Abstract
Refugee crisis is not new to the world. Many people since the past are forced to flee from their home country due to the fear of war, religious persecution to take shelter in other countries. India due to its geopolitical conditions is the destination to the refugee from the neighbouring countries. There are certain regulations at the international level governing the refugees such as United Nation Refugee Convention 1951 relating to the status of refugee and its protocol of 1967 on the repute of refugees. However, India is not a signatory to both of them. However, India is a signatory to the New York Declaration for Refugees and Migrants which was adopted in September 2016. India does not have a specific legislation for the refugees. This Research paper mainly focuses on the legal status and rights of the refugees in India. This paper analyses the history of the refugee in India and what are the governing laws for the refugees in India. This paper further provides with some past protest and issue of refugee in India. As we go ahead the paper discusses challenges faced by the refugee and what are the constitutional provisions protecting them. In the end this paper winds up with suggestions and conclusion.
Keywords: Refugee, Refugee Convention, Legal Status, Challenges, Legislation
Introduction
Refugees are the people who have been forced to leave their home country due to the persecution, conflict, violence and to escape war and other incidents that have seriously disturbed their living in their home country. They are the people who are forced to leave their own country and move to other country in order to protect their lives. They are not able to return to their own country unless situation becomes desirable to live. Due to the geopolitical location, India has been a destination for refugees from neighbouring countries for decades. India has been a host of various refugees across the neighbouring countries such as Tibetan refugees, Sri-Lankan Tamil refugees and most recently Rohingya refugees from Myanmar.
India’s refugee rights are a complicated and important subject that needs careful consideration. India, a nation with a long history of diversity and humanitarian ideals, presents both opportunities and challenges in relation to the rights of refugees living within its borders.
Research Methodology
In terms of methodology, this paper broadly covers the qualitative research approach. This research study involves doctrinal methods in the study of the problem at hand to answer the research questions while keeping in view the research objectives.
Review Of Literature
An article titled “Refugee Crisis in India” by Drishti IAS provides the history of the refugees in India from the neighbouring countries. Another article from Drishti IAS titled “Chakma and Hajong Communities” and an article from Indian Express titled “Now Arunachal Pradesh burns: Local rise in protest against citizenship rights to Chakma, Hajong refugees” provides the insights upon the Chakma and Hajong refugees from Bangladesh and the reason of their protest in India and why the locals of Arunachal Pradesh were protesting against them. A research paper by Dr Yeshwant Naik titled “A Comprehensive Overview of Refugee Rights in Europe and India” provides the information of the several international conventions signed by India. A research paper by Ramsha Zaidi and Mohd. Uvais titled “Status of Rohingya Refugees in India: A Critical Analysis” gives the overview of Rohingya refugees and the issue faced by them in India
Research Objectives
To examine the legal system that governs refugee rights in India, to determine how well it serves and to safeguard and advance those rights. Analysing the historical background of Indian’s refugee migrations in order to comprehend how past occurrences have influenced the country’s contemporary refugee rights situation.
History of the Refugee in India
“Since its independence, India has accepted various groups of refugees from neighbouring countries, including
- Partition refugees from Pakistan in 1947.
- Tibetan refugees that arrived in 1959.
- Chakma and Hajong from present day Bangladesh in early 1960s.
- Other Bangladeshi refugees in 1965 and 1971.
- Sri Lankan Tamil refugees from the 1980s.
- Afghan refugees arrived in India in the late 1970s and early 1980s as a result of the Soviet war in Afghanistan.
- Most recently Rohingya refugees from Myanmar in 2022.”
Refugee data in India
In 2022, India had about 4,05,000 refugees i.e. 2,13,578 refugees recognized/registered by the Government of India and housed in various camps/settlements, about 31,313 refugees belonging to minority communities from neighbouring countries who had been given Long Term Visa on the basis of their claims of religious persecution and about 1,60,085 unregistered refugees.
Among the registered, 92,837 Sri Lankan refugees and 72,291 Tibetan refugees assisted by the government of India form biggest chunk.
Among the 1,60,085 unregistered refugees, over 1.00,000 are Chin refugees from Myanmar residing in Mizoram since 1990s and more than 20,000 Rohingya refugees are unregistered.
United Nation Refugee Convention 1951 and its Protocol of 1967
India being the most preferable destination for the refugee since its independence. “However, India does not have a specific legislation for the refugees, in spite of their increasing inflow. India neither signed the United nation Refugee Convention 1951 relating to the status of refugee nor its Protocol of 1967 on the repute of refugees. However, India is a signatory to the New York Declaration for Refugees and Migrants, which was adopted in September 2016.”
United Nation Refugee Convention 1951is a global convention pertaining to refugee protection. It was adopted in 1951 and entered into force in 1954. The 1967 Protocol is the only modification to the treaty that has been made. The United Nation Refugee Convention 1951 was initially restricted to individuals escaping events that took place within Europe and prior to January 1, 1951. With the 1967 Protocol, the convention’s time and territorial limitations were eliminated, making it globally applicable.
Reason why India didn’t sign the United Nation Refugee Convention 1951:
India didn’t sign the United Nation Refugee Convention 1951 because of the issue with the definition of refugee in the convention. The other reason is eurocentrism, India feels that the convention is mostly Eurocentric and does not bother about the South Asian countries.
Governing Laws for Refugees in India
As India does not have any specific laws dealing with the rights and problems of the refugees, they are treated as par with the foreigners. All the laws which are applied to the foreigners are also applied to them. Here are the enlisted legislations which governs the refugees in India:
- Foreigners Act of 1946
- The Registration of Foreigners Act of 1939
- The Passport [Entry into India] Act of 1920
- The Citizenship Act of 1955
- Citizenship Amendment Act of 2019
“India is accountable to abide by the principle of non-refoulement, the principle being a significant part of customary international law. This principle is binding on every state irrespective of whether that state has ratified the 1951 Convention or its 1967 Protocol.”
“Besides, India has signed several international conventions that impinge upon its obligations towards refugees. These include the Universal Declaration of Human Rights, 1948; The International Convention on Civil and Political Rights, 1966; the International Convention on Economic, Social and Cultural Rights,1966; the International Convention on the Elimination of all Forms of Racial Discrimination, 1966; the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, 1984; and the Convention for the Elimination of all Forms of Discrimination Against Women, 1979. All these legislations do make provision for the rights and protection of refugees. Thus, without ratifying the Convention India serves as a good illustration for a pro-refugee campaign.”
- Foreigners Act, 1946
Certain powers over foreigners’ entry into, stay in, and departure from India are granted under the Foreigners Act of 1946 to the Indian Government. The Central Government may find, apprehend and expel unauthorized foreign nationals in accordance with Section 3 of the act. The legislation additionally grants the government the authority to enact laws that forbid, control, or restrict the entry or exit of foreign nationals, either generally or in relation to particular groups.
- Registration of Foreigners Act of 1939
The Registration of Foreigners Act of 1939 provide the mandatory requirement under which all the foreign nationals visiting India on a long-term visa (more than 180 days) is required to register themselves with a Registration Officer within 14 days of arriving in India. Section 4 of the act shifts the burden of proof to such a person, who is in question whether he/she is a foreigner or not.
- Passport (Entry into India) Act, 1920
“The passport (Entry into India) Act, 1920 required all the person entering into India shall be in a possession of passports. It empowers Central Government to frame rules and regulation in accordance with it. Central government then framed Passport (Entry into India) Rule, 1950. According to this, a person who does not possess a passport while entering into India will be prohibited from entering into India. But this rule does not imply to the refugees due to the policy of non-refoulement.”
- Citizenship Amendment Act of 2019
The Citizenship Amendment Act of 2019 empowers the government to grant citizenship to the minority people persecuted in Bangladesh, Pakistan, and Afghanistan. These minority people include Hindu, Christian, Jain, Prasi, Sikh, and Buddhist. One of the debatable parts of this act was that it does not include the Muslim community in it. The reasoning given by the government was that these are the Islamic states and majority population is Muslim and it is unlikely that they are subject to persecution on the religious ground but 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.
Constitutional Articles Protecting refugees
There are certain article in the constitution of India which not only protects the rights of residents of India but also protects the non-residents.
- Article 14: “Article 14 of the constitution of India states that “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.””
- Article 20: “Article 20 offers with ex post facto regulations, rights against double jeopardy and right towards self-incrimination.”
- Article 21: “Article 21 of the constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.””
- Article 22: “Article 22 offers with proper in opposition to arrest and detention.”
- Article 25-28: “Article 25-28 offers with right to freedom of judgment of rights and wrong and loose exercise and propagation of faith.”
- Article 32: “Article 32 grants the rights to move the supreme court in order to enforce the fundamental rights.”
- Article 51(c): “Article 51(c) of the Indian constitution states that “The state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.””
Some of the Past Issues of Refugees in India
- Chakma and Hajong Issue
Chakma and Hajong are the ethnic people who were from Bangladesh came to India in 1964-65 and settled in Arunachal Pradesh. Chakma are mostly Buddhist and Hajong are Hindus, fleeing religious persecution. “In 2015, the Supreme Court of India directed the centre to grant citizenship to Chakma and Hajong who had migrated from Bangladesh, then East Pakistan. Local people protest in a large against this issue. The reason cited was that it would alter the demography of Arunachal Pradesh and lead to a loss of opportunities for local people.”
- Rohingya Issue
“Rohingya are stateless Muslim ethnic group of western Myanmar who are treated with persecution, discrimination and exploitation in their homeland Rakhine state for years and who flee to India in search of the shelter. Bangladesh is the main destination for the Rohingya which is hosting more than 9,19,000 Rohingyas. Rohingya also tried to migrate to Thailand and Malaysia but were not welcomed. In order to search for a safe place and avoid the harsh condition in Bangladesh, they migrated towards India. There are 40,000 Rohingya refugees in India out of these approximately 16,000 are registered with the United Nation Refugee Agency.”
The controversial Citizenship Amendment Act (CAA) which was passed by parliament in 2019, provides Indian Citizenship to the persecuted religious minorities from Afghanistan, Bangladesh, and Pakistan. However, Rohingya who are Muslims, are not eligible to seek Indian Citizenship under the Citizenship Amendment Act (CAA) 2019. Many Rohingya were deported back to the Myanmar. In order to stop their deportation, many of them started protesting in front of the office of the United Nation High Commissioner for Refugees (UNHCR) in New Delhi against plans to deport them and seeking protection from arrest. Due to this protest many Rohingya refugee were detained by the police in Delhi. Rohingya refugee are being termed as an illegal immigrant by the government. Rohingya refugee living conditions are not good as they live in the slum area of Delhi. The protest highlighted the debate surrounding the rights and status of the Rohingya refugees in India.
Important Cases Related to Refugee Issues
- National Human Rights Commission vs State of Arunachal Pradesh
“In this case Supreme Court of India held that Chakma Refugee who had come to India from Bangladesh cannot be forcibly deported back to Bangladesh as they might be killed there and thus would be deprived of their right under article 21 of the Indian constitution which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.””
- Ktaer Abbas Habib Al Qutaifi vs Union of India
“In this case the Gujarat high court held that the principle of non-refoulement prevent the expulsion of a displaced person whose life or freedom would be threatened by his or her race, religion, nationality or political beliefs. Any person’s life and freedom are guaranteed by the application of this concept, regardless of nationality.”
- Saidur Rahman vs Union of India
“The Guwahati High court held that not withstanding the fact that detained proceeded were liable to be deported to their country of origin after serving their sentences, the state could not deny the petitioners the rights to seek refugee status with the UNHCR. Further, the state was required to facilitate their applications for the same.”
Challenges Faced by the Refugee in India
- Apprehension and Uncertainty
“Refugee who are forced to flee due to persecution, war against them in their home country do not get relief in the country where they take the shelter as a refugee. They are not treated equally as the resident and are not treated well by the residents. Refugee are not given importance in the society and are being exploited by the local people for not being citizens of the same soil.” This develop a sense of fear and uncertainty for them as they think they can be forced to leave the country where they are living as a refugee like their own home country.
- Absence of a Framework to Safeguard Them
Although India is a favourable destination for the refugee coming from the neighbouring countries, India does not have a specific legislation to govern them. In the absence of a specific framework refugees feel difficult to access their rights and protections. They also do not have a proper document and hence it creates a lot of problem and insecurity among the refugees.
- Mistaken for Immigrants
Many refugees are mistaken as immigrants who are not forced to flee from their country due to persecution, war but migrated to other countries in order to search for a better economic opportunity and living standards. They are often treated as illegal immigrants. For example- Rohingya refugee from Myanmar are often said by the government to be illegal immigrants. However, it is a debatable topic whether they are illegal immigrants or refugees because Rohingya people consider themselves as refugees.
- Lack of Education Opportunities
Refugees are not able to get the better education opportunity. However, some refugees get this benefit through different government and non-government organisation who are working towards the welfare of them. Even though these organisations are working for them, refugees then also face problems in accessing education facilities.
- Unemployment
Refugees in India are dealing with the problems of unemployment. They do not possess proper document for the job and are discriminated by the local residents and hence they are forced to work for low wages and are not given any privileges.
- Housing and Healthcare
Refugee faces a problem in housing and healthcare sector as well. The living standards are very bad and they are forced to live in slum areas and even they face problem while accessing healthcare benefit. However, these problems are not faced by every refugee but majority of them faces these problems.
- Delay in Identification
“United Nation High Commissioner for Refugees issues a refugee card for the refugee living in the country in search of shelter, food and better living conditions. However, this process takes a long duration and if between this any of them caught by the police, they will be detained by them or even may be deported back to their home country without even getting access to the refugee card provided by the United Nation High Commissioner for Refugees.”
Suggestions
- Specific Framework: In order to deal with the problems faced by the refugee, India needs a specific framework to regulate them. As India neither signed the United Nation Refugee Convention 1951 nor its Protocol of 1967 on the repute of refugees, it is important for India to frame a specific legislation for refugees in order to deal with the problems.
- Providing Basic Amenities: Refugee should be provided with the basic amenities in order to improve their livelihood. They should be given access to the education, healthcare facilities, housing and even government should provide them employment for their livelihood. These are some basic amenities that will help to improve the condition of the refugees in India.
- Awareness Program: An awareness program should be run so that the local residents do not discriminate them and the refugee do not have fear and insecurity among themselves.
- Less time for Identification: Government should do the identification process of refugee in less time. It should not be a lengthy process. Process of identification should be effective so that they do not get deprived of their basic amenities.
Conclusion
India despite having large population welcomes refugees across the neighbouring countries. Despite not having specific legislation for the governance of refugee in India, it deals with the thousands of refugees residing in India. India neither being a signatory to the United Nation Refugee Convention 1951 nor its Protocol of 1967, governs the refugee from the domestic laws such as Foreigners Act of 1946 and The Passport (Entry into India) Act of 1920. This research paper presented the different challenges faced by the refugee in India and India despite not being a signatory of the United Nation Refugee Convention follows the principle of non-refoulement. India needs a specific governing laws for the refugees other than their domestic laws.
AUTHOR
MITALI SINHA
ASIAN LAW COLLEGE