Human Rights of Refugees are one of the major problems of the world. According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are “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 nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”[1]
They move to other countries when their life is in constant threat due to various reasons and not perfect for their healthy survival. Many countries in the world have a proper rule governing refugees living in their country and the protection that should be given to them but in India, there is no uniform legal framework.
India is a country where there are many refugee groups from different countries, majorly from its neighbouring countries. It doesn’t have any suitable refugee rules and is neither a signatory to the 1951 UN Convention nor 1967 protocol on Status of Refugees. Many countries have adopted binding regional instruments for the protection of refugees, but there is no instrument to protect the refugees of the Asian region.[2] India has followed ad-hoc policies about refugee settlements since its independence. There are a large number of refugees in India due to its geographic location, religious society, vast culture. Currently, Rohingya refugees are a major concern to India. There are numerous aspects pertaining to refugees which are of major importance both to India, as a country and to the refugees, particularly in the context of law implementation.[3] UNHRC and HNRC are the bodies of Human Rights of the UN and India respectively. Major Refugee issue in India was because of the India-Pakistan partition of 1947, when there were millions of population exchanges between these newly formed countries. Some major Refugee groups in India are from Iran, Tibet, Bangladesh, Pakistan, Afghanistan, Sri Lanka, Myanmar.
Jordan, Pakistan, Ethiopia, Iran, Turkey host the largest number of refugees as of 2016.[4] Refugee protection is a great concern to the international community ever since the formation of the United Nations and the issue hasn’t been solved yet. Migration was a problem ever since the ancient times. Tribal people migrated in search of food, water, and resources, now the refugees migrate for safety and other reasons.[5] There are 15.2 million refugees worldwide and 1 million are waiting for their asylum application approvals.[6] Refugees face many problems in India as well as the whole world.
1.2 Research Objective
The main objective of this research paper is to present the laws and rights available to refugees in India and other countries. It presents many aspects related to refugees starting from the history of refugees and the current situation of them. United Nations High Commissioner for Refugees (UNHCR) is the main organization to provide international protection to refugees and assist them in other manners.[7] In India National Human Rights Commission (NHRC) is the body which was given statutory basis by Protection of Human Rights Act, 1993 which is responsible to protect the refugees and promote human rights. The paper also has the information about Laws and conventions regarding refugees. Many countries like Australia, Brazil, China, etc. continuously provide support and legal assistance to many refugees. There are a huge number of refugees in India but it has no specific laws related to their rights. India’s is not a signatory to the 1951 Refugee Convention, and the question is why? Is there a need for a South Asian Convention on Refugees? The Major refugee crisis in the World is also an issue to the UN. This paper will inform research scholars and refugees about the refugee laws, history, conventions and rights of refugees in India and the world.
1.3 Research Methodology
In order to find the above information, a number of research methods were employed. The doctrinal method of research was involved. The traditional methodology of research i.e., from the research scholars, is used. Information related to conventions and other materials related to UNHCR and NHRC are also used. Books on Human Rights to refugees, web articles, research papers were also used. The analysis of rights of refugees in India is brought from the statutes, case laws, books, articles, journals, webpages.
2.1 History of Refugees
2.1.1 History of Refugees in the World
Asylum seekers are existing from many years, the early man used to migrate for finding food, shelter and other resources. Around AD 600, the right to seek asylum in a holy place or a church was codified in law by King Ethelbert of Kent. Many such laws were rising around Europe during the Medieval Period which was the start of such provisions. But, it was the 18 th century when it was required for people to show id verification to cross borders in many countries.
Many wars in the past were the main reason for the refugees to leave their places. The Balkan Wars caused 80,000 refugees to migrate.[8] The Civil war of Spain, USA, Russian Revolution of 1917 also caused people to become refugees. The League of Nations was the body that caused the first international refugee affairs.
The biggest Refugee crises occurred during the World Wars. The first world war lasted almost 4 years. One million refugees of Belgium went to the Netherlands and there on transferred to the UK and other countries. France, Germany were also the worst affected. When Russia attacked Prussia, 870000 fled.[9] World War 2 was one such war which never happened in the history of the world. By 1959 some 900,000 European refugees were taken by European countries. And 461,000 had been accepted by the USA, and 523,000 by other countries.[10] World War 2 caused around 60,000,000 refugees in Europe itself.
2.1.2 History of Refugees in India
Indi is a very vastly populated country and is one of the countries experiencing refugees lately. Migrations in the past occurred due to the Hindukush Mountains in the west and Patkoi ranges in the east. Partition of India–Pakistan resulted in a huge number of people migrating. Almost 20 million came to India after India got its Independence. It had to set up many relief camps addressing the huge number of refugees. People started coming in from Bangladesh, Pakistan. It passed the Rehabilitation Financial Administration Act in the year 1948 to address these issues with funding. A Huge number were displaced from India to Pakistan and vice versa and the problem was much similar to Refugees. Another instance was in 1959 when Dalai Lama and his followers approached India as refugees and India provided them a Political Asylum. The year of 1971 saw many refugees travelling from East Pakistan to India. In 1983 and 1986 India had refugees coming in from Sri Lanka and Bangladesh respectively. At the end of 1992, India has hosted 2,000,000 migrants and 237,000 displaced persons.[11] India always has some or the other Refugees coming in throughout its history.
2.2. Major Refugee Groups
The worst affected situation in the history of the world was because of the World War 2, which caused almost 60 million people getting displaced.5.1 million Palestinian have fled their homes because of the Israeli-Palestinian Conflict. Ever since the US launched a war on Iraq, 4 million were displaced. According to UNHCR, 647,781 Vietnamese refugees are resettled around the world, the war of Vietnam gave rise to 1.6 million refugees which included the mountain people of Vietnam as well. Kakuma Refugee Group in Kenya are 184,550, refugees are from South Sudan and Somalia. The refugee crisis in the Middle East and Africa caused almost 4.1 million to flee from Syria itself.
Soviet Jews have been migrating to the Us for decades, almost 380,000 refugees have migrated. Between 1945 and 1952, 137,000 Jewish refugees settled in The United States of America. Refugees of Myanmar (Burma) fled the country during the Vietnam civil war and settled in Australia, Canada, USA, New Zealand. In the recent years, Rohingya refugees which are a group of Muslim minorities whose basic human rights were denied. 1000’s of them now live in India, Bangladesh, and other countries. Rohingya’s were declared as most persecuted group by UNHCR.
2.3. Countries providing support to Refugees
Many countries are actively helping and safeguarding refugees by providing them shelter, medical help, and many other necessities. Due to the war in Syria, almost 4 million people fled Syria since 2011 and 1 million settles in Lebanon. On the whole, Germany has taken 1 million refugees in 2015 itself and provided them with all kinds of support. They welcomed them with open hearts and even hosted banners in football stadiums stating “Welcome Refugees”. In Germany, Right to Asylum is a constitutional right. The Asylum Act and Residence Act provide rules and procedure for taking refugees. An in-person interview of the refugee is conducted and experts of that country are consulted before accepting the application.[12]
Sweden accepts refugees coming from the border and also accepts quota refugees from UNHCR. In the year 2015, it took 160,000 applications for asylum and are given only temporary residence, but before asylum seekers were given permanent residence. Refugees are given many free services in the country. During the 2013 Iraq War, it took more number of refugees than US and UK combined.[13] Monetary Aid, Health Care, Schooling, Passports are all provided to the refugees.
Brazil has a constitutional provision that grants asylum to aliens. The accepted refugees are allowed to freely move in the country and also select their place of residence as per the Convention on Territorial Asylum. It is also a signatory to the 1951 convention on Refugees.
European Union objective was to establish a Common European Asylum System (CEAS). Under CEAS, international protection is given to those who qualify as refugees due to a well-founded fear of persecution. Right to Asylum and prohibition of refoulment is guaranteed by the Charter of Fundamental Rights and 1951 Refugee Convention and its 1967 Protocol. The CEAS is composed of a number of regulations and directives that require action by the EU Member States. CEAS is composed of several directives and regulations which have been recast previously.[14] Many other countries provide support for refugees – Australia, Canada, China, France, Italy, Kenya, Lebanon, Turkey, United Kingdom and many other countries.
2.4. Rohingya Refugee Group
Rohingya people are also known as Arakanese Indians who are stateless people from Myanmar. They are declared by UN as the most persecuted minorities in the world.[15] The Rohingya population was denied citizenship according to the 1982 Myanmar Nationality Law. They had to flee due to the ongoing military crackdown by the Myanmar Army. More than 6700 Rohingya’s were killed in August 2017.[16] They are in heavy numbers in different cities in India, but the government of India does not recognize them as refugees. Most of those refugees have migrated to Bangladesh. There was a mass displacement of refugees and forced relocations. Rohingya refugees face multiple protection risks as of December 2017. Though India refused to let Rohingya refugees enter the country as it posed security threats, 40,000 refugees have taken shelter in Assam and West Bengal. There’s a threat because the Rohingya Military group has been declared terrorist by counter-terrorism authority of Myanmar. Many countries urged Myanmar to end the violence against this minority to restore peace in the country. China always stays away from internal interferences of other countries, but it mediated for Myanmar and Bangladesh. Though Bangladesh has stood up to help those refugees, its falling short of resources. In the case of Dongh Lian Khan v. Union of India the Delhi High Court held that the principle of non-refoulment is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality.[17] In the case of NHRC vs Arunachal Pradesh, the Supreme Court held that the state is bound to protect the life and liberty of every human being, citizen or otherwise. Even then India is not ready to take Rohingya refugees and help them.[18]
3.1 Problems faced by Refugees
Refugees who needed up in different refugee camps or different countries face any problems with their life. They are subject to harsh living conditions. They have limited resources, live in tents, have limited food, water, clothing. They live without adequate shelter and face many difficulties. Those who do not join refugee camps and join countries, often face unexpected hardships, they also face cultural, language problems. The refugee children are the ones facing the most of the problems. They find it very hard to continue with schooling and fail to understand and cope up. Most refugees take up some or the other labour work in the country they are living and are exploited by the recruiters. They feel unsafe in their country, because of which they come to the new place, but feel unhappy and unsafe here as well. Different countries have different set of rules handling refugees, some countries grant citizenship in less number of years than the other. The perks of being a refugee in one country are different than the other. They face discrimination, financial difficulties, and are psychologically affected.
4.1 India’s Stance in 1951 Convention
There are 144 signatories to the 1951 Refugee Convention, and India is not one of them. The Refugee Convention is about the rights of individuals who are refugees in other countries and the responsibilities of the nation hosting them. India faces a lot of pressure from International bodies about it not being a signatory to the Refugee convention. Taking into consideration, the political, economic, ethical factors prevent India from being a party to 1951 Refugee Convention. India is a developing country and it would be a burden if it complies with the convention and becomes a signatory, and affect the security laws of India. It felt the convention is not related to the problems arising in India, but it is applying some articles from the 1951 convention. India believes even if it’s not a signatory, it would provide minimum reeds for a refugee. India has many problems with its border sharing countries, due to which it took that decision. If it becomes a signatory, it will have to provide more and more resources and other things for the refugees. After 1991, due to the execution of Rajiv Gandhi by a Sri Lankan refugee, India supported its stance for the very same reason. Refugees damage the economy of India as well, as many come to India in search of opportunities.[19] It is afraid that people may come to the country names as refugees for various reasons and misuse the convention for better opportunities. Should India be a signatory to the Refugee Convention or its Protocol is still a question that has both pros and cons.
5.1. Constitutional Protection
A few articles of the Constitution of India are applicable to the refugees when they are in India. The most important Article is Article 21 which deals with Right to Life and personal liberty, it applies to everyone irrespective of whether they are a citizen of India. Many judgements have been given based on Article 21 on refugees. [20] Article 14 guarantees the person right to equality before the law. Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 also available for non-citizens of India including Refugees.[21] In the case of Louis De Raedt v. Union of India, the court held that the fundamental rights to life, liberty, dignity are available to non-citizens of India.[22] In the case of Visakha v. State of Rajasthan, the court has held that “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”.[23]Some fundamental rights are guaranteed to non-citizens of India. In the case of NHRC v. State of Arunachal Pradesh, the government was asked by the court to safeguard the life, health, of Chakmas that are in the state and that their application for citizenship should be sent to the authorities concerned immediately.[24] There are definitely a number of protections to the refugees living in India according to the Constitution of India but are hardly in practice. The cases and the provisions of the Constitution gives a hint about intention to help refugees, but due to India’s own reasons it doesn’t sign any Conventions related to it.
5.2. Laws in India and Role of Judiciary
We only have the Refugee and Asylum (Protection) Bill of 2009, no definite legislation regarding Refugees is available in India but the main legislation that supports is the Foreigners Act of 1946 which on the difference of Alien and Refugee create further persecution of the Refugee. The laws related to refugees are:
Refugees are considered under the term ‘alien’ in India. The term appears in Constitution of India (Article 22), Section 83 of the Indian Civil Procedure Code, Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes. Most of the acts cause further complications to the refugees. The Foreigners Act, 1946 give the officials power to arrest or detain any foreigner on mere suspicion for non-compliance.[26] The current laws in India are not sufficient in order to protect refugees and need a much greater law for the protection of refugees. According to the Principle of Non-Refoulment, no country shall deport, expel or forcefully return the refugee back to his original territory against his will or if there is a reasonable threat to his life, liberty and freedom.[27]
Judiciary plays an important role in protecting refugees, many cases gave landmark judgements regarding refugees. The judiciary has made it easy with the concepts of Social Action Litigation and Public Interest Litigation.
Right to basic amenities: In Digbijay Mote v. Union of India, an NGO was running a school for the Sri Lankan refugees, When PIL was made when the condition to run the school was difficult, Ministry of Women and Social Welfare provided financial assistance to the school.[28] In Majid Ahmed Abdul Majid Mohd Jad Al Hak v. Union of India, basic amenities like food and medicines must be provided to the refugees who are in detention.[29]
Non-Refoulment and Right to refugee Status: In Malvika Karelkar v. Union of India, the deportation order issued against 21 Burmese refugees were stayed by the SC and allowed them to seek refugee status under UNHCR.[30]
5.3. UNCHR and NHRC in India
UNHCR in India is participating very actively as the number of cases regarding refugees is increasing day by day. If some refugee goes back to his country after being a refugee in India, UNHCR watches if the person is going back voluntarily. It performs the function of determination of refugee along with providing resources to them. UNHCR got involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The Delhi office of the UNHCR works to help refugees become self-sufficient with assistance and income-generating activates with the help of NGO’s. The main role of UNHCR in India is to make sure that the refugees are not forced to go back to their country from which they have fled until the issue rests in their country.[31]
NHRC i.e., National Human Rights Commission in 1994, gave directions to Tamil Nadu Government to provide medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government regarding the government not supporting Chakmas, and got the decision of the court ordering the government to provide necessary help to the group. It gets involved in all the refugee issues in India and provides some or the other help required.
5.4. Need for Domestic Law
India doesn’t have any separate law for the refugees, but it desperately needs one considering the recent issues and many more issues that may come in the future. Until a law is made, India continues to hold refugees depending on the country of them and political considerations. Though NHRC has submitted many reports about the need for India to have a Law based on Refugees but no response to them. A law is required so that all refugees will be handled equally and correct provisions are made for them during the crisis. The law should also include the provisions for internally displaced people as well. All existing acts that make the refugees suffer more must be replaced with this new law, the law will make the procedure for granting a refugee status easier. It will also help end the discrimination against refugees in India, and help the Refugees in all ways possible for their development.[32]
6.1 Interplay of Human Rights Law, Refugee Law, Humanitarian Law
Both Refugee Law and Human Rights law often co-exist and overlap each other in several fields. International Humanitarian Law and Human Rights law being the distinct branches of law overlap as well, as one deals with the protection or a person from abusive power and the other one deals with the conduct of parties to an armed conflict. In the case of protection of the person in the power of a party to the conflict both Humanitarian Law and Human Rights Law reinforce each other mutually.[33] Humanitarian Law deals with the conflicts and while Refugee Law deals with the people that flee due to the conflicts. They both go hand in hand due to that.[34] Coming to the Interplay of Human Rights Law and Refugee Law, both of them describe the Principle of Non-Refoulment which prohibit forceful repatriation. On the whole none of the Laws work independently but go hand in hand with each other. Some of the principles or ideas are borrowed or adopted from each other as well.
7.1 International Laws and Conventions on Refugees
There are any declarations, conventions, regarding refugees. Some of them are Convention relating to the Status of Refugees (1951) and Protocol (1949), Convention relating to the status of Stateless Persons (1954), UN Declaration on Territorial Asylum (1948), Universal Declaration of Human Rights (1948), Convention on the Elimination of Discrimination against Women (1979), International Convention on Civil and Political Rights, Convention on the Reduction of Statelessness (1961), Guiding Principles on Internal Displacement (1998). Some of the Regional Refugee Laws are Cartagena Declaration (1984), Asian African Legal Consultative Committee Principles (1996).
The UN Convention Relating to the Status of Refugee of 1951 was adopted on 28 July 1951 and entered into force on 22 April 1954. It erases previous laws and set a most comprehensive codification of the rights of refugees. The Convention deals with General Provisions, Juridical Status, Gainful Employment, Welfare, Administrative measures, Executory and Transitory powers. These chapters are very well defined and the serve the purpose of helping refugees. Article 1 gives the definition to the term ‘refugee’, Article 12, 13 dealwith Personal status and Movable and Immovable property respectfully. Article 16 deals with Access to Courts. As the 1951 Convention covers only those persons who have become refugees as a result of events occurring before 1951, Protocol relating to the Status of Refugees was entered into force on 4 October 1967, because new refugee situations have arisen after the convention and the new refugee did not fall under the Convention. So, to ensure equality of all refugees, this protocol covered that.[35]
CONCLUSION
In the whole world, though there are a number of conventions and laws governing refugees, the refugees still keep facing problems. When a country as big as India doesn’t have a Refugee Law, we can understand that many countries have the same face and are on the same boat. If UNHCR and NHRC work together, there will be much more development in the field of Refugee Law. There is definitely a need for India to set up a Law regarding Refugees, as in the future there may be many more issues due to various reasons. Whenever UNHCR tries to do something regarding refugees NGO’s should actively help them. Though protection to refugees is given under various articles of the Constitution, there needs to be a uniform Law that give equal rights to all the refugees. India continues to take the humanitarian view of the problem of the refugees. Considering the security issues due to which India is not a signatory to the 1951 Convention, it should give due consideration to the same. It should also take care that the refugee law is not mistreated and mis-utilized by persons who come to seek opportunities. Many judgements in India support the refugees. India has done a very good work regarding refugees, but needs to do much more. Many Rohingya refugees living in India are receiving support, but India is planning to deport them to their territory. In the past NHRC submitted a report for the ned for a Refuge law but didn’t receive a reply. If UNHCR and NHRC together do the same, there may be an answer. The Refugee Convention and its Protocol of 1951 and 1967 are the Conventions that received global response with many countries signing the convention. They consider most of the reasons of refugees and tell us the rights and other provisions that they should be given. India on the whole, needs a refugee law for governing refugees entering India.
END NOTES
[1] Art. 1(A)(2) of Refugee Convention, 1951.
[2] Patricia Hyndman, “Developing International Refugee Law in the Asian Pacific Region: Some Issues and Prognoses”, Asian Year Book of International Law, Vol. I.
[3] J. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, Vol. 9.
[4] Which Countries host the most refugees? , www.unhcr.org/news/videos/2017/2/58b3f4714/which-countries-host-the-most-refugeesquest.html
[5] Giselle Toledo, “The protection of refugees and their right to seek asylum in the European Union”, InstitutEuropéen De L’Université de Genéve, Vol. 70.
[6] UNHCR, 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, Division of Programme Support and Management, 2010.
[7] Statute of the United Nations High Commissioner for Refugee [UNHCR Statue], adopted by the UN general assembly.
[8] Erik-Jan-Zürcher, “Greek and Turkish refugees and deportees 1912–1924”, Universiteit Leiden, 2003.
[9] Peter Gatrell,” Refugees and Forced Migrants during the First World War”, Immigrants & Minorities, 2008.
[10] European Refugees: 1939-1952 by Malcolm J Proudfoot (Faber, 1957)
[11] Prof. J.N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of Int. Law, Vol. 26.
[12] Asylum Act, Germany.
[13] Ivar Ekman, “Far from War, A Town with a Well-Used Welcome Mat”, The New York Times, 2000.
[14] European Migration Network, EMN Annual Report on Immigration and Asylum 2014: A synthesis of Annual Policy reports 2014, Submitted by EU member stated and Norway, June 2015.
[16]McPherson, Poppy, “6,700 Rohingya Muslims killed in one month in Myanmar, MSF says”, The Guardian. ISSN 0261-3077, 2017
[17] Dongh Lian Khan v. Union of India, 2015 SCC Online Del 14338.
[18] NHRC v. Arunachal Pradesh, 1996 SCC (1) 742.
[19]RanabirSamaddar, “Refugees and the State, Practices of Asylum and Care in India 1947-2000”, SAGE Publications, U,2003, “Status of Refugees in India”
[20] Art. 21, The Indian Constitution.
[21] “Centre / State Acts and Rules on “Refugees””, http://nhrc.nic.in/documents/LibDoc/Refugees_A.pdf
[22] Louis De Raedt v. Union of India, 1991 (3) SCC 554.
[23] Visakha v. State of Rajasthan, 1997 (6) SCC 241.
[24] NHRC v. Arunachal Pradesh, 1996 (1) SCC 742.
[25] “Centre / State Acts and Rules on “Refugees””, http://nhrc.nic.in/documents/LibDoc/Refugees_A.pdf
[26] Foreigners Act, 1946.
[27] Art. 33, Refugee Convention, 1951.
[28] Digbijay Mote v. Union of India, 1993 (4) SCC 175.
[29] Digbijay Mote v. Union of India, Criminal Writ Petition No. 60 of 1997; Crl. W. 60/97
[30] Malvika Karelkar v. Union of India, Writ Petition (Crim) No.583 of 1992.
[31] Christina Harrison, “UNHCR and the Protection of Refugees in India”, www.unhcr.org/en
[32] V. Vijay Kumar, “The Need for a National Legislation on Refugees.” in roundtable workshop on refugees in the SAARC region: National legislation on refugees, 30 April 1999, New Delhi.
[33]Droege, C, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, 2007.
[34] Part IV, Geneva Convention, 1949.
[35] Sinha, Manoj Kumar: “Handbook of Legal Instruments on International Human Rights and Refugee Laws.”, Edition 2014.
Author : Aakash Sai, student, symbiosis law school, Hyderabad.