REFUGEE LAWS IN INDIA

ABSTRACT 

India accommodates a significant influx of refugees from various of the world with ethnic backgrounds and religious beliefs. This paper tries to identify the roots of refugees and their level of persecution. Since India does not have a refugee law like The Refugee Act of 1980 of the United States of America, the paper attempts to recognise the laws the country uses currently to del with the refugees. India is not even a signatory to the 1951 Convention of Refugees and the 1967 Protocol. This Gives arbitrary power to the government when comes to dealing with the issues of handling refugees. Often, the refugees have to face discrimination at the hands of the administration due to their religion or ethnicity. The paper also explores the role of judiciary in this matter. It also provides suggestions to the legislature. and executive for the future course 

KEYWORDSRefugee, migrants, illegal immigrants, UNHCR

INTRODUCTION 

The Union refugee agency reported that by mid-2023, over thirty million refugees were globally present, with nearly half originating from Syria, Afghanistan, and Ukraine, respectively. Refugees are products of their circumstances which are beyond their control.   These are stateless people who are forced to flee their native place resulting from fear of persecution. These people are vulnerable who are to be saved and resettled. Primarily, UNHCR, the UN Refugee Agency works for refugees 

The 1951 Refugee Convention, with a protocol in 1967, aim to secure protection for refugees worldwide. These two agreements collectively establish the framework for the UNHCR’s mission, delineating the definition of a refugee, outlining their rights, and prescribing measures for safeguarding them from persecution. Currently 146 countries are party to the 1951 convention and 147 to the 1967 protocol.

India, which is not a signatory to the 1951 Refugee Convention, faces challenges in addressing the issue of refugees and their settlement as it does not have a national policy or a law regarding refugees. India needs to address this issue taking into consideration various factors such as its security concerns, humanitarian and international obligations, etc.

RESEARCH METHOLODY

This paper adopts a descriptive approach, focusing on the refugees, their concerns and refugees’ laws in India. The research relies on secondary sourced such as newspapers, articles, reports, journals and websites to conduct research.

REFUGEE 

In everyday language, a refugee is someone who has departed their home out of fear for their safety and freedom or because they lack the means to support themselves. However, international law defines the term refugee . The term refugee is defined as Individuals who can show they’ve faced persecution or have grounds for fearing prosecution, stemming from five protected categories: race, religion, nationality, political stance, or affiliation with a specific social category. This definition is based on the United Nations 1951 Convention and 1967 Protocols really to the Status of Refugees.

It’s important to recognize that individuals become refugees due to circumstances beyond their control, often deeply distressing. They are compelled to flee because of violations of human rights, instability in socio-economic and political realms, prevalent violence, civil unrest, or ethnic conflicts, individuals experience a legitimate sense of fear regarding persecution. Therefore, specific criteria must be met for someone to be considered a ‘refugee’. In India, refugees are categorized as ‘foreigners. As per Section 2 (a) of The Foreigners Act, 1946, a foreigner is defined as a person who is not a citizen of India.

The term refugee is different from asylum seekers and migrants. 

An asylum seeker is an individual who asserts refugee status, yet their claim remains unassessed. They typically seek asylum due to fears of persecution based on factors such as race, religion, nationality, or political beliefs. This status persists until their application undergoes evaluation. Therefore, not all asylum seekers will ultimately attain refugee status, but every refugee begins as an asylum seeker awaiting recognition.


Migrants opt to relocate not primarily due to immediate danger or persecution, but primarily to enhance their lives by:

  • Pursuing employment opportunities
  • Seeking improved educational prospects
  • Reuniting with family members

In contrast to refugees, who cannot safely return to their home countries, migrants have the option to return home if they choose. This differentiation holds significance for governments, as they manage migrants within the framework of their respective immigration laws and procedures.

REFUGEES IN INDIA

India stands out as one of the foremost nations in the world when it comes to receiving refugees. At the close of 2022, India accommodated approximately 405,000 refugees, comprising 213,578 officially recognized refugees sheltered in diverse camps by the Indian government, approximately 31,313 refugees from neighbouring nations’ minority communities granted long-term visas due to religious persecution claims, and around 160,085 unregistered refugees. . According to UNHCR, there are around 92,072 refugees and asylum seekers from Sri Lanka, 72,291 from Tibet, 29,361 from Myanmar, 15,053 from Afghanistan and 4,645 from others.

Sri Lankan Refugees

Since 1983, following the outbreak of war in Sri Lanka, the Tamil community fled and sought sanctuary in India to protect their children and women.

Between 1883 and 2012, a total of 3,04,269 Lankan Tamils reached Tamil Nadu.

  • Among them, 58822 are living in 108 camps in 29 districts 
  • Regrettably, among these refugees, 29,500 are Tamils of Indian origin who ought to have been regarded as repatriates rather than refugees.
  • In addition, about 34,135 Sri Lankan Tamils are living in the same state of Tamil Nadu as non-camp refugees

Most Sri Lankan Tamils who have sought asylum in Europe, Canada, the USA, and Australia have effectively integrated into their local communities, benefiting from the adherence of these nations to either the Refugee Convention or its Protocol. In contrast, India, lacking a formal legal framework for refugees or asylum seekers and not being a signatory to the 1951 Convention, categorizes them solely as “illegal migrants.”

Tibetan Refugees 

Following China’s occupation of Tibet in 1950 under the guise of liberating it from perceived economic and social backwardness rooted in feudal and religious practices, the consequences were catastrophic. Tibetans were sent to forced labour camps, while monks and nuns faced execution or imprisonment. Additionally, numerous monasteries and temples were razed, and communist ideology was imposed upon the Tibetan populace. In response to these dire circumstances, tens of thousands escaped across the Himalayas seeking refuge in India. Here, His Holiness the Dalai Lama, recognized as Tibet’s spiritual leader by tradition, found asylum and established a government-in-exile after his flight from Tibet in 1959. About 80,000 came to India at that time. 

The Central Tibetan Administration (CTA), initially acknowledged as the Tibetan government-in-exile, it was established in Dharamshala, Himachal Pradesh, with the objective of protecting the welfare of Tibetans and promoting freedom and justice in Tibet. With support from the Indian government and assistance from international supporters, approximately 40 Tibetan communities have been established across 12 Indian states: Himachal Pradesh, Uttarakhand, Delhi, Ladakh, Sikkim, Arunachal Pradesh, West Bengal, Chhattisgarh, Odisha, Maharashtra, Meghalaya, and Karnataka. Presently, these settlements accommodate roughly 90,000 Tibetans.

Refugees from Myanmar (Rohingyas) 

The Rohingya population in Myanmar has endured some of the most severe persecution globally, with over 770,000 fleeing due to genocidal assaults initiated by the Myanmar military in August 2017.The largest refugee settlement now hosts the majority of Rohingya refugees, nearly reaching one million in total. Estimations of the Rohingya population in India vary significantly. While UNHCR has officially documented over 20,000 Rohingya refugees, the Indian government’s last public assessment in 2017 indicated a figure of around 40,000. This population comprises individuals who arrived during previous waves of persecution and those who recently fled from camps in Bangladesh. Between 2012 and 2016, approximately 13,000 Rohingya refugees entered India, predominantly from Bangladesh. Recent arrivals explained that they departed Bangladesh for India due to disparities in benefits received, such as shelter and rations, compared to earlier refugees. Additionally, deteriorating conditions in Bangladeshi camps, marked by escalating targeted attacks and killings by extremist factions, prompted some Rohingya to seek refuge in India. Conversely, certain 

Rohingya, confronted with challenges in India, have opted to return to Bangladesh.

The majority of Rohingya individuals in India are concentrated in several key regions, particularly urban centres such as Hyderabad, Jammu, Nuh, and Delhi. According to a Rohingya-led organization, there are more than 90 refugee settlements spread across India. Given their predominantly Muslim identity, Rohingya tend to gravitate towards regions with sizable Muslim communities. Hyderabad, located in southern India and boasting a Muslim population exceeding 40 percent, harbours the largest concentration of Rohingya settlements in the country. These settlements, numbering 32 and resembling urban slums, accommodate roughly 7,200 Rohingya individuals.

Refugees from Afghanistan 

India has witnessed multiple waves of Afghan refugee migrations over the years, initially triggered by political upheaval in Afghanistan during the Soviet invasion in 1979 and the emergence of the first Taliban regime in 1996. However, the first instances of Afghan refugees obtaining Indian citizenship occurred more than ten years later, with 13 individuals naturalized by 2006, the majority being Hindus and Sikhs. Presently, UNHCR data indicates a population of 19,338 Afghan refugees in India, though this figure does not encompass nearly 13,000 Afghan students stranded in India since 2021 and former Afghan military personnel facing legal uncertainties in the country.

REFUGEE POLICY OF INDIA 

India does not have a national refugee law and does not adhere to the United Nations 1951 Refugee Convention, which establishes international standards for the protection and care of refugees. In 1951, after the Second World War, the UN ratified the refugee convention. During this period, India had recently achieved independence, and the memory of partition was still vivid. Prime Minister Jawaharlal Nehru opted not to sign the convention, citing security apprehensions, a position that remains unchanged to this day.

The primary legislation governing refugees, the 1946 Foreigners Act, falls short in addressing the unique challenges encountered by refugees as a distinct group. It categorizes all non-citizens of India as “foreigners,” mandating proper documentation for each individual. Additionally, the Act grants extensive authority to the Central government to deport any foreign citizen, with Section 3 empowering the government to identify, detain, and deport illegal foreign nationals.

According to Section 5 of the Passport (Entry into India) Act, 1920, authorities possess the power to deport undocumented foreigners in accordance with Article 258(1) of the Indian Constitution. Additionally, under the Registration of Foreigners Act of 1939, all foreign visitors (excluding overseas citizens of India) holding visas for extended periods (lasting more than 180 days) are required to register with a Registration Officer within 14 days of their arrival.

In India, there is no established process for refugees to apply for asylum, and individuals entering the country without a visa are considered illegal immigrants under either the Foreigners Act or the Indian Passport Act.

Thus, India, adheres to a “refugee regime” aligned with international norms, although it lacks a formal statute to codify its practices in this regard. Despite refugees falling under the category of ‘foreigners’, India manages them using existing general and specific laws applicable to all foreign nationals, due to the absence of dedicated legislation. Consequently, claims for refugee status are evaluated individually. 

The country’s ad- hoc policy results in unequal treatment for refugees.  

For example, since 1959, Tibetans, including the Dalai Lama, who sought refuge in India, have been granted official refugee status. Since 2014, the Modi government has extended them the right to vote. Additionally, Tibetans have their own government-recognized educational system recognised by the government.

Conversely, Rohingya individuals in India are officially categorized as “illegal immigrants,” facing significant hurdles as a result. These challenges include restrictions on their ability to move freely, access education, basic healthcare, legal aid, and formal job opportunities. Additionally, the Rohingya community in India grapples with growing anti-Muslim and anti-refugee sentiments, living under the persistent fear of being detained and possibly sent back to the genocidal regime they fled from.

The UNHRC has records of at least 18,000 Rohingya individuals in the nation. As reported by the UNHCR, asylum-seekers predominantly reside in urban settings, with 46 percent being women and 30 percent children. Significant populations are concentrated in Delhi, Jammu, Telangana, and Haryana. The majority lack documentation and are ineligible for essential healthcare and educational services.

On July 24, 2023, the Anti-Terror Squad (ATS), a specialized counter-terrorism unit of the Uttar Pradesh Police, apprehended 74 Rohingya Muslims, including 55 men, 14 women, and five minors. The police asserted that they had unlawfully entered India from Myanmar and Bangladesh, settling in Uttar Pradesh without appropriate documentation.

Throughout 2022, at least 203 refugees were detained on various charges in India. This group included 118 Rohingya refugees, 85 Kuki-Chin refugees in Manipur, and 20 Myanmar refugees in Mizoram. Charges ranged from illegal entry into India to involvement in arms trafficking. In the same year, two Rohingya refugees, Haseena Begum and Jafar Alam, were sent back to Myanmar. India also hindered the immigration of Rohingya refugees by third parties.

In September 2022, Senoara Begum, a refugee recognized by the United Nations High Commissioner for Refugees (UNHCR) in New Delhi, requested an exit permit to join her husband in the United States. Despite having obtained visas, India denied her request due to the Myanmar Embassy’s failure to verify her and her children’s nationality. This decision aligned with India’s policy of repatriating undocumented foreigners and restricting the exit of illegal migrants to third countries, fearing potential consequences for similar cases.

India’s approach of detaining and deporting refugees forced them to operate covertly, making them vulnerable to exploitation by criminal networks. In March 2022, the National Investigation Agency (NIA) arrested six individuals for facilitating the illegal trafficking of Rohingyas into India. This action followed the rescue of two Rohingya girls at the Guwahati railway station in Assam. These trafficking networks operated along border regions spanning Assam, West Bengal, Meghalaya, and other parts of India.

International Commitments 

The international obligations regarding the protection of refugees, including principles like non-refoulement, non-expulsion, and non-extradition, as well as the minimum standard of care, are enshrined in both customary international law and international treaty law. These principles are notably outlined in the United Nations’ Convention relating to the Status of Refugees, 1951, and its 1967 Protocol. Although India has not ratified the 1951 Refugee Convention, it remains obligated to uphold the fundamental commitment to humanitarian protection of refugees and the principle of non-refoulement, which is recognized as part of customary international law. 

As customary international law has become an integral component of international law, it is crucial for the Indian Government to adhere to it. This obligation is outlined in the Directive Principles of State Policy, which stipulate that the state (India) shall strive to promote respect for international law and treaty obligations in its interactions with other organized peoples. Additionally, India has endorsed several human rights treaties, demonstrating its dedication to refugee protection. It has ratified the Universal Declaration on Human Rights (UDHR) of 1948, acceded to the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 since 1979. Furthermore, India has signed the Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 1965 and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention) of 1984. These ratifications collectively affirm India’s obligation to ensure refugees’ rights to status determination, due process in such determination, and protection against forced return to their country of origin.

Constitutional protection to refugees 

Foreigners in India are afforded limited constitutional protections, including the right to equality under Article 14 and the right to life and personal liberty under Article 21 of the Indian Constitution. They are also entitled to rights recognized under Articles 20, 22, 25, 28, and 32, which are applicable to both citizens and non-citizens. Article 14 ensures equality before the law and equal protection, allowing the executive to make distinctions among foreigners based on relevant criteria. Article 21 safeguards life and personal liberty, with the Supreme Court interpreting it to include due process applicable to state actions. Article 20 addresses ex post facto laws, double jeopardy, and the right against self-incrimination, while Article 22 protects against arbitrary arrest and detention. Articles 25-28 guarantee freedom of conscience, religion, and its practice. Additionally, Article 32 provides the right to petition the Supreme Court for the enforcement of these rights. Furthermore, Article 51(c) mandates the state to promote respect for international law and treaty obligations in interactions between organized societies. Article 253 empowers the Indian Parliament to enact legislation to enforce treaties or decisions made at international conferences. In Visakha v. State of Rajasthan, the Supreme Court advocated for a harmonious interpretation of international and domestic law, especially when it aligns with fundamental rights. In cases where specific legislation is absent, Indian courts can interpret challenging cases according to international conventions or treaties.

JUDICIARY ON REFUGEES

The judiciary holds a pivotal role in safeguarding refugees, with many cases resulting in landmark judgments on refugee-related matters. Concepts like Social Action Litigation and Public Interest Litigation have facilitated this process. However, when refugees are detained or arrested by Indian authorities, there is always a risk of refoulement, repatriation, or deportation. Refugees arrested for illegal residency may be unlawfully detained under administrative orders without formal charges. The Foreigners Act grants the Central Government unrestricted authority to expel foreigners from India.

  • In the case of Hans Muller of Nuremberg v. Superintendent, Presidency, the Supreme Court of India granted the government “absolute and unfettered” authority to expel foreigners. This decision was reaffirmed by the Supreme Court in the case of Louis De Raedt & Ors. v. Union of India. Moreover, in the same judgment, the Supreme Court affirmed that foreigners have the right to be heard.
  • In the case of Ktaer Abbas Habib Al Qutaifi v. Union of India, the High Court of Gujarat ruled that the principle of non-refoulement prohibits the expulsion of a displaced individual if their life or freedom would be endangered due to factors such as race, religion, nationality, membership in a particular social group, or political beliefs. The application of this principle ensures the protection of life and freedom for individuals regardless of their nationality.
  • In the case of Malavika Karelkar v. Union of India, the Supreme Court stayed deportation orders against 21 Burmese refugees, enabling them to pursue refugee status through the UNHCR. This action underscores the importance of non-refoulement principles and the right to seek refugee status for individuals facing persecution or danger in their home countries.
  • Indian law does not explicitly define the term “refugees.” However, the judiciary has offered various interpretations of the term. In 1997, Justice P N Bhagwati, tasked with formulating a uniform refugee law, defined a refugee in the proposed model law as follows: “Any individual who is outside their Country of Origin and is unwilling or unable to return to, or avail themselves of the protection of that country due to a well-founded fear of persecution based on race, religion, sex, ethnic identity, membership in a particular social group, or political opinion.”
  • The Supreme Court of India has declined to halt the deportation of approximately 170 Rohingya refugees who were detained in the Jammu region of Indian-administered Kashmir, directing their return to Myanmar.

Comparison with the USA 

The United States is among the top destinations for refugees globally, with the Refugee Act of 1980 establishing comprehensive procedures for their vetting, admission, and resettlement, setting an annual cap of fifty thousand refugees and granting the president authority to admit more in emergencies. Presently, the president proposes annual limits, subject to congressional approval, with the current cap set at 125,000. President Biden has introduced The Welcome Corps program, enabling private sponsorship of refugees by US citizens through nonprofit organizations. Rigorous background checks and screening processes are conducted, starting with registration with the UNHCR, followed by interviews and additional measures overseen by State Department Resettlement Support Centres. India could consider adopting a similar refugee policy framework.

SUGGESTIONS

  • India should frame its own law for refugees and asylum seekers and its own refugee policy that would set up an asylum and refugee system, based on international obligations and the principles of the Indian Constitution. Through its laws and policies, it should give proper definition to the terms “refugee”, “asylum seekers”, “migrants” and “illegal immigrants “
  • India should ratify the1951 UN Refugee Convention and its 1967 Protocol.
  • Establish legal status of the refugees and their right to basic services such as education, employment, health care, bank accounts and SIM cards.
  • Allow UNHCR access to all refugees including detained migrants, so that it can ascertain their refugee status.
  • Allow space for civil society to work with refugees in India. 

NAME- MAHIMA UPADHYAY

COLLEGE-LAW CENTRE 2, FACULTY OF LAW, UNIVERSITY OF DELHI.