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India’s refugee law and policy

India’s refugee law and policy

By Rajeev Dhavan

South Asia requires India to take the lead to devise a policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.

ON JUNE 20, the world was called upon to observe Refugee Day. It usually rolls by without notice. There are too many commemorative days on our annual calendar. All of them cannot be taken seriously. The 20th century left behind a massive legacy of refugees. The response to this legacy remains incomplete and inadequate. World War I, the Soviet Revolution and other events led to `crisis responses’ for the Russian refugees, Armenians and German refugees. When the International Convention of Refugees was enacted in 1951, it was seen as Euro-centric and, essentially, anti-communist. Indeed, in 1953, India’s Foreign Office (through R.K. Nehru) told the office of the United Nations Commissioner for Refugees (UNHCR) that the global refugee policy was essentially part of the Cold War. It took years for the Convention of 1951 to be amended by the Protocol of 1967.

With its open borders, South Asia — like Africa — is a refugee-prone region. India discovered this when absorbing the Tibetan Refugees in 1959, the Bangladeshi refugees in 1971, the Chakma influx in 1963, the Tamil efflux from Sri Lanka in 1983, 1989,and again in 1995, the Afghan refugees from the 1980s, the Myanmar refugees for a similar period and migration and refugee movements from Bangladesh over the years. India’s ambivalence towards the UNHCR is characterised by its act of indirectly seeking its assistance through the Red Cross in the 1960s, and later allowing the UNHCR to determine the refugee status of those from beyond South Asia, asking the UNHCR to assist in verifying the voluntariness of the repatriation of the Tamils to Sri Lanka, and permitting an office in Delhi through the UNDP programme. In 1995, India, following Pakistan’s example, joined the Executive of the UNHCR. Though welcome, this halfway house seems odd since India refuses to sign the 1951 Convention.

Meanwhile, a series of judgments by the Supreme Court and the Gujarat, Punjab, Gauhati and Tamil Nadu High Courts has reinforced the need for a humane due process for the Chakmas, Sri Lankan and other refugees. Some of the judgments expressly recognise the value and worth of the UNHCR and invite it to involve itself more in the refugee questions in India. Unfortunately, this pro-refugee jurisprudence sits uneasily with the normal law relating to foreigners, which grants the Government near-arbitrary powers of deportation. Following the Law Commission’s 175th Report of 2000, the law was made stricter to treat `illegal entrants’ harshly, irrespective of the cruel circumstances that may occasion their migration. India blows hot and cold when dealing with the UNHCR, making policy statements at its UNHCR meetings in Geneva and negating either joining the Convention or changing its law to provide reliable legal entitlements to refugees in India.

By contrast, Article 17 of the Additional Terrorism Protocol of the South Asian Association for Regional Cooperation of January 2004 permits SAARC nations not to extradite and, perforce, to protect those being prosecuted or punished on account of their race, religion, nationality, ethnic origin or political opinion. This stand is mystifying. Thus in South Asia, India agreed to the SAARC protocol in 2004. Globally, India steadfastly refuses to join the Convention of 1951 even though it is on the Executive Committee of the UNHCR without being a signatory to the Convention under which the Committee is constituted. Indeed, from 1997, its envoys to the UNHCR have been pleading for a more equitable global regime to participate in a discourse that India does not carry any further.

We need to examine what India’s doubts about protecting refugees are all about. The `Cold War’ reasons for not having a global refugee policy have gone cold. Refugees are a global problem. The latest UNHCR statistics show that in 2003, there were 20.55 million displaced persons of international concern, including 10.34 million refugees. Refugees are being created all the time — no less due to America’s Afghanistan and Iraq wars. But even otherwise, this is a problem that permanently haunts Africa and South Asia. Europe and Australia want to tighten their immigration walls with all kinds of sophisticated arguments to deal with refugees on a regional, rather than a global, basis. India, instead of leading the debate, is being evasive.

Who are refugees? According to the humanitarian definition, a refugee is someone who has fled his country because he has a well-founded fear of persecution if he remains. The major obligation of refugee protection is the principle of non-refoulement, which ensures that a person is not returned to a life-threatening situation.

For India to evade such a principle appears subversive of its constitutional principles unless there are weighty reasons for doing so. New Delhi’s reasons for resisting refugee protection are paradoxical. On the one hand, its track record in dealing with the Tibetan, the Sri Lankan and the Chakma crises has been exemplary. Its hesitation to provide an intelligible and comprehensive protection to refugees seems to stem from two major considerations, which are artificial ghosts in the machine.

The foremost reason for refusing to concretise a refugee protection policy is the threat of terrorism. There is no reason for sustaining such a fear. Justice P.N. Bhagwati’s model law, which the National Human Rights Commission is examining, and the SAARC Anti-Terrorism Protocol of 2004 ensure that suspected `terrorists’ are not treated as refugees. Under the proposed model law, India may exclude even other undesirable persons provided they are not sent back to the country of persecution. The second reason for resisting the model law is that such liberality would precipitate a flood of migrants — especially from Bangladesh. This reason is also fallacious. In fact, a proper `refugee’ law would distinguish between refugees and migrants by a fair, fast and stringent procedure. We should not be misled by the Sangh Parivar‘s misdirected campaigns against Bangladeshi and other Muslims seeking their expulsion from India.

If India wants to play a role in global affairs and make SAARC a success, it must act as a global player entitled to its just seat in the Security Council of the United Nations. But it cannot do so as long it pursues narrow policies. The South Asia region deserves better treatment. For strategic reasons, India was surprisingly quiet when virtually one-sixth of Bhutan’s population was forced to leave the country for camps in Nepal. In 2003, Nepal and Bhutan entered into a kind of agreement whereby Bhutan agreed to take back about 3-5 per cent of its citizens of Nepali origin whilst offering illusory promises to some of the rest. India can help resolve this crisis.

The Afghan crisis brought Hindu and Sikh refugees to India. There are some 8000 such persons in India who can never return to Afghanistan. India will not throw them out. They remain in limbo without citizenship in India. Yet because of the complicated procedures of some potential 2600 applicants, only four have reached the portals of India’s home office for consideration. Myanmarese refugees have fled their country and are in exile. They languish without protection. The Bangladeshi problem — if, indeed, that is what it is — can only be resolved if India wants to resolve it. India wants a leadership profile but does not assume concomitant responsibilities. The new Government needs to re-examine this issue. External Affairs Minister Natwar Singh’s experience combined with National Security Adviser J.N. Dixit’s insight from Sri Lanka should support such an initiative.

There is also a need for a change in the law. The model law has not been sufficiently considered by the Union Government. For the last five years, the NHRC has been requesting the Government to provide refugee protection. Its present Chairman, A.S. Anand, has even set up a Committee to examine the law. The argument of terrorism and numbers having been met, there is no reason why the minimal protection against non-refoulement should not be enacted. This can probably be done even through rules. But the argument is not just over the Sri Lankan refugees, the Bangladeshis, the Afghans, the Bhutanese or the Myanmarese. It is whether India wants its voice on the world’s most persecuted to be heard so as to mould future policy. If India is waiting for a cue from its neighbour, China has joined the convention and enacted refugee protection legislation. African countries have got together to devise both national and regional solutions.

India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.

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