The Hindu : The refugee in India

Online edition of India's National Newspaper
Saturday, Jun 28, 2003

Opinion

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The refugee in India

By Rajeev Dhavan

There is no category called `refugee' in Indian law. Refugees have no special due process rights... India's law must match its humanitarian goals.

INDIA'S REFUGEE policy remains a paradox. The Tibetans have made Dharamsala in Himachal Pradesh their home. The Sri Lankans have been housed in camps in Tamil Nadu. Court orders protect the Chakmas in Arunachal Pradesh. The Bangladeshis, Afghans and Burmese, among others, have been allowed into India and are treated with relative humanity — even if under some pressure from the police, the threat of deportation and of subsistence livelihood. India's refugee record amidst many contradictions remains tolerable and responsible. The paradox is the harshness of the Foreigners Act 1946 — getting worse with every proposed amendment — and India's refusal to join the Convention on Refugees of 1951. Conversely, India permits the UNHCR (United Nations High Commission for Refugees) to operate — respecting, but not always, its certification of refugees.

The paradox is baffling: there is humanism in India's refugee record contrasting with an abject refusal to formalise its legal responsibilities towards the refugees, consigning them to the limbo of ad hoc treatment. But, let us draw the canvas. There is a clear distinction between a `migrant', the displaced `homeless' and `refugees'. Since World War II, more people have migrated across the face of the earth . Some migrants have done well in transplanted conditions. `Migrants' need protection from discrimination and some affirmative action to overcome disadvantage. The displaced `homeless' need similar protection, but also socio-economic help to meet their `homelessness'. Against all these, the `refugees' stand in a class of their own.

Both the `migrants' and the `homeless' suffer a terrifying predicament. They are those who have fled their homes and cannot return because they "have a well-founded fear of persecution" — that they will be harassed, tortured and even put to death. The "refugees", on the other hand, are a trapped lot who live in dual fear of not being allowed to stay in the countries they have fled to or return to the persecuting country of their origin. The issue is: what do we owe to these doubly damned people? Does India have an answer?

The somewhat `Euro-centric' Refugee Convention of 1951 was designed to deal with the European refugees, but extended further by a Protocol in 1967. The African nations — also facing open borders — devised a much-expanded definition of `refugees' to include wider categories of persecuted in 1967 — as did the Americas in 1984. India refuses to join any version of the convention. The relevant statutes — the Registration of Foreigners Act, 1939, and the Foreigners Act 1946 — contain no special category of protection for the `refugees' regarding their well-founded fear of persecution. They can be sent back to harassment or death in their countries of origin. This has happened in many cases — including one in the Supreme Court concerning a Sudanese who had lived in India, married a Tibetan Indian citizen, with children who were left behind.

India's law to deal with `refugees' is inchoate. In Hans Muller's case (1955), the Supreme Court gave "absolute and unfettered" discretion to the Government to throw out foreigners. This was affirmed in Louis de Raedt's case (1991), which, at the same time, recognised that "foreigners" have due process rights including the right to be heard. Would these due process rights protect `refugees' from non-refoulment to their country of persecution? The non-refoulment principle is the heart of the Refugee Convention which prevents deportation to a persecuting country. Should this self-evident heart of due process be recognised in India? On the intervention of the National Human Rights Commission (NHRC), the Supreme Court prevented the repatriation of Chakmas because they had lived in India for three decades and "to uproot them... would be both impractical and inhuman''.

In the Karlekar case (1992), the Supreme Court stopped the deportation of 21 Burmese from the Andamans by giving them the limited right to have their refugee status determined. This judgment — pregnant with possibilities — is too skeletal to stand as a precedent. In the Khy-toon case from Manipur (1994), interim bail was granted to permit the refugees to approach the UNHCR for refugee determination — in line with previous cases of 1989, 1991 and 1992 and followed again in 1994. A Chennai court in 1992 denied the power of forcible repatriation; but in another case denied freedom of movement to refugees. In a Gujarat case of 1998, the High Court specifically acknowledged the work of the UNHCR and impliedly added value to its certification of refugee status. Amidst this unevenness, the lower courts are not always sympathetic to refugees.

Theoretically, the rights of refugees to due process and non-refoulment are ushered in by India signing the International Conventions on Civil and Political Rights 1966 (especially Article 13), the Universal Declaration of Human Rights, 1948, the Covenant on Economic and Social Rights, 1966, and the Conventions on Racism (1965) Torture (1984), Children (1989), Women (1979) and others.

Although not automatically part of Indian law, some of these conventions have been read into the Indian Constitution's life and liberty provisions (Article 21) to become enforceable human rights through the aegis of the Sexual Harassment case of 1997 and others. It has even been suggested that conventions laying down a general humanitarian law are part of protected fundamental rights even if India has not acceded to or fully ratified the convention.

But, despite this theoretical protection, real legal protection evades the `refugees' in India. Courts look to the letter of Indian law to be confronted with the stark legal reality: There is no category called `refugee' in Indian law. Refugees have no special due process rights.

Legally, no special arrangements inure to them. The higher judiciary sometimes recognises their predicament; and, sometimes ignores them altogether. The Government places a premium on its absolute power of deportation. At the same time, it relaxes its power in some — but not all — of the UNHCR certified cases. Sometimes housed in detention centres, the predicament of refugees is pitiable. If anything is to be achieved, concrete legal steps need to be taken. This is also what the NHRC has said in its Seventh and Eighth Reports of 1999-2001.

What are these concrete steps? First, India must seriously consider joining the Convention of 1951 as amended. This is a humanitarian convention which ensures that the `persecuted' get a fair deal. The humane principle of non-refoulment does not restrict the Government's power of deportation but restricts only the place to which the deportation can be made.

Second, in its revision of the Foreigners Act 1946, a special category of `refugee' foreigners needs to be indented with a proper procedure for certification, due process, non-refoulment rights and special support mechanisms. Contrary to what the Home Office thinks, this will strengthen India's security concerns by reserving maximal protection for the truly persecuted — to separate them from the others.

Third, the model law, proposed by Justice P.N. Bhagwati's South Asia eminent group, should be urgently considered for implementation. Fourth, there is nothing to prevent India from passing regulations under the present Foreigners Act 1946 to provide immediate protection to refugees by distinguishing them as a persecuted class to protect them. Fifth, India should consider bilateral negotiations in the South Asia region to find solutions.

Sixth, as a major power of the region, India should take a leading role in evolving a regional convention and regional mechanisms — as the Africans have done in 1967 and the Americans in 1984.When we deal with refugees, we are dealing with those persecuted many times over. India's law must match its humanitarian goals — for which it is justly known. This will not affect its `security' concerns but will enhance them. This can be done by executive orders now — pending comprehensive legislation.

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