The National Human Rights Commission (NHRC) recently held a discussion on “protection of the basic human rights of refugees and asylum seekers in India”.
What is Refugee?
A refugee, generally speaking, is a displaced person who has crossed national boundaries and who cannot or is unwilling to return home due to well-founded fear of persecution. Such a person may be called an asylum seeker until granted refugee status by the contracting state or the United Nations High Commissioner for Refugees (UNHCR) if they formally make a claim for asylum. The lead international agency coordinating refugee protection is the United Nations Office of the UNHCR. The United Nations has a second office for refugees,
|A refugee is a person who has fled their own country because they are at risk of serious human rights violations and persecution there.The risks to their safety and life were so great that they felt they had no choice but to leave and seek safety outside their country.This is because their own government cannot or will not protect them from those dangers.Refugees have a right to international protection.
|An asylum-seeker is a person who has left their country and is seeking protection from persecution and serious human rights violations in another country.However, he/she hasn’t yet been legally recognized as a refugee and is waiting to receive a decision on their asylum claim.Seeking asylum is a human right.This means everyone should be allowed to enter another country to seek asylum.
|There is no internationally accepted legal definition of a migrant.Migrants can be understood to be people staying outside their country of origin, who are not asylum-seekers or refugees.Some migrants leave their country because they want to work, study or join family, for example.Others feel they must leave because of poverty, political unrest, gang violence, natural disasters or other serious circumstances that exist there.
When did India face Huge Influx of Refugees?
India faced a huge influx of refugees at various points in history. More details on the occasions are listed below.
- Partition of India and Pakistan in 1947 – The scale of the problem was unprecedented to the newly formed Government of India. The city of Faridabad had to be rebuilt to rehabilitate the refugees. Social reformers like Kamaldevi Chattopadhyay and many others played an important role in the rehabilitation of refugees.
- Tibetan Refugees in 1959 – Dalai Lama and his 1 lakh followers were granted asylum in India when they were persecuted by Chinese authorities.
- Bangladesh War – This crisis happened in 1971 when million migrated to India to flee the conflict in Bangladesh
- Sri Lankan Civil War – It resulted in the migration of huge numbers of refugees from Sri Lanka who settled in Tamil Nadu.
- Afghan Refugees – As per UNHCR report more than 2,00,000 Afghan refugees are living in India.
- Rohingya Refugees – The recent conflict in Myanmar resulted in a huge influx of Rohingya refugees in India.
India’s policy on refugees:
- Principle of non-refoulement: While India is not a signatory to the UN Refugee Convention, 1951, India has followed the principle of non-refoulement whenever helpless asylum seekers have knocked on its doors.
- Internal matter: India has not signed the 1967 Protocol and has always maintained it is its internal matter. The Convention requires the signatory nation to accord a minimum standard of hospitality and housing towards those it accepts as refugees. The porous nature of borders in South Asia, continuous demographic changes, poverty, resource crunch, and internal political discontent made it impossible for India to accede to the Protocol.
- Ad hoc refugee policy: India’s refugee policy can be termed as ad hoc refugee policy that allows New Delhi to differentiate between different groups in its treatment toward refugees and put other interests over humanitarian concerns.
- Open borders policy: India has a history of welcoming refugees as a means of projecting its relative strength and security as the economic powerhouse of South Asia. In the past, the country maintained relatively open borders. The two most notable groups in this category are Tibetans (leader- Dalai Lama) and Sri Lankans, collectively numbering over 150,000.
- Legal tenets: Under various laws and provisions, India provides citizenship to many under special circumstances. These are NRC Assam, Citizenship amendment act, 1955 and 2019. There are some laws that govern refugees, including the Registration of Foreigners Act, 1939; Foreigners Act, 1946, and the Passport Act, 1967. Recently, Rohingya crisis and CAA, 2019 has been criticised for not including Muslims of some countries to provide early citizenship benefits.
Confusion in policies for immigrants and refugees
- Much of the debate in India is about illegal immigrants, not refugees, the two categories tend to get bunched together.
- Our policies towards illegal immigrants and refugees is confused is because as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946.
- The act offers a simple definition of a foreigner — “foreigner” means “a person who is not a citizen of India”.
- There are fundamental differences between illegal immigrants and refugees, but India is legally ill-equipped to deal with them separately due to a lack of legal provisions.
- Also, India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.
How absence of policy framework creates problems
- The absence of legal framework for refugees leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism and ‘political utility’.
- At the same time, the absence of a legal framework increases the possibility of the domestic politicisation of refugee protection and complicates its geopolitical faultlines.
- The absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.
- For example, India’s decision in the recent case of admitting Myanmarese refugees fleeing to India was influence by the possibility of irking the Generals in Naypyitaw.
- However, hypothetically speaking, if New Delhi had domestic legislation regarding refugees it could have tempered the expectations of the junta to return the fleeing Myanmarese.
Why India has not signed convention and protocol on refugee protection
- The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals.
- If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
- This argument, if used in the South Asian context, could be a problematic proposition for India too.
- India also need to argue that the North is violating the convention in both letter and spirit, and make its accession conditional on the Western States rolling back the non-entrée (no entry) regime.
- The non-entrée regime is constituted by a range of legal and administrative measures that include visa restrictions, carrier sanctions, interdictions, third safe-country rule, restrictive interpretations of the definition of ‘refugee’, withdrawal of social welfare benefits to asylum seekers, and widespread practices of detention.”
- In other words, India must use its exemplary, though less than perfect, history of refugee protection to begin a global conversation on the issue.
Arguments in favour of permitting Refugee Influx
- Humanitarian Rights: India has an implicit obligation under UDHR to protect the human rights of non-citizens as well. Thus, the refugees facing persecution threat should be allowed into India.
- Prevent Civil War: The armed rebel groups have threatened Myanmar’s military with retaliation if the atrocities do not stop. If India returns back the Myanmarese, then more hatred will be generated that might trigger a civil war in future.
- Responsible Regional Power: The country aspires to be regional and global power that itself calls for adopting an accommodative stance towards refugees.
- Champion of Democracy: The world’s largest democracy has a responsibility of protecting the rights of people who put their lives in danger for upholding democracy. This was seen recently in Myanmar.
Arguments against permitting Refugee Influx
Refugee Influx poses many challenges to India’s internal security. This include,
- Social consequences of permitting refugees:
- Refugees might create an identity crisis with the indigenous people. For example, Bangladeshi refugees in Assam and Arunachal threaten to overtake the indigenous population of the region.
- Difficult to identify and deport them back to their country after a few years. For example, the Rohingya refugees entered through the North-East. But later they spread to all other states.
- Economic consequence of permitting refugees:
- Increased financial responsibility of the state. According to the UNHCR report in 2014, there were more than 200,000 refugees in India. India at present does not have the financial capacity to satisfy all their basic needs.
- Decreases domestic wage level and replaces the native people. Since illegal immigrants and refugees require food and shelter, they also work at very low wages in their settling areas.
- Political consequence of permitting refugees:
- Issue of terrorism: These refugees, since not accepted by governments, are vulnerable to join terror outfits for work and revenue.
Suggestions to solve the Refugee Problem
- Firstly, India should put forward its constructive arguments in the upcoming UNSC meeting related to the Myanmar coup. A proposal to impose global sanctions on Myanmar can be considered here.
- Further, there is a need to formulate a comprehensive refugee policy that would provide greater clarity in differentiating between a refugee/illegal migrant.
- A National Immigration Commission can be appointed to frame a National Migration Policy and a National Refugee Policy for India.
- Thirdly, the government has to strengthen the Foreigners Act 1946 and also sign bilateral agreements with neighbourhood countries regarding deportation.
- Fourthly, the states must cooperate with the centre on the refugee problem. As law and order is a state list while international relations come under the Union list.
- Fifthly, the states should follow the MHA guidelines of 2018 to identify illegal immigrants. The MHA recommendations include,
- Restrictions of Illegal Migrants specific locations as per provisions of law
- Capturing their biographic and biometric particulars
- Cancellation of fake Indian documents
- Initiating legal proceedings including deportation proceedings as per provisions of law
The people demanding refuge are in a vulnerable situation and see a last ray of hope in an inclusive and tolerant country. Considering this, there should be an intake of refugees but not at the cost of the native population. So, It is high time for India to define a clear-cut refugee policy.
International conventions and forums for Refugees
United Nations Refugee Convention,1951:
- The 1951 Refugee Convention or Geneva Convention is a United Nations multilateral treaty for the protection of refugees.
- The convention defines a refugee as a person who fled their homes and countries. Especially due to a well-founded fear of persecution of his/her race, religion, nationality, membership of a particular social group or political opinion.
- The Convention also mentions people who do not qualify as refugees, such as war criminals.
- The Convention builds on Article 14 of the Universal Declaration of Human Rights 1948. The article recognizes the right of persons to seek asylum from persecution in other countries.
- non-refoulement: The cornerstone of the 1951 Refugee Convention is the principle of non-refoulement. According to this principle, a refugee should not be deported to a country where he or she faces serious threats to his or her life or freedom.
- The 1967 protocol of the convention allowed even the non-Europeans to get refugee status. Thereby making the convention more comprehensive.
United Nations High Commissioner for Refugees (UNHCR)
- It was created in 1950, during the aftermath of the Second World War, to help millions of Europeans who had fled or lost their homes.
- It is a global organization for saving lives, protecting rights and building a better future. The organisation covers refugees, forcibly displaced communities and stateless people
Global Refugee Forum (GRF)
- The United Nations High Commissioner for Refugees (UNHCR), the UN Refugee Agency, and the government of Switzerland together host the GRF.
- It aims to debate and discuss the response of the world’s countries to the global refugee situation.
Source: The Hindu
Q). Discuss India’s policy on refugees. How do you think India should react to the Rohingya crisis?