The article is written by Daksha Khanna, from Symbiosis Law School, Noida. The article focuses on Internally Displaced Persons, Refugees and Migrants and their status in India. The article also includes their status under the International legal framework.

Introduction 

Internally Displaced Persons, Refugees and Migrants all come under the scope of foreigners in India. A foreigner is a person who is not a native or naturalised in the country or jurisdiction under consideration. A foreigner is also considered an alien as he/she is not in their ownership or possession of documents that makes them an Indian. In the following article, we will focus on the internally displaced person, migrants and refugees and their status in India. 

Internally Displaced Persons

The definition of internally displaced person has two essential elements that need to be considered to form the complete description of an internally displaced person. The first element is the involuntary nature of the movement. The second element is that such an action takes place within national borders.

The definition put forth by the United Nations General Assembly was:

“Persons or groups who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disaster, and who are within the territory of their own country”.

People can also be displaced not just as a consequence but in the apprehension of a possibility of it happening in future. Some internally displaced persons end up staying with their relatives, friends or family. Many of them don’t have the means and resources to leave the country when they want to, making them the most vulnerable people who are in dire need of protection. Internally displaced persons have similar problems that refugees do, but they are not granted the same rights under the law. The Guiding Principles on Internal Displacement are non-binding. They have certain rights like:

1. The right to receive humanitarian assistance.
2. The right to be protected from physical violence. 
3. The right to freedom of movement. 
4. The right to return home safely.
5. The right to settle elsewhere.

Primarily vulnerable are those that are facing prosecution at the hands of their government. It is the country that they are displaced in that should provide protection and assistance. In some cases, the government is unwilling or unable to provide such protection. 

Causes of IDP in India

Political causes

1. Since Independence, India has continuously experienced displacement due to armed-conflicts and problems arising out of internal security. The most extensive internal displacement situation started in India from the conflict in Jammu and Kashmir in the northwest. There was widespread anarchy caused by political instability and violation of human rights at the militant groups’ hand. These situations led to the displacement of Kashmiri pandits to cities like Jammu and Delhi. The displaced find better job opportunities, education and security in camps instead of their homes as the massacres continued to happen despite the election of a popular government in 1996. 
2. The Naga movement (led by the Nationalist Socialist Council of Nagaland) and the Assam Movement (led by All Assam Students Union) caused violence, and retaliatory acts from the government and other authorities became another major cause for displacement. 

Identity-based displacement

1. Counter-insurgency operation by the Indian Army against the local groups along the border of Myanmar resulted in the displacement of more than 6,000 people from Hmar and Paite ethnic groups. 
2. Several people from the villages in northern Tripura have been displaced due to attacks on villages inhabited by Bengali origin people. They became the target of local and armed groups as they were considered foreigners. 
3. Chakmas in the North-East are regularly threatened with expulsion by a students’ organisation in Arunachal which claim that Chakmas should resettle in some other place. 

Displacement due to industrial projects

There has been a constant land acquisition for Special Economic Zones or the industrial project’s development without prior consent and information. 

Majorly, the construction of dams is what has led to displacement at a high rate.

The construction of Sardar Sarovar Dam on the river Narmada caused the displacement of around 0.2 million people. This was the major failure of the project.

Development projects are usually located in villages, hills and first areas. Displacement means a loss of livelihood, shelter, habitat, assets, and so on which had sustained those people till now. The weak and the poor are at the most significant threat. 

Further, globalisation has been a significant threat to the rural areas. The multi-national companies encroach upon those areas of rural lands’ tribal regions to build the desired infrastructure for their company. 

Displacement due to natural disasters

There has been a repetitive and massive displacement caused by natural disasters like floods, cyclones, earthquakes and landslides. More than 5 million people were displaced in India because of natural disasters, conflicts and violence in 2019. There were 5,018,000 displaced people due to natural disasters. Natural disaster-led displacement is not usually recorded after the initial step of relief and rehabilitation assistance. One of the most severe aspects of the removal belonging to this category is that the displacement has been silent but acute and frequent. 

Protection of IDP under International Law

United Nations Guiding Principles on Internal Displacement

Internally displaced persons do not have rights or benefits like refugees. They do not benefit from any international legal and institutional framework. However, there are United Nations Guiding Principles on Internal Displacement. These were established in 1998 and were developed keeping the Human Rights Law as its basis. 

It defines the internally displaced as persons who have been forced or obliged to flee or leave their homes or places of habitual residence to avoid the effects of armed conflict, situations of generalised violence, violations of human rights, or natural or human-made disasters and who have not crossed an internationally recognised state border. 

• The Guiding Principles are not binding, nor are they customary international law. 
• The Guiding Principles are useful for giving the rights to every person in need of protection from displacement. 
• The Guiding Principles assert that project authorities should explore all feasible alternatives to avoid displacement.
• Principle 7 emphasises on the need for the authorities to minimise the adverse effects of the displacement. 
• The measures include the provision of adequate accommodation and financial assistance. 
• Principle 9 of the Guiding Principles focuses on taking measures to prevent the displacement of tribal people, indigenous people, and other groups as the resurrection of their natural habitat can prove to be a cumbersome task. 
• The Guiding Principles provide a valuable foundation for developing legal norms and principles addressing issues of how the displaced are compensated and reallocated land.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR is a method to convince international communities that development-induced displacement amounts to violating human rights. 

• ICESCR considers it essential that the states must recognise the right of all human beings to work – “mandating that the State safeguard the right of everyone to work in an area that he or she freely chooses or accepts”.
• ICESCR requires the states to recognise that an adequate standard of living is also a right.- “recognising, besides, the right to the continuous improvement of living conditions”.
• Removal of citizens directly from their homes risks the rights of those people. 
• The states must demonstrate and prove that it has utilised all the available sources to secure its citizens’ rights.
• Forced evictions of citizens are in direct contradiction with ICESCR.  

Protection of IDP under the Indian legal framework

IDPs’ laws are lacking, and the only way is to depend on the country’s laws for their protection. Further, there are no laws that expressly mention that the state has a responsibility towards the maintenance and security of the internally displaced persons.

The Indian Constitution

It is highly recommended for IDPs to turn to the fundamental rights of the Indian Constitution in need of it. 

• Article 21 provides the framework securing the right to life.

In Olga Tellis v. Bombay Municipal Corporation, the court held that any person deprived of their right to an adequate livelihood or freedom to work could challenge the deprivation as infringing Article 21 of the Indian Constitution. In this case, the sidewalk dwellers in Bombay were forcibly made to move due to the destruction of their homes and workplaces to construct an expressway. 

Right to shelter was also incorporated in Article 21 as held in the case Mullin v. Union Territory of Delhi.

It was held in Ram Prasad v. Chairman, Bombay Port Trust that the eviction of the family of a slum dweller would infringe thor Right to Life unless the Bombay Port Trust provided alternative accommodations or compensation. 

• Article 39 provides a framework for securing its citizens with the right to an adequate means of livelihood.
• Article 41 talks about securing the right to work and that the state shall take the responsibility to ensure the said right.  

The Land Acquisition Act

• The Act provides fair compensation at market value for the lost cause to the individual who owned the land. 
• Rehabilitation is not required under the Act. 
• The Supreme Court has been stated as the only forum approachable for those individuals whose land is to be acquired or has been acquired.

Narmada Water Dispute Tribunal Award (NWDT)

• The NWDT provides a framework for resettlement and rehabilitation that was caused due to the Sardar Sarovar Project.
• The purpose is to set ground conditions regarding the settlement and rehabilitation of those displaced because of the Sardar Sarovar project. 
• It does not include individuals or families that suffered secondary displacement.
• Another important aspect covered in the provision of rehabilitation facilities that were lacking in the Land Acquisition Act. 
• It lacks a framework for landless and tribal populations that cannot claim legal title to land. 

Refugees

Refugees are those who have fled their country because of violence, conflict or fear of persecution. In most cases, they cannot seek protection from their land or go back to their country and fear of discrimination. Refugees have a right to be protected by the nation that gave them asylum. Often, they leave the first country and move somewhere else due to lack of economic opportunities. They do not relocate willingly; the reasons mostly involve war and hardships and are, in most cases, undocumented. A refugee, according to United Nations Convention (1951), is defined as “a person who is owing to a 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”.

Causes for the settlement of Refugees in India

1947 

after India and Pakistan’s partition in 1947 witnessed one of the most historical changes in the two nations’ population. Millions of people displaced from Pakistan and found refuge in the camps set up in Delhi, Punjab and Bengal. People fled because of the compulsion caused due to the social persecution or war that took place. According to the 1951 census, 7.249 million Hindus, Sikhs and Muslims were forced to move to India from Pakistan immediately after the partition. 

1959

This period witnessed refugees from Tibet when the Dalai Lama with more than 100,000 followers fled Tibet and came to India seeking political asylum.

1971

There was a migration of 10 million refugees from Bangladesh during the Bangladesh Liberation War. 

1983

More than 100,000 Sri Lankan Tamil refugees had entered the country during the Sri Lankan Civil War. 

1979-89

60,000 Afghan refugees came to India during the Soviet-Afghan War. 

2012

More than 40,000 Rohingyas found their home in India after the communal violence in Rakhine in Myanmar. 

Refugees under the Indian legal framework

Refugees witness the Indian legal framework in two situations. Once they enter and stay in the country, second is under the circumstances that branch out of them being refugees. 

Constitutional provisions for refugees

• There are provisions in the Indian Constitution that apply to the refugees in the same manner as the Indian Citizens. Firstly, it applies Article 21 to the refugees as it states the Right to life and personal liberty.  It is useful to all the people whether they are citizens of India or not.  
• The High Courts in India have also adopted the rules of natural justice to refugee issues and recognise the United Nations High Commissioner for Refugees (UNHCR), which plays a vital role in protecting refugees. 
• In many instances, Guwahati High Court has given judgements recognising the refugee issue and permitting them to approach UNHCR for determination of their refugee status while staying the deportation orders issued by the district court or the administration. 

In the case of Gurunathan and ors. v. Government of India the Madras High Court held that Sri Lankan Refugees should not be forced to leave against their will. The same was also held in the case of A.C.Mohd.Siddique v. Government of India and Ors. 

• The Supreme Court of India has also stayed the deportation of refugees in several instances like in Maiwabd’s Trust of Afghan Human Freedom vs. State of Punjab, N.D. Pancholi vs. State of Punjab and Ors and Malavika Karlekar vs. Union of India. 
• In National Human Rights Commission vs. State Of Arunachal Pradesh & Anr on 9 January 1996 also called the Chakma Refugee case, the court stressed that no one should be deprived of his/her life and liberty without the due process of law.

There is an aspect of ‘International Zones’ which are transit areas at airports and other points of entry into the Indian territory. It has been proved to be a risk factor for the refugees as it reduces access to legal remedies. It violates the principle of non-refoulment, there was an instant when a Palestinian refugee was deported to New Delhi International Airport from Kathmandu was sent back to Kathmandu from the transit lounge. He was once more returned to New Delhi International Airport because it would still be an international zone. This acts as a hurdle in availing legal remedies to the refugee that has been detained. It is just through administrative authorities that relief can be gained. 

Further, some other provisions of the Indian Constitution apply to refugees, like Article 22(1), 22(2), 25(1). The establishment of the provision of the rule of law says that no person shall be deprived of his life and liberty without the authority of law. It is one of the primary structural features of the Indian Constitution, along with the typical law percept, and it is a feature that cannot be amended. 

The Supreme Court also held that the court might apply international law only in cases where there exists no conflict between international law and domestic law. In case of a conflict between the national and international legislation, it has been laid down that the domestic law shall prevail. 

• There is no concept of work permits for refugees in India. Though the refugees granted residence, Perkins eventually found employment in the informal sector. For instance, Tibetan refugees were granted loans for self-employment. In the same manner, Chakma and Afghan refugees sought employment over time. 
• Fundamental freedoms are granted to refugees, whether legal or subsequently legalised. However, in cases of illegal refugees or refugees who have stayed beyond permissible limits have strict restrictions imposed on them under the Foreigners Act, 1946, Foreigners Order, Passport Act etc. 
• Refugees may enter India by land, air and sea. It is at the point of entry where they will come into initial contact with immigration authorities at airports or sea-ports or with the border guarding authorities at the border check-posts.
• A refugee is bound to face detention if he/she illegally enters India crossing the international border. The legal-aid cell is made available to the refugee in case he/she needs legal help. It makes detention even more valid when the refugee does not own valid travel documents. This is done for the country’s security as he/she may be suspected to be an infiltrator or a spy and so these steps are taken to ensure protection both to the refugee and the country. 
• There is a lack of medical aid in detention, and that is when refugees play a significant role in helping the injured. Delhi High Court had ordered that a Palestinian refugee was detailed in New Delhi; it was held that the refugee could be provided with the necessities like food and medical care. In such cases, the security personnel could take the help of a local NGO. 
• In cases where a woman refugee would be arrested, she can be released on bail. Though this would lead to fear and apprehension in a foreign country, it is considered an option to take help on an NGO or UNHCR to provide support to the woman. This is considered to be a humanitarian attitude on the part of the security personnel. 
• Refugee children face problems where they are detained as they do not possess valid travel documents. This problem takes efforts to resolve as children are not granted separate residential permits but are included in their parent’s permits. In cases where the children are separated from their parents, the security personnel and UNHCR helps them by making efforts to unite them. 
• Only when the charge sheet is filed canor the refugee be aware of the charges against him and plead guilty to the same.

It can be seen that despite the pressure of population on the land, India has taken as many efforts as possible to cope with the refugee situation. The country does not have a specific law dealing with refugees but has done a great job dealing with the situation professionally. The security officials need to keep in check both the legal as well as the humanitarian aspect when dealing with refugees. 

Migrants

The term ‘Migrants’ is inclusive of a broad range of people:

• It includes expatriates who relocate because of their job requirement. 
• Families are migrating to escape violence. 
• People are seeking better and improved economic opportunities. 

Migrants change their country of residence for various reasons and purposes. This can include searching for better jobs, better standard of living, better economic conditions, changing their location for treatments or healthcare needs etc.

In 2019, according to the Office of United Nations High Commissioner for Human Rights, around 258 million people were living outside their country of origin known as migrants. Migrants that travel without valid passports or valid travel documents are considered the most vulnerable. In many situations, they can be seen to be desperate to feed their family or find shelter for them. Their employers exploit such migrants; their children may be denied education, and come across hurdles regarding access to healthcare. 

Human migration is the movement of people from one place in the world to another. The migration can either be voluntary or involuntary.  The United Nations Migration Agency defines a migrant as a person who is moving or has moved across an international border or within a  state away from their residence  irrespective of the person’s:

• legal status
• If the movement is voluntary or involuntary
• The causes of the movement
• The length of the stay

Causes of Migration

Demographic factors and social infrastructure

The differences in the population growth rates of the regions are a determinant in the migration. Fertility and the natural increase in the population are generally higher in small states which drift the people towards the larger states. 

Another important demographic factor in migration is inadequate educational facilities and after that, marriage at a young age. This leads to ignorance and further to inefficient medical services and hampered social security.

Economic factors 

Economic factors correlate to a country’s labour standards, the situation of unemployment and the economy’s overall health. Suppose economic conditions are not promising and appear to be at risk of declining further, a large number of individuals tend to emigrate to one with a better economy. As the low and middle-income countries continue to develop, and the high-income countries experience economic growth at a slow pace, migration from the former could decrease. Economic migrants are attracted towards international migration because of the likelihood of higher wages, more significant employment opportunities and, often, a wish to escape the domestic political and social situation of their native country. 

Political factors

Fair democracy, a stable rule of law, pluralism and efficient political stability are key drivers in migration of citizens from one country to another. The numerous terrorist attacks and wars taking place in several countries also contribute as a significant cause. Oppression of minorities and after that, violation of their human rights forces them to migrate.

Ecological factors

It has recently been visible that people’s lives are being intimidated by international civil conflicts and wars and by chronic poverty, hunger, natural disasters, and environmental degradation, amongst climate change. Although human migration is an indispensable part of many countries’ cultures and histories, ecological change, including resource depletion and climate change, plays a causative role in influencing population movement. Natural Disasters, Environmental degradation, and resource depletion play a contributory role as an essential push factor affecting population movement often strained through contexts of food deficiency, poverty, conflicts and social inequity.

On the other hand, the environment can play a positive role as the pull factor in voluntary migration motivated by the opportunity to live in a better natural or socio-cultural environment.

Types of Migration

Internal Migration

Internal migration is moving within a state, country or continent. Long-term Migration resulted in the relocation of an individual or household. On the other hand, short-term migration involves back and forth movement between a source and destination. Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Andhra Pradesh and Chattisgarh are the mean areas that give rise to the push-factors of migration. In such cases, Delhi, Maharashtra, Gujarat, Haryana, Punjab and Karnataka become the key areas where people settle. 

External Migration

External Migration includes:

• Emigration- where people from India migrate to various parts of the world. 
• Immigration- migration of people from different countries to India. 
• Refugee Migration- forced immigration to India in the form of refugees. 

Illegal Migrants under the Indian legal framework

All migrants are entitled to protection as well as respect. They are entitled to their rights regardless of their status. For instance, legal status and security can be granted to:

• Migrant victims of crimes, to ensure their access to justice.
• Migrant victims of torture in transit to ensure their recovery and rehabilitation.
• Migrants with severe health conditions that cannot be treated in the country of origin.
• Migrant children whose return would be contrary to the best interests of the child.
• Migrants whose right to family life depends on their remaining in the host country

Foreigner’s Act, 1946

• It validates and gives powers to deal with foreigners. It empowered the government to formulate provisions for prohibiting, regulating or restricting the entry into India. 
• It imposed some restrictions on the rights enjoyed by the foreigners, concerning their stay in the country. Use of force was permitted in cases where compliance of the same was not shown. 
• The burden of proof lies with the person and not the authorities. This provision is applicable in all states and union territories.

Foreigner Tribunals Order

• The tribunal has the authority to decide whether a person is a foreigner within the ambit of the Foreigners Act, 1946. The tribunal with powers similar to those of civil court gives a reasonable opportunity to the person alleged to be a foreigner, to produce evidence in support of his/her case. 
• District Magistrate in all States and UTs can set up tribunals to decide whether a person staying illegally in India is a foreigner or not. 

Critical analysis

• Mostly archaic laws govern foreigners in India. 
• Their broad powers are given to the government for the detention and deportation of refugees and migrants without paying attention to the humanitarian aspect. 
• There is little official effort to distinguish between would-be humanitarian migrants in need of international protection and migrants who enter illegally in search of better economic opportunities. 
• There is a lack of legal status for refugees, migrants and IDPs. 
• They face daily struggles to access even the fundamental rights the central government has promised to extend to them.
• Many of these migrants’ shared challenges are common to refugee and migrant populations across the globe: poor living conditions and an inability to integrate that may take generations to overcome. However, people who face such problems migrating within their own countries are rarely included in international conversations on asylum and immigration systems.

Suggestions

• More accessible work permits must be given to asylum-seekers. 
• There should be a better guarantee of freedoms.
• Medical aid should be readily and easily available, even in Detention.
• Detention of refugee children should be more lenient. 
• There must be a timely filing of charge sheet so that the party can plead guilty to the same and can have access to early disposal. 

Conclusion

It is evident that even though India has its security concerns, it tried its best to accommodate and act on humanitarian tendencies to all those who looked to India for help, shelter and refuge. It is not handicapped in handling the situations satisfactorily. Though there are strict rules imposed on such asylum-seekers, it ensures the country’s security. 

The spirit and contents of the UN and International Conventions on the subject have been taken into consideration through executive and judicial intervention. Through this, the country has evolved a practical balance between social and humanitarian obligations on the one hand and security and national interest. Through efforts to balance the said; the country has been a shelter to several displaced people. 

References

• http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html
• https://www.nationalgeographic.org/activity/introduction-human-migration/
• https://www.iom.int/international-migration-law
• https://www.ijmra.us/project%20doc/2017/IJRSS_OCTOBER2017/IJMRA-12388.pdf
• https://mediaindia.eu/immigration/indias-stance-on-refugees/
• https://doc.rero.ch/record/299905/files/hdi049.pdf
• https://www.brookings.edu/on-the-record/internal-displacement-a-global-overview/
• https://www.icrc.org/en/doc/resources/documents/statement/displacement-statement-231009.htm

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