REFUGEE LAW: THE INDIAN PERSPECTIVE – CURRENT AFFAIRS BY EDEN IAS

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REFUGEE LAW: THE INDIAN PERSPECTIVE – CURRENT AFFAIRS BY EDEN IAS

Introduction

Recently on the occasion of World Refugee Day- June 20th, there was a fresh debate on the protection and regulation of Refugees. In fact as per the United Nations High Commissioner for Refugees (UNHCR), presently there are more than 60 million refugees worldwide. India currently hosts more than 32,000 refugees who were facing violence and severe prosecution in several countries such as Afghanistan, Iraq, Myanmar, China, Somalia, etc. In addition, India has 1, 75,000 long-staying refugees from Sri Lanka and Tibet who have been given asylum over decades.

The most common reasons for refugee crises are war, domestic violence, human trafficking, natural disasters, environmental displacement and climate change. With increasing occurrence of the above causes, the number of refugees will continue to grow. India will also witness increasing fresh arrivals of refugees.

Who is a refugee?

A refugee is someone who has been forced to flee his or her country because of persecution, war, or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War, ethnic, tribal and religious violence are leading causes of refugees fleeing their countries.

What is the 1951 Refugee Convention?

The 1951 Geneva Convention is the main international instrument of refugee law. The Convention clearly spells out who a refugee is and the kind of legal protection, other assistance and social rights he or she should receive from the countries who have signed the document.

The Convention also defines a refugee’s obligations to host governments and certain categories or people, such as war criminals, who do not qualify for refugee status. The Convention was limited to protecting mainly European refugees in the aftermath of World War II, but another document, the 1967 Protocol, expanded the scope of the Convention as the problem of displacement spread around the world.

UN Convention Relating to the Status of Refugee, 1951

 Defines what the term ‘refugee’ as – A person who is outside his/her country of nationality or habitual residence; fears persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.

  • Outlines a refugee’s rights such as freedom of religion and movement, the right to work, education and accessibility to travel documents

 

The principle of non-refoulement

 The purpose of the Convention is to assure protection to refugees, as defined in the Convention, by ensuring that they are not returned to their country or sent to any other territory where they could face persecution. Article 33 puts forward what has become known as the principle of non-refoulement:No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This protection does not apply however to persons who represent a security threat to their host country (Article 33(2)). This principle has become part of other international human rights treaties explicitly and automatically for example-Convention against Torture, Article 3.

 

Under the 1951 Convention, mainly Europeans involved in events occurring before 1 January 1951 could apply for refugee status. The 1967 Protocol removed these geographical and temporal restrictions.

 

Note: – While India has been human and generous towards refugees, the country has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol. India does not have a refugee law also. The term “refugee” is nowhere mentioned in any domestic laws of India.

 

Even though India has been the home for a large number and variety of refugees throughout the past, it has dealt with the issues on a bilateral basis. It has been observing a ‘refugee regime’ which generally conforms to the international instruments on the subject without, however, giving a formal shape to the practices adopted by it in the form of a separate statute.

Refugees are no doubt ‘foreigners’. Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate law to deal with ‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis.

Note: The Citizenship (Amendment) Bill, 2016 makes illegal migrants belonging to Hindu, Sikh, Buddhist, Jain, and Parsi or Christian religious communities coming from Afghanistan, Bangladesh or Pakistan eligible for citizenship

India, with its ‘Atithi Devo Bhava’ motto might not have turned them away but has been reluctant in signing important conventions like the 1951 UN Refugee Convention or its 1967 Protocol on the Status of Refugees (to which 140 of about 190-odd world nations have been signatories). It’s also appalling to note that India doesn’t have any domestic legislation that takes into consideration the various needs and rights of refugees on humanitarian grounds.

 

Constitutional Safeguards

  • Article 14: Requires India to “not deny to any person equality before the law or the equal Protection of the laws within the territory of India.”
  • Article 21: prevents the state from allowing any person to be “deprived of his life or personal Liberty except according to procedure established by law.”
  • Article 51(c): State is to foster respect for International laws and treaties.

 

Views Expressed by the Supreme Court of India

  • In Dongh Lian Kham vs. Union of India (2016), the Supreme Court stated that the principle of non-refoulement is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality.
  • In NHRC vs. Arunachal Pradesh (1996), the Supreme Court held that the state is bound to protect the life and liberty of every human being, citizen or otherwise.

 

Why India has been reluctant to sign the 1951 Refugee Convention?

  • Weak Definition of a Refugee.

The Indian representative raised this concern at the 54th session of the Executive committee Meeting of UNHCR in 2003. India stated that the definition fails to recognize “the fundamental factors which give rise to refugee movements”.

  • The South Asian Situation is Different

India believed that the 1951 Convention and Protocol were designed to meet the requirements of the post-war European Countries. The conditions in the South Asian subcontinent were very different.

  • Porous South Asian Borders.

The line of argument is that borders in South Asia are extremely porous and any conflict can result in a mass movement of people. This can have two results: first, a strain on local infrastructure and resources in countries that are poorly equipped to deal with sudden spikes in population.

  • Little or no Monetary support taken by India

Another argument is that India already does its duty, so where’s the need to sign this piece of paper? It mostly doesn’t even take UN money to look after the refugees.

  • India is a developing country

The resources in India are limited and India cannot bind herself to an international agreement of this kind where her own domestic laws can get compromised.

  • Security Concerns

India is very apprehensive of a situation where such legal documents can be used as a cloak for terrorists and infiltrators which can create huge challenges for internal security.

  • Skepticism about the UNHCR

A major reason offered by some scholars is that India retains a degree of skepticism about the UNHCR. This apparently flows from the Bangladesh war of 1971.

 

Conclusion

So what would ratifying the Convention mean for India? Would it be better or worse off for signing it? Most experts believe pitching your lot with other liberal democracies on an important ethical and humanitarian issue can only bring India good returns. It will also strengthen India’s claim in the United Nations Security Council (UNSC) but there will be many commitments India will have to take on. As Though we may provide humanitarian support to refugees in distress, internal security can’t be compromised on any ground.

 

 

 

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