Legal Status and Rights of Refugees in India

Abstract

India has been home to many refugees. India lacks clear domestic refugee laws, leaving lakhs of refugees in poverty without basic necessities. Absence of uniform laws and political considerations lead to potential discrimination. Ad hoc government measures offer minimal legal protection, especially for civil and political rights, and leave refugees vulnerable, lacking safety and welfare provisions. This research paper delves into the intricate landscape of the legal status and rights of refugees in India. It comprehensively examines the existing legal framework, encompassing domestic laws, international treaties, and their practical application, in safeguarding the rights of refugees within the country. As we go ahead the paper discusses issues faced by refugees in India and Indian Assistance provided to refugees. This paper states about reasons given by India for non -ratification of the convention.  In the end this paper winds up with conclusion and suggestions.

Keywords – Refugee, citizenship, international law, Human Rights, Legal Framework

Introduction

A refugee is someone facing constant danger to their life or living in conditions that threaten their well-being, prompting them to seek safety in another country. Their situation differs from that of a stateless person, as refugees still maintain a legal nationality, which impacts how they are legally and socially addressed when seeking asylum. Following Indian independence, a significant number of individuals migrated to the country from neighbouring nations due to the substantial displacement caused by the partition. Over time, the refugee crisis within India and the flow of asylum seekers across its borders have notably increased. However, India has yet to establish specific laws or definitive regulations to govern the status of these refugees and asylum seekers within its borders. The United Nations Convention on the Status of Refugees in 1951 provides a precise definition for the term ‘Refugee’ within international law.“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”. 

Most refugees and asylum seekers in India come from Sri Lanka, Tibet, Myanmar, and Afghanistan. Yet, the government only acknowledges Tibetan and Sri Lankan refugees. Throughout history, India has consistently provided refuge to those in need, regardless of their origin seeking shelter. India, despite not being a party to the 1951 Refugee Convention, has ratified various human rights agreements. “These include the UN Declaration on Territorial Asylum 1967, Universal Declaration of Human Rights 1948 (Article 14), International Convention on Civil and Political Rights (ICCPR Article 13), Convention on the Elimination of Discrimination against Women (CEDAW), International Convention on Economic, Social and Cultural Rights (ICESCR), and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)”.India is obligated by these treaties to offer protection to refugees who are concerned about persecution from their own government. It’s essential to acknowledge that no treaty, convention, or law should be excluded or compartmentalized when upholding the human rights of refugees.

Research Methodology 

This paper is descriptive in its approach, focusing on the legal status and rights of refugees in India. The research relies on secondary sources, such as newspapers, journals, and websites, to gather information.

Review of Literature

“Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?” This article argues. The absence of pertinent and applicable laws implies that advancements in India’s refugee law system are incremental and primarily humanitarian, lacking substantial progress in legal principles and, at times, displaying an anti-refugee stance. The article proposes that by turning to international law, these challenges can be overcome, ensuring a more comprehensive safeguard for refugees.

Examining the Legal Aspect, Especially Regarding Their Educational Entitlements This research underscores the imperative to enhance the legal safeguarding of refugees and their human rights within India. It contends that the absence of specific refugee laws in the country results in refugees being subject to government policies influenced by socio-political considerations. Additionally, the study stresses that refugees in India possess nearly all fundamental rights.

“India and Refugee Law: Gauging India’s Position on Afghan Refugees” The findings of this research assert that for meaningful involvement beyond outdated temporary measures, India should establish legislation addressing refugees. The study underscores the necessity of a thorough refugee law in India to guarantee the safeguarding of refugee rights and their legal status.

“Refugees In India: Legal Framework, Law Enforcement And Security” This article underscores the absence of a distinct, dedicated law in India specifically addressing refugees, with refugees being subject to existing Indian legislation. It emphasizes India’s commitment as A party to multiple United Nations and World Conventions addressing Human Rights, refugee issues, and related subjects. These agreements include clauses pertaining to the return of refugees, the entitlement to compensation, the granting of asylum, and the basic level of care in the host country.

Legal Status and Rights of Refugees in India

India currently lacks specific legislation addressing the challenges posed by refugees and asylum seekers. Presently, refugees receive similar treatment as that of foreigners, and the laws which were applicable to were foreigners were also extended to Refugees. Unlike other countries, India hasn’t ratified the 1951, Refugee Convention which states what refugee is and what their rights should be. Even though India hasn’t adopted the 1951 Refugee Convention, it has signed various human rights agreements that require the country to protect refugees if they fear persecution from their government. “These agreements encompass the UN Declaration on Territorial Asylum 1967, Universal Declaration of Human Rights 1948 (Article 14), International Convention on Civil and Political Rights (ICCPR Article 13), Convention on the Elimination of Discrimination against Women (CEDAW), International Convention on Economic, Social and Cultural Rights (ICESCR), and Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)”. The lack of a distinct law to oversee refugees in India is offset by the country’s ratification of human rights treaties, placing obligations to ensure protection for refugees. 

Refugees and asylum-seekers in India predominantly reside in urban areas alongside host communities, and India has been accommodating diverse refugee groups for many years, offering solutions for numerous forcibly displaced individuals. Nevertheless, the lack of a particular law has resulted in an improvised administrative policy to grant protection to refugees, giving rise to issues of human rights violations and discrimination within the refugee community. The Indian judiciary has addressed refugee claims in alignment with international law obligations, and proponents argue that by relying on international law, these challenges can be overcome to ensure more substantial protection for refugees. Establishing a dedicated refugee law in India is deemed essential to enhance the legal safeguarding of refugees and their human rights. The legal standing of refugees and asylum seekers in India is ascertained by the Indian Judiciary through certain domestic laws pertaining to foreigners and illegal migrants. Some of these include:

“i. Passport (Entry into India) Act, 1920

ii. Passport Act, 1967

iii. Registration of Foreigners Act, 1939

iv. Foreigners Act, 1946

v. Foreigners Order, 1948

Article 51 of the Indian Constitution” mandates the state to actively promote adherence to treaty obligations and international law in dealings with organized groups.

Under “the 1946 Foreigners Act”, Section 3 empowers the Central government to identify, apprehend, and deport unauthorized foreign nationals.

As per Section 5 of the Indian Passport (Entry) Act of 1920”, Article 258(1) of the Indian Constitution allows for the compulsory removal of an unauthorized foreigner.

“The 1939 Registration of Foreigners Act” requires all foreign nationals (except Indian residents living abroad) entering India with a long-term visa (beyond 180 days) to register with a Registration Officer within 14 days of arrival.

The “1955 Citizenship Act” incorporates provisions for renunciation, termination, and citizenship deprivation.

The 2019 Citizenship Amendment Act (CAA) is crafted with the explicit purpose of providing citizenship to immigrants who have experienced persecution in Bangladesh, Pakistan, or Afghanistan and are members of Hindu, Christian, Jain, Parsi, Sikh, or Buddhist communities.

The issue faced by refugees in India

India has provided shelter to approximately 450,000 refugees, both from within and outside the region. However, due to the absence of refugee law in the country, there is a lack of consistency in how refugees are treated. The lack of a formal domestic refugee policy enables the state to address refugee groups in an improvised and inconsistent manner. This approach is guided not by international, humanitarian, or constitutional factors but rather by geopolitical and diplomatic motivations, domestic electoral mandates, and local socio-cultural dynamics. Refugees in India face several challenges, including fear and insecurity, lack of basic amenities, and inadequate legal and medical support.

Insufficient legal and medical support is a common issue for detained migrants who frequently traverse borders. Many of them lack the financial means to secure legal representation, hindering their ability to prevent further arrests.

Refugee women and children face increased vulnerability due to escalating housing costs, leading to a higher likelihood of experiencing gender-based violence, particularly when sharing residences with strangers. Concerns about child labour among refugees and asylum seekers persist, posing a significant challenge to their protection.

The risk of detention looms for refugees upon unauthorized entry into India, especially if authorities suspect contradictory claims or lack typical travel documents. Security agencies may legitimately file cases under the IPC, Foreigners’ Act, etc., and detain refugees before presenting them to a local jurisdiction court.

Despite being unable to legally work, refugees often engage in the unregulated labour market. However, they are excluded from numerous social security programs available to Indian nationals, leaving them more vulnerable to natural disasters and economic fluctuations.

All individuals from abroad, whether they are undocumented immigrants, refugees/asylum seekers, or those exceeding their visa permits, are classified under India’s Foreigners Act of 1946. Refugees lacking valid documents are labelled as “illegal immigrants” and are liable for detention and deportation. Urgent attention is needed for India’s refugee crisis, necessitating the establishment of appropriate institutional and legal frameworks to safeguard vulnerable populations and enhance the government’s global credibility.

Refugees and Citizens in India: Memories of 1947 and 1971 in 2020 ...

Overcrowded train transferring refugees during the partition of India, 1947.

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Milk is distributed to children at a refugee camp in Multan, Pakistan

Indian Assistance for refugees

The Indian government and various organizations have extended aid to refugees in India through diverse initiatives. Notable examples include:

Auroveda Foundation: Auroveda has been actively assisting refugees in India by providing support in healthcare, education, nutrition, awareness programs, Long-term Visas (LTV), and more. Through their Refugee Fundraising Campaign for Nimittekam, they successfully raised over $75,000 to aid refugees in rebuilding their lives with safety and dignity.

UNHCR India: The United Nations High Commissioner for Refugees (UNHCR) has played a significant role in delivering humanitarian assistance to vulnerable individuals in India, including refugees and asylum-seekers. In 2022, UNHCR India allocated over USD 13 million to address the humanitarian needs of refugees, offering basic assistance such as food, cash, shelter support, and essential relief items. Collaborating with implementing partners, UNHCR supported over 58,277 individuals in need.

The Government of India has consistently demonstrated unwavering support for forcibly displaced individuals and those seeking asylum, both domestically and internationally. Hosting approximately 212,874 refugees and asylum-seekers, including Sri Lankan refugees, reflects the government’s generosity and effective collaboration with various partners to enhance the welfare of refugee communities within the country.

The private sector and non-governmental organizations (NGOs) have also played a pivotal role in supporting refugees in India. Engaging in activities such as providing assistance, advocating for refugee rights, and contributing to an inclusive response to the refugee crisis, these entities have made significant contributions.

These instances illustrate the varied efforts undertaken by different entities to assist refugees in India, addressing their humanitarian needs, offering legal support, and promoting their overall well-being.

Reasons given by India for now ratification of the convention

Criticism and pressure persist for India to ratify the Refugee Convention, 1951, or the 1967 Protocol, given its status as a host for refugees from various regions. Despite international pressure, India remains a non-signatory. UNHCR’s primary role in India involves discussing convention ratification with the government, yet the discussions seem unproductive. India’s reluctance to sign arises from the perception that the convention is Eurocentric, addressing post-World War II refugee issues with no subsequent amendments. India contends that, despite being a non-signatory, it provides some relief to refugees. However, acknowledging India as a major violator of refugee rights does not justify this stance.

India cites unique geopolitical challenges and a complex history with neighbouring nations as reasons why ratifying a universal refugee convention is politically unviable. Such a move could strain diplomatic relations, particularly with China, perceived as a significant threat to India in Asia. Additionally, ratification would impose greater obligations on India to provide additional rights and privileges to refugees, a challenging prospect for a developing country struggling to meet the basic needs of its own population.

India, facing issues of infiltration and terrorism from neighbouring countries since partition, believes that ratifying the convention would exacerbate these problems. Policymakers argue that without a legal mechanism to distinguish infiltrators from genuine refugees, ratification could lead to a significant increase in these challenges.

The case of a Sri Lankan national seeking refuge in India presents complex issues not addressed in the convention, posing potential threats to national security and sovereignty. Critics argue that the convention, drafted in 1951 and the protocol in 1967, lacks provisions to address contemporary challenges, and many are outdated. The belief is that ratifying the convention could lead to an increase in the influx of migrant workers, straining the economy, as individuals may attempt to exploit refugee status for better opportunities.

Policy reviewers express a “fear of the unknown,” suggesting that India is uncertain about the consequences following ratification. Non-compliance might jeopardize India’s standing in the international community, subjecting it to global acclaim or criticism. The absence of Indian representation during the drafting leaves ambiguity about the exact intentions behind each article of the convention and the protocol. These ongoing debates and concerns fuel India’s reluctance to ratify the convention, making the decision a contentious and unresolved issue.

Suggestion

Endless debates and discussions have revolved around the comparison between enacting domestic legislation and establishing a refugee convention specifically for South-East Asia. The researcher advocates for the peaceful coexistence of both approaches. This assure that any lacunae in domestic law are addressed by the Asian Convention, and vice versa. Various recommendations have been put forward in support of this approach.

Need for domestic Law 

In India, the establishment of a domestic law is imperative to guarantee fundamental protection for all refugees. Without such legislation, refugee rights lack genuine status and merely become privileges subject to administrative discretion. Additionally, the domestic law should encompass a comprehensive definition of refugees, extending to cover “internally displaced people” affected by natural disasters or terrorist activities. An example is the situation of Kashmiris forced to flee Kashmir due to militant activities.

Ensuring housing and employment for refugees is essential to foster self-reliance. Collaboration between various civil society organizations and the government under this legislation can significantly enhance the living conditions of refugees.

The enactment of domestic legislation would supersede existing acts like the Passport Act and the Foreigners Act, thereby alleviating the challenges faced by refugees by specifically addressing their issues.

The enactment of such legislation would simplify, ensure fairness, and bring transparency to the process of conferring refugee status. It would also enhance accountability and oversight over officials, eradicating discrimination based on nationality among refugees. To address the prevalent crimes against women, such as rape, and children, including child trafficking, in Indian society, special provisions aimed at their protection should be integrated. This approach would align with India’s obligations under CEDAW and UNCRC.

Conclusion 

Despite its large population, including millions below the poverty line, India continues to welcome refugees from various countries on humanitarian grounds. The protection of refugees requires serious contemplation by policymakers to determine India’s role in providing long-term solutions to the refugee crisis. An analyst suggests that India’s refugee approach is criticized not for prioritizing security over humanitarian concerns but for doing so imprudently, potentially leading to self-defeating outcomes.

The case study focuses on the Rohingya crisis and India’s handling of it. India faces international scrutiny, particularly regarding the status of Rohingya refugees, and any attempt to deport them is complicated as the matter is currently sub judice in the Supreme Court. Findings indicate that all refugees would prefer to return to their homeland if it becomes safe for their families.

While India rightfully prioritizes national security and reinforces its borders, it must also consider the broader and long-term consequences. India, with a history of welcoming refugees, has demonstrated its commitment beyond shallow political interests.

The crucial question remains: How can India facilitate the safe return of refugees, actively participate in countering potential terrorist activities involving them, and take a leadership role in resolving conflicts and crises?

Mansi Fulzele,

National Law University.