This article is written by Akshaya Chintala from Symbiosis Law School, Hyderabad. The article analyses the Refugee Crisis and its jurisprudence in India and the importance of the act to be implemented in India.
The word ‘refugee crisis’ has become the expression of choice in Western media to describe the situation created by the rising number of displaced people from the Middle East, Western and South Asia, Africa and the Western Balkans making their way to Europe and other Western countries. The current situation is seen as a global problem that poses complex ethical and political problems for all human beings. It is not only that people are leaving their countries in large numbers, it is also that countries are making it extremely difficult for them to obtain protection or assistance and to be recognised as legitimate refugees once they have made it to a safe region. Countries have enhanced border controls and strengthened ‘border security’ by increasing the number of ordinary checkpoints. It must be interpreted generally as the forced displacement of large numbers of human beings from their homes either due to invasion, civil war, racial or religious oppression by dictatorial regimes such as the Syrian state or the Islamic State, or simply deprivation and destitution coupled with a system of border controls that establishes various obstacles to their escape.
Global Refugee Crisis
The worst part of the refugee crisis is that 24 people around the world are forced to leave their homes every minute. It’s 34,000 people a day who leave everything behind in the hope of finding safety and a better tomorrow. A refugee is someone who has been forced to flee his or her country because of persecution, war or violence. Despite the fact that the European Union was acknowledged to ensure human rights protection level equivalent to the one ensured under European Convention on Human Rights (ECHR), it is doubtful if the European Union was able to ensure human rights in time of recent migrant crisis. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries. The Syrian conflict has caused the worst refugee crisis since the horrors of the Second World War. The influx of refugees from Syria to Jordan and Lebanon has affected countries and their communities at all levels. In the humanitarian sector, there has also been a recognition that emergency and development solutions will work together to provide comprehensive assistance, to both refugees and the nation.
To tackle the crisis, the United Nations High Commissioner for Refugees (UNHCR) hosted the first Global Refugee Forum from 16 to 18 December 2019. The invitational event had two objectives: to serve as a forum for the announcement of financial and other assistance, including incentives for refugee resettlement; and to share good practice on refugee livelihoods, services and security. The Forum was held exactly one year after the U.N. The General Assembly had ratified the Global Compact on Refugees. The compact was introduced in 2016 with a view to more transparent and fair global sharing of liability.
The crisis which they are mentioning talks about both manmade and natural disasters making life extremely dangerous for families and communities. Their lives may be at risk, jobs and incomes may be destroyed, food scarce or prohibitively expensive, and access to education may be cut off for children. Without being able to find stability and a better life, people are becoming refugees. Media has readily criticized the international community as a whole for failing to provide refugees with accommodation and an acceptable standard of living. The fact that there have been so many strident critiques of the program shows that the international community is still not prepared to support a surge of asylum seekers.
It is clear that the idea of “refugee” and “asylum” are complementary; the one does not exist without the other. Asylum in the territory of a state is, of course, what most refugees are interested in. This, however, means at least three requirements of primary importance: entry to the territory, a long-term stay and the guarantee of a certain degree of security, and the opening of basic rights to return to the territory. It is also completely true that asylum, in the core sense of being admitted to security in another country, security against “refoulement” and respect for fundamental human rights, is at the heart of international defense. Without asylum, the very life of the immigrant is at risk.
Refugee law & Policy in India
India does not have a clear and independent refugee law on its statute book. In the absence of unique legislation, all current Indian laws, such as the Criminal Procedure Code, the Indian Penal Code, the Proof Act (Indian evidence act), etc., refer to refugees as well. Even in the absence of a specific law, India has addressed the needs of refugees who have fled from their home country into its territory. India has had an age-old history of humanitarian aid for refugees and asylum seekers. It was followed by a liberal refugee policy. Nevertheless, the lack of effective refugee legislation can be due to India’s complex situation in South Asian politics and the danger of terrorism it faces. India has granted differential treatment to refugees from different countries. There have been two big refugee flows from Bangladesh.
Inadequate facilities were provided to the Chakmas, as confirmed by the National Human Rights Commission (NHRC) and repatriated in 1988. Tibetan refugees have received much better treatment than other refugee groups. Individual refugees are effectively covered under the Constitution of India, as no domestic legislation has been introduced on the subject of refugees. Nevertheless, the terms of these international treaties have now gained the status of customary international law and can be assumed to be integrated into domestic law to the degree that they are compatible with current municipal legislation. India has a federal set up and is described as a Union of States.
This 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. In India, refugees are considered to be ‘foreign.’ Acts regulating aliens in India are the Foreigners Act, 1946, in which the Central Government is empowered to control the entry, presence and departure of aliens into India; describes ‘foreigners’ as ‘persons who are not citizens of India.’ India has not passed a refugee specific legislation that 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.
Constitutional rights protect the human rights of refugees who live in dignity. The liberal interpretation that Article 21 has now received includes the right to solitary confinement, the right to custody violence, the right to medical assistance and shelter. The Constitution of India guarantees certain human rights for refugees. Namely, the right to equality, the right to life and personal liberty, the right to protection under arbitrary detention, the right to justice in relation to the prosecution of offences, freedom of faith, the right of access to the Supreme Court for the compliance of fundamental rights are applicable to non-citizens, including refugees, as they are to the citizens.
In the absence of legislation to control and explain the stay of refugees in India, the Supreme Court has taken recourse to Article 21 of the Constitution. In NHRC v. State of Arunachal Pradesh, the Government of Arunachal Pradesh was asked to perform its duty of protecting the life, health and well-being of the Chakmas living in the State of Arunachal Pradesh. In several other cases, it has been held that refugees will not be subject to detention or expulsion and that they have the right to petition the UN High Commissioner for the granting of refugee status. The need for voluntary repatriation was stressed in P. Nedumaran v. Union of India and the Court held that the UNHCR, as a world body, was to determine the voluntariness of the refugee. Likewise, according to B. S. Chimni, the Supreme Court erred in finding in Louis de Raedt v Union of India that there is no provision in the Constitution for the full and unrestricted power of the Government to expel foreigners under the Foreigners Act of 1946.
Can International Law Manage Refugee Crises?
Refugee law and international human rights law are closely intertwined; refugees escape regimes that are either unable or unwilling to protect their fundamental human rights. In addition, where fears of persecution or threats to life or security exist in the background of armed conflict, refugee law often intersects with international humanitarian law. The international framework that protects the rights of asylum seekers to seek refuge in other States is clearly not a failure. It sets minimum standards of protection, does not always rely on political will, because domestic law based on international law can provide the protection of the rights of certain asylum seekers and has considerable effectiveness by regional and local authorities.
However, the potential that exists in the legal framework is not being used. In September 2015, 674 international lawyers and practitioners signed an open letter criticizing human rights violations committed against those seeking refuge. Much more can be done. It may also not be realistic to conclude that international law as a legal system would be able to make a meaningful impact further. This is because like domestic legal systems, the international legal system does not try to control the persons who draft it, but rather sets out a series of agreements that are intended to be binding.
Regulation is the responsibility of the executive branch, not the legislative body, and there is no analogous regulatory mechanism in international law. The current issue is one that is far too deeply embedded in the realm of politics. This is doubtful that international law would be able to compel States to behave in a certain way, at least on a general level. However, international law can serve to publicize the plight of refugees and provide a platform on which their rights can be discussed. It also offers means of indirect, if not direct, legal protection. International refugee law is strongly reinforced by human rights law as well as by regional and municipal law, but still lacks sufficient certainty and general application. This is why the international community as a whole, while it has been able to offer substantial help to asylum seekers, has also had some glaring failures. Thus, I conclude that international law will never be able to effectively ‘manage’ refugee crises.
The conclusion is that refugees belong to the mainstream of history rather than to the margins. Wars, revolutions and state-building take on a new meaning when examined through the prism of population displacement. Today, the refugee problem is profoundly different. The persecutors are not vanquished or dead governments. Instead, the persecutors are the current governors, who may rely on the rights of authority when causing or helping to establish refugee crises.
Refugees may flee to save their skin, but others have been intentionally targeted, expelled or ‘transferred’ by the State. Refugees did not hesitate to assert claims of recognition and to participate in the preparation of explanations for their displacement. History directs our attention to the way in which refugees have been represented by others and to the way in which they have valued themselves. Humanitarian assistance is often part of this picture, but it has also been overshadowed by myths about the vulnerability of refugees. The conclusion of this study is that the humanitarian principle of refugee law severely limits, and even undermines a pragmatic solution to the refugee problem and that the problem becomes more manageable if it is viewed as a question of ties and responsibilities between States.
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