"Everyone has the right to seek and to enjoy in other countries asylum from persecution"

Article 14, Universal Declaration of Human Rights

The Indian government deals with refugees at both the political and administrative levels. The result is that refugees are treated under the law applicable to aliens.

In the case of refugee protection, the Constitution of India guarantees certain fundamental rights, which are applicable to all non-citizens, namely, the right to equality (Article 14), the right to life and personal liberty (Article 21) and the freedom to practice and propagate their own religion (Article 25).

Any violation of these rights can be remedied through recourse to the judiciary, as the Indian Supreme Court has held that refugees or asylum seekers cannot be discriminated against because of their non-citizen status.

The National Human Rights Commission of India (NHRC) has functioned effectively as a watchdog for the protection of refugees. Yet many activists who deal with refugees say that the absence of clear-cut laws on this community encourages human rights abuse in different forms and practices that have been well documented. (see Asian Human Rights Commission website: http://www.ahrc.org/documents)

But refugees do not come only from outside the country. There are communities of refugees from inside India - the Kashmiri Pandits, for example. Between 1989 and1991, nearly 4,00,000 Pandits were expelled from their native Kashmir valley by a combination of violence and explicit threats from Islamic terrorists.

Most of the Pandit refugees, mislabelled "migrants", live in squalid camps with spiralling health and economic problems. Are they displaced people or are they refugees in their own land? Does it make a difference? How does one interpret them as a community? These are delicate issues for a reporter to cover.

Here is an extract from a report of the US Committee for Refugees (USCR) (http://www.refugees.org) which illustrates what the difference means to people who are the victims of a conflict.

One of the displaced Kashmiri Pandits' primary complaints is that the Government of India does not officially recognise them as internally displaced persons, but rather terms them 'migrants.' The camp leader at Muthi camp in Jammu told USCR, "We are not migrants, we are displaced persons... The previous government imposed the 'migrants' label on us. A migrant is a person who chooses to leave his home; we have been forced to leave our homes and become displaced.

Pandit leaders argue that if the Government of India officially recognises them as internally displaced persons, they might receive some of the protection and assistance that is often provided to internationally recognised refugees. Kosha said:

We would suggest, if asked, that displaced persons get the same status and privileges as refugees. The only difference between a refugee and an internally displaced person is that the displaced person is a refugee in his own country whereas the refugee is in another country.

Here are two news stories which illustrate the situation of refugees in different parts of India.

The US-based Human Rights Watch (HRW) has asked India to halt expulsions of ethnic Chin refugees to Myanmar where many could face persecution from the military.

It said last week authorities in the northeastern state of Mizoram turned over more than 100 Chin, who are an ethnic and religious minority in northwestern Myanmar, to Myanmarese Army along the border and detained more than 1,000 others pending deportation.

The rights watchdog group said, quoting "local sources," that police in Mizoram are preparing to deport another group of Chin on August 18. "Any wholesale deportation to Burma (Myanmar) without safeguards for protecting genuine refugees is unacceptable," Sidney Jones, Asia Director of Human Rights Watch, said in a press release.

"The general level of repression in Burma should be enough to justify those safeguards. But when the deportees belong to an ethnic minority, and the Burmese Army is considering counter insurgency operations near their homes, protection becomes absolutely vital," Jones said. The HRW also asked the Indian government to give the office of the U.N. High Commissioner for Refugees (UNHCR) immediate access to the detainees so that anyone with a valid fear of persecution could make a formal claim for refugee status. At the moment, it said, not only is there no presence of the UNHCR, but there is even concern that local officials may be ignoring the applicable law that requires that any potential deportee has a judicial hearing.

Reported by India Abroad News Service (IANS),
AUGUST 2000

RAMANATHAPURAM (TAMIL NADU, INDIA): A cloud of uncertainty hangs over Sri Lankan Tamil refugees who will henceforth be allowed to land in the sixth island (Aram Theedai) within Sri Lankan territorial waters.

Since the intensification of the conflict between the Liberation Tigers of Tamil Eelam and the Sri Lankan armed forces in the Jaffna peninsula, the Ramanathapuram district administration has been gearing up for the arrival of refugees from the island.

The Indian Navy has set up a 'forward observation post' at Land's End near Arichalmunai in Dhanushkodi to keep a round-the-clock vigil on the movement of Sri Lankan Tamil militants and activities of the Sri Lankan Navy along the International Border Line. After the checkpost was set up, agents fearing arrest have been dumping the refugees on the sixth island. Over the last four days, 50 stranded people were rescued by local fishermen. As the sixth island comes under Sri Lankan territorial waters, the Coast Guard as well as Navy personnel cannot enter it. Local fishermen have also been warned against crossing the IB line. Hence, picking up Tamil refugees dropped on the sixth island by so-called agents from Thalaimannar is a risky affair. Local people feel that on humanitarian grounds, the Indian Government should intervene and frame a clear policy on the issue after discussions with Colombo.

The Hindu, 10.5.00

Although India is not a signatory to the 1951 UN Refugee Convention, New Delhi has always taken an active role in refugee-related problems. A report by the United States Committee for Refugees says there are more than 2,00,000 refugees living in India, including people from Sri Lanka, Tibet, Bhutan, Myanmar and Afghanistan.

And the two news reports above illustrate the kind of human rights challenge that different groups of refugees have to face in their adopted - and perhaps involuntary - home, India. The ethnic Chin refugees who gained refuge in India now face deportation against their will by the Indian state. As for the Sri Lankan Tamils trying to escape the ethnic war on the island, India now discourages such flights, leaving the Tamils to face the brutalities of war or the dangers and uncertainties of secret landings on Tamil Nadu shores.

There are a number of groups like the Tamils who have sought refuge in India.

Some 60,000 Chakmas now live in the hill tracts of the north-eastern states of India, which once was called the North East Frontier Agency. This community - originally from Bangladesh - was largely displaced because of the contruction of a dam in the 1960s. These families occupy the Chaglang District of the state but tribals here treat them as encroachers now. They see them as people who have moved on to 'their' land and as a threat to employment. The refugees' presence has also tilted the demographics in some areas, where they are now in a majority.

While the government recognises their right to live here, following a Supreme Court ruling, India does not recognise the Chakmas as Indian citizens, so they have no right to vote.

The Dalai Lama, spiritual head of the Tibetans, led his community into India after China's invasion of their country in 1950. He set up base in Dharamsala in Himachal Pradesh. About 1,00,000 Tibetans have since settled in 30 or more camps, mostly in the south Indian state of Karnataka, from where they have carried out a non-violent opposition to Chinese domination of Tibet.

Many other Tibetans have travelled into north Indian cities in search of employment and managed to find a home of their own. Stories of ill treatment are rare, however.

About 30,000 Afghan refugees now live in India, according to the UN High Commissioner for Refugees. Since the 1970s, there has been a small stream of them fleeing into India from the civil war that broke out when President Najibullah was overthrown. About half of them are of Indian origin.

UNHCR originally provided a monthly dole and a residence permit, but doles were later stopped and a one-time payment was made. Now the Afghans have neither a UNHCR document saying they are refugees nor a passport. Indian Afghans want Indian citizenship now. Others who wish to move freely out of the country say the visa fees are too stiff and is a method to restrict their movement. But India has often seen some of these people as security risks and indeed some have posed problems with regard to their connections with Afghan militancy.

The UNHCR has noted that India is less tolerant of Afghan refugees than it used to be. The Times of India (in early November, 2000) quoted UNHCR officials as saying that the BJP government was pursuing a less tolerant policy, making it difficult for the refugees to renew their residence permits.

A lot has been written on the Sri Lankan Tamil refugees, especially in the media of Tamil Nadu, which was severely affected by the issue.

The ethnic war between the Sri Lanka State and the Tamil militants, which broke out in 1983, caused a huge influx of refugees into Tamil Nadu. Politically, it was convenient to accept the huge flow - almost 4,00,000 people at its peak. The two nations are separated by only 25 km of water. 'Tamil for Tamil' friendliness encouraged the Indian hospitality shown to the refugees, among whom were also militants of different Tamil groups, and they were accommodated in more than 100 camps across the state.

But as the refugees became more settled and began to move into the mainstream, attitudes changed. They were accused of crimes and interference there were skirmishes. Gradually, both state and citizens began to ignore the refugees. At one point, when a short-lived peace reigned in Sri Lanka, many refugees were coaxed (some say forced) to leave India in an organised repatriation process.

Accusations that Tamil militants were responsible for the assassination of India's former Prime Minister, Rajiv Gandhi, took away any remaining sympathy local people had for refugees. Sri Lankans suspected to be militants were thrown into what were 'special camps', where their movement was restricted and treatment was more harsh. Some innocents were also detained here.

Suspects could not seek judicial or political support. There have been many reports of ill treatment and torture, and human rights groups have recorded forced repatriation of ordinary refugees. In most cases, relief is not provided. It is clear, although nothing has been said officially, that India no longer wants the refugees.

Article 33 of the 1951 UN Convention on the status of refugees says that no contracting state

…shall expel or return (refouler in French) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.

It means a nation cannot send back a refugee unless his or her claim to refugee status has been properly determined. But India is not a signatory to the Convention, and it treats rights of refugees differently. In India, there is no mechanism for redress for refugees when a right is refused.

Like most countries, India's stance on refugees depends on many things, most of them political or economic. Refugees who might have been acceptable last year are unacceptable this year, perhaps. Much depends on where they come from and when. Accepting large numbers of refugees is not always popular with the electorate. So governments sometimes adopt a policy of pre-emptive deterrence to ensure that the flow is stopped at the point of origin itself.

Here in India, it has been said that Bangladesh refugees in 1971, Tibetan refugees since the 50s and Tamil refugees since 1983 were all greeted with open arms because of political exigencies of that time.

But that was not the case when Chakmas came into Arunachal Pradesh and Tripura.

Now the United Nations High Commissioner for Refugees has been given the mandate to provide "protection and assistance" to refugees as legally defined by the UN. India, however, has taken the stand that it will deal with refugees itself, and that the UNHCR need not come into the picture. In many ways, then, the UN body does not have a very active role to play in matters concerning refugees in India. It played a big role in the repatriation of 10 million Bangladeshi refugees, and it has been called in occasionally to play a limited role in other cases, but even that has sometimes ended on a sour note.

And inevitably, if large numbers of refugees do come into the country - as with the Sri Lankan Tamils - they will face all manner of human rights and other problems unless they are given a clear legal status.

Let us now look at the laws which affect the rights of refugees in India. Here is one:

The Foreigners Act of 1946 gives the executive wide powers of discretion to control foreigners in India. They can be prohibited, arrested, detained or confined and even asked to leave the country.

Nirmala Chandrahasan, a former Professor of Law in Colombo, said in a 1997 study1 that in 1995, the National Human Rights Commission of India inquired into cases of Sri Lankan Tamil refugees held in detention for long periods of time without charges being preferred against them. These persons were civilians, not militants. They were found to have been detained under the Foreigners Act.

NHRC then stated that such refugees who were given identity cards should never be treated as accused under the Foreigners Act.

The Refugee Convention stipulates that the state shall provide those who fall within the 'refugee' definition of its Article 1A(2) a number of rights and freedoms. These include free access to courts and equal treatment in elementary education and in employment with nationals of the country. But India has not signed the Convention

What about those refugees who do not fall under the Convention, or de facto refugees, whose status may be indeterminate?

Chandrahasan states that rights set out in the Refugees Convention are duplicated and complemented in the international human rights treatises and declarations, covering the Universal Declaration of Human Rights and the Covenant on Economics, Social and Cultural Rights.

In India, whether a person seeking asylum is termed an illegal alien or a refugee, the State is obligated to respect their fundamental rights. This was confirmed by the Supreme Court in the case of NHRC vs. State of Arunachal Pradesh, in which an attempt to drive out the Chakma refugees was brought before the court.

Chandrahasan says it is the humanitarian tradition in South Asian countries rather than legal adherence that has led them to open their doors to refugees, but she argues that this issue needs a legally structured response to the refugees, which takes into account existing human rights standards and norms. As of now, those who are victims of human rights abuse are at a disadvantage, since the law has not been made distinct and clear. More so in India. It may be mentioned here that the India does not grant permission to media, NGOs and international bodies to visit the refugee camps, thus stifling investigations into the affairs there.

The question of repatriation of refugees and India's stand on this has come into focus and discussion during the repatriation process involving the Sri Lankan Tamil refugees. There is no clarity on this issue either, leading to interpretations governed apparently by whim, which leads to abuse.

So India's policy on refugees presents a paradox. While it has joined the UNHCR's Executive Committee, it does not concur with the Executive's policies on treatment of refugees and has declined to sign either the 1951 Refugee Convention or the 1967 Protocol. India's policy works more on a bilateral country-to-country basis, as with the Tamils of Sri Lanka.

This story from The Hindustan Times sums up the position neatly.

UN body stresses need for law in India on refugee issues

The United Nations High Commissioner for Refugees (UNHCR) has made out a strong case for enactment of a national law by India that would lay down the policy guidelines for recognising and assisting refugees who seek shelter in the country.

UNHCR's Chief of Mission in New Delhi, A. P. Mahiga, while commending the tradition of generosity and compassion shown by India towards international refugees, stressed that the enactment of a law relating to refugee issues by the country would be very useful for the UN body.

At a workshop organised recently by the UNHCR and SAARCLAW (India Chapter), he observed that even though India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol, the Indian Constitution has provisions for protection of all persons, including refugees.

The National Human Rights Commission has turned little attention to such issues. Perusal of its annual reports show that little or nothing has been done on the rights of refugees.

In India, the judiciary has played a very important role in protecting refugees. Court orders have filled legislative gaps and in many cases have provided a humanitarian solution to the problems of refugees. Moreover, Indian courts have allowed refugees and intervening non-governmental organisations (NGOs) to file cases before them. Furthermore, the courts have interpreted provisions of the Indian Constitution, existing laws and, in the absence of municipal law, provisions of international law to offer protection to refugees and asylum seekers.

Hindustan Times, 7.5.00