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“We are witnessing a paradigm change, an unchecked slide into an era in which the scale of global forced displacement as well as the response required is now clearly dwarfing anything seen before… It is terrifying that on one hand there is more and more impunity for those starting conflicts and on the other, there is seeming utter inability of the international community to work together to stop wars and build and preserve peace.”
– Antonio Guterres (United Nations High Commissioner for Refugees)
A civil war in the small country of Syria, today, has resulted in the worst migration crises since the two World Wars. 950,469 is the number of migrants to have arrived in Europe by sea alone. 3,605 are deemed dead or missing. 49% of such migrants are from the Syrian Arab Republic, 20% from Afghanistan and below 10% from countries such as Iraq, Eritrea, Pakistan, Sudan etc. For them the only goal is to reach Europe, the nearest safe haven. This they do by taking the highly dangerous route via sea, to countries such as Italy and Greece, which serve as entry-points to what they think, is the safest and best option available to them – Europe. However, the current crises has sparked controversy in that the European Union is everything but unified, to protect these victims of international humanitarian crises, despite being signatories to several international human rights and migrant-related instruments. The situation has escalated with the birth of the Islamic State terror group and the involvement of the super powers in the ‘civil war’ in Syria, under the banner of a war on terrorism. Caught between extremists and world leaders wielding enormous power in countries other than their own, these people fleeing their homes – migrants, asylum seekers, refugees, internally displaced people (hereinafter referred to as IDPs) etc., become victims of international humanitarian crises. India itself, being one of the largest hosts of refugees in the world, is seeing more and more migrants coming in, not only from the Middle East but also from Myanmar (Rohingya and Chin refugees), Bangladesh and several South-Asian and African countries. Yet its stance on the entire issue is not much different from that taken by outspoken nations such as the United States of America, Hungary, Australia etc., the difference being that the Indian stance is complete silence on the international and national sphere.
The Convention regarding the Status of Refugees was signed in 1951 (hereinafter referred to as the 1951 Convention) to support the influx of refugees generated by the Second World War. With a subsequent Protocol in 1967 (hereinafter referred to as the 1967 Protocol), the scope of the Convention was widened in view of a constant state of armed conflicts in other parts of the world as well. But even with this widening of scope and acceptance by 142 State Parties for both the Convention and the Protocol and by overall 148 State Parties for one or both of these instrument, India has still not entertained even the idea of becoming party to these instruments. This is ironic as current statistics show a substantial number of refugees and asylum seekers living in India. What law should apply to them on Indian soil, if there is no recourse to remedy through the application and effective enforcement of international law at the various levels of governance?
DEFINITION & DISTINCTION – VICTIMS OF INTERNATIONAL HUMANITARIAN CRISES
As the centerpiece of international refugee protection, the 1951 Convention is the chief document which recognizes explicitly the right of persons to seek asylum from persecution as enshrined in Article 14 of the Universal Declaration of Human Rights (hereinafter referred to as UDHR). Article 1 A (2) of the 1951 Convention thus, is the universally accepted definition of ‘refugees’ as
“… any person who owing to 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, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
This definition expressly labels certain victims of international humanitarian crises as refugees, differentiating them from other categories of victims of the same crises such as asylum seekers, IDPs, economic, climate and other migrants, while providing a clear distinction between such victims and other characters such as spies, militants and infiltrators and temporary residents, tourists and travelers.
‘Refugees’ and ‘asylum seekers’ are externally displaced persons forced out or forced to leave their countries and who cannot return because they have a well-founded fear of persecution. They are not bereft of ideas of social and economic betterment. But, they are distinct from ‘migrants’ who are voluntarily seeking a better life.” These refugees and asylum seekers are the worst affected as the larger conflicts make it highly dangerous for them to continue living in their own homes.
As of now, India has offered refugee status to asylum seekers from countries like Afghanistan, Bangladesh, Bhutan, China, Myanmar, Pakistan, Somalia, Sri Lanka, Sudan etc. Refugees are treated as foreigners as per national laws, because of which they are deprived of the rights and privileges available to them, under the 1951 Convention.
EFFORTS FOR A NATIONAL REFUGEE LEGISLATION IN INDIA
The concept of complementary protection exists where the need for international protection is asserted through protection provided nationally by the host state to those other than its own citizens. This protection implies international protection as envisaged by the 1951 Convention and may be based upon international human rights treaties and/or general humanitarian principles. In keeping with this, a bill was drafted under the auspices of the Regional Consultations on Refugees and Migratory Movements in South Asia initiative in 1995, with Justice P.N. Bhagwati as the Chairperson of the Drafting Committee of the India-specific national law on refugee protection. Although it was never tabled in the Parliament, its definition of the term ‘refugee’ is often taken into account when dealing in matters related to refugees in India. This Model Law defines a ‘refugee’ as –
“Any person who is outside his/her Country of Origin and is unable or unwilling to return to, and is unable or unwilling to avail himself/herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion or
… owing to external aggression, occupation, foreign domination, serious violation of human rights or events seriously disrupting public order in either part or whole of his/her Country.
The irony of the situation is that although India is not a signatory to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol, it is a signatory to related human rights documents like the UDHR, International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on Rights of Child etc. It is also a member of the Executive Committee (ExCom) which approves and supervises the material assistance programs of the UNHCR. India has not as such acknowledged the role of UNHCR on its own territory, whose consequent restricted role has led to giving leeway to Indian authorities especially the law enforcement officials, to taking matters into their own hands with regard to refugees. This has resulted in a number of cases where people who have fled persecution from their countries of origin, end up suffering another type of persecution in the ‘safe haven’ they have sought.
Several reasons have time and again been cited for non-action towards creating a legislation exclusively governing refugees in India, most notable of which may be summarized as follows –
i) Administrative convenience – Legislations applicable to foreigners in India are currently also applied to refugees in India. The Acts and Government Orders affirmatively grant the Indian government powers to restrict the movement of foreigners inside India, to mandate medical examinations, to limit employment opportunities and to control the opportunities available to them, along with the power to refoule, or ‘return’ refugees. The 1951 Convention, however, bars all these actions.
ii) Compliance with bilateral relations with refugee country of origin – “India has concluded that unwanted migrations, including those of refugees, are a source of bilateral and not multilateral relations and international agreements could constrict her freedom of action.” The classic argument of upholding the sovereignty of the nation trumps adherence to international obligations within its territory and is a reason for non-compliance with international law, particularly in human rights aspects.
iii) Practical and political viability of a national refugee law – It is patently obvious that although India grants its refugees certain rights and privileges, these are only conferred upon select groups, leaving the question of equality and uniformity unanswered. A clear case of this is the preferential treatment conferred upon the Tibetan and Sri Lankan refugees. Until the assassination of Rajiv Gandhi in 1991, Tamil refugees were ‘encouraged’ to enter India; even now the Sri Lankan Tamil refugees are taken as refugees depending upon which party is in power in Tamil Nadu. The Tibetan refugee community was granted land to set up educational institutions and other socially useful programs, apart from the permission to set up a government-in-exile. Tibetans are the only community of refugees that have the ease of movement around and outside India.
It is imperative that uniformity is exercised in the application of refugee law and factors like regional politics ought to be abandoned. The current ad hoc arrangements of dealing with refugees based on administrative, political and economic calculations should not be the policy in a country like India, which has accepted such a large refugee population.
iv) Economic, social and political security concerns – India’s national security interests are hampered by the absence of a coherent legal structure to ensure that all non-citizens residing in India are properly documented and have a legitimate reason for their presence in India. The threats are legitimately perceived at the strategic-level, structural-level and regime-level. With national security at stake, the Government steers clear of taking any chances, as seen in the case of the handling of Sri Lankan Tamil refugees post Rajiv Gandhi’s assassination at Sriperumbudur, Tamil Nadu. However, the differential treatment of refugee groups, on the basis of an act of terror cannot be justified by restricting one particular group. The human rights enshrined in the 1951 Convention apply universally to all refugees and this inhumane segregation and treatment can be avoided if the Convention is adhered to.
CONSTITUTIONAL & JUDICIAL PERSPECTIVE ON REFUGEES IN INDIA
The 1951 Convention and the 1967 Protocol clearly emphasize the principle of non-refoulement, which imposes a duty on the host countries to prevent the returning of any refugee to his or her country of origin, from where he or she had fled out of fear of persecution. The ensuing rights available to refugees in their host countries are also stressed upon such as their rights to education, property etc. These rights arise on the exercise of the principle of non-refoulement.
India extends Articles 14 and 21 of its Constitution to refugees and affirms the principle of non-refoulement, while also applying Articles 5 to 11, 51, 253 and 355 in matters related to these victims of international humanitarian crises. Entries 14 (List-I) and 27 (List-III) of the Seventh Schedule provide powers to the Union and State Governments, respectively, to make laws in this regard. Article 22 (1), 22 (2) and 25 (1) reflect that the rules of natural justice in common law systems are applicable in India even to refugees. The Constitution of India expressly incorporated the common law precept and the Courts have gone further to raise it to the status of one of the basic features of the Constitution which cannot be amended.
In National Human Rights Commission V. State of Arunachal Pradesh, the Supreme Court upheld a liberal interpretation of the law to highlight the difference between protection accorded to refugees and foreigners under Article 21 by ovbserving as follows –
“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so.”
In Mr. Louis De Raedt & Others V. Union of India & Others, it was stressed that although the right to life and liberty under Article 21 of the Indian Constitution was available to foreigners as well, it did not include their right to reside and settle in India, as under Article 19 (1) (e), which is applicable only to citizens. Relying on the Constitution Bench’s decision in Hans Muller of Nurenburg V. Superintendent, Presidency Jail, Calcutta & Others, the power of the Government of India, to expel foreigners, was held to be absolute and unlimited and the fact that there is no provision in the Constitution lettering this discretion was also highlighted. This when applied to refugees who have fled horrendous circumstances in their country of origin, itself becomes a gross violation of their human rights, by especially flouting the principle of non-refoulement.
“There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves.”
In Civil Rights Vigilance V. Union of India & Others, obligations of India as a member of the United Nations Organization (UN) was considered non-enforceable at the instance of citizens or associations of citizens of India, unless such obligations were made part of the law of the country by means of an appropriate legislation.
“Making of law… is necessary when a treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the state. If the rights of the citizens or others which are justifiable are not affected, no legislative measure is needed to give effect to the agreement or treaty.”
In this case, Justice Shah, relying on Article 73, rejected the common misconception that the Parliament has absolute powers under Article 253, to implement treaty obligations as municipal law, in order to give it force. He noted that –
“Our Constitution makes no provision making legislation as a condition of entering into an international treaty either in times of war or peace. The Executive is qua the State competent to represent the State in all matters international and may by an agreement, convention or treaties incur obligations which in international law are binding upon the State.”
In the case of State of Arunachal Pradesh V. Khudiram Chakma, the Supreme Court referred to the UDHR in the context of a refugee –
“Article 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy asylum, has to be interpreted in the light of the instrument as a whole, and must be taken to mean something. It implies that although an asylum seeker has no right to be granted admission to a foreign State, equally a State which has granted him asylum is not to later return him to the country whence he came. Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments.”
Although the Supreme Court has ruled in favor of harmonious construction of international and domestic law when it is consistent with fundamental rights, the problem exists because there are very few existing pieces of legislation that actually can be applied to refugees. This dichotomy presents a dilemma when deciding any issues regarding refugees in India. Officials, who are not aware of the existence of such judicial pronouncements and their ensuing nuances, take action as per administrative orders passed, often by the State Government. The restricted role of the UNHCR is of no help either.
APPLICABILITY OF INDIAN LAWS TO REFUGEES IN INDIA
As of now, the following are some of the legislations and Government orders that apply to refugees in India –
i) Citizenship Act, 1955
ii) Criminal Procedure Code, 1973
iii) Extradition Act, 1962
iv) Foreigners (Proof of Identity) Order, 1986
v) Foreigners (Report to Police) Order, 1971
vi) Foreigners (Restriction on Activities) Order, 1962
vii) Foreigners (Restriction on Movements) Order, 1960
viii) Foreigners (Restrictions on Residence) Order, 1968
ix) Foreigners (Tribunals) Order, 1964
x) Foreigners Act, 1946
xi) Foreigners from Uganda Order, 1972
xii) Foreigners Order, 1948
xiii) Illegal Migrant (Determination by Tribunals) Act, 1983
xiv) Illegal Migrant (Determination by Tribunals) Rules, 1984
xv) Immigrants (Expulsion from Assam) Act, 1950
xvi) Indian Penal Code, 1860
xvii) Passport Act, 1967
Section 2 (a) of the Foreigners Act, 1946 defines a ‘foreigner’ as ‘a person who is not a citizen of India’. This umbrella definition is today used in handling refugees legally within the territory of India. And on this application, the blatant violation of their human rights is a given. Refugees, as persons running away, most often from conflict situations, do not possess adequate documents to allow their travel into a foreign nation to be legal. This in itself creates a highly dangerous situation as border officials and immigration personnel, as per the orders and laws governing them and as instructed by their respective departments, would apprehend such refugees for violation of Indian immigration laws and they would have no actual recourse and access to justice without the support of UNHCR, however limited in nature it may be.
As a consequence of the Supreme Court’s stand that international convention law must go through the process of transformation into municipal law and because of non-adherence to the 1951 Convention itself, there is no actual law which could be specifically followed in cases involving refugees. Like ‘foreigners’ refugees also come under the purview of the criminal law of the land, because of which the Criminal Procedure Code, 1973 (hereinafter referred to as CrPC), the Indian Penal Code, 1860 (hereinafter known as IPC) and the Indian Evidence Act, 1872, are applied to them at present.
“The high value of human dignity and the worth of the human person enshrined in Article 21 read with Articles 14 and 19 obligate the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.”
The concept of airports and other points of entry into Indian Territory, being ‘International Zones’ causes a major problem as arrest is most often inevitable in these places because of which there is a consequent lack of access to legal remedies for the refugees as seen in the case of a Palestinian refugee who was sent back and forth from Kathmandu to New Delhi International Airport. The only relief which can be sought in such a situation is through administrative authorities.
Several instances of illegal entry and false travel documents have cropped up over the years, with refugees being detained and interned as per the CrPC. F.I.Rs are filed under Sections 3, 6 and 14 of the Foreigners Act, 1946. This is done even in the case of refugees registered with the UNHCR. Once apprehended, these refugees are arbitrarily deported, in gross non-conformity with the principle of non-refoulement. Pending deportation, these apprehended refugees are detained with utter disregard for any human rights whatsoever.
As per Section 3 of the Foreigners Act, 1946, administrative authorities may issue Leave India Notices to refugees who have failed to obtain extension for travel permits. In such cases, they may be arrested and forcibly deported at the instance of such notice. In Gurinder Singh and Karamjit Singh’s case, such a notice was issued to refugees who had fled persecution in Afghanistan and had registered themselves with UNHCR in New Delhi. An interim stay of the notice was subsequently obtained. Similar stays were ordered on deportation of refugees, especially those registered with the UNHCR in India in several cases.
Another example is that of 17-year-old Winston Venojan, a Sri Lankan refugee, who got separated from his family in Madras and went to Delhi, where, after receiving information that his father was in London, got duped by a travel agent who fabricated a passport for him. This fabrication was detected by customs authorities at the New Delhi International Airport, who handed him over for police investigation and registration of an F.I.R. After being produced before the relevant Metropolitan Magistrate, he was remanded to judicial custody in Tihar jail. When UNHCR got clearance for Venojan to travel to the UK from the British Immigration and Nationality Department, he was not permitted to leave the country due to pendency of the case. Subsequently, the Delhi High Court’s intervention speeded up the disposal of the case and the boy travelled to London with Red Cross travel documents. This is just one instance where assistance was provided.
The fact remains that the Government of India exercises absolute and unfettered power to deport ‘foreigners’, as was observed in Hans Muller which when applied to refugees, would be in contravention of the principle of non-refoulement which, having achieved the status of a jus cogens norm, as it was enshrined in the 1951 Convention and has subsequently become an established principle of customary international law, requires compliance, despite no municipal law.
However, in situations such as those mentioned above, officials are often ignorant of such principles and provisions. The fact that refugees are entitled to legal aid of any kind itself is not acknowledged. Even after being released, refugees run the risk of being re-arrested because of lack of proper documents with them, which is the chief distinction between them and foreigners. And because of this distinction, the application of procedures and legislations for foreigners to refugees makes no sense whatsoever, especially the haphazard application of criminal procedure laws by the law enforcement agencies in India.
“Legal framework is needed to provide for the protection, rehabilitation and repatriation of the refugees. The attempt to fill the void by judicial creativity can only be a temporary phase. Legislation alone will provide permanent solution.”
– Justice J. S. Verma
Dr. V. Suryanarayanan, has argued that “the absence of a well-defined national refugee law has created a number of anomalous situations.” India refuses to sign the convention citing its Euro-centricness and lack of feasibility in terms of accommodating refugees in consultation with UNHCR. The current excuse seems to be primarily national security-related, as Indian borders are deemed to be extremely porous, because of which a sudden influx of people into the country would result in a demographic imbalance and an unnecessary strain on local infrastructure and other support systems. However, it is possible that a strong security database can be maintained to quell insurgencies and infiltration. Awareness and preparedness among immigration and border security personnel can easily solve the problem of breach of national security. The creation of a national refugee law along with the establishment of a standard protocol would be the logical step forward so that refugees would not be dealt with at the discretion of ignorant administrative officials in violation of all the rights and privileges available to them under the 1951 Convention. The recognition, acceptance and adherence to this key international instrument, through effective national legislation, by the Government of India, is absolutely necessary, to facilitate any move towards enhancing the protection offered to refugees who seek a safe haven in India.
Author: Salomi Christie- Vth year, BA.BL(Hons.) at School of Excellence in Law, Chennai.
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