This article on refugees is written by Aman Lodha.
INTRODUCTION
Every year, millions of persons invoke the protection of international refugee law, making it one of the most relevant international human rights mechanisms. Respect for the rule of law and human rights forms the essence of the protection of refugees and stateless persons. The Office of the United Nations High Commissioner for Refugees (UNHCR) has a mandate to provide international protection to refugees, including promoting the accession to international refugee instruments and other relevant human rights instruments. UNHCR’s activities are also focused on assisting in the strengthening of legal structures that would enhance the rule of law, including in the area of transitional justice.
Statelessness is a source of human insecurity, forced displacement and serious conflict, which may pose a threat to national and regional stability. Legislation on nationality and administrative practices that are in accordance with internationally recognized human rights standards are essential elements of the rule of law.
The Geneva Convention and its Protocol have been ratified by almost 150 states to date (however a number of countries, such as the Gulf States and India, are not among the signatories). The Convention was drafted under the specific conditions of the post-war period, applying only to persons who became refugees as a result of events occurring before 1 January 1951 in Europe. This temporal and geographical limitation was removed by the 1967 Protocol.
MEANING OF TERM REFUGEE
Refugees are a special class of migrants who under international law deserve specific protection by their host state. According to Article 1 of the 1951 UN Convention, as modified by the 1967 Protocol, a refugee is defined as 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, is unwilling to avail himself of the protection of that country.’
This definition implies several qualifying conditions to be considered a refugee:
(1) Presence outside home country,
(2) Well-founded fear of persecution (being at risk of harm is insufficient reason in the absence of discriminatory persecution)
(3) Incapacity to enjoy the protection of one’s own state from the persecution feared. The definition of refugees was actually intended to exclude internally displaced persons, economic migrants and victims of natural disasters, and persons fleeing violent conflict but not subject to discrimination amounting to persecution.
DIFFERENCE BETWEEN REFUGEE AND ASYLUM SEEKER
A refugee is not the same as an asylum-seeker. According to the United Nations High Commissioner for Refugees (UNHCR), ‘an asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated’.
RIGHTS OF REFUGEES AND ASYLUM-SEEKERS
International refugee law or international human rights treaties neither articulate an explicit entitlement to asylum for the individuals concerned nor impose an obligation on states to grant asylum. “Individuals have a right to seek asylum, not to be granted asylum, and the states have the right to grant asylum, but no obligation”. The Geneva Convention does not guarantee asylum-seekers the right to be granted refugee status, even if they fulfil the conditions to be considered refugees; this remains at state discretion. States have, however, to refrain from actions that would endanger asylum-seekers, especially from returning them to their country of origin. Each state is also free to establish the conditions for granting asylum. This situation is reinforced by the fact that nobody is entitled to interpret the Geneva Convention authoritatively, unlike most other international human rights treaties. The United Nations High Commissioner for Refugees (UNHCR) has the duty to supervise its application but has no authority to provide mandatory interpretations. The task of interpreting the Convention has thus fallen to domestic lawmakers and courts.
STATUS OF REFUGEES
Due to their vulnerable situation, asylum-seekers are sometimes forced to enter their country of refuge unlawfully. Entering a state party to the Convention unlawfully does not forfeit protection (Article 31) and illegal entrants can still qualify as refugees if they fulfil the relevaConvention does not stipulate that states are required to grant asylum-seekers entry to their territory criteria.
Refugees unlawfully in the country of refuge should not be punished for their illegal entry if they come directly from the territory where their life and freedom was threatened and if they report themselves immediately to the authorities, showing good reason for their illegal entry (Article 31). Restrictions on their movement can be imposed until their status is regularised. Though ‘refugees lawfully in the territory,’ Article 26 of the Convention grants the right to choose their residence and to move freely. The UNHCR considers that detention of asylum-seekers should be a measure of last resort. It has drafted a set of guidelines for the use of detention of asylum-seekers. In certain countries, refugees are confined to refugee camps and their movement is restricted. In other countries, including in many developed countries, detention of irregular migrants until their status as refugees is determined is a common practice.
The Convention establishes a duty on states to accord rights to refugees that in certain areas are on a par with those of their population, while in others are similar to those granted to the most favoured aliens or to aliens in general. Rights accrue to refugees incrementally depending on the legality of their situation in their host country and the duration of their stay there. The first tier of rights applies merely on the basis of presence within a state party’s territory, even if this presence is illegal. Such rights include freedom of religion (Article 4), property rights (Article 13), the right to primary education (Article 22), the right to access to the courts (Article 16(1)), a limited right to move freely, subject to justifiable restrictions (Article 31(2)) etc. The second tier of rights are to be granted when refugees are ‘lawfully present’ in the host state (for example while their asylum claim is processed), including the right to self-employment (Article 18) and the right to move freely, subject to regulations applicable to aliens in general (Article 26). Other rights are accrued when refugees are ‘lawfully staying’ in a state party (usually after recognition of their refugee status by the state concerned), including the right to paid employment (Article 17) under conditions no less favourable than for other aliens. The right to work without any restriction accrues only after a period of three years’ extended residence (Article 17(2)). The absence in the Convention of a definition of the concepts of ‘present lawfully’, ‘staying lawfully’, or ‘residing lawfully’ affords states considerable discretion in according rights to refugees. In practice, states are free to grant permanent or temporary residence and to assign, or decline rights to work and move freely. This leads to great differences as regards refugees’ rights.
INDIA’s STAND ON REFUGEES
India has been home to a large number of refugee groups while not having signed the 1951 Convention for Refugees or established a national legislation governing refugees. India has been witness to numerous migratory populations that came to this country from foreign lands and who were subsequently accepted and absorbed as one of its own. Currently, India hosts over 205,000 refugees like Myanmarese, Sri Lankans, Somalis and Afghans. Despite the curbs on international humanitarian assistance to refugees and asylum seekers, India has been a good host country to them. For instance, the Indian government has provided basic humanitarian assistance, especially when it comes to the group of Tibetan and Sri Lankan refugees present in the country for over 60 years.
THE STATUS OF REFUGEES IN INDIA:–
Although one could argue that India has been generous to any flow of refugee groups in Asia, who choose this country as a refuge mostly for its porous borders, better economic opportunities and its soft-secular state system, the State still lacks a proper legal framework for people seeking refuge in India. Consequently, push-backs and coercive measures to promote repatriation in violation of basic international fundamental rights have been practiced in India over the years.
This is not to say that the Indian government does not have a policy on refugees given that there is no legislation on the issue, this policy has traditionally been based on a combination of ad hoc executive policies and judicial pronouncements, and thus lacks any formal structure. In the absence of a specific law, the statute that deals with the entry and exit of foreigners is the Foreigners Act of 1946. However it does not recognise refugees as a special category deserving of humanitarian protection and the process of deciding who qualifies as a refugee is also unclear while the Indian government determines refugee status for asylum-seekers from neighbouring regions like Tibet and Sri Lanka, asylum-seekers from other regions approach the UNHCR office in New Delhi. This has given rise to an inconsistent approach towards different nationalities, and an asylum policy that, on the whole, lacks uniformity.
Against this background, it is heartening that Shashi Tharoor, a Member of Parliament, introduced the Asylum Bill, 2015 as a private member’s bill. This Bill seeks to consolidate the various policies that apply to refugees in India, while also harmonising them and giving India recognition for its long-standing commitment to refugee protection. As Dr. Tharoor wrote, this law “will reflect the leading role India has played in sheltering those fleeing persecution”. Further, the Bill codifies the rights and duties of refugees in India and proposes the establishment by the government of an autonomous National Commission, which will assess and determine claims for asylum in India. It is vital to note here that the Bill has been framed in manner that is contextual to India’s history, capacity and security concerns.
This Bill, if it passes into law, will not only have a far-reaching impact on refugee protection but will also give the government a firm structure for asylum management, which is crucial in the mixed migration context as it exists today. Putting in place a system where all refugees are given an opportunity for a fair hearing, will encourage them to present themselves at the earliest for the determination of their claims rather than forcing them to go underground where they are vulnerable to exploitation. It will also give clear guidance to law enforcement authorities, with the result that fewer refugees will be unlawfully detained for “illegal entry” even though the entry in question was to escape persecution in their home country.
Most importantly, the Bill puts systems in place such that State authorities and structures are prepared to respond to any future refugee crisis at India’s doorstep. As the horrifying images emerging from Europe indicate, it is the lack of preparedness that can lead to undesirable consequences both for the host country and refugees.
From a refugee rights standpoint, by legitimizing their stay the Bill will allow refugees to overcome their past trauma, put them on the path to recovery, enable them to move forward with their lives and become contributing members of society during their time in India. Most importantly, if the Bill were to become law, it would bring India’s asylum practices in line with its own democratic, constitutional and cultural values.
While India has been human and generous towards refugees, India has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol. India is also yet to frame a coherent and uniform law in addressing the issue of asylum. The term “refugee” is nowhere mentioned in any domestic laws of India.
LEGAL FRAMEWORK IN INDIA:-
India has a federal set up and is described as a Union of States. The union is considered as a State in international law. The Union legislature, i.e., the Parliament alone is given the right to deal with the subject of citizenship, naturalization and aliens. India has not passed a refugee specific legislation which regulates the entry and status of refugees. It has handled the refugees under political and administrative levels. The result is that refugees are treated under the law applicable to aliens in India, unless a special provision is made as in the case of Ugandan refugees (of Indian origin) when it passed the Foreigners from Uganda Order, 1972.
In India refugees are considered under the ambit of the term ‘alien’. The word alien appears in the Constitution of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil Procedure Code, and in Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes. Enactments governing aliens in India are the Foreigners Act, 1946 under which the Central Government is empowered to regulate the entry of aliens into India, their presence and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen of India’. The Registration Act, 1939 deals with the registration of foreigners entering, being present in, and departing from India. Also, the Passport Act, 1920 and the Passport Act, 1967 deals with the powers of the government to impose conditions of passport for entry into India and to issue passport and travel documents to regulate departure from India of citizens of India.
Since these enactments do not make any distinction between genuine refugees and other categories of aliens, refugees run a risk of arrest by the immigration authorities and of their prosecution if they enter India without a valid passport/travel documents. When a refugee is detained by customs, immigration or police authorities for commission of any of the offences under the earlier mentioned enactments, he is generally handed over to the police and a First Information Report is lodged against him. According to the provisions of these statutes the refugee may face forced deportation at the established sea ports, airports or the entry points at the international border, if he is detected without valid travel documents. He may also be detained and interrogated pending decision by the administrative authorities regarding his plea for refugee/asylum. A refugee also faces the prospects of prosecution for violation of the Registration of Foreigners Act, 1939and Rules made there under and if he is found guilty of any offence under this Act he may be punished with imprisonment which may extend to one year or with a fine up to one thousand rupees or with both.
However, in many cases the courts have taken a lenient view in the matter of punishment for their illegal entry or illegal activities in India and also, by releasing detainees pending determination of refugee status, staying deportation and giving them an opportunity to approach the United Nations High Commissioner of Refugees (hereinafter referred to as UNHCR), refugees continue to run the risk of apprehension, detention and prosecution for the violation of the Foreigner’s Act, 1946 [9] and the Foreigners Order,1948.
CONSTITUTIONAL FRAMEWORK FOR PROTECTION OF REFUGEES
The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to non-citizens, including refugees, as they are to citizens.
INCORPORATING INTERNATIONAL LAW IN DOMESTIC LAW
It is true that India has not ratified the 1951 Convention and the 1967 Protocol to it, however, it acceded to various Human Rights treaties and conventions that contain provisions relating to protection of refugees. As a party to these treaties India is under a legal obligation to protect the human rights of refugees by taking appropriate legislative and administrative measures under Article 51(c) and Article 253 and also under the same laws it is under the obligation to uphold the principle of non-refoulement. India is a member of the Executive Committee of the office of United Nations High Commissioner for Refugees which puts a moral, if not legal obligation, on it to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee Convention.
With regard to adopting international conventions in domestic laws, in Vishaka v. State of Rajasthan, the Court observed that reliance can be placed in international laws. Therefore, the question that arises is whether India can refer to the 1951 Convention in interpreting the domestic legislation and whether it is really necessary to ratify these conventions. It is to be noted that merely ratifying the 1951 Convention does not ensure that the asylum seekers will not be kept out and also Article 42 of the same Convention permits reservations with respect to the rights of refugees which will defeat the purpose of ratifying the Convention.
The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and incorporate it into domestic law or enact a uniform legislation specifically for refugees so that it is not left to the discretion of the executive and the judiciary to decide their fate.
India’s reasoning for not signing the Refugee Convention is the fear of indefinite legal responsibility for the vast numbers of persons seeking shelter. The Indian government does not believe it successfully can handle the requirements of the Refugee Convention, and such new pressures would damage the country’s economic and social balance. Signing the Refugee Convention, however, would not only bind India to the obligations in the Refugee Convention, but it also would allow for substantial international assistance from other UN Member States for thousands of refugees in India.
INDIA’S REFOULEMENT POLICY
India’s ability to refoule persons seeking asylum in India violates international customary law on the treatment of refugees, as well as the standards codified in the Refugee Convention. As part of customary international law, the policy of non-refoulement prevents a country from expelling refugees to countries where their lives or liberties would be threatened. The majority of states, including the 137 signatories to the Refugee Convention, consistently practice non-refoulement in its determination of whether to grant entrance to people seeking asylum. Furthermore, states consider non-refoulement an obligation to all persons seeking asylum, regardless of whether they are in countries that are signatories to the Refugee Convention. The practice of non-refoulement by most states, as well as their respect for the policy as a legal obligation, has rendered non-refoulement customary international law. India consequently violates customary international law, as well as the Refugee Convention, when it returns groups at the border.
POLICY TOWARD REFUGEE GROUPS
India bases its treatment of various refugee groups on political grounds, resulting in an unstable and ever-changing domestic policy. India grants privileges to certain refugee groups based on bilateral and multilateral political relations with other states, as well as domestic political opinion. An examination of India’s treatment of Tibetan refugees arriving in the 1960s and 1970s versus Tibetan refugees arriving since the 1980s provides an example of India’s discriminatory policies.
India gave Tibetan refugees arriving in the 1960s and 1970s preferential treatment compared to the other refugee communities living in India for a variety of reasons. The first group of Tibetan refugees to enter India had several exigencies that other refugee groups did not. First, a head of state of a previously independent country, the Dalai Lama, asked for shelter for himself and his people. Second, China’s invasion of Tibet played a role in relations between Democratic India and Communist China and focused the world’s attention on the Tibetans’ plight. Third, Tibetan refugees were then, and still are, the largest body of refugees in India, and were thus too large a group to ignore. Fourth, Tibetan refugees are members of a society and culture that is eager to re-establish itself in its home territory and were viewed as only having a temporary reliance on India. As a result of these exigencies, India allowed the Dalai Lama to establish a Tibetan government-in-exile called the Central Tibetan Administration (CTA), seated in the northern Indian city of Dharamsala, but it did not officially recognize it. In addition, although no foreigners can own property in India, the Indian government provided land and housing to establish Tibetan farming settlements. Furthermore, the Indian government granted the Tibetan refugees who entered through the 1970s Indian Residential Certificates for identification purposes, permission to work, domestic travel rights, Indian Identity Certificates, which allowed them to travel outside India (similar to a passport), and medical treatment. Although, according to Indian law, the Indian government has no obligation to assist refugees, the Indian government chooses to grant these early Tibetan refugees services and opportunities no other group enjoys.
CONCLUSION
India has an important role in the treatment of refugees because of its position as a leader in South Asia, setting an example for other states in the region, and it shelters one of the largest refugee populations in the world. India’s lack of clear standards for the treatment of refugee groups, however, is resulting in violations of the international norms for the treatment of refugees. Its policies are discriminatory and inequitable, even to members of the same group. Although Tibetan refugees who arrived prior to 1980 received adequate assistance from the Indian government, assistance to the Tibetan refugees who arrived after 1980 has declined greatly, forcing them to live in inhumane conditions. These inconsistent policies demonstrate that India should adopt basic standards of treatment for the refugees living inside its borders. In order for India to bring its refugee law into conformity with the international community, only improving its domestic laws is insufficient because it will continue to reject international assistance and monitoring of refugee groups. India should reform its refugee policies and accede to the Refugee Convention or its Protocol.
