WITH SPECIAL EMPHASIS ON PROTECTION OF REFUGEES IN INDIA

“The great lesson is, that unity is behind all. Call it God, Love, Spirit, Allah, Jehovah – it is the same unity that animates all life from the lowest animal to the noblest man[1]”

The Complete Works of Swami Vivekananda”, p.2154, Manonmani Publishers.

INTRODUCTION

Wherever you go, you meet people belonging to different culture, caste, creed, race and language. Wherever you go, people are same just their perspective and opinion differ. People are same yet they think, talk, and act differently. For example; people in Southern England speak in a distinct accent and have political and religious ideologies which are not similar to the people residing in the Northern England, still these people co-exist within England. Regardless of these multitude of differences, people co-exist in peace and harmony. Hence, the co-existence of a population in unity in spite of dissimilarities in ideologies, languages, cultures, etc is called Unity in Diversity.

A TRAVEL TO HISTORY

This concept dates back to 400 BC in North America and is evident throughout numerous countries and fields. It has primarily helped in developing mutual respect and tolerance amongst groups with cultural, ethnic, regional and racial differences, strengthening human relationships and cultural heritage and ensuring equal rights for all. Additionally, it has helped in imbibing qualities of teamwork, brotherhood and loyalty amidst diverse groups. For example – Political and Cultural groups in Europe.  

Where co-existence in diverse groups have facilitated social mobility, ensured a sense of belonging and togetherness, it has led to human struggle. Conflicts arising in diverse groups due to differences in ideologies and ethnicities have led to acute social strain, power deficiency and an unsurmountable loss of human life.

It is interesting to note, how unity and diversity have diagonally opposite meanings yet they act as an instrument of integration, growth and development in a diverse socio-economic and political society. It has undoubtedly been an integral part of human evolution as it has shaped the human life and paved a path of self- righteousness.

UNITY IN DIVERSITY – THE INDIAN OUTLOOK

“Unity in diversity is India’s strength. There is simplicity in every Indian. There is unity in every corner of India. This is our strength[1]”

•  Narendra Modi

India is inhabited by a population of 1.37 billion people with an immense variety of religions, castes, and languages. It is a culturally and economically diverse country which fosters varied forms of cultures and people from different strata of life. It is evident that diversity lies in the very root of the nation in almost all regions and facets of various fields. From Kashmir to Kanyakumari, people of various cultures, languages and customs are found. People speak Hindi, Bengali, Punjabi, Gujarati, Marathi, Telegu, Tamil etc. They celebrate a variety of festivals like Holi, Durga Puja, Diwali, Christmas etc, worship more than 100 Gods and profess various religions like Hinduism, Buddhism, Christianity etc. These varied forms of culture, traditions and customs are unanimously embraced by the people which promotes the feeling of Unity in Diversity in India.

It is important to note, that the diversity we live in resulted from the blend of numerous ethnicities like the Aryans, Greeks, Turks and Scythians. The process of socialization of these communities led to development of wide array of art, culture, religion and tradition. Starting from the growth of Puranic and Vedic culture in the North and Dravidian culture in the South to development of several scripts (Pali, Sanskrit etc), languages (Munda, Sanskrit, etc) and religions (Buddhism, Jainism etc), ancient India became a land of ethnic and linguistic heritage. Additionally, the root word for India i.e., “Bharat” denotes sense of unity and togetherness, is derived from one of the oldest sacred books called the Rigveda. Thus, the symbolic ideas and immemorial traditions derived from Ancient India has unquestionably moulded India’s social system.

UNITY AND DIVERSITY – THE GOOD, BAD AND THE UGLY

Unity is an indispensable trait closely attached to diversity as it ensures tolerance and mutual respect amongst individuals in a diverse nation akin to India. This concept was upheld by our former Prime Minister Jawaharlal Nehru in his book, The Discovery of India. For the past 72 years, the nation has been efficacious to ensure unity and harmony in spite of the complexities of a diverse-colossal population. There are political, linguistic, racial and geographical factors which influence unity. Akin to the scenario in Ancient India where a multitude of scripts were adapted in various languages and Bharat was regarded as in spite of internal divisions of geographical locations. Regardless of individual differences, people from four corners of India celebrate over 50 festivals, communicate in more than 50 languages and profess more than 20 religions. This act of mutual co-operation and continued efforts towards a harmonious society has deemed India to be united.

There are reasons as to why people conform to a united association in a diversity, because it leads to;

1. facilitation in exchange of cultural and traditional heritage.
2. political, religious, regional inclusion and integration.
3. sense of togetherness and harmony in the nation.
4. deterrence of conflicts/wars in the nation.
5. promotion of equality and acceptance in the nation.

In retrospect there have been instances, where countless factors have threatened co-operation amidst the diverse nation. The factors are as follows;

1. Inadequacy of growth and development – inequality and economic disparities in a lead to the retardation of socio-economic growth in a diversity. For example; North Eastern states face socio- economic inequalities which restricts the development of these states.
2. Regionalism – when people residing in a particular region tend to cater to only their needs, it is called regionalism. It threatens the peace and integration in the society.
3. Inter-religious/ Inter-state conflicts – conflicts amidst religious groups and state threaten the secularity and political stability in a society. For example – Ram Mandir conflict (Inter-religious) and the Cauvery River conflict (Inter-state).

Often external factors like extremism, divisive politics affect the peace and stability of the nation. Case of ethnic differentiation and geographical isolation are amongst the other factors. Irrespective of the many differences, unity is ensured with the existence of various minorities.

REFUGEES – A HISTORICAL PURVIEW

When an individual is left with no option but to leave a country and flee to another due to a multitude of circumstances like socio-economic insecurity, fear of persecution and political instability. Refugees synonymously known as asylum seekers and immigrants have existed since ancient times. Due to the need of food and shelter, migrating from one place to another was common. However, from the 18^th century, rise of laws relating to movement of individuals started to pose limitations on the entry and exit of individuals. The World War I was responsible displacing more 1 million refugees from Belgium to Netherlands and neighbouring countries. The effect of World War II was even worse where the attack on Prussia led to a displacement of 8.7 million people. Hence, wars resulting from socio-economic and political instability became a source of initiating mass displacement of people.

REFUGEES IN INDIA

It has been an immemorial tradition for India to provide shelter and asylum to the persecuted. India is amongst those democracies which is known to accept refugees since its inception. Since the Partition of 1947, people from various communities and regions who were affected took refugee all over India. Subsequently, the victims of 1971 Bangladesh Genocide and 1972 Ugandan Expulsion were taken as refugees under the Indian Law. In spite of not having an elaborate and comprehensive refugee law, it has hosted 4.2 million refugees put together from Tibet and Sri Lanka. The National Human Rights Commission (NHRC) was responsible to look after the Tibetans who were victims of 1951 China Annexation. As for the Sri Lankan Tamils who were under the threat of Liberation Tigers of Tamil Eelam (LTTE), a determination process was used along with the principle of non-refoulement[2].

As we know, India is regarded as a land of many religions and beliefs, it has also provided asylum to the various religious groups from Bangladesh, Afghanistan and Pakistan and ethnic groups like Sri Lankan Tamils and Ugandans of Indian origin. Due to a multitude of factors like ease of regional access, religious sentiment and democratic principles, the nation provides asylum people from various parts of the world. However, the fact that India lacks in a well-structured and specific legislation makes it problematic for the nation to host refugees because of the following reasons;

1. Refugee Convention of 1951 – India isn’t among the signatories of the Refugee Convention of 1951, which inhibits the use of refugee law in India. There is no definite definition of a “refugee” and formal legal framework with regards to the asylum seekers. India relies solely on ad hoc policy for treating the refugees.
2. Ambiguity in defining the term “refugee” – The Refugee Convention of 1951 states that, “a refugee is 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 unwilling to avail protection of that country[3]” ­Concisely, a refugee is an individual who flees away from his country in order to seek asylum and protection to another country out of fear of persecution.

However, in addition to lack of precise legislation, the nation has failed to clearly define the term “refugee” in any of the existing statutes and has constantly used terms like foreigner[4], immigrants and asylum-seeker equivocally.

• Absence of Refugee Laws – The Indian Constitution which is known to be one of the comprehensive rulebooks with 395 articles and 12 schedules fails to provide the basic domestic law that needs to be followed with regards to the treatment of refugees, like the other statutes.
• Insufficiency of resources – The population of India is itself at rise. Considering this, it will be difficult to provide adequate amenities to the refugees where it is already struggling to satisfy the basic needs of its population.

STATUS OF REFUGEES

The fact which is hard to accept but is true is that, the status and situation of refugees in India is devasting. The refugees are constantly subjected to harsh living conditions and socio-economic problems. They don’t get access to the basic amenities like food, clothing and shelter. Those who don’t get to join refugee camps are exposed to exploitation and various sorts of discrimination. Factors like these makes it difficult for them to get education and earn a livelihood. Subsequently, feelings of unhappiness along with the inability to cope up, makes them lose their right to live with dignity.

It would have been relatively easier for India to the manage the refugees under a precise and specific legislation like the Refugee Convention which states the rights of refugees and responsibilities of the countries where they seek refuge. Since, India has not signed the Refugee Convention of 1951, it is subjected to the dissatisfaction of numerous countries and international organisations. There are multiple reasons like problems of border sharing with neighbouring countries, reservation for refugees and socio-cultural problems which makes it burdensome for the nation to comply with the convention[5]. Fear of misusing identity, sabotaging the economy, culture and harmony of the society are some of the other reasons which still prohibits India to sign the convention.

LEGAL FRAMEWORK OF REFUGEE LAWS

In India, the Parliament is empowered to deal with matters of citizenship, aliens and naturalization[6]. As there is no specific legislation for refugees, they are treated in adherence to the laws applicable to aliens[7]. There are numerous interpretations and provisions relating to the word “refugee” and their rights in India. The following explains the same;

1. The Constitution of India (Article 22), Indian Civil Procedure Code (Section 83), Indian Citizenship Act, 1955 (Section 3(2)(b)) entitle “refugee” as “alien”.
2. The Registration Act, 1939 keeps a register of the refugees[8] along with the regulation of entry and exit and enlists various penalties[9].
3. The Foreigner’s Act, 1946 empowers the central government to monitor the entry and exit of and states that a “foreigner” is a person who isn’t a citizen of the state[10].
4. The Passport Act, 1920 deals with impositions, issuing of travel documents (for non-citizens)[11] and regulation of arrival and departure of travellers[12] in India.
5. Principle of Non-Refoulement, states that no country can expatriate a refugee back to his country of origin if there is a threat to his life and liberty[13]. In the case of, Malvika Karlekar v. Union of India[14], the Burmese refugees were protected against forceful return. The Supreme Court held that the refugees had the right to seek refuge under UNHCR. Similarly, in the case of P. Nedumaran v. Union of India[15], the Sri Lankan refugees pled for a writ of Mandamus in order to verify the voluntariness of repatriation to Sri Lanka.

Since, the Indian statutes fail to adequately define the term “refugee” and provide a distinction between “alien” and “refugee”, it hampers the application of just laws. The term “refugee” is often misrepresented by words like foreigner, asylum seeker and stateless individual. Although India has not ratified any prime international treaty, it has always tried to satisfy the basic needs of the refugees. In the case of Digbijay Mote v. Union of India[16], a Sri Lankan school was provided with monetary assistance by the Ministry of Women and Social Welfare, when a PIL was filed for the same. Similarly, in the case of Abdul Majid Mohd Jad Al Hak v. Union of India[17], the principle of providing basic amenities like food and medicines were complied with.

CONSTITUTIONAL SAFEGUARDS FOR THE REFUGEES

The Indian Constitution is an egalitarian rulebook which seeks to accommodate people irrespective of their individual differences relating to caste, race religion etc. Along with Articles 5-12 of the Constitution, the following rights act as constitutional safeguards for the refugees as well as the non-citizens in India.

The following are the primary safeguards for protection of refugees;

1. Article 14 – Right to Equality

Under this article, no individual shall be discriminated and denied equality before law. Each and every one must be treated and protected equally before law[18].

In the case of Visakha v. State of Rajasthan[19], the court upheld that the international conventions and treaties are significant for the interpretation of various fundamental rights like, right to equality, right to work with dignity and right against exploitation and harassment.

• Article 20 – Right to Protection with regards to conviction of offences

Under this article, no individual shall be convicted except distinct breach of law at the time of committing the act, nor be subjected to retrospective laws[20].

• Article 21 – Right to Life and Personal liberty 

Under this article, no individual shall be deprived the right to life and personal liberty except according to procedure established by law[21]. The interpretation of this article emphasizes on the right to medical assistance and negates the application of solitary confinement and custodial violence. In the case of Louis De Raedt v. Union[22], availability of right to life, liberty and dignity by the court and NHRC v. State of Arunachal Pradesh[23], the court ordered to protect the life, health and liberty of the Chakmas of the state and asked to send the application for their citizenship shall be sent on immediate basis.

• Article 22 – Right to Protection under unfair detention

Under this article, no individual shall be unfairly detained by an authority without being informed and shall not be denied legal consultation and representative upon request. Additionally, this article states that an individual who is detained must be produced before a magistrate within 24 hours and that no preventive detention can exceed the tenure of three months[24].

• Article 25 – Freedom of Religion

Under this article, no individual shall be deprived from the freedom to practice, profess and propagate any religion, subject to public order, health and morality[25].

• Article 32 – Right to Constitutional Remedies

Under this article, no individual shall be denied remedy against the violation of his/her fundamental right. The Supreme Court is empowered to issue writs like Mandamus, Habeas Corpus etc. for enforcing of rights of the individuals[26].

NEXUS BETWEEN INTERNATIONAL AND DOMESTIC LAW

Apart from the Refugee Convention of 1951 and 1967 protocol, India is a signatory to multiple conventions and treaties relevant to the rights and protection of refugees. Being signatories to such treaties makes it a legal and moral obligation for the nation to adhere to principle of non-refoulement[27] and protect the rights of refugees by legislative and administrative to ensure international peace[28].

Article 51 of the Indian Constitution states that the state shall foster respect for international law and treaties[29]. In reference to a case, the Supreme Court relied on referring international laws for interpreting refugee legislation[30] and contemplated on the need to ratify the 1951 convention for treating the refugees. It is necessary to incorporate international law in domestic law in order to provide equal and uniform protection of law[31] to the refugees so that the fate of the refugees don’t rest on the discretion of the executive and judiciary. Additionally, India is a signatory to the Universal Declaration of Human Rights and Customary International Law which expressly recognizes refugee rights adhering to the Constitution.

Organs like National Human Rights Commission (NHRC) and United Nations High Commissioner for Refugees (UNHCR) have contributed significantly in improving the condition and status of Refugees in India. Role of these two organs is described herein,

• National Human Rights Commission (NHRC) aims to protect the refugees by monitoring and ensuring their rights. Apart from advocating various refugee cases, it had played an evident role in enforcing the rights of Chakmas in Arunachal Pradesh[32].
• The UNHCR in India aims to protect the people who have fled from the country of origin due to various circumstances. It ensures that the Refugee Convention of 1951, 1967 Protocol along with the regional bodies like the 1969 Organization of African Unity and 1984 Cartagena Declaration are not violated. It has been involved in the issue of Tibetan refugees and Bangladesh crisis in 1971. UNHCR primarily upholds the principle of i) Non-refoulement[33] ii) Non- discrimination[34] and iii) guarantees a certain standard of living relating to housing[35], education[36] and employment[37].

The NHRC, failed to initiate the drafting of specific legislation after several tries. The deteriorating condition of the refugees makes it necessary to draft precise legislation in order to treat the refugees in a more humanitarian way.

RECOMMENDATIONS

In order to end discrimination and suffering against the refugees and to ensure their welfare and development. It is highly recommended to reflect on the following;

• Specific legislation and the Need to uphold obligation – except the Refugee and Asylum Bill of 2009, India does not have any precise legislation for refugees. The need is to draft a legislation along the lines of Humanitarian laws and International treaties realizing the legal and moral obligation of the country. The laws should help them receive definite legal status, opportunities and equality in various spheres of the society.
• Collaborative efforts – countries uniting in order to safeguard and protect the status of refugees shall result in improving the status and livelihood of the refugees. Responsibility-sharing agreements and peace talks amongst countries and international organizations like the United Nations (UN) shall pave a path for better law and legislation for the welfare and development of refugees.
• Effective treatment and protection – laws pertaining to dignity, employment and livelihood of the refugees should be drafted. Long term solutions must be composed in order to address the socio-cultural, education and health needs of the refugees (especially for the women and children). Additionally, effective “border- procedures” and protection strategies must be used in order to monitor and administer them properly.

CONCLUDING REMARKS

The lives of the refugees have always been questioned and subjected to constant threat and turmoil. This is something that is unimaginable in the 21^st century because in the era of democracy and human rights, the refugees are being denied the basic rights i.e., right to life, dignity and decent livelihood.

It is essential to empathise with what they go through and understand what “protection” and “security” mean to them. Hence, there is an urgent need for progressive development and international co-operation in order to ensure better protection for the refugees.

In India, the Parliament has the power to decide over the matter of citizenship[38], referring the constitution. The Parliament along with the Judiciary should shed light on the socio-economic problems and achieve understanding of these problems. Additionally, India and International organs like United Nations along with its sister organs like HRC, HCR and WHO should engage in talks in order to formulate laws and policies specifically for the refugees in India [39]

Taking into consideration, the complexities of population in India, coordinated efforts and shared responsibility with various countries would help in enhancing the existing humanitarian and refugee protection regime by giving it better structure and orientation. Having a separate legislation for the refugees will help in evolving a practical balance by ensuring the legal and moral rights of the refugees as well as the rest of the population. Striking a balance by considering the varied interests of a diverse nation like India, is the key to socio-political integration and stability of the country.

[1] Addressal of Prime Minister Narendra Modi on 69^th Independence Day.

[2] The Refugee Convention, 1951, art.33.

[3] The Refugee Convention, 1951, art. 1(A)(2). Protocol, 1967, art. 1.

[4] The Foreigner’s Act, 1946 (Act 31 of 1946) s.2.

[5] T. Ananthachari, Refugees in India: Legal Framework, Law enforcement and Security (ISIL, 2001)

[6] The Constitution of India, VII Schedule, 17.

[7] Ibid, art. 11.

[8] The Registration Act, 1908 (Act 16 of 1908), s.16

[9] The Registration Act, 1908 (Act 16 of 1908), Part XIV.

[10] The Foreigner’s Act, 1946 (Act 31 of 1946) s.2.

[11] The Passports Act, 1967 (Act 15 of 1967) s.5, s.20.

[12] The Passports Act, 1967 (Act 15 of 1967) s.3.

[13] The Refugee Convention, 1951, art.33.

[14] 1992, Crl. WP No. 583.

[15] 1993, WP No. 3792.

[16] 1993 (4) SCC 175.

[17] 1997, Crl. WP No. 60.

[18] The Constitution of India, art. 14.

[19] 1997(6) SCC 241.

[20] The Constitution of India, art. 20.

[21] The Constitution of India, art. 21.

[22] 1991(3) SCC 554.

[23] 1996 (1) SCC 742.

[24] The Constitution of India, art. 22.

[25] The Constitution of India, art. 25.

[26] The Constitution of India, art. 32.

[27] The Refugee Convention, 1951, art.33.

[28] The Constitution of India, art 51 (a).

[29] Ibid, art 51 (c).

[30] Visakha v. State of Rajasthan, 1997(6) SCC 241.

[31] The Constitution of India, art 14, art 39 (a).

[32] NHRC v. State of Arunachal Pradesh, 1996 (1) SCC 742.

[33] The Refugee Convention, 1951, art. 33.

[34] The Refugee Convention, 1951, art. 3.

[35] The Refugee Convention, 1951, art. 21.

[36] The Refugee Convention, 1951, art. 22.

[37] The Refugee Convention, 1951, art. 24.

[38] The Constitution of India, art. 11.

[39] The Constitution of India, art. 51.

[1] “The Complete Works of Swami Vivekananda”, p.2154, Manonmani Publishers.