1951 was a landmark moment for the rights of refugees when the United Nations General Assembly passed the 1951 Refugee Convention. But India, who had just faced the largest migration in human history, refused to ratify it.
At the time, India seemed to view the UN Convention as an extension of Cold War politics. To India, the 1951 convention seemed to view refugees as those who fled the “non-free world” for the “free world”. Indeed, the 1951 convention allowed nations to choose how they viewed refugees – emerging in Europe or outside of it before or on 1951.
Earlier, Vijayalakshmi Pandit, then India’s ambassador to the United States, Soviet Union and Mexico, said:
Suffering knows no racial or political boundaries; it is the same for all. As international tension increases, vast masses of humanity might be uprooted and displaced.
It was only by 1967 that the UN Protocol Relating to the Status of Refugees was introduced. Decolonization led to millions of refugees outside of Europe and, a wider definition was needed. India, however, abstained from ratifying this too. By this point, India had taken in nearly 80,000 refugees from Tibet, who fled their mountainous country along with the Dalai Lama in 1959.
Even without being a signatory of the refugee convention, India had not turned down refugees at its borders. The principle of non-refoulement, where a country cannot turn away refugees who face persecution and perhaps death in their home countries, is ‘Jus Cogens’ – an aspect of international law that is customarily accepted as binding, even if it is not.
By 2007, India was home to more than 240,000 refugees from Tibet and Sri Lanka alone. By 2015, the number was under 200,000. The lack of a refugee law, more than 60 years since independence, makes it difficult to track exact numbers and conditions. In Independent India’s history, refugees flowed in from Pakistan, Tibet, Tibet-Bhutan, East Pakistan (Bangladesh), Pakistan Occupied Kashmir, Nepal, Afghanistan, Iraq, Sri Lanka and Myanmar. Nearly all of them came because of violence in their home countries.
India’s refugee policy has been ad-hoc, varying with the community and communality of the refugee. Two laws primarily govern refugees in India; the Foreigners Act of 1946 and the Indian Citizenship Act of 1955.
Both acts have since been amended and updated, but neither is explicitly related to refugees nor do they include a definition of what a refugee. Rather, their intention can be seen as keeping foreigners out rather than in. As the Supreme Court observed in 1955:
The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.
Rather, India’s approach is one of executive action and ad-hoc decision making. The absence of clear legislative protections for refugees meant that other institutions had to step in. The National Human Rights Council (NHRC) and the UNHRC have both been involved in asserting refugees their rights.
From an office in Delhi, the UNHCR conducts Refugee Status Determination (RSD) for refugees from non-neighbouring countries and Myanmar. From its side, the Indian government takes care of Tibetan and Sri Lankan refugees. But all those who came to India seeking refuge have been provided asylum, so far.
But according to the UNHCR, the organisation assists only 31,400 out of India’s 204,600 refugees. What happens to the rest?
Hierarchy of refugees
Not all who seek refuge are treated alike. Amendments to the Citizenship Act in 2016 mean that non-Muslim immigrants from Pakistan, Bangladesh and Afghanistan who are applying for citizenship, would pay 100 times less than a Muslim applicant. Tibetans, Sri Lankan Tamils and Rohingyas will also be expected to pay a higher fee.
The amendments, ironically, work backwards. The earlier fee was Rs. 15,000 for any immigrant. But the central government has dropped the price in particular for Hindus, Jains, Buddhists, Parsis and Christians from the aforementioned countries.
The need for a dedicated and equitable law on refugees has been stressed by journalists, activists and even the NHRC. The latter has been key to maintaining the rights of refugees, particularly in the 1996 case “National Human Rights Commission vs State Of Arunachal Pradesh & Anr“, where the apex human rights organization prevented the state of Arunachal Pradesh from repatriating over 30,000 members of the Chakma community (with roots in Tibet and Bhutan, who fled their homes in Bangladesh’s Chittagong Hill Tracts).
Section 3 of the Citizenship Act ostensibly allowed those born after 1987 in India to become citizens, unless “his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.” Enemy alien here refers to a person of foreign nationality to a country at war with India. It could refer to Pakistanis, Chinese or even Pakistan Occupied Kashmiris.
Whether India ratifies or ignores the 1951 UN convention, the country still has a responsibility to vulnerable, stateless people on its turf. Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Merely defining refugee under the law would grant them access to a fundamental freedom. Access to the state’s social security net could then follow. The issue in India, as over the world, is that divisive politics determines some refugees as more dangerous than others. In India, it may be a legitimate security threat.
The Rohingyas, the world’s most stateless people, have been accused by Bangladesh of associating with the terrorist organisation, Lashkar e Toiba (LeT). India is one of the few countries to accept the displaced Rohingya people who flee state-sponsored violence in Buddhist Myanmar. In 2013, a series of bomb blasts killed five in the pilgrimage site of Bodhgaya, Bihar – where the Buddha is believed to have attained enlightenment. Interrogations of an Indian Mujahideen (IM) member by Indian intelligence agencies revealed that the attack was conducted as revenge for the persecution of Rohingyas in Myanmar.
No Rohingya refugees were involved in its planning. But they remained in a state of fear after the attacks, as the police started interrogating them on their activities.
When Madras Courier interviewed Rohingya refugees at a UNHCR camp, they were struggling for work, but largely grateful – both to India and to the local community for giving them shelter and food. Gratitude was the take away emotion with this paper’s interview of Tibetan settlers as well.
India is one of the world’s oldest homes for people fleeing persecution. Asylum has been granted to the persecuted and vulnerable here for millennia, including the Jews. Nevertheless, India needs to develop its own policy on refugees that adapts to the situation in South Asia, without aping those models designed in the West. While India has not failed in its responsibilities to refugees, India has a lot more to do to ensure legislated rights, freedoms and basic standards of living for those who seek refuge.
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