The Citizenship Amendment Bill, according to the government, is rooted in humanitarian concerns: it will offer refuge to people fleeing religious persecution.
- Yet these concerns are remarkably selective, restricted to Hindus, Buddhists, Parsis, Sikhs, Jains and Christians from Pakistan, Afghanistan and Bangladesh. Undocumented migrants from such communities will be eligible for citizenship under the new bill.
But Muslims, such as Shias and Ahmadis, facing religious persecution in these countries are pointedly left out. So are refugees from Myanmar, including thousands of Rohingya who fled ethnic cleansing, and Sri Lanka, where thousands of Tamil refugees were forced out by civil war.
Most countries which have had to deal with large refugee populations are signatories to the United Nations convention on the status of refugees and stateless persons and the 1967 protocol.
- These statutes define a refugee as “someone who has been forced to flee his or her country because of persecution, war, or violence”, and who “has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group”.
But India held off from signing the convention, either because of its traditional mistrust of the United Nations or because, with limited infrastructure and stretched public resources,
The Indian state does not want to be responsible for the large volumes of refugees created by the churning of an unstable subcontinent.
India manages refugee populations in the absence of a law:
The home ministry has created “standard operating procedures” for various groups seeking refuge in India. The rights and facilities afforded to them remained erratic, decided on a case to case basis.
- Refugees from some groups have been given land, granted Aadhaar and PAN cards, allowed to open bank accounts, and work in the country. Tibetans were even allowed to set up a government-in-exile.
Ever since the BJP came to power in 2014, it has quietly worked to reinforce old distinctions between “infiltrators” and “refugees”.
In the aftermath of Partition, the movement of Hindus into India was seen as a “natural homecoming”, while the flow of Muslim refugees came to be described as “infiltration”.
One of the earliest legislations to regulate the flow of migrants across newly created borders was the Immigrants (Expulsion from Assam) Act of 1950.
- This gave the Centre powers to deport certain groups of immigrants and introduced an implicit distinction between “Hindu refugees” and Muslim “illegal aliens”, notes social scientist Sanjib Baruah.
The law was repealed in 1957, but the same logic would be pursued over the next decade, as India accommodated Hindu refugees and pushed back Muslim “infiltrators” at the border.
The Citizenship Amendment Bill, if passed, would give this distinction the force of law: non-Muslim refugees may be welcome, but Muslims are not.
EVIDENCE REQUIRED TO ESTABLISH A REFUGEE CLAIM:
In order for a claimant refugee to put forward a genuine claim for determination of refugee status, it is crucial to accumulate all the documents that the claimant can muster in support of the grounds of persecution or fear thereof resulting in flight from country of origin.
- The documentation may be in the form of an identity card of employment with some governmental agency in the country of origin, or an identity card indicating membership of a particular group.
- Production of the same would be evidence of a claim of involvement with particular groups and would also serve to prove the claimant’s identity.
Any other information that the claimant may be able to gather to prove specific persecution or fear thereof, such as names of persecutors, leaders of groups involved in committing persecution, details of areas where persecution is committed will help strengthen the case of the claimant.
- Similarly, the claimant must be able to establish all his statements to interviewing authorities in a consistent manner, without discrepancies. If there are obvious contradictions between the statements made by the claimant himself at different times to different persons, his claim to refugee status may be rejected.
The statements made by the claimant must also not be contradictory to the general information available on the country of origin.
- Corroboration and confirmation of facts pertaining to persecution is an essential factor in determining refugee status.
Efforts are made by authorities to gather background human rights data from a broad cross section of official and non-governmental sources in order to supplement whatever evidence may be adduced by the claimant himself.
Thus, circumstantial evidence that persons similarly situated to the claimant are at risk in the country of origin, is essential.
To establish a fear of persecution, the term “fear” is not to be judged on the basis of the emotional reaction of the claimant. Instead, “fear” must be employed to mandate a forward looking assessment of risk.
Therefore, persons who had already suffered persecution in their country of origin, as well as those who may be judged to face prospective risk of persecution in event of return to their country of origin, would be able to claim refugee status.
- The heart of the refugee determination process is the careful consideration of the claimant’s own evidence, whether provided orally or in documentary form.
- It is ideally required that all claimants for refugee status receive an opportunity to be heard by the authority responsible for the adjudication of their case.
All the materials thus collected and collated are then tallied with independent, internationally acknowledged information available on the region from which the claimant has arrived.
In possible circumstances and cases, the information thus obtained is also reconfirmed from the UNHCR office in the country of origin.
Along with making claims for refugee status, refugees may also seek redressal of immediate basic problems facing them, such as food, shelter, legal aid etc.
- In regard to such matters the UNHCR plays a major role by providing in suitable and deserving cases, a “Subsistence Allowance” to destitute refugees and their dependents.
The UNHCR also helps in enabling the refugee to find his own accommodation or to share a tenanted accommodation with another similarly placed refugee.
When a refugee seeks legal aid for himself or for his dependent, the UNHCR may provide the assistance or recommend an Advocate who is familiar with handling refugee matters, to help sort out the problem faced by the refugee.
- In cases where the refugee is to be deported back to his country of origin, the UNHCR officials may request the Central Government to stall deportation proceedings, pending UNHCR attempts at resettlement of the refugee in a safe country.
- In order to make such resettlement possible, the UNHCR takes up such cases with the Embassies of other countries for grant of travel to and stay facilities in their countries.
GROUND REALITIES – SOME ASPECTS:
It will be useful to acquaint oneself with the realities on ground when a refugee attempts to cross or actually crosses over to India.
The Border Security Force (BSF) which guards the India-Pakistan and the India-Bangladesh borders, the Indo-Tibetan Border Police Force (ITBPF) which is deployed along the India-Tibet (China) border and
The Assam Rifles (AR) which is deployed along the India-Myanmar border, are usually the first representatives of the Indian system which refugees may encounter when they enter or exit India by land routes.
Vastness and, sometimes even the treacherous nature of the border terrain make it difficult to physically man the entire international borders of India.
- The gaps in the border left unguarded, are often used by refugees to illegally enter/exit the Indian territory. If caught while entering illegally, the authorities may return the refugee across the border,
Sometimes even without ascertaining relevant refugee claims of persecution in the country of origin, though this is not in strict conformity with the internationally acknowledged principle of non-refoulement.
When this happens, the refugee may face ‘forced return’ to the country where he/she came from.
- In the alternative, the border guarding force may interrogate and detain the person as permissible under the law of the land, at the border itself, pending decision by the administrative authorities regarding his plea for refuge/ asylum.
In all such cases, the person will have to be ultimately handed over to the local police who will exercise their powers under relevant provisions of the Criminal Procedure Code (Cr.PC).
It goes without saying that there will be circumstances and occasions when the authorities may have to be satisfied about the bona fides of the person concerned.
It is part of the duty and responsibility of the authorities to rule out any criminal or anti-national taking the plea of a ‘refugee’ and entering the country for mala fide purposes.
- If caught while illegally exiting India, the person (refugee) may be handed over to the local police for investigation and for further action according to law.
In cases where the refugee is found in possession of invalid travel documents or in cases of violation of any other Indian law, the refugee may be detained by the border authorities at the border post itself and handed over to the local police for investigation.
- In all such instances, after the registration of a case on the basis of a First Information Report, the police would lodge the accused refugee in the area prison and produce him/her in the local court for trial in conformity with the provisions of CrPC.
The following two cases will illustrate the position of law as well as the procedure that is followed in two specific circumstances. Mehmud Ghazaleh, an Iranian refugee registered with UNHCR, was detained while illegally exiting India for Nepal via the Sonauli border in District Maharajgunj, U.P.
- The refugee was travelling on forged & fabricated travel documents. He was detained by the border authorities who prima facie discovered that his travel documents were forged.
They handed the refugee over to the local police station at Sonauli for investigation and registration of FIR u/s 419/420/468/471 IPC read with Sec 3/6 of the Passport Act and Sec.14 Foreigners Act. He was subsequently interned at the Gorakhpur district jail.
In another case two Afghan refugees, Shah Ghazai and his minor son Assadullah, were apprehended by the authorities at the Attari border at Amritsar, Punjab while attempting to illegally exit India for Afghanistan via Pakistan.
They were handed over to the local police in Gharinda, district Amritsar for investigation and registration of FIR and were subsequently interned at the Amritsar Central Jail.
- NGOs and Human Rights activists look for instances and often intervene through legal action in courts, in cases of suspected illegal detention of refugees, particularly in cases where it is alleged that formal FIR is not recorded by the concerned law enforcement authorities even after such a detention.
It is sometimes alleged that such a situation obtains in cases where the refugee is suspected to be a spy or a terrorist entering the Indian borders with the deliberate and mala-fideintent to cause harm to the stability and integrity of the country or a person suspected to be engaged in trans-border crime like smuggling etc.
In such cases allegations are made that the refugee’s detention would not be recorded until the authorities are in a position to know the credentials of the individual(s) concerned. The following case is illustrative of the above, even though the circumstances pertaining to it may be somewhat different.
An Iranian refugee, Syed Ata Mohamadi, recognised by UNHCR, was apprehended at the Bombay International airport en route to Canada.
He was detained at the immigration lounge of the airport for travelling on an assumed name, on a false passport. His detention lasted over a month, he was released only on the intervention of the Bombay High Court.
Immigration and Custom officials come into the scene at the point of entry into India through seaports and airports.
- In cases where a refugee is detected while entering/ exiting established seaports and airports on Indian territory, without valid travel documents, he/she is immediately detained by the Immigration/ authorised Custom officers and prima facieinvestigated.
In cases of illegal entry, the immigration authorities usually take steps to deport the refugee immediately to the country where he or she last came from. This, it may be mentioned, is not in conformity with the principle of non-refoulement.
Pending deportation, the refugee is detained at a detention cell in the immigration section of the airport, seaport etc.
- In such an eventuality, the refugee has to arrange to buy his/her own meals and other requirements from resources at his/her disposal.
- In addition, when deported, the cost of the ticket is also required to be paid by the refugee, which often renders him/her a destitute.
The following is a case of this kind. A Palestinian refugee Majid Ahmad, was deported from Kathmandu to New Delhi.
He was again sent back to Nepal and was once again deported back, thus amounting to four trips in two days.
He was subsequently detained at the Immigration lounge of the International Airport at New Delhi for over 25 days.
All the expenses for his food as well as his forced travels including his final deportation to Bangladesh were met from his personal resources, which no doubt was almost fully depleted.
Handling Refugees Legally:
From the moment of entry of a refugee into the Indian territory, the laws of India would apply to him/her. Therefore, enforcement and security personnel who have to deal with refugees, cannot overlook the legal requirements which have to be adhered to by them.
An attempt has also been made to suggest possible courses of action within the legal framework.
The main purpose of this attempt is twofold.
Firstly, it will help to focus on the need for showing due concern for human rights.
Secondly, it is also important to create awareness about the unavoidable compulsions, which forced the person concerned to take refuge in the country and the inherent and unmistakable poignant human situation in the entire episode.
It is pertinent to remember that the circumstances and facts pertaining to each refugee may be peculiar and different from the rest.
- In such cases, therefore, it is extremely important to ascertain, understand and appreciate the background of the compelling circumstances of each of the cases so that the law of the land may be applied in the most appropriate manner.
It is in this context that the legal provisions, directions and guidelines, if any, issued by competent courts as also the practical experience gained in dealing with such cases, would come in handy.
Keeping the above aspects in view, some of the more important situations relevant to security personnel are enumerated below. An attempt has been made to highlight the more feasible options which could be considered in dealing with refugees.
It goes without saying that these options have to be exercised within the legal frame-work of the country.
At the Point of Entry:
Refugees may enter India by land, air and/or sea. Depending upon the point of entry, they will come into initial contact with immigration authorities at airports or sea-ports or with the border guarding authorities at the border check-posts.
- It is relevant to point out that more often than not, a refugee would be without valid travel documents or valid identity documents making his/her entry into the country ‘illegal’.
Since India has not yet incorporated the principle of non-refoulement in its legal statutes, the person concerned would have to face the prospect of being arrested and prosecuted as per the laws of the land.
However, this should not be held against the intending refugee to debar entry as a matter of course.
- Therefore, the agency which comes into contact with the refugee initially, will have to satisfy itself about the bonafides of the intending refugee instead of pre-emptorily refusing entry.
Under the circumstances, the ends of justice would be met if the person seeking refuge does not have valid travel documents, is arrested and produced in a court of law for appropriate judicial action.
In the meanwhile, even as that person is under judicial detention, the security agency will have opportunity to verify his claims and also to notify the concerned competent authority in government to take decision in the matter.
In such cases the help of the UNHCR could also be sought so that that agency would be in a position to help speed up the process of verification and also to render suitable help in finalising the legal process.
A refugee may face detention as soon as he/she illegally crosses the international border into India. It is pertinent to appreciate that the refugee has at that moment just entered an unknown country, after fleeing to save his/her life from his/her own country of origin.
He/she may have undergone severe trauma of loss of family and friends in his/her homeland or en route India.
- The refugee in such situations may be unable to explain his/her background during initial interrogation, giving rise to apprehension on the part of local authorities regarding the genuineness of his/her subsequent refugee claim.
He/she may be suspected to be a spy or infiltrator in the light of inconsistent statements that may have been made by him/her to the authorities. This is bound to be further compounded if the refugee is not in possession of the usual ‘travel documents’.
In fact, it would be very unreasonable to expect him/her to possess valid travel documents, considering the background of his/her having to escape from his/her own country.
Lack of Medical Aid in Detention:
While in detention the refugee may be suffering from some physical ailment requiring immediate medical attention. In the event that the detaining authority does not provide the requisite medical aid, the same may result in devastating consequences.
In some cases court’s directions can be obtained and appropriate medical attention and treatment given to the refugee.
- Here again, NGOs can play a very useful role. In the case of a Palestinian refugee who was detained at the international airport in New Delhi consequent to a deportation order pending against him, a writ petition was filed to obtain the Delhi High Court’s order that the refugee be provided at least the basic necessities like food and medical care.
Knowledge of such cases would help security personnel to foresee and where necessary, seek the help of an agency like the UNHCR or a local NGO to render necessary help to the refugee.
Detention of Women Refugees:
Most courts are of the opinion that in cases where there has been no grave breach of law by the accused woman (refugee), she may be released on bail pending trial. In the specific case of Marui, an Iraqi refugee who fled persecution from Iraq with her husband and children, the family was arrested in New Delhi.
- However, Marui being a woman, was released on bail soon thereafter though her husband continued to be in detention till much later. Even after such a release, it is quite possible that the woman may find herself in some predicament having been suddenly isolated in a foreign country.
In such specific cases, it would make the task of the security officials easier if they liaised with the UNHCR or any local NGO to provide the much needed psychological support to the refugee woman.
Also, in such cases where deportation orders are passed by the courts, the UNHCR can help to rehabilitate the concerned refugee in another sympathetic country.
- Knowledge on the part of security and enforcement officials of such available options would help in perpetuating humanitarian attitude on the part of security officials.
Detention of Refugee Children:
Refugee children face many problems which deserve to be treated with due sensitivity, care and caution by the authorities concerned. Usually, access is provided to detained mothers to meet their children and tend to their needs.
There are, however, cases of sufficiently grown up refugee children who may be between the ages of 15 and 18 years of age and who may be detained for non possession of valid travel documents.
- Such a problem mostly arises due to the fact that children are not granted separate residential permits but are included in their parent’s permits.
In cases involving children who do not possess separate residential permits, the UNHCR may be in a position to help sort out the problem, particularly because in cases where refugee children are separated from their families, UNHCR makes all possible attempts to reunite them.
Therefore, it will be advantageous if the security agency concerned seeks the help and assistance of the UNHCR in such matters.
In the specific case of Winston Venojan, a Sri Lankan Tamil refugee, thanks to the UNHCR, the 17 year old boy, who had got separated from his parents, was reunited with them. In this case the boy was arrested on landing at New Delhi. Bail was, however, granted to him within a short time.
- In genuine cases of this kind, the security agency should always consider not to oppose bail. In the meanwhile, the UNHCR got clearance from the British Immigration and Nationality Department for the boy to travel to the UK.
However, the refugee could not be permitted to leave the country till the disposal of the case for the violation of some of the legal provisions under the Indian laws. Luckily this matter was speedily disposed off on the intervention of the Delhi High court.
- Once the court’s orders were obtained, the refugee was provided with Red Cross travel documents to travel to London. The security agency can further help in such genuine case by speedy investigation and filing of charge sheet in time.
“The fate of refugees in India cannot depend on the goodwill of politicians or cynical political agendas”.
Desperately needed is legislation that lays out a refugee policy which does not differentiate between communities and is aimed at protecting people fleeing war, persecution and famine rather than warding them off as outsiders or infiltrators.
- No party has shown evidence of the political will to draft such a law. The Asylum Bill of 2015, a private member’s bill fielded by Congress politician Shashi Tharoor, attempts to introduce a unified policy.
Though it has been criticised for leaving vital gaps in protection granted to refugees and stateless persons, and for failing to recognise complexities thrown up by contemporary political scenarios, the bill might have been a step in the right direction.
Even though the country has not enacted a special law to govern ‘refugees’, it has not proved to be a serious handicap in coping satisfactorily with the enormous refugee problems besetting the country.
- The absence of a national law on the status of refugees has also meant that refugees are dependent on the benevolence of the state rather than on a rights regime to reconstruct their lives with dignity.
Thus, the refugees are left to the mercy of the state and have no recourse against systemic violations of its legal obligations by the state.
- Therefore, a just, fair and humane response to the question of refugees in India, in conformity with India’s international and constitutional obligations requires, as an immediate imperative,
Adoption of a definite statutory regime that clearly defines refugees as a distinct class of persons spells out a fair procedure for determination of the status of refugees and Outlines a due process for refugee protection in consonance with the right to non-refoulement and the right to a dignified life.
Categories: PCGT Conclave
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