“Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us—except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.”-Khaled Hosseini
The term refugee is highly descriptive and even potent. When one thinks of refugees, images of fleeing populations struggling with their belongings and desperately crossing borders, images of refugee camps with no employment opportunities, and women cooking on the side of roads to feed their starving children are a few of the images that come to mind. However, the term refugee has a definite literal meaning and social connotations. Refugees are neither persons who move in pursuit of jobs nor criminals; rather, they are individuals who flee persecution in their own country. Individuals or entire populations become refugees due to political, religious, military, or other challenges in their own nation.
According to the UN Convention on the status of Refugees, 1951, “A refugee is a person who has fled his/her country owing to a 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/her nationality, and is unable or, owing to such fear is unwilling to avail himself/ herself the protection of that country.”
68% of the world’s displaced people are from five nations, including Syria, Venezuela, and Afghanistan. South Sudan and Myanmar. According to the United Nations, over 79.5 million people are displaced worldwide.
Evolution of the Refugees through the years:
In its seven decades as an independent nation-state, India has experienced its fair share of refugee issues. In fact, it began with the partition itself. People who crossed the newly formed lines between India and Pakistan, whether voluntarily or forcibly, did not lose their nationalities, but were nonetheless obliged to live as refugees. Those who had experienced the pain of partition resided in refugee camps spread across north India. Due to the fact that these immigrants were instantly citizens of the newly formed India, their presence posed no threat to national security. India has harbored many refugees from various nations for millennia despite not being a signatory to the 1951 Refugee Convention. India has always shown refugee tolerance.
The next significant influx of refugees into India occurred almost a decade after Partition, in 1959 when the Dalai Lama and more than 100,000 supporters fled Tibet and sought political asylum in India. The next big refugee crisis occurred during Bangladesh’s struggle for independence in 1971 when millions of refugees fled the battle between the Pakistani army and Bangladeshi forces by migrating to India. This precipitated an abrupt increase in the population in states bordering Bangladesh, making it increasingly difficult for the Indian government to ensure food security. Approximately 10 million Bangladeshi refugees fled to India in 1971, according to certain estimates. Sri Lankan Tamils who fled the island nation as a result of discriminatory policies enacted by successive Sri Lankan governments, as well as events such as the Black July Riots of 1983 and the violent Sri Lankan civil war, make up another significant population of refugees in India. Furthermore, in 2017, 40,000 Rohingya Muslims fled Myanmar and sought safety in India, elevating the debate over refugees to national prominence once more. However, India has classified the Rohingya as illegal immigrants and a threat to national security, agreeing with the Burmese authorities. The Indian government has said that the non-refoulment principle, which says that refugees can’t be forced to go back to their home country, doesn’t apply to India because it didn’t sign the 1951 Refugee Convention.
The latest development India has seen in terms of refugees and the laws governing them is the 2019 Citizenship Amendment Act (CAA). The act amended the previous Citizenship Act of 1955 in order to grant Indian citizenship to minorities fleeing persecution in neighboring nations. It intends to grant citizenship to Hindus, Parsis, Buddhists, Sikhs, Jains, and Christians originating from Bangladesh, Afghanistan, and Pakistan. Its purpose is to provide citizenship to Hindus fleeing persecution in Muslim-majority nations bordering India, as stated in the election platforms of the current ruling party. The act has made the country tenser by mixing religion and citizenship because it goes against the Constitution’s basic principles and secular rules.
PROBLEMS FACED BY REFUGEES
India has not signed the agreement, it provides refugee protection. “However, the technique for identifying refugees remains inconsistent.” Due to the absence of a uniform code for defining refugee status in India, there is no single organization responsible for dealing with refugees. Even after so many years, there remain still gaps in the policy process for dealing with refugees. Because the government has not adopted legislation regarding refugees, this is the case.
Due to the numerous issues migrants experience and the lack of appropriate legislation, the legal situation of refugees is deplorable. Aside from the legal issue, refugees encounter various other day-to-day challenges related to education, lifestyle, employment, and basic necessities.
STATUS OF REFUGEES IN INDIA
Refugee laws are governed globally by the Geneva Convention of 1951, which covers the European region, and the 1967 Protocol, which made the former universal. However, India has neither signed nor ratified both treaties. In addition, India is one of the world’s leading refugee protectorates. It is puzzling how India can house such a large number of refugees without any domestic legal laws or international commitments. The answer lies in India’s constitutional provisions and its policy of keeping its doors open to those in need. In Mohammed Salimullah & ANR Vs UoI and Others, the Supreme Court of India stated, “There is no doubt that national courts may draw inspiration from international conventions/treaties, so long as they do not contradict with municipal (state) law.” Therefore, none of the constitutional protections are applicable to deportation unless a particular refugee statute is in effect.
As there is no law controlling the protection of refugees in India, there is no definition of a refugee. As with any other foreigner, they may lawfully enter the nation with a valid passport, an Indian visa, or an entry permit. Refugees in India are considered “Foreigners,” which is defined under section 2(a) of the Foreigners Act, 1946 as “a person who is not a citizen of India.” However, there are numerous types of foreigners that can be distinguished from refugees, such as tourists or travelers, internally displaced persons, illegal migrants, or in other words an “alien,” which is defined in great detail in the Citizenship Act of 1955.
In addition, they are governed by numerous additional legislation, including the Passport (Entry into India) Act of 1920, the Passport Act of 1967, the Registration of Foreigners Act of 1939, the Foreigners Act of 1946, the Foreigners Order, etc. Foreigners have the right to basic protection under the law.
LAWS FOR REFUGEES
When in India, the refugees are subject to the Indian Constitution. Article 21, which deals with the Right to Life and personal liberty, is the most significant because it applies to everyone, regardless of whether they are Indian citizens. Numerous refugee-related decisions have been made based on Article 21. Article 14 ensures equality before the law for all individuals. Articles 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, and 226 are also accessible to non-Indian nationals, including refugees.
The treatment of asylum-seekers was classified into three categories:
- National Treatment: Asylum seekers receive the same national treatment as Indian citizens. There are certain Articles of the Indian Constitution that address the Fundamental Rights of all Indian citizens. Part III of the Indian Constitution guarantees rights such as equal protection under the law under Article 14, religious freedom under Article 25, the right to life and personal liberty under Article 21, and the right to social security and educational rights.
- The treatment accorded to non-citizens: – Under this heading is the rights associated with housing issues, migration, etc. The 1951 Refugee Convention provides the following rights: the right to a job or profession under Article 17, freedom of residence and travel under Article 26, the right to housing under Article 21, the right to establish associations under Article 15, and the right to property under Article 13.
- Special treatment: This treatment includes identity and travel documents under Article 28 and exemption from fines under Article 3(1) of the 1951 Convention Relating to the Status of Refugees.
In Louis De Raedt v. Union of India, the court ruled that non-Indian citizens had access to the fundamental rights to life, liberty, and dignity. In Visakha v. State of Rajasthan, the court ruled that “International Conventions and Norms are relevant for the purpose of interpreting the guarantee of gender equality, the right to work with human dignity in Articles 14, 15, 19(1)(g), and 21 of the Constitution, and the implicit protections against sexual harassment”
The judiciary has a crucial role in protecting refugees, and numerous cases have resulted in historic decisions affecting refugees. With the principles of Social Action Litigation and Public Interest Litigation, the judiciary has simplified the process. When any refugee is detained or arrested by Indian authorities, there is always the possibility of refoulement, repatriation, or deportation. In Louis De Raedt & Ors. v. Union of India, the Supreme Court affirmed the aforementioned ruling. The Supreme Court ruled in the same decision that foreigners had the right to be heard.
Moreover, as the number of refugee cases in India continues to rise, UNHCR India is participating in a very active manner. If a refugee returns to his country after being a refugee in India, the UNHCR monitors whether the return is voluntary.
Today, India continues to host about 212,874 refugees and asylum-seekers including Sri Lankan refugees. We are encouraged by the inclusion of refugees in essential services, such as the current national COVID-19 vaccination drive and access to health care at par with citizens during this challenging time. Even though there are numerous accords and laws controlling refugees around the globe, refugees continue to face difficulties. When a country as large as India lacks a Refugee Law, it is clear that many nations share the same situation and are in the same boat. There is a need for a standard law that accords equal rights to all refugees, notwithstanding the fact that refugee protection is provided by multiple Constitutional provisions. India continues to see the refugee issue from a humanitarian perspective. Numerous Indian court decisions back the refugees. India has done a great deal for refugees, but much more must be done.
The absence of clear domestic legislation and ad hoc asylum status management may deprive the country of its soft power and credibility in the international arena, despite the fact that it accommodated so many refugee groups before international norms for refugees were established. Migration is increasing for a variety of reasons, and it is time for India to enact legislation to address the issue so that administrative action is transparent. The method for determining whether someone qualifies as a refugee is likewise uncertain. Hence, greater coordination between the Indian Government and UNHCR is required.
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