THE PREACHING AND PRACTISING OF REFUGEE LAWS: A DICHOTOMY

Author: Kumar Saurav, II year of LL.M. from Dr BR Ambedkar Law University, Jaipur

ABSTRACT

There is an absence of a domestic law that considers the plight of the refugees and provides for their welfare. India is also not a signatory to the Refugee Convention of 1951. However, it does boast of following the practice of non-refoulment and ensuring the rights and safety of the refugees and subjecting the protection granted under the wide ambit of Article 21 of the Indian Constitution. Despite of all these deliberations, India remains the home to the biggest population of refugees in the region of South East Asia. It has been instrumental in adopting a temporary administrative policy for the welfare and protection of refugees since the India got independent in 1947. This however, highlights the problems faced by the refugees such as discrimination and the ill supply of basic amenities to them for their healthy sustenance. Hence, this paper digs deep into the functioning of the Courts as well as the UNHCR and the NHRC and whether they are able to protect the interests and the rights of the refugees and also suggest various ways to better the present condition by either drafting a local law or by formulating a treaty within the South Asian Countries for the protection of refugees at a large scale on the lines of OAU Convention in Africa.

INTRODUCTION

The problem regarding the refugee policy has been in issue of grave concern globally, nationally and regionally. These types of human beings that have been consigned to the platform of sub-human beings are rarely welcome. The getting nations everywhere throughout the world decay to get them. The reasons frequently referred to are - absence of assets, rule of weight sharing, approach reasons, danger to the security of the state from the psychological oppressor, and so on. The dread of abuse in the nation of inception and the blade of expulsion on their head by the nation of gathering further adds to the effectively hopeless condition.[1]

In the year 2015, thousands of Myanmar nationals of the Rohingya community was forcefully displaced from their home nation, especially from the Rakhine state of Myanmar to the neighbouring country of Bangladesh. These were socially persecuted people who were forced to leave their home land to find a new place to live. The major movement of the exodus happened via waterways and therefore they were collectively named as “boat people” by the international media. A huge population of the refugees from Myanmar entered the soils of India further making the situation more hostile.

There has been an old age tradition of providing humanitarian treatment and protection to refugees in India. However, due to the absence of a statute or legislation in this regard draws a threat of terrorism and violation of the stance in the South Asian politics. Even though there is no concrete legislation when it comes to refugee policy, India has not failed to address the needs of the refugees who seek homage after fleeing their home countries.[2]

4,20,400 refugees were hosted by India, 1,10,000 being from Tibet alone who fled post China’s annexation in 1951. Tamil Sri Lankans comprised of a good 1,02,300, who escaped with the conflict of the army and Tamil Eelam’sLiberation Tigers. 36,000 Buddhists from Bangladesh also escaped to Arunachal Pradesh after the Muslims captured their land.

The treatment of India towards different refugees has also been different when it comes to the provisions of refugee law. When it comes to the Chakmas from the Bangladesh, they were not even given adequate facilities as cited by the National Human Rights Commission (NHRC) and were repatriated in 1988. To the contrary, the Tibetans were treated very warmly as compared to other refugee groups to the extent that the headquarter of the Tibetan Government in Exile is present in Dharamshala, Himachal Pradesh.

In 1951, a Convention on Status of Refugees dealing with the issue of refugees defined ‘refugee’ as-

“….an person who has a fear of or has been religiously persecuted, discriminated due to the nationality, or being associated to aspecific social group or opinion, is not in the territory of the home country due to such fear of persecution, and as a result of such fear, is unable to return to the home country to live a normal life.[3]”

India is not a signatory to the 1967 Protocol or the Convention of 1951. Though, The Constitution of India does protect a refugee individually under a refugee law. But these provisions of these customs have now been incorporated in the ambit of customary law and might be added into domestic law in consistency with the present municipal laws of the nations. According to the Constitution, Article 51(c) provides for fostering respect for international law.[4]

INTERPLAY OF HUMAN RIGHTS LAW, REFUGEE LAW AND INTERNATIONAL HUMANITARIAN LAW

Human rights and Refugee law are complementary to each other and cohabit overlapping each other with the main concern to the protection of life, dignity and freedom of every individual and there exists no disobedience to this fundamental principle. The Indian Constitution[5] stresses on protecting human rights of every individual including the ones who are not citizens of the country. The Convention has not been ratified by India which determines the life and security of the refugees. Refugee law as well as human rights law include the Principle of Non-Refoulment which prohibits forceful deportation. The type of human rights mechanism of a country states how well a refugee is guarded and what solutions are offered during refugee crisis.[6]

Refugee law deals with people fleeing from their own countries due to immense conflicts whereas Humanitarian law deal with the conflicts. In simpler terms, refugee law comes into action when indiscriminate killing of oppressed classes occurs and to protect the distressed during armed conflicts.[7] There is no choice left with these people except fleeing their own countries out of the fear of being killed or persecution as they are no longer protected from the home government. Hence, both refugee law and Humanitarian law operate simultaneously and it can be observed that these laws are interdependent on each other differently and there are notany water-tight compartments. These laws are mainly borrowed from each other and depict an inter-dependent relationship.

PRINCIPLE OF NON-REFOULMENT

As per the provisions of this principle[8], no country should expel, deport or send back the refugees taking homage in the country to their home country against their will forcefully or if there is an eminent threat to their life, freedom and liberty.[9] Although, this principle is not absolute and varies according to the security and public order of a nation. The principle of non-refoulment is internationally popular due to it being a part of a customary practise and it has not been opposed till date.[10] Even though India is not equipped with a special legislation regarding the same, it does support this principle through various judgments. The Gujrat High Court in the landmark case of Ktaer Abbas Habib Al Qutaifi v. Union of India[11], brought this principle under the scope of Article 21 of the Constitution of India and ordered the stay of the two Iraqi nationals in India till the time they had an apprehension of fear for their life and freedom. Instead, their custody was delivered over to UNHCR for their safety. In a similar case, a stay order was issued on the refugees from Burma being deported.[12]

We can come to a conclusion that this principle is a peremptory norm and does not depend on the ratification of any convention and treaty to its effect for it to be applicable. The inception of this principle lies where a refugee does not want to go back to the home nation due to the apparent threat to life caused due to the unrest.

Despite the prevalence of this principle, there has been violations on a large scale. In reality, it is dependent on the State to whether keep the refugee or deport him back to his country for him to face atrocities and torture. Factors that state the diplomatic relations between the two nations are usually responsible for it. All said and done, the principle of non-refoulment is merely a moral obligation and does not create a legal obligation on a State. Hence, the accurate execution of this principle is the need of the hour. Whenever a person is to be repatriated, a test of “voluntary nature of act”[13] has to be passed for it to be considered fair.

INDIAN LEGAL SCENARIO

According to the Constitution, India has been described as a Union of States. This, in the eyes of International Law is considered as a State. The sole power to make any legislation in respect to citizenship, aliens, etc. is given to Parliament, i.e. the Union Legislature. Although, there has not been any legislation passed by the Parliament in relation to the status and entry of refugees. This topic has been handled by the administrative and political levels. As a result, the refugees in India are dealt under the law applicable to aliens due to the non-existence of a specific provision for refugee law.

Refugees in India fall inside the scope of the term ‘alien’. This word appears in The Indian Constitution,[14]Section 83 of the Indian Civil Procedure Code, and Section 3(2)(b) of the Indian Citizenship Act, 1955 and many numerous other sources. Another legislation which talks about the entry of aliens isthe Foreigners Act, 1946. It also goes to the extent of defining the word ‘foreigner’ as “a person who is not a citizen of India”.

Even though there are numerous legislations which define an alien, a refugee is not distinguished from an alien and is not defined distinctively, therefore refugees are vulnerable of being arrested and detained by the immigration authorities once they enter the territory of India without valid documents/passport. Once a refugee is detained by customs, a First Information Report is filed against him. A refugee may face deportation via sea ports, airports if he does not have access to his documents.

However, by and large the judiciary hasbeen instrumental with regard to the discipline for the passage or the criminal operations, by granting assurance of a refugee status and giving them the opportunity to approach UNHCR, refugees continue risking trepidation, detainment and indictment for violating the Foreigner's Act, 1946 and the Foreigners Order,1948. The Apex Court has further held that the absolute power of deportation lies with the administration:

“…. A foreign national can be repatriated and expelled to the home nation as the government of India has every power to do so. The State has an absolute right and there is an absence of any Constitutional provision that disables this right… the government has the absolute power to export a foreigner to the home country.”

REFUGEE LAW AND CITIZENSHIP AMENDMENT ACT

On 11th December, 2019, the notorious Citizenship Amendment Act, 2019 (CAA) was passed by the Union Legislature. It was seen to cherry-pick particular religious groups while other groups were omitted and labelled them as “illegal migrants”. This was done because of the provisions enlisted in Section 2(1)(b) of the act, which provided for the migrants to prove their citizenship under the provisions of National Registrar for Citizenship (NRC). This act flouts the provisions stated in the Universal Declaration of Human Rights.

As per the provisions of the act, the process of repatriation of the refugees who will be returned to their home countries as “illegal migrants”, will be a concrete violation of the non-refoulment principles that are stated in Article 33(1) of the 1951 Refugee Convention. Further, since the scope of non-refoulment is not limited to the territories of India only, thus it equates to the point the refugee does not necessarily have to the in the territory of India to obtain protection. Secondly, the government demarcating the refugee on the basis of their religion and home country is a blatant contravention of Article 3 of the Refugee Convention. The third principle being violated is the principle of family unity, as there are numerous families which have members of various religions. The most concerning factor is that citizenship is to be provided to certain refugees that is to be decided as per the convenience of the government.[15]

PROTECTION OF REFUGEES BY THE CONSTITUTION

The Constitution of India provides numerous Fundamental Rights to the community of refugees. Right to life and personal liberty[16], right to equality[17], right to protection under arbitrary arrest[18], freedom of religion[19], right to approach the Supreme Court for these rights to be enforced.[20]

India is a member of numerous ratifications relating to International human rights which puts a duty on India to protect the refugees on grounds of humanity.[21] Customary International Law enforce principles such as “right to seek asylum from persecution[22]” which has a binding value on all the states with the likes of India[23]. The Apex Court in the landmark case of Vishaka v. State of Rajasthan[24], opined by upholding harmonious construction between domestic law and international law when there is consistency with fundamental rights.

The refugees are guaranteed human rights to live with dignity but there is no individual law for refugees. The Apex Court has taken Article 21 to the purview with the absence of a legislation being in place, to implement and regulate the stay of refugees in India. In the case of NHRC v. State of Arunachal Pradesh,[25] the government was ordered to safeguard the interests and rights of the Chakmas residing in Arunachal along with the application for citizenship for them to the concerned authorities. Further, in P. Nedumaran v. Union of India, the need for repatriation to be voluntary was discusses. It was held that the nature of repatriation should be voluntary in nature and should be implemented in accordance of the principles of UNHCR.

In fact, Article 21 of the Indian Constitution imposes certain requirements: any activity of the State which denies an outsider of their life and individual freedom without a methodology set up by law would be violative of it, and such activity would absolutely incorporate the refoulement of refugees. Accordingly, it is observed that the Court ought to have continued to test the legitimacy of Foreigners Act as against Article 21.

ANALYSIS OF ROLE OF UNHCR IN INDIA

United Nations High Commission for Refugees has been very instrumental with regards to protecting the people who have been displaced and uprooted by their home country. The membership of India ranges back to 1995 and has been an executive member in reaping the benefits since then. The UNHCR comes into play the moment a refugee sets foot in India. Registration may be done for the refugees at the UNHCR officer to obtain the status of a refugee. An officer of law is given to duty to interview the refugees so that the information can be procured. In case any inconsistency arises, the refugee still has to be treated with caution and utmost care as the mental background of the refugee has to be kept in mind.[26] The UNHCR cannot deny a person a refugee status if information cannot be fetched due to certain language barriers. Status should be provided on the basis of the fear and threat to be persecuted. UNHCR does not only provide the refugees with status, but also help the refugees in protecting them against detention and illegal arrest and is instrumental in rescuing people who are detained illegally. The cause of worry is that the mandate that is issued is only issued for the refugees hailing from regions outside South Asia. This created a lacuna for the exploitation and discrimination of “other” refugees.

ROLE OF NHRC IN PROTECTING THE REFUGEES

The Protection of Human Rights Act, 1993 established various Human Rights Courts, State Human Rights Commissions and National Human Rights Commission. As per the provisions of the said Act, these courts have the same powers that are conferred to a civil court and can suo moto have an inquiry into any case; interject any judicial proceeding to protect the individuals from infringement of human rights, study conventions and to finally prepare reports[27]. Since their inception, their aim has been to provide protection to refugees.

Sadly, India has been home to a lot of conflict between the citizens and the refugees. The single most concern for the local population is that the government provides the refugees with more facilities despite the fact that they are outsiders. They are well equipped with amenities like healthcare, water, education, financial aid and protection as compared to the local population of the same State.

NHRC has been active in formulation of a model law[28] for the protection of the refugee community under the reign of Justice PN Bhagwati in 2000 but it all went in vain. Presently, India only has the Refugee and Asylum (Protection) Bill, 2009[29], that defines the duty of the State to give protection to the refugees and the rights and duties of the refugees as well. Therefore, one can state that India is in a paradoxical state- where at one side it does not ratify and conform with the already present Refugee Convention and on the other hand, it refuses to pass a legislation that is specific to the interests of the refugee community. To top it all, it has not discontinued the entry of refugees in large numbers from all over the world to enter Indian territory.

SUGGESTIONS AND RECOMMENDATIONS

India faces an absence of any law that particularly covers refugees. There has been a never-ending dilemma over what should be done- formulating a domestic law or framing a refugee convention particularly for South East Asia. It is suggested that both of the above-mentioned things should be applied for the peaceful co-existence. If there is a grey-area in the local law, then it can be covered by the Asian Convention and vice versa. Following are some recommendations that should be kept in mind for the betterment of the refugees residing in India:

NEED FOR A DOMESTIC LAW

i. India needs to formulate a domestic law to make sure that basic protection is provided to all the refugees. In the absence of such a law, refugees are really not granted rights in the real sense, they are simple privileges granted as per the whims and fancies of the government.

ii. The definition of the word ‘refugee’ should be expanded and should also include the population that has been displaced within the country due to internal aggression and natural calamities. The best case is of the Kashmiri Pandits who were forced to leave Kashmir due to the militants.

iii. Not only should a mere ‘status’ be given to the refugees, but they should be provided with adequate job opportunities so that they can become independent and reliant on themselves.

iv. NGOs should work hand in hand with the government for a more efficient result.

v. Women and children should be particularly kept in mind and there should be the enactment of certain provisions regarding their safety as women and children are very vulnerable and prone to abuse. There are many offences such as rape and trafficking that are committed against them especially in the refugee camps.

vi. It will be further instrumental in abolishing the notions of discrimination that are imbibed among the population for refugees from various nationalities.

vii. A nationwide law will help in the easy granting of the refugee status and will be more accountable by checking the powers of the officials in charge.

NEED FOR A SOUTH ASIAN REFUGEE CONVENTION

i. India having a status of a superpower in the Asian community, it will have a tendency to dominate over other countries. With respect to this, implementing a South Asian Refugee Convention will give India immense power for the welfare of refugees.

ii. Due to the Convention not being centred around one nation, the innate problems of all the countries will b discussed and the policy will be very diverse in nature.

iii. The scope of the word ‘refugee’ should be broadened by incorporating communities such as the ones displaced due to natural calamities and ones with a different sexual orientation so that injustice is not imparted.

iv. Further, the formulation of such a convention will add to the strengthening of diplomatic relations between the various neighbouring countries. This can further connote that, “providing refuge to a community is an act that is humanitarian in nature and it shall not be deciphered as the infringement of a country’s sovereignty[30]

In a situation where both the Convention as well as the local law work in consonance, the point of deviation does not arise. It will be instrumental in examining and addressing the issues with respect to the community of refugees very efficiently. Due to a common set of principles, there will be a lesser deviance of the methods used to tackle the problems related to the upliftment of refugees. Further, if there is any corruption on behalf of any official, then strict action can be taken against him by holding him liable. As discussed earlier, the flow of refugees into the territory of India keeps on increasing and hence, there should be a formulation of a concrete law to have a definite refugee mechanism.

CONCLUSION

The discussion clearly establishes the fact that the domestic law of India does not provide with complete protection to refugees. The domestic law does not even consider the refugees as another category and they are treated at par with all the other aliens.It fails to reason with the understanding of why and under what circumstances does a refugee leave his country of origin to seek homage in some other nation. The absence of a particular legislation disturbs the rights and privileges of a refugee and this further runs in denial of basic protection to a large population of refugees.

Even though there is no specific legislation concerning the status of refugees, it does not mean that refugees are not provided with any assistance or protection. Active institutions like the NHRC have tried to be in consonance with the judiciary to form innovative judicial interpretation to establish. However, such interpretations have a very limited scope to certain cases and have not been implemented across a wide spectrum.

The non-existence of a national legislation on the nature and status of refugees also concludes that refugees are dependent on the whims and fancies as well as the benevolence of the state rather than the rights that should be guaranteed to them. Thus, they are depended on the mercy of the state and have no absolute recourse in order of the violation of their rights. A fair and humane response of refugees in India, draws a responsibility for adoption of a fair procedure and legislation that is specific and deals with the welfare of refugees.

[1]Padmini Singh, Refugee Law and Policy in India, 4 ISIL Y.B. Int'l Human. & Refugee L. 285 (2004). [2] Kaur, Nimrat, Protection of Refugees in India: A Critical Analysis (February 9, 2013). [3] Article 1(A) (2) of the 1951 Refugee Convention. Also see Article 1, 1967 Protocol. [4] Jai S. Singh, Refugee Law and Policy in India: Efforts of Indian Courts, 9 ISIL Y.B. Int'l Human. & Refugee L. 211 (2009). [5] INDIA CONST. Art 21. [6] http://chilot.files.wordpress.com/2011/06/refugee-law.pdf, pp. 22 (visited on 30th November, 2012). [7] Part IV of the Geneva Convention, 1949 give protection to civilians during conflict. Common Article 3 of the Geneva Convention is jus cogens norm which means that civilians have to be protected at all times. [8] See Article 33 of the 1951 Refugee Convention. [9] http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=438c6d972 (visited on 18 November 2012). [10] Guy S. Goodwin Gill, The Refugee in International Law, Clarendon Press: Oxford ,1990, pp.97-98. [11] 7 1999 Cri LJ 919, para- 3. [12]MalvikaKarlekar v. Union of India Supreme Court Case 1992, Crl. WP No. 243 of 1992. [13]RanabirSamaddar(ed.), Refugees and the State. Practices of Asylum and care in India 1947-2000, (2003 edn.) SAGE publications, UK, 2003. BS Chimni, “Status of Refugees in India” pp. 453. [14] INDIA CONST. Art. 22, Para 3 and Entry 17, List 1, Schedule 7) [15] Atul Alexander, Evaluating the Citizenship Amendment Act, 2019 in India, Groningen Journal of International Law, February 2020. [16]INDIA CONST. Art. 21 [17]INDIA CONST. Art. 14 [18]INDIA CONST. Art. 22 [19]INDIA CONST. Art. 25. [20] INDIA CONST. Art. 32. [21] Refugee Protection India,http://www.hrdc.net/sahrdc/resources/refugee_protection.htm (visited on 26th November, 2012). [22] Article 14 of UDHR. [23] INDIA CONST. Art 51(c) [24] 1997(6) SCC 241, paras. 14-24. [25]1996 SCC (1) 742 [26] R. J .S. Tahir (eds.) RaginiTrakrooZutshi, JayashreeSatpute, Md. Saood Tahir: Refugees and the Law, 2edn, HRLN, 2011, pp. 183. [27] Article 12 and 13 of the Protection of Human Rights Act, 1993. [28] Rajeev Dhawan, On model law for refugees: A response to the National Human Rights Commission, NHRC Annual Reports 1997-2000, New Delhi, 2003. [29] http://news.rediff.com/report/2009/oct/19/home-ministrys-refugee-bill-worries-security-agencies.htm (visited on 29th November 2012). [30]RanabirSamaddar(ed.), Refugees and the State. Practices of Asylum and care in India 1947-2000, (2003 edn.) SAGE publications, UK, 2003. BS Chimni, “Status of Refugees in India, pp. 463.