HUMAN RIGHTS AND REFUGEE LAW: AN ANALYSIS OF STATUS OF REFUGEES IN INDIA by-Srushti Shivaji Gosavi
With its security worries, particularly in the last few decades, and demographic constraints
and concomitant economic problems, India continues to take a humanitarian stance towards the refugee dilemma. It has not been a serious hindrance to the government’s ability to deal with the large refugee problem as the country doesn’t have a specific statute to manage “refugees”. Most of the relevant UN and international conventions have been adhered to through executive and judicial participation. As a result, the government has managed to strike a reasonable balance between its humanitarian and human rights obligations, as well as its national security and interests. At times, the interests of security and law enforcement organisations appear to be in rivalry with one another2. If and when the country enacts a separate ‘Refugee Law,’ it is vital that this element be fully considered. There must be a balance between security and law enforcement efforts in dealing with the “refugee” situation, with a special focus on the human element.
Refugees are defined in Article 1(A)(2) of the 1951 Convention as individuals fleeing persecution based on their race, religion, nationality, political opinion, or membership in a particular social group, if they have fled their country of citizenship or habitual residence.3Refugee status does not apply to these individuals because neither they nor their families are fleeing persecution, nor do they lack a legal status. In accordance with the 1951 Convention, those who have crossed an international boundary to flee widespread violence are also considered internally displaced persons (IDPs). For ages, states have provided protection to those fleeing persecution. The current refugee regime is mostly a product of the second half of
1 Student at ILS Law College, Pune
2James Hathaway, “Fear of Persecution and the Law of Human Rights,” Bulletin of Human Rights 91/1, UN, New York (1992): 99.
3J. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, vol. 9 (1996), pp.229-53.
the 20th century. Modern refugee law, like international human rights law, has its roots in the World War II and the interwar refugee crises that preceded it. 4
A refugee is someone whose life is constantly in danger or whose living conditions are unsuitable for his or her healthy survival, and who flees to another country for safety and asylum. Because he still has a de jure nationality, he should be handled differently from a stateless person. The precise definition, on the other hand, is anyone who is “outside the country of his nationality due to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and is unable or unwilling to avail protection of that country.5 For the purposes of determining refugee status, a person’s subjective and objective state of mind must be taken into account. In this definition, there exist gaps because of current issues with refugee protection. Persons fleeing natural disasters, people uprooted owing to animosity, internal strife, and civil wars, or those with differing sexual orientations are all left out of the description. As a result of its geographical location, democratic governance, religious tolerance, and friendliness, India has been and will continue to be a popular destination for refugees from all over the world. Many human rights accord approved by India mandate that it must protect refugees, even if the country isn’t party to the 1951 Refugee Convention. 6
HUMAN RIGHTS AND REFUGEE PROTECTION
There is no exception to this core principle of protecting each individual’s life, dignity, and 25 12 liberty in refugee law and human rights law alike. Human rights for citizens and non-citizens alike are protected by Article 21 of the Constitution. 7A lack of adherence to human rights by India has a negative effect on refugee life. The principle of non-refoulement, which prohibits coercive return, is defined in refugee and human rights law. The refugee issue can be alleviated if the host country has a strong human rights framework, which affects how the refugees are treated and what rights they are granted.
Humanitarian law governs conflicts, while refugee law governs refugees. As a result of indiscriminate death and damage of civilian property, refugee law was created to protect the
4Roberta Cohen and Francis Deng, Masses in Flight: The Global Crisis of Internal Displacement (Washington, 1998); Wendy Davies, Rights Have no Borders: Internal Displacement Worldwide (Oslo, 1998).
5Guy S. Goodwin Gill, The Refugee in International Law, Clarendon Press: Oxford,1990, pp.97-98 6RanabirSamaddar(ed.), Refugees and the State. Practices of Asylum and Care in India 1947-2000. (2003 edn.) SAGE publications, UK, 2003.
7The Constitution of India, 1950
vulnerable during armed wars.8 They have no choice but to depart because they are no longer protected by the parent government. Consequently, IHL and refugee legislation work together. We can conclude that all three laws are interrelated and that there are no watertight compartments in the universe. Several laws, rules, and ideas have been “borrowed” from one another.
A fundamental human right is an assurance that one’s liberties will be accorded to one and all. These universal norms of conduct are known as human rights.9 These rules may be violated by governments or other agents, which may lead to the emergence of refugees. Refugees are, by definition, the victims of human rights violations. In light of the refugee situation, it’s clear that human rights analysis is critical. Refugees fleeing Europe during World War II spurred the creation of a worldwide refugee protection system, which was codified in international refugee law. 10Just as vital today as it was fifty years ago is protecting and aiding victims of human rights violations that result in forced displacement. People who have fled their home countries are not merely victims of human rights violations; they constitute a distinct category that is not protected by the nation’s government. Rather than relying just on national governments to safeguard their populations, the international system of refugee law was developed.
Furthermore, human rights legislation is not an entirely new concept. Several states have been created on the premise that people have inherent rights that must be protected by the government. This idea of creating a universal human rights framework has been widely supported by the United Nations for some decades now. Priority one is to promote and encourage respect for all people’s human rights and freedoms, regardless of their race, sex, language, or religious beliefs expressed in the United Nations Preamble. As a result of this agreement, the United Nations and its members will work together to achieve this goal International human rights standards and treaties have been produced and adopted by UN member states in addition to United Nations Charter, 1948 Universal Declaration of Human Rights, and 1951 Convention on Refugees.11 Many international treaties, such as the
8Jean Pictet, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW,
MartinusNijhoff, /Boston/Lancaster (Henri dunant Institute, Geneva), 1985
9 Ahmad, Nafees, People Without Homes, The Pioneer, New Delhi, March 13, 1999, p.9
10Bose, Sikha, ‘Victims of a Security Dilemma: Chakmas and Refugees from Bangladesh, in S.D. Muni and Lok Raj Baral (eds.) Refugees and Regional Security in South Asia, New Delhi: Konark, 1996.
11Chatterjee, Joya, ‘Rights or Chairty’ Govenunent and Refugees: The Debate over Relief and Rehabilitation in West Bengal; 1947-1950 in SubirKaul (ed.). Partition of Memory (Delhi: Permanent Black. 2000).
International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social, Cultural Rights (1966), the Convention relating to the Status of Stateless Persons (1954), and the Convention on Racial Discrimination (1965)—are included in the International Bill of Rights (1979). The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) and the Convention on the Rights of the Child (1989) were approved at a more recent international level.12
Article 14 of the Universal Declaration of Human Rights does not allow a state to see an asylum seeker’s application for asylum as a hostile act. Attention to human rights violations is considered by many as a natural part of international diplomacy, rather than an invasion of a country’s internal affairs, in the post-Cold War era. As the international community recognises the importance of human rights, several countries go to tremendous measures to avoid the scrutiny of international human rights organisations. To achieve this, the United Nations has supported human rights missions in Cambodia, established international criminal tribunals for the former Yugoslavia and Rwanda, and collaborated with governments and other stakeholders in the field of human rights. The level of involvement varies from assistance and counselling to monitoring and reporting to direct protection. Policies and programmes of the United Nations High Commissioner for Refugees (UNHCR) have been influenced by human rights concepts. Refugees, asylum seekers, and those who have been forced to flee their homes are among those who benefit from the protection provided by the United Nations Refugee Agency.13 For the first time, UNHCR is stepping up its engagement with international and regional human rights organisations. An already crammed calendar will be bolstered by these events. According to the UNHCR’s statutory mandate, it should not assume additional tasks. However, certain governments have expressed concern about this. The UNHCR’s resources are already stretched thin by these new activities, and this anxiety is well-founded. Concerns about UNHCR’s capacity and capability must be addressed in this context. In this era of UN reform and downsizing, it appears unlikely that UNHCR will be able to carry out its work in the old way. Protection actions in the country are also becoming increasingly structured as part of UNHCR’s developing mission for security and refugee protection.14 The UN and others, especially
12AbhijitDasgupta, ‘The Politics of Agitation and Confession: Displaced Bengalis in West Bengal, in Sanjay K Ray (ed.), Refugees and Human Rights: Social and Political Dynamics of Refugee Problem in Eastern and Northern India, Jaipur: Rawat, 20
13ThubtenSamphel, ‘Education of Tibetans in India; Mirage of an Ideal Mixture’, Tibetan Review 21 (4), April 1986.
14Arjun Nair, National Refugee Law for India: Benefits and Roadblocks. http://www.ipcs.org/pdf file/issue/514627961PCS-ResearchPaper 1 1-Arjun Nair.pdf
nongovernmental organisations (NGOs), provide states with human rights based technical support in an effort to stop refugee flows. A few examples are the development of new schools in war-torn countries and efforts to promote economic rights for refugees returning from conflict zones through community-based projects that teach judges, attorneys, and human rights advocates. Preventive measures are increasingly being taken by the United Nations (UN), countries, and nongovernmental organisations (NGOs) in addition to enacting and enforcing domestic refugee and human rights legislation. An international treaty body has been established to investigate human rights abuses, enforce standards, and assist countries in carrying out their obligations under international conventions. These bodies have the competence to review the execution of the treaty terms by each of the countries that are signatories. Some treaty bodies have the capacity to investigate and decide on individual and inter-state complaints, as well as to conduct field missions to monitor implementation measures, with the approval of the participating countries. It is possible for committees to prepare official conclusions and observations during the evaluation of state party reports for compliance with international human rights legislation. They may also offer specific recommendations to the government. Members of the Committee Against Torture have regularly raised concerns about how refugees are being treated by states that are signatories to the treaties on human rights and torture. Refugees’ suffering has received growing attention from the UN human rights organisation. In addition to disseminating information about cases of human rights abuses against refugees, this campaign fosters public awareness of refugee protection issues. Rights groups and the United Nations Refugee Agency (UNHCR) have played a major role in teaching the international and domestic human rights communities on how to defend refugees and their human rights. Human rights issues have been clearly established in the context of the refugee crisis as a result of these actions.
STATUS OF REFUGEES IN INDIA
India has long served as a shelter for those fleeing persecution. The number of refugees coming to India from countries other than Iran’s neighbours has grown steadily since the country’s Zoroastrian population moved to India to escape religious persecution in Iran. Most importantly, there has never been a single refugee from Indian land, except for the transboundary migration of people in 1947 when the country was split in half. Because of its open-door policy, it has always been a multicultural and ethnically diverse country.15 In
15Brian Gorlick, “Refugee Protection and the Committee Against Torture,” IJRL 7, no. 3, July 1995.
accordance with its secular philosophy, India has welcomed refugees from all religions and ethnic groups. Since its independence, India has taken in refugees from far and wide, including Afghanistan, Iran, Iraq, Somalia, Sudan, and Uganda, in addition to its close neighbours. There are between 8,000 and 11,684 Afghan refugees in India, the bulk of them are Hindus and Sikhs, according to the Indian government. UNHCR in India has been granted authorization by the Indian government to implement a programme for them. In 2015, the Indian government granted citizenship to 4300 refugees from the Hindu and Sikh communities. There was a handful from Pakistan, but the majority were from Afghanistan.
Many people from East Bengal, mainly Hindus, moved to West Bengal during the partition of India in 1947. Refugees from West Bengal were referred to as “Bengals” by the locals.16 East Bengal’s Hindu population decreased from 30 per cent to 19 per cent between 1947 and 1961.In 1991, the percentage was 10.5%. The number declined even further from 9.2 per cent in 2001 to
8 per cent in 2008, according to the census. Bangladesh’s Chakmas are a Buddhist sect. Bangladeshi Chakma immigrants moved to southern Mizoram after being uprooted by the 1962 construction of the Kaptai Dam on the Karnaphuli River. In the absence of rehabilitation or compensation, they made their way from Bangladesh to India. Many Bangladeshi Hindu families moved to India in 2001 to escape persecution for belonging to a minority religion in Bangladesh, according to the BBC.17 There is constitutional and legal discrimination against non-Muslims in Pakistan. Because of this, a large number of Pakistani Hindus and Sikhs have sought safety in India. Around 400 Pakistani Hindu refugees live in Indian cities.
The Rohingya, also known as the Arakanese Indians, are a group of Myanamese who live without a country of their own. The United Nations has listed them as one of the world’s most persecuted ethnic groups. The Rohingya people were denied citizenship by the 1982 Myanmar Nationality Law.18 They had no choice but to leave because of the growing military crackdown by the Myanmar Army. Nearly 6,000 Muslim Rohingyas were massacred in August of 2017. A significant number of them live throughout numerous Indian cities yet their plight is not recognised by the Indian government as one of the refugees. Bangladesh is now home to the great majority of the refugees. As a result, vast numbers of people were displaced and relocated. Refugees from the Rohingya ethnic minority in Bangladesh face numerous dangers as of
16Nair, Pramod, “Towards a Regime for the Protection of the Internally Displaced”, ISII, Yearbook of International Humanitarian and Refugee Law, Vol. 1.20
17DawaNorbu, ‘Structural Census of Successful Settlements’, in Sanjoy K. Roy (ed.) Refugee and Human Rights, Jaipur: Rawat, 2001
18Sadako Ogata, “Foreword”, in UNHCR, The State of the World Refugees 2997-98: A Humanitarian Agenda, Geneva, 1998
December 2017. Despite India’s unwillingness to allow Rohingya refugees into the country due to security concerns, 40,000 refugees have taken refuge in Assam and West Bengal. Despite its limited financial resources, Bangladesh has offered to help the refugees. In DonghLian Khan v. Union of India, the Delhi High Court ruled that Article 21 of the Indian Constitution guarantees non-refoulment regardless of nationality. In NHRC versus Arunachal Pradesh, the Supreme Court decided that the state must protect the lives and liberties of all people, regardless of citizenship. Indian officials, on the other hand, are adamant about not accepting or helping Rohingya refugees. Refugee legislation has been implemented in a number of nations based on internationally recognised principles. They have devised a system to identify refugees and address their protection concerns among the countries that have signed up. Despite India’s failure to ratify the treaty, refugees are nonetheless protected.” However, the selection process for refugees is still inconsistent.” The lack of a standard definition of refugee status in India has resulted in the absence of a centralised entity responsible for helping refugees. Even after so many years, the system for dealing with refugee policy still has a number of shortcomings. This is because the government has failed to pass a refugee law. As a result of the numerous problems refugees face and the dearth of proper legislation, their legal position is unstable.
STAND OF SUPREME COURT CONCERNING REFUGEES
In the lack of law to control and justify the stay of refugees in India, the Supreme Court has turned to Article 21 of the Constitution. The government of Arunachal Pradesh was asked in NHRC vs. State of Arunachal Pradesh19 to perform the duty of safeguarding the lives, health, and well-being of Chakmas residing in the state, and that their citizenship applications be forwarded to the appropriate authorities rather than being withheld. In other circumstances, it was decided that refugees should not be detained or deported and that they have the right to apply to the United Nations High Commissioner for Refugees for refugee status. The importance of the voluntary nature of repatriation was underlined in P. Nedumaran vs. Union of India20, and the Court stated that the UNHCR, as a world organisation, was to determine the voluntariness of the refugees and that it was not for the Court to consider whether assent was voluntary. Similarly, according to B. S Chimni, the Supreme Court erred in determining in Louis de Raedt v Union of India21 that the government’s absolute and limitless right to remove foreigners under the Foreigners Act of 1946 is not fettered by the Constitution. In Vishakha vs.
191996 AIR 1234, 1996 SCC (1) 742
201993 (2) ALT 291, 1993 (2) ALT Cri 188
21AIR 1886, 1991 SCR (3) 149
the State of Rajasthan,22 the Court held that international conventions might be relied upon in domestic law. As a result, the question arises as to whether India can use the 1951Convention to interpret domestic legislation and if ratification of these treaties is indeed necessary. It should be highlighted that simply ratifying the 1951 Convention does not guarantee that asylum applicants would not be turned away and that Article 42 of the same Convention allows for reservations regarding refugee rights, which defeats the purpose of ratification. In the recent example of roughly 40,000 refugees who arrived in India from Myanmar, the government declined to grant refugee status on the grounds of national security and the threat of terrorist elements arriving through this route.
One per cent of the global population has been forced to flee their homes in the last few years, according to the United Nations. Make sure these people are given the best possible care and are protected from any further threats. Collaboration between international organisations as well as all nations will be required. There are many refugees in India, and without a special law in place, the country cannot adequately support and protect them. Refugees must have a non- discriminatory statute in place to provide a consistent and equitable approach to dealing with them by the government. Rather than labelling these people as “foreigners” or “illegal aliens,”23 the country must provide them with legal citizenship. With its security worries, particularly in the last few decades, and demographic constraints and concomitant economic problems, India continues to take a humanitarian stance towards the refugee dilemma. It has not been a serious hindrance to the government’s ability to deal with the large refugee problem as the country doesn’t have a specific statute to manage “refugees”24.Most of the relevant UN and international conventions have been adhered to through executive and judicial participation. As a result, the government has managed to strike a reasonable balance between its humanitarian and human rights obligations, as well as its national security and interests. At times, the interests of security and law enforcement organisations appear to be in rivalry with one another. If and when the country enacts a separate ‘Refugee Law, it is vital that this element be fully considered. There must be a balance between security and law enforcement efforts in dealing
22(1997) 6 SCC 241
23Bimal N Patel, India and International Law, (2005 edn), MartinusNijhoff Publishers, 2005
24Rajeev Dhawan, On model law for refugees: A response to the National Human Rights Commission, NHRC Annual Reports 1997-2000, New Delhi, 2003.
with the “refugee” situation, with a special focus on the human element.