State obligation towards refugees in India: Balance between human rights and national interest

Murugavel Santha Kumari[1]

There is nothing like home. Allegiance to one’s home is common to both man and animal. In our culture, there are quite a few pithy sayings eulogizing the Home-Home sweet home. Mother and motherland are superior to heaven. Alas, because of the evil in man, a home suddenly turns out to be a burning hell. An exodus starts.”  Mr. Justice M. Habibur Rahman, Former Chief Justice of Bangladesh.

One of the biggest political and human tragedies of the twentieth century is what came in the form of nearly 50 million refugees in the world today i.e. refugees and displaced. Changing the very nomenclature of the century as the century of the uprooted and homeless people. The augmenting numbers of refugees and the displaced have been increasing.

Of course, refugees are not a new phenomenon. It has been said that even Adam and Eve share the dubious honour of being the world’s first refugees. In biblical times, the Hebrews, to escape from Pharaoh’s regime, fled from Egypt in one of the first recorded collective migrations. Throughout history, wars, invasions, religions and political persecution have left a trail of refugees and a concomitant acceptance of the right of sanctuary in churches, mosques and other holy places.

A refugee, generally speaking, is a displaced person who has been forced to cross national boundaries and who cannot return home safely. A refugee is said to be derived from the French word “Refuge” meaning hiding place. It refers to shelter or protection from danger or distress. It is also said to be from Latin term “fugere” to flee. With refugees being a trans-boundary issue, several international efforts have been taken to define the term legally. Each period, the definition was made in a different context, albeit subjected to the nature and scope of the crisis.

Refugee Defined in International Instruments from 1920- 1950

  1. 1920 -1935 – Refugees were mainly described in juridical terms as groups of persons outside their State of origin who have been deprived of their home Government’s protection.
  2. 1935-1939 – Refugee was defined in social perspective as the helpless causalities of broad based social or political occurrences which separate them from there home society.
  3. 1933- 1950- Refugee for the first time came to be defined in individualistic pattern as a person in search of an escape from perceived injustice of fundamental incompatibility with his home State.

Refugee Defined in the International Instrument After 1951

The major attempts to define refugee to suit the post-world war context of refugee were taken up by the Office of the United Nations High Commissioner for Refugees and Convention relating to the Status of Refugees.

In the Convention relating to the Status of Refugees of 1951 and for the purpose of that Convention, the term ‘Refugee’ applies under Article I –A, to any person who: –

“Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the constitution of the International Refugee Organization, and as a result of events occurring  before 1 January 1951 and  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 owing to such fear, is unwilling to avail himself of the protection  of  that country, or who is not having a nationality and is outside the country of  his former habitual residence as a result of such events, is unable or, owing to such fear , is unwilling to return to it”.

The definition was wide enough to include two groups of people statutory refugees i.e. persons who have been considered as refugees under previous international agreements or under the Constitution of the IRO.”

Regional Efforts

A large number of countries have undertaken the obligation to protect refugees. Some countries have their own definition of refugees while some have adopted the definition of the international or regional instrument as they are or with certain modifications. There are two classes of countries broadly in the context of adherence to the Convention relating to the Status of refugees;

  1. The countries who are parties to the convention
  2. The countries who aren’t party to the Convention

The causes of the problem pragmatically are both parties and non-parties. Due to the nature of the UN Conventions, the countries have no consequence of not being a party to the Convention, even the countries which are a party to the Convention don’t oblige. This occurs because they face no consequences for it, except public shaming in press and condemnation by the UN and other nations. Many of the countries being a party lack a domestic law to protect refugees which is an evident fact as to their adherence to the policies.

The Cartagena Declaration on Refugees and organization of African Unity are steps at the regional level taken up by Denmark, France, Germany, Norway, and Sweden which have incorporated the definition of Refugee law as mentioned in 1951 Convention and Protocol. The USA and UK have based their part on these immigrations. Canada has set an example to treat refugees as a beneficial part of their economy. India, unfortunately, is among the latter category but yet it renders the hostage to refugees it receives from all the direction Tamils from Sri Lanka in the south, Chakmas from the east, etc.

Refugee Law Begins with Human Rights and Ends with Human Rights

It may sound common but the very fact that refugees are humans makes them entitled to human rights, thus establishing their relation with human rights. Refugees are vulnerable persons as their basic liberty i.e. Human rights are in jeopardy. Moreover, to add to the vulnerability there is always an impossibility to work within or even restructure the national community of which they are a part in order to exercise those rights. Various causes marginalize them and seclude them from the rest of the nationals at the risk of serious harm; their numbers are on a rise year after year.

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Refugee Law as a Human Right Law and Humanitarian Law

The relationship between international humanitarian law and refugee law is two-way. It is solely on the principle of humanitarian law and human rights issues that refugees are seen as a matter of responsibility in the host country too, which, in a pure sovereign aspect, has no responsibility of refugee as they are non- nationals.

Sovereignty and refugees: Scientifically stating, the relation between human rights and refugee rights is direct whereas sovereignty and refugee rights are inversely related. Sovereignty has borders whereas humanity does not. Sovereignty is not against humanity, but the specific application of humanity to its own subject particularly, it sometime may extend to non-citizens i.e. people beyond its sovereignty subjected to its own discretion or will not as a matter of duty. But one concrete truth is that sovereignty will never go for the welfare of aliens at the cost of its own people or subject. So refugees are not an issue generally but their impact on the subjects of host country makes the relation between refugee and sovereignty as an opponent to each other. Since the traditional concept of sovereignty is its own people alone, refugee welfare is considered as an extra responsibility, not duty. A proper determination of the factors and criteria to identify a refugee is necessary to avail a remedy and the determinant is necessary to check whether the person is subjected to the particular law. Sometimes the narrow point of sovereignty leads to refugee crisis like limiting nationality to a certain group which causes fear of persecution to other group forcing them to flee e.g. Sinhalese movement being the root of civil war causing refugee movement from Sri Lanka.

The United Nations High Commissioner for Refugees (UNHCR) and the present Secretary General of UN, António Guterres observes that ‘the human rights agenda out of which UNHCR was born, and on which we depend, is increasingly coming under strain. The global economic crisis brought with it a populist wave of anti-foreigner sentiment, albeit often couched in terms of national sovereignty and national security’. This difficult environment highlights the need to prevent the economic crisis from becoming a protection crisis at the expense of refugee rights.[2]

Although refugee law and human rights law were initially conceived as two distinct branches of international law, their multifaceted interaction is now well acknowledged in both state practice and academic writing.  Refugee right begins with human rights and it ends with a human right. Human rights run parallel with refugees in the cause, and ultimately when it comes as a matter of leaving the home country and seeking resort in another country it again takes the form of a human rights issue. As events in Albania, Bosnia, Haiti, Rwanda, Myanmar, etc., demonstrate, today’s human rights abuse are tomorrow’s refugee problem. Moreover, originally, the relationship between the two has been approached as a causal link, the violations of human rights being acknowledged as the primary cause of refugee movements.3 

The Organization Of African Unity Convention governing the Specific Aspects of Refugee Problems in Africa, 1969, extended the definition in the 1951 Refugee Convention to include in the term ‘refugee’ also every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. The Cartagena Declaration on Refugees of November, 1984 laid down that the definition of refugee could not only incorporate the elements contained in 1951 Convention and the 1967 Protocol (or the 1969 OAU Convention and General Assembly resolutions) but also cover persons who have fled their country because their lives, their safety or their liberty were threatened by a massive violation of human rights.          

It is clear from the perusal above that it is the risk of human rights violations in their home country which compels the refugees to cross international borders and seek protection abroad. Consequently, safeguarding human rights in countries of origin is of critical importance not only for the prevention of refugee problems but also for their solutions. “If conditions have fundamentally changed in the country of origin, promoting and monitoring the safety of their voluntary return allows refugees to re-establish themselves in their own community and to enjoy their basic human rights”. Respect for human rights is also essential for the protection of refugees in countries where they are integrated locally or re-settled.

Although in the past human rights issues were virtually not allowed to enter the global discourse on refugees under the erroneous assumption that the refugee problem, as a humanitarian problem is quite distinct from a human rights problem, the current trend and need is towards the integration of the human rights law and humanitarian law with refugee law. 

Constraints to Refugee Law

We are all familiar with the scale of our challenge — around 240 million international migrants and more than 60 million refugees and forcibly displaced persons.  This is a global phenomenon, a global challenge.  We have recently witnessed great numbers of people crossing international borders in South-East Asia, the Middle East, North, and sub-Saharan Africa, Central America and Europe. This challenge is not only a crisis of numbers.  It is a crisis of solidarity.  It is a crisis that requires the mobilization of political will but also viable and forward-looking solutions.

Due to the nature of non-sovereignty and view that international law is a compromise on the state sovereignty, first of all, there is a hesitation among states to sign and ratify an international or regional convention. And the reality today is that a significant number of countries today are withdrawing from their legal obligations to provide the refugee with the protection they desire. The refugees have an illusory protection. Refugee crisis imposed intolerable costs on many poor countries. Refugee law has fallen out of favor with many states not because there is any real belief either that governments can best respond to involuntary migration independently, or that the human dignity of refugees should be infringed in the interests of operational efficiency.[3] Rather there seems to be an overriding sentiment that there is a lack of balance in the mechanisms of the refugee regime which results in little account being taken of the legitimate interests of the states to which refugees flee.

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The ultimate cause of refugee non-acceptance is the sovereignty of the host country. Apart from general reason of lack of political will to accept the international obligation on account of sovereignty there are several reasons specific to the lack of political will as to the implementation of their obligation after acceptance they as-

  1. The refugee protection mechanism is seen as an uncontrolled “back door” immigration route which renders fruitless, the official efforts to check admission of people into their territory on the basis of economic and other criteria and as a threat to national security and international relations with other states.
  2. Neither the actual duty to admit refugees nor the real cost associated with their arrival is fairly apportioned among states. Each nation has differing capabilities to contribute to a collectivized process of refugee protection. Some will be best to provide physical protection, some in financial assistance. Still, other countries are of such types that they will collaborate by funding protection or receiving refugees in a particular context. This problem is high in poor countries as their own economic capacity is poor enough and refugees are an economic burden.

Legislations Affecting Refugees in India

While India is not a party to the UNHCR, little scope exists for a domestic law pertaining to refugee protection. In India, there are no municipal laws specific to asylum seekers and refugees. Consequently, considering the afflux of people seeking refuge in India, there is lack of a specific refugee statute in the country, which restricts its judicial system in refugee cases. As a result, it has to enforce laws which are applicable to foreigners and asylum seekers and refugees are therefore acknowledged as aliens. Enactments governing aliens in India presently are the Foreigners Act, 1946 under which the Central Government is empowered to regulate the entry of aliens into India, their presence and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen of India’. The Foreigners Act, 1946 is an Act of the Central Legislative Assembly enacted to grant certain powers to the Indian government in matters of foreigners in India. The Act was enacted before India became independent.

The Act defines a foreigner as a person who is not a citizen of India. Section 9 of the Act states that, where the nationality of a person is not evident as per preceding Section 8, the onus of proving whether a person is a foreigner or not, shall lie upon such person.

According to the Foreigners (Report to the police) Order, 2001, made under the Foreigners Act 1946, where any person who has reason to believe that a foreigner has entered India without valid documents or is staying in India beyond the authorized period of stay accommodates such foreigner in a premises occupied, owned or controlled by him, for whatever purpose, it shall be the duty of such person to inform the nearest police station, within 24 hours, of the presence of such foreigner.

Foreigners Act empowers the Indian administration to detain a person until he/she is deported back to his/her own country. The Registration Act, 1939 deals with the registration of foreigners entering, being present in and departing from India. Also, the Passport Act, 1920 and the Passport Act, 1967 deal with the powers of the government to impose conditions of passport for entry into India and to issue passport and travel documents to regulate departure from India of citizens of India. This doesn’t deal with refugees exclusively but on ancillary matters which affect refugees. The Citizenship Act and its latest amendment have a great deal to deal with refugee by affecting naturalization.

But the Act which deals with refugee, by bringing it in the ambit of human rights violation in the countries, though not directly is the Human Rights Act 1993.

NHRC and Refugee Rights in India

The government has constituted a statutory National Human Right Commission (NHRC), which acts as a watch dog for any complaints of Human Rights violations, vide protection of Human Rights Act, 1993. It acts suo moto.[4] A National Human Rights Commission in India has effectively functioned as a watchdog for the protection of refugees. In fact, the NHRC approached the Hon’ble Supreme court under Art 32 to protect the Chakma Refugees living in the North east.[5] The Supreme Court in Committee for C.R of C.A.P v. State of Arunachal Pradesh[6] directed the government to grant citizenship to protect their life and liberty.

As we noted earlier that though there are provisions in the Constitution to give effect to international obligations and as there is no specific law for refugees in India, it is the Hon’ble Court in India and the Judiciary itself which act as watchdogs and guardians of refugees in India.

Reluctance to Refugees in India

India, although is a country which is known for its international humanitarian approach, it is also a country which is yet to sign the Convention relating to the Status of refugee 1951 and the protocol of 1967. There are criticisms and counter criticisms of India’s stand in the refugee protection mechanism. There are many reasons accorded to India’s stand on this. The United Nations High Commissioner for Refugees (UNHCR) won’t officially say why, but the reasons are chiefly security-related. The major line of argument is that borders in South Asia are extremely porous and any conflict can result in a mass movement of people and acceptance of responsibility by India will pull more refugee towards India and India can’t manage them due to several reasons and it will have many repercussions like –

  1. First, a strain on local infrastructure and resources in countries that are poorly equipped to deal with sudden spikes in population- India is a developing country which has resource constraints even to meet the needs of its own subjects and often resorts to international monetary support.
  2. Second, it can upset the demographic balance, a tinderbox in South Asia-  India’s geographic location makes it more suitable for population and other benefits that normally attracts settlement since history. And signing such treaties and conventions might lead to an influx of people disturbing the demographic balance in proximity.
  3. The third 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. At the time, UNHCR played a stellar role in helping devise India’s administrative response to the 9.8 million Hindu refugees who poured in from Bangladesh. It also helped to mobilize huge international finances to pay for Indian bills (and it wasn’t even the West’s war). And when it came to the repatriation of the refugees, then again the UNHCR helped roll out an orderly return journey.[7]
  4. Fourthly, it is necessary to note that India has allowed the UNHCR to have an official presence in New Delhi and Chennai; thus India feels there is no need to ratify the Convention.
  5. Fifthly, according to academic Shreya Sen, a researcher on South Asian issues, India, in any case, is bound by this principle because it is contained in the 1984 Convention against torture, to which India is a signatory and India is a party to major human rights instruments and thus not a specific commitment on refugee is mandatory.
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Article 3 of the Torture Convention[8] prohibits parties from returning, extraditing, or refouling any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.

If India is to be a party to the 1951 Refugee Convention, it will have to allow for the intrusive supervision of the national regime by the UNHCR, via Article 35, and the UNHCR would be granted permission to access detention centers and refugee camps. This is a security reason as India is under continuous threat of attack, especially from neighbors. The apprehension that NGOs could embarrass India before the international community by presenting negative reports that fail to take into cognizance the practical difficulties faced by a third world nation like India is present.

Conclusion

Refugees being a humanitarian aspect have to be a subject of international law rather than to any region or a particular class. The fact that the national system is one of its causes and refugee situations are inherently political in nature, there could be no better safer hands than international law though not a proper law. In the recent past, many applaudable efforts have been taken. Despite the challenge of the validity of international law, international law can be effective enough to provide protection to the Refugee crisis. UNHRC and Convention on the Status of Refugee are landmarks for covering up and taking responsibility for this whole challenge. Off course the International Refugee law can’t reach out everywhere and that vacuum is filled by regional, inter-governmental efforts. The rights rendered to refugees in the present era are vast enough as they are protected by the various regime at a different level and there are effective remedies available to them. But despite all this, refugee law has a stigma attached to it which is common to all laws i.e. enforceability. International refugee protection efforts stand to serve millions in dire distress.

It can be stated that India has been generous in its humanitarian assistance to refugees and is very well committed to the cause of refugees. India has taken initiative at the regional and national level to make laws for refugees like a commission chaired by Justice P N Bhagwati in 1997, whose task was to construct a uniform national law on refugees. Although the bill was never tabled in Parliament, the term ‘refugee’ was adequately defined in the ‘Model Law’ as;

‘Any person who is outside his/her Country of Origin and is unable or unwilling to return to, and is unable or unwilling to avail himself /herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion. or… owing to external, aggression, occupation, foreign domination, a serious violation of human rights or events seriously disrupting public order in either part or whole of his/her Country.’

Recommendations

Though the objection seems to be valid, given the important position of India and the refugees it inhabits, there is an urgent need for some changes; 

  1. India should sign up the Convention and Protocol – Irrespective of India not signing the Convention, India has more obligations and does more for the refugees and not being a party to these committees, the efforts go unaddressed in the world arena.
  2. Specific Municipal Law- Irrespective of being a party to the international refugee convention, with the problem of illegal migration and refugee augmentation in recent times domestic law is needed. The solution too is a compromise of sovereignty so that humanity may stem up not as a separate branch of law but as municipal law. The need for a refugee law is immediate. There are many roadblocks to make a specific law but it is needed so that the efforts taken by India are properly recognized under the international arena.

There are various Points which makes it imminent to frame a legislation:

  1. India not having a refugee law is against its customary international law obligation. Aspiring to be a member of UNSC permanently, India should forcus to at least make all human rights compliances.
  2. Specific law will give an account of non-Indians to an extent, possibly curbing the illegal migration problem and anti-social activities like terrorism or communalism etc.
  3. A proper law will facilitate to address the issue properly

[1] Assistant professor, The Central Law College, Salem,Tamil Nadu.

[2] V. Chetail & C. Bauloz, The European Union and the Challenges of Forced Migration: From Economic Crisis to Protection Crisis?, EU. U. I, 2011.

[3] James C. Hathaway, The Law of Refugee Status, NY, C.U.P. 81, 2014.

[4] Protection of Human Rights Act, 1993.

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

[6] Committee for C.R of C.A.P v. State of Arunachal Pradesh, (2016) 15 SCC 540.

[7] Shreya Sen, Understanding India’s refusal to accede to the 1951 Refugee Convention: context and critique, WordPress(May 28, 2015),https://refugeereview2.wordpress.com/2015/05/28/understanding-indias-refusal-to-accede-to-the-1951-refugee-convention-context-and-critique/

[8] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987, G.A. Res. 39/46 of 10 December 1984.