NEED FOR A REFUGEE LAW IN INDIA
By Daravath Chandana
One of the integral parts of Indian traditions is the toleration of different religions. India has been a home to many major religions in the world. This tradition dates back right to the ancient Indian history, where any stranger who comes as a guest to the country is referred to as Athithi, and the host is expected to treat him as God, next only to mother, father and teacher. This tolerance and goodwill have gained a new face now-a-days with the arrival of several refugee groups in India. As of the data of United Nations High Commissioner for Refugees, more than 200,000 refugees are currently living in India. India has hosted refugees from Tibet, Bangladesh, Sr- Lanka, Afghanistan and the recent group of Rohingyas from Myanmar. Partition of India and Pakistan has resulted in a huge number of people migrating and settling down in India. Millions of people have found themselves miles away from their supposed new homeland. East Pakistani refugees came to India during the Bangladesh Liberation war. Following the footsteps of the Dalai Lama, more than 150,000 Tibetan refugees have taken shelter in India. Sri Lankan Tamilians also took shelter in various parts of Tamil Nadu. The vulnerable tribal communities on the borders of India and Bangladesh, Chakma and Hojong communities, have crossed over the borders to Tripura, Arunachal Pradesh and are camped in several North-Eastern parts of India. Recently, the Rohingyas, a Muslim-minority which lives in the Rakhine state of Myanmar, and have been declared as the most persecuted ethnic group in the world by UNHCR, are also hosted in India.
These experiences of hosting refugees have meant the establishment of a fairly well experienced bureaucratic machinery conversant with the problems of refugee administration. The geographic location of India, right in the centre of South Asia has also contributed to the increasing number of refugees entering into the country on a yearly basis. Refugees are offshoots of conflicts and the resultant feelings of insecurity.
Despite all these experiences, India is not a party to the major international instruments that establish a framework for refugee protection, such as the 1951 Convention relating to the Status of Refugees and the 1967 Protocol which relates to the Status of Refugees. Another startling point to be noted is that none of the South-Asian countries which are said to be relatively generous as compared to many developed countries in hosting the refugees, are signatories of neither the before mentioned Convention nor the Protocol. These South-Asian countries including India do not even have a separate national legislation for addressing the refugees. Further, the relationship between India and United Nations High Commissioner for Refugees has been very ambiguous. While India is a member of UNHCR’s Executive Committee, it has not signed its statue. India has resorted to take help from the UNHCR on few occasions but has also declined its favour in many others.
LAWS GOVERNING THE REFUGEES IN INDIA
Presently, refugees in India are governed by the laws relating to the foreigners. We only have the Refugee and Asylum (Protection) Bill of 2009 and The Asylum Bill of 2015, which are of course not in any affect today. However, the main legislation that is used for refugees is the Foreigners Act of 1946. Refugees are associated with the term “alien” in India. Since, the term “alien” appears in the article 22 of the Indian Constitution, Section 83 of the Indian Civil Procedure Code and also in the Indian Citizenship Act, 1955, we have taken it granted that all these rules would be applicable to the refugees as well. All the laws that are applicable to the foreigners under the Foreigners Act, 1962, Citizenship Act, 1955, Passport Act, 1967 are also applicable to the refugees who eventually fled to India due to the fear of them being unsafe in their own country. This leads to a removal of the very essential difference between a migrant and a refugee, which further leads to the generalisation of categories of people and also the generalisation of laws. Due to this, the refugees run a risk of arrest by the immigration authorities and of their prosecution if they enter India without a valid passport or travel documents. According to section 3 of the Foreigners Act, the government of India has the absolute power to deport a foreigner, which also means that it has the power of refouler, or return refugees to their past country of habitat, which is in direct contravention to the principle of non-refoulement which is the most important doctrine in the Convention relating to the status of refugees. One can argue that as India is not a signatory of the 1951 convention, it need not abide by the doctrine of non-refoulement. But the point that is to be noted is that this doctrine is not only a part of the convention but is also of utmost importance on the International Customary Law. This evidently shows that certain provisions of the foreigners’ act and other statues used to address the refugees in India are in contravention to the principles of International Law.
All these basically remove the last ray of hope that the refugee has. Valentine Daniel correctly quotes that a refugee “mistrusts and is mistrusted. In a profound sense, one becomes a refugee even before fleeing the society in which one lives and continues to be a refugee even after one receives asylum in a new place among new people”. The current situation after analysing the treatment of refugees in India (especially the Rohingyas) is exactly the same. The refugees, even after finding a shelter in India prior to escaping from the brutalities against them in their actual country, always live in the fear of being prosecuted and persecuted again.
Most of the problems relating to the refugees in India are addressed on an ad-hoc basis. Constitutional provisions on the other hand, provide as such no big relief to the refugees in India. Under the Constitution of India, certain fundamental rights such as the right to equality, right to life and liberty, and the freedom of religion are guaranteed to all the people living in India, setting aside the fact of whether they are citizens or non-citizens. But certain other fundamental rights such as the right to move freely in the country, reside and settle in any part of the country, right to work or practise any profession are all limited to only the citizens of India.
Judicial decisions and Indian case law precedents dealing with the issues of refugees is amorphous. In Hans Muller vs Superintendent, Presidency Jail, Calcutta, the judgment by the Supreme court of India gave the Government of India to expel the foreigners at the Government’s own discretion. An absolute and unfettered power was given to the Government in this regard. In Malvika Karlekar vs Union of India, the Supreme court restricted the deportation of some number of Burmese refugees, whose refugee status was pending, from the Andaman Islands and gave them the right to have their refugee status determined. In Gurunathan vs Government of India, the Madras High court has upheld the principle of non-refoulement. In NHRC vs State of Arunachal Pradesh, the life, health and well-being of Chakma community, a refugee community from Bangladesh, taking shelter in Arunachal Pradesh, was ordered to be looked after by the state Government. The SC also held that the status of citizenship to the Chakma community as citizens of India should be granted immediately and not be withheld. In, Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India, it was held that basic amenities like food and medicines must be provided to the refugees who are in detention in India. In Mohammed Sadiq vs. Government of India, the court ordered the deportation of refugees under the Foreigners Act, 1946 since they had engaged in anti-national activities. Thus, it can be concluded that the stand of the Indian judiciary with respect to the refugees is not uniform. It was decided on case to case basis without any proper system of doing so.
While many of the judicial decisions on the matter have granted relief to the refugees, the recent stance taken by the Central Government of India to deport 40,000 Rohingyas back to their country raise certain important questions about the arbitrariness of the power of the government to do so and also necessitate the immediate formulation of a law to determine the scope of India’s refugee and asylum policy. The Centre is citing the lack of a law to justify its deportation order of the Rohingyas. It also states that the Rohingyas are a threat to the national security of India and they cannot be categorised as refugees at all. This stance cannot be done away until and unless there is a law which makes it necessary for the conduction of Status Determination Test, which currently is not present in India. Hence, the Central Government is not to be blamed in this matter as it has put forward the main concern, that is the lack of law addressing the refugee rights, which in turn is facilitating it to use its power arbitrarily to grant the deportation order.
The root of all the above-mentioned problems lies in the absence of a clear statutory provision that deals with the recognition of the rights of the refugees and a distinct framework for the refugees as opposed to the ordinary foreigners. Hence, a refugee law in India is the need of the hour.
The absence of a special legal regime on the status of refugees does not however mean that no protection and assistance is offered to refugees. The judiciary and allied institutions like the NHRC have tried to respond to the refugee question with innovative judicial interpretation to establish several procedural rights and in many cases, have prevented forced deportation. However, such interventions have been limited to specific cases and the judicial pronouncements have not been implemented across a wide spectrum. This has been occasioned due to the absence of a definite refugee law. This absence has certainly meant that arbitrary executive action and acts of discrimination are not easily remedied. This further means that the decision to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it as they are overshadowed by political considerations.
Not only this single incident, but several other incidents in the past have also revealed a need for a refugee law in India. The absence of a well-defined national refugee law has created a number of anomalous situations in the past. The detention of three Burmese nationals who entered Indian territory to escape the military crackdown in their country under the provisions of the Foreigners Act 1946 also highlights the ad hoc nature of refugee law and practice in India and its failure to define “refugees” as a class of persons and their status, rights and entitlements. While it can be argued that all these problems can be done away by India becoming a signatory to the 1952 Convention on the Status of Refugees, the arguments of the Ministry of External Affairs of India, cannot be done way with. It rightly considers that the Convention and the Protocol are a partial regime for refugee protection drafted in a very Euro-Centric context. They do not address the situations faced by developing countries in granting asylum to the refugees such as burden-sharing or the sharing of costs of hosting refugees, as the Convention and the Protocol is designed primarily to deal with the individual cases and not with the situations of mass influx and do not differentiate clearly between the refugees and economic migrants. Hence, becoming a signatory to the Convention may alter the situation a little bit, but in order to arrive at a permanent and efficient solution, India needs a refugee law.
There were attempts to legislate a law for refugees in India, but none of them could actually make it to the forefront. Dr. Shashi Tharoor in his Asylum Bill of 2015, had solutions to certain problems related to the refugee crisis in India, but the bill had several loopholes. The bill failed in addressing the rights of individual refugees fleeing persecution. The bill also lacked differentiated asylum features, tools to deal with mixed flows, protection against statelessness, guarantees against militarisation and refugee governance models. Hence, the new law should provide for a mechanism to deal with individual refugees also.
There was yet another attempt made for establishing fixed principles of refugee law in India. The Model law was put forward at the third South Asian Informal Regional Consultation on Refugee Migratory Movements. This was further tuned according to the Indian situations by an “Eminent Persons Group” under the chairmanship of Justice P.N. Bhagwati and was presented to the government. The Government did not even portray a minimum interest on this law.
Neither pluralism nor rhetoric is a predictable guarantor of protection, only the Law is. The Government has always dealt with the problems of refugee inflows on an ad-hoc basis, and therein lies the nub of the problem. As there is no law, the Government is freed from the law’s command, and it can use its power very arbitrarily, treating asylum as a gift and only granting it to some and denying it to others. Hence a law is required to forge a modern asylum regime out of the wilderness of unsystematic practices of the state.
· A national legislation on refugees, combining the humanitarian needs of the refugees with the security interests of the state, should be enacted.
· The Asylum law for refugees should address the country’s exceptionalism. It should create different forms of protection to different groups of people, that is, there should be a differentiation between the asylum seekers, migrants and refugees and different laws for them.
· For people fleeing due to violence from their home country, the law which will be formalised must protect them as a group without demanding them for individualised proofs such as passports and travel documents.
· The new law should also address the problems of mixed flows. The asylum law should be able to differentiate between many types of refugees and match each type with a corresponding form of protection.
· The law should provide for a proper screening mechanism during mass influxes. Due to the lax on screening mechanisms during the Sri Lankan crisis, many armed groups entered the countries which has led to unrest in different parts of Tamil Nadu. There should be certain closure strategies for mass influxes.
· The law should provide for the demilitarisation of refugee camps in India.
· It should also provide the refugees with opportunities to employment, perhaps through a special scheme for them.
There are certain provisions in the Model Law which was put forward by a group under the chairmanship of Justice P.N. Bhagwati which are of immense importance to the Asylum law in India. The Model Law includes the establishment of a mechanism to determine refugee status, the principles for exclusions of persons not deserving the protection under the statute based on the interests of the country such as national security, the specification of conditions under which a refugee’s status will cease, the establishment of a human rights regime for refugee protection incorporating the principle of non-refoulement, the provisions dealing with mass influxes and the search for durable solutions.
The Status Determination Test is one of the very important provisions that the Model Law provides. The Model Law, in this way, adopts the same test for refugee status determination as the one that is given by the 1951 Convention. This test is extremely important as the absence of such a standardised system is one of the main reasons for treating the refugees in India such as the Rohingyas in a very arbitrary manner. The law also provides for a Standard of Proof for Exclusion. The main security concern that the countries around the world have today is global terrorism. The U.N. Security Council has called for States to ensure that refugee status mechanisms are not abused by terrorists, and the U.N. General Assembly has declared terrorist acts to be contrary to the purposes and principles of the U.N. and requested member states not to admit persons responsible for terrorist acts as refugees. The same was also incorporated into the Model Law. The Model Law also attempts to create a human rights regime for refugees through many means such as Non-refoulement, The Prohibition on Penalties for Illegal Entry, the Limitations on Restrictions etc.
Article 16 of the Model Law focuses on voluntary repatriations. This is a very efficient provision as it is durable, prevents a drain on the host country’s resources and also prevents from the exercise of any sort of arbitrariness or abuse on the refugees.
However certain provisions such as the below should be added or amended in the Model Law to make it an ideal one without many drawbacks.
· A provision related to the extent of powers and functions of the Commissioner of Refugees should be added to the law.
· The Model Law does not have a clear standard for deciding that a person has committed a crime of utmost concern or not. To avoid this, it is recommended that the 1951 Convention’s model of requiring that there be serious reasons for believing that the person has committed acts of utmost concern be retained in the Model Law as well.
· One of the lacunae in the provision of human rights regime for refugees in the Model Law is that it does not extend the right against discrimination to asylum-seekers. There is no discernible rationale for this omission. The fact that asylum-seekers have been the subject of discriminatory treatment in the past is well documented, and therefore the guarantee of non-discrimination should be extended to them as well.
· Though the provision of voluntary repatriation is one of the best provisions to end an abuse of refugees, it is recommended that the implementation of this should also be based on the available resources and capacity of each state. Hence other solutions such as ‘local settlement’ or ‘third country resettlement’ should also be considered in each case, given the political, economic and security concerns, especially in cases of mass influxes.
Hence a perfect Asylum law for refugees in India would be a blend of provisions taken from 1951 Convention, The Asylum Bill, 2015, The Model Law and the principles of International Customary law relating to the protection of the refugees.
We must fill the "gaps" that exist in our armoury to defend the rights of refugees in our country by drafting and adopting a comprehensive national law on refugees and by becoming party to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol on that subject. In the meantime, however, we must not under estimate the weapons that we have. We must learn to use more fully and systematically the vast array of possibilities that already exist by virtue of our Constitution, our Courts, the NHRC and State Human Rights Commissions, and the International Instruments and Mechanisms that we, ourselves, have helped to define and create.
 Valentine Daniel, “The Nation in Sri Lankan Gatherings in London”, Pravada (Colombo), July-August 1993, pp. 12-17
 Hans Muller vs Superintendent, Presidency Jail, Calcutta, AIR1956SC367
 Malvika Karlekar vs Union of India, CrL.W.P.No.243 of 1998
 Gurunathan vs Government of India, W.P. 6708 and 7916 of 1992
 NHRC vs State of Arunachal Pradesh, 1996 (1) SCC 742
 Majid Ahmed Abdul Majid Mohd Jad Al Hak vs Union of India, CrL.W.P.No.60 of 1997
 Mohd Sadiq vs Government of India ILR1978 Delhi 557