founded fear of persecution on any ground can seek protection in India or even apply for Indian citizenship. Adnan Sami from Pakistan has got Indian citizenship, he is a Muslim. Taslima Nasreen is staying in India due to well-founded fear, she is also a Muslim. The Act is very much in consistent with the Article 34 of the Refugee Convention of 1951 which says, “the contracting states shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings”. Third, in my opinion, If India finds this Act convenient in successful implementation, in future, India may extend this Act to other neighbouring countries like Nepal, Myanmar, Bhutan, Sri Lanka and China too.
References:
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2. BBC, 2024, What is Hamas and why is it fighting with Israel in Gaza? 5 April 2024.
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4. UNHCR, Convention and Protocol Related to the Status of Refugee, 1951, https://www.unhcr.org/3b66c2aa10, accessed on 1 April 2020.
5. Citizenship Act5 1955, Government of India.
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7. NHRC vs Arunachal Pradesh Case, 1996, https://indiankanoon.org/doc/767216/
8. Citizenship Act 2004, Government of India.
9. UNHCR, 2016, High Commissioner for Human Rights’ Compilation Report, August 2016.
10. The Hindu, 2023, Rohingya Refugees In Arbitrary Detention, Denied Exit Permissions By India: Report, May 18, 2023.
11. Ministry of Law and Justice (2019), Citizenship Amendment Act 2019, Government of India http://egazette.nic.in/WriteReadData/2019/214646.pdf, accessed on 2 April 2020.
12. Mary Boyce, 1979, Zoroastrians, their Religious Beliefs and Practices. Routledge and Kegan Paul.
13. Nafees Ahmad, 2017, The Status of Refugees in India, Fair Observer.
14. Ewelina U. Ochab 2020, When Is A Girl Ready For Marriage? After Her First Period Says High Court In Pakistan, Forbes.
15. United Nations (1948), Universal Declaration of Human Rights, United Nations 1948.
16. Farahnaz I. (2013) Cleansing Pakistan of Minorities, Hudson Institute, 31 July 2013, https://www.hudson.org/research/9781-cleansing-pakistan-of-minorities.
17. Hamoodur Rahman Commission Report, 1971, Government of Pakistan.
18. ShahpurshahHormasjiHodivala, 2016, Studies in Parsi History, Creative Media Partners, LLC.
