By Sagarika Chandel, KIIT School of Law, Bhuvaneshwar
While India has been home to several immigrants from neighbouring indigenous communities in turmoil, however, it needs to devise a legal framework to protect the human rights that these refugees or asylum seekers are entitled to.India’s international commitments as well as the fundamental rights do create an obligation on the Government to ensure their security, but there currently is no codified law governing the same. This Article analyses the position of Courts with respect to refugee rights as well the need for codification of refugee laws in lieu of India’s constitutional background.
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
-Universal Declaration of Human Rights 14(1)
India, due to its diverse, stable, established culture, has been a major destination of people who have been fleeing from their home land, subjected to the terror of being persecuted and subjugated to erratic, unstable, distressed and often deplorable circumstances. The word ‘refugee’ was derived from the French word ‘rèfugiè’ that was used to describe early French Protestants seeking refuge. Refugees all-over the world are forced to flee on account of various issues arising out of religion, caste, creed, political views or even for being a member of or supporting a particular group or society.
Refugee Law is primarily considered to be a branch of international law. It may be related to Human Rights Law and Humanitarian Laws but on the whole it is a remotely distinct issue. The term ‘refugee’[i] has been defined as “a person who owing to well-founded fear of being persecuted for reasons of race, 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, unwilling to avail himself of the protection of that country”. Under International Law, refugees are those who:
- Are outside their country of nationality or habitual residence
- Have a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion
- Are unable or unwilling to avail themselves of the protection of that country, or return there, for fear of persecution.
India has received a large number of refugees for a long time ever since almost the whole of the Zoroastrian community took refuge in India in order to safe-guard themselves from the persecution which they were being subjected to in Iran on the grounds of various religious issues. The Tibetans have been granted land in our country to establish educational and other programmes suiting their needs and conveniences. People from Sri-Lanka are received kindly in our country, given food, clothing and other assistance. At the same time, there also exist cases of forsaken and neglected refugees which cannot be overlooked.
The fundamental reason behind the neglect and ill-treatment of the refugees lies in the fact that India lacks a proper framework to provide safety, protection and well-being to the refugees. Our country still needs a standard legislation on the basis of which those who take refuge within the domestic boundaries can be governed. Some claimants, upon the satisfaction of certain criteria, qualify under the category of ‘genuinely at risk’. Other factors include a ‘well-founded fear’. Such factors have been developed on the basis of a string of judicial precedents. For example in the famous INS v. Cardoza Fonseca[ii] well-founded fear was reasonably interpreted as “so long as an objective situation is established by evidence, it need not be shown that the situation will result in persecution, but it is not enough that persecution is a reasonable probability…”
As per the Indian legal stand, an individual or a group of individuals would be suitably termed as ‘refugee’ on the basis of the circumstances in which such people have fled from their State of origin desiring refuge. With respect to refugee protection in India, the Constitution of India offers certain Fundamental Rights that are applicable to all irrespective of their being the citizens of India or not, namely Article 21 that addresses the right to life and personal liberty[iii], Article 14 that grants the right to equality and Article 25 that grants all the citizens, non-citizens, refugees, foreigners or whoever is in question, a right to practice and propagate their own religion. In addition to this, if the refugees are victimised in any manner that results in the violation of any such right granted by the Constitution, such refugees can always seek recourse since the Supreme Court has held that the asylum seekers or refugees cannot be subjugated on the grounds of not being the citizens of India. In National Human Rights Commission v State of Arunanchal Pradesh, when the life, liberty and security of the Chakma refugees from the Chittagong Hills tribal areas was threatened by the youth leaders and local politicians, the Supreme Court rescued the distressed refugees by granting them relief on the basis of the rights of aliens under Article 21 as pointed out by the then Chief Justice, Justice Ahmadi.
There are three main ways by which the Indian government deals with the refugees in India[iv]:
- In situations of mass influx, the government receives the refugees in camps and renders them temporary protection that includes certain measures of socio-economic protection.
- Citizens of various countries may apply to the office of United Nations High Commissioner for Refugees (UNHCR) for the determination of their status as refugees in accordance with the terms and conditions of the UNHCR Statute and Refugee Convention.
- For the refugees of those countries with which the Government of India holds a sensitive relationship for example the South Asian countries, political asylum is granted without an extensive refugee status determination.
Before analysing the need for codification of refugee laws in India, it is essential to delve into those reasons because of which codification of such laws has been averted by the policy makers of our country. There are various reasons as to why the Bills that were proposed and drafted in 1997 and 2006 relating to matters concerning the seekers of asylum were rejected. The most prevalent reason is the fallacious assumption that the proper establishment of refugee laws would lead to a huge number of ever-increasing immigrants. Further, threats of external militancy lead to the refusal of concretising the policy which would foster the protection of asylum-seekers.
However, due to the SAARC Anti-Terrorism Protocol of 2004, it has been ensured that suspected ‘terrorists’ are not to be treated as refugees.
Also, the Model Law proposed by Justice P.N Bhagwati addresses that all the ‘undesirable people’ may be excluded from being treated as refugees of our country provided they are not sent back to the country of persecution. This was a decent attempt towards improving the scenario relating to the asylum seekers and at the same time provided them a greater opportunity leading to the attainment of justice.
NEED FOR CODIFICATION OF REFUGEE LAWS
Laws are said to have been codified from the ancient ages. Hammurabi, the king of Babylonia is said to have codified the laws of Sumer and Mesopotamia which are the oldest and the earliest known civil codes to have survived even till the 21st century. The reason why sets of rules were codified or made into codes from as old as 2100-2500 B.C. is simply because a ‘fundamental need’ of doing so was felt by the jurists all over the world. The codification of the rules is those rules exist even today. Codification refers to the “collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice”. By codification, the body of laws is compiled, collected and arranged in a coherent form. This is useful as it helps to avoid overlapping and inconsistency. According to Salmond, “codification means reduction of the whole corpus Juris so far as practicable, in the form of enacted law”.
Thus, the absence of codification of refugee laws does not completely overrun the possibility of the slow degradation and obliviousness of the refugee laws. Codification of refugee law is an essential tool in order to ensure its endurance.
The need for the codification of the refugee laws has been felt indispensably over the years. Moreover India has not even signed the Refugee Convention so far. Refugees in our country have to undergo substantial discrimination for reasons related to their nationality, religion and such other issues which makes their survival highly difficult in our country. The maximum empowerment of the refugees in our country has been to a limit of their getting work as a domestic help in households or a construction labourer at industrial sites. The refugees are forced to take up accommodation in camps, as was the case with the Chakmas. This could be observed in 1995-1997, when the Chin refugees of Burma were heartlessly pushed back the borders of India. The refugees do not get an access to proper education as the Indian educational institutions do not admit the children of the asylum seekers into their schools or colleges.
A few administrative measures do not solve the problem of social discrimination faced by all those who have sought refuge. There has been considerable dispute about the legal status of refugees because in India the asylum-seekers have so far been treated as “foreigners with no legal rights”[v].
Many activists such as Meenakshi Ganguly agree that the basic reason for the sad treatment of refugees in India is the absence of a national legislation pertaining to this issue. With the codification of the rules, the condition of the asylum-seekers could be improved manifold.
Under the Registration Act of 1939[vi], the asylum seekers are registered once they enter our country but this Act is applicable to any and all the foreigners who enter our country and is not specifically meant for the refugees. The Passport Act of 1967 also regulates the entry of all the non-citizens or migrants who cross the borders of India. As per the Passport Act 1967, all those people who enter our country without a legally valid visa or passport can be detained.
The Government, in certain cases, grants an exemption to certain migrants who are not supported by a valid visa or passport as per its own prerogative. The refugees qualify for this exemption. Though this relief is of a valuable help to the distressed refugees but at the same time, the demerits of this system cannot be ignored at all.
Further, the entry, presence, stay and the departure of the aliens is regulated by the Government of India under the Foreigners Act of 1946. It is to be noted here that nowhere in the Act has the term ‘alien’ been explained or even defined.
ADVANTAGES OF CODIFICATION
To begin with, codification of refugee laws would bring forth an element of certainty. The laws with respect to the asylum-seekers would no longer be vague or ambiguous. Every new case that would arise with respect to the refugees would seem less uncertain and equivocal.
Codification of refugee laws would also improve the state of affairs by bringing out simplicity in the operations with respect to refugees. The law on refugees would be clearer to the people by its codification. It would become simple and accessible to all. If the laws are codified, besides bringing about more clarity it would be in a position where greater awareness can be created about the rights of the asylum-seekers.
This will also reflect the uniformity in the operation of the law. When the law would be in a proper form of statutes, body of laws in a systematic and coherent way, the end result would be a well compiled, promulgated set of rules on the subject concerned which would ultimately help in the betterment of the legal framework. If the legal transactions with regards to the refugee laws could be dispensed with ease, they would not only ameliorate the conditions of the destitute asylum seekers but also pave a better way to the country’s development.
An incidental product of codification would be the logical arrangement of all the case laws and statutes with respect of refugee laws. This would help in reducing any sort of conflict and inconsistency that may arise out of the legal system or various laws in the country.
Codification of the refugee laws would also foster the planned development of our country. When the State and other competent authorities would collect, arrange and systematize all the laws regarding the asylum-seekers, it would not only reduce the disarray in this scenario but also nurture the procedure of solving the problems faced by the refugees.
India has adopted an evasive outlook on the matters of refugees. When in 1951, the International Convention of Refugees was enacted, India viewed it as ‘anti-communist’ and Euro-centric[vii]. India even told the United Nations Commissioner for Refugees (UNHCR) that its policies regarding the refugees all over the globe were a part of the Cold War. In 1995, India, after Pakistan, joined the Executive of UNHCR but later refused to sign the Convention of 1951. The rules and regulations were made even more stringent and strict after the 175th Law Commission Report in 2000[viii]. In this report it was established that all those migrants who entered the borders of our nation ‘illegally’, would be tried in a more severe manner than before without taking into account any reason or circumstance because of which the migrants were forced to flee. On the other hand, India became a signatory to the South Asian Association for Regional Cooperation (SAARC) Protocol, the 17th Article of which addresses that the SAARC Nations must, under no circumstance, deport any refugee, or compel any refugee to do anything against his or her wishes.
The Protocol also proclaimed that the SAARC Nations must protect all the hapless asylum seekers and at the same time ensure that their sufferings are reduced and the refugees are neither punished nor prosecuted for matters relating to their religion, race, nationality, origin or threatened due to any political or public opinion.
Out of all the days in a year, June 20th has been devoted for the refugees all over the world. But normally the day rolls by without any notice as hardly anyone today is aware of the Refugee Day. Is it the inadequacy or the lack of attention that is responsible for the pitiable life of the refugees today? Or is it that each country is too busy solving their own issues that it would be too much to make separate attempts towards serving the worn out asylum seekers? Do the countries feel they would ‘welcome’ danger in shape of terrorism, endangering their own culture or peace that makes them think twice before they sign every bill and every convention that is a step towards bringing relief to the hapless asylum seekers? All these questions are a reason as to the hesitation many countries today face on this issue, but needless to say these hurdles need to be overcome in order to provide the refugees a life they deserve. A life that would not only rid them off the torture and harassment they undergo each day of their life but also make the world a better place. Codification in this scenario proves to be an unfailingly useful tool acting as a stepping stone leading to the happiness, welfare and care of the asylum seekers. It is high time that the law makers of our country shift their attention towards the growing problems of the refugees and there is every possibility of the fact that an effective legislation in this matter will not only improve the standard of living of the asylum seekers but also ensure that our country is secure from any sort of external as well as internal threat.
Edited by Raghavi Viswanath
[i] As defined under Article 1 para 2 of the United Nation 1951 Convention.
[ii] 480 U.S., 421 (1987)
[iii] India: Policies and Laws towards Refugees by Tapan K. Bose.
[iv] Indian Law: The Challenges of Recognising Refugee Rights
[vi] Supra, see note 3.
[vii] The Hindu June 24th 2004, Friday edition.