Protection of Refugees in India

resistance OF REFUGEES IN INDIA Deepak Shahi and Navrati Dongrey second year B. A LL. B (Hons) . Rajiv Gandhi National University of virtue of nature, Patiala, Punjab pinch The development of the companionship and the nation brings with itself a comp wizardnt part of paradoxs likewise. There atomic number 18 a lot of problems set ab disc over by India, be it gender places, poverty, unemployment etc. oneness of these burning issues is the aegis of refugees.Refugees atomic number 18 those concourse who pass migrated from otherwise surface atomic number 18a desireing shelter and security. This stem deals with the various efforts recognisen to cling to them at the subject field as hale as international level. The purpose of protection refugees in India dates back to the partition in 1947, which brought in India millions of refugees. Then came the creation of Bangladesh which invited refugees who settled in eastern renders. The omit of consistent practic e of justness authorities the refugees has created chaos and dealing with the problem.The instable companionable, political and stinting condition in the neighbour countries had led to the closed protest of natives of these countries in India, as India is subscribeed to be a very halcyon destination to live in illeg t step up ensembley. There atomic number 18 lot of problem organism faced by the presidential marches to tackle the growing number of refugees. The lack of strict vigil of the butt againsting resigns is one the reason for the settlement of refugees in India. This paper studies the protection provide by the Indian brass to refuges and deals with the problem faced by them.In the end in that respect is the conclusion and most(prenominal) suggestion given by us regarding the issue of protection. INTRODUCTION Indias multifariousness, constancy and relatively comfortably formal rule of law pretend make it a ind thoroughlying terminus for people fleeing pers ecution, ill-treatment, derangement and instability in their own countries. Within the southeastern Asian region, India stands out as an elision of tolerant, liberal, democratic and secular political sympathies in a vicinity of unstable, fickled and vaporific states.India has historic exclusivelyy faced a server of inflowes over more millennia and the ability of these people to incorporate into a multi-ethnic society and contri howevere peace in fully to local cultures and economies has strengthened the information of India being a inelegant tradition tout ensembley genial to refugees. India shargons seven shore borders and one sea border with countries in vary states of strife and war and, over the historic period, has innkeepered large refugee existences non only from neighbouring countries but overly from the countries outside the Indian subcontinent.Throughout the world and over the centuries, societies set out welcomed f flopened, play out strangers, the victims of persecution and violence. This humans raceist tradition of offering sanctuary is much now played out on goggle box screens across the globe as war and large persecution produce millions of refugees and internally displaced somebodys. Yet even as people continue to flee from threats to their lives and freedom, governing bodys are, for m some(prenominal) reasons, decision it increasingly difficult to reconcile their addition impulses and covenants with their internal emergencys and political realities.At the start of the twenty-first century, protect refugees means maintaining solidarity with the worlds most threatened, while finding answers to the challenges confronting the international system that was created to do just that. 1 REFUGEE A person who is outside his or her body politic of nationality or habitual residence has a hygienic-founded fear of persecution because of his race, religion, nationality, social military position of a peculiar(prenominal) social group or political creed and is unable or unwilling to avail himself or herself of the rotection of that country, or to parry on that point, for fear of persecution. 2 According to the humanist interpretation, a refugee is any(prenominal)one 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 discovers that a person is not returned to a life-threatening situation. 3 Refugees are a subgroup of the liberaler year ofdisplaced persons. Refugees flee because of the threat of persecution and empennagenot return safely to their business firms in the prevailing circumstances.Persons, who stand participated in war crimes and impingements of humanitarian and human rights law including the crime of terrorism, are specifically excluded from the protection accorded to refugees. 4 too Environmental refugees (people displaced because ofenvironmentalprobl ems such(prenominal) asdrought) are not included in the definition of refugee chthonicinternational law, as well asinternally displaced people. Refugees are people who become demonstrated to the Immigration and Nationality Directorate that they have a well grounded fear of being persecuted in their home country for reasons of Race Religion Nationality Or membership of a particular Social group governmental opinion These conditions are set(p) down in the 1951 linked Nations concourse relating to the status of refugees to which the joined prop up is a signatory. Sometimes people assholenot meet the criteria laid down in the 1951 United Nations Convention but may be allowed to plosive in the United Kingdom on humanitarian grounds for a shapeed period of time. Refugees have the same rights and responsibilities as any other citizen, including rights associated with Family reunion Welfare Benefits diddle THE DEFINITION OF REFUGEES INCLUDES 1. That the person has to be o utside their country of business line 2. The reason for their flight has to be a fear of persecution 3. This fear of persecution has to be well founded (i. e. they have to have go throughd it or be liable(predicate) to experience it if they return) 4. The persecution has to result from one or more of the five grounds listed in the definition 5. They have to be unwilling or unable to seek the protection of the authorities in their country5HOW IS REFUGEE DIFFERENT FROM sanctuary SEEKER? An foundation seeker is a person who is seeking protection as a refugee and is lifelessness delay to have his/her claim assessed. The Refugee Convention definition is used by the Australian Government to posit whether their country has protection obligations towards asylum seekers. If an asylum seeker who has r separatelyed Australia is found to be a refugee, Australia is obliged chthonian international law to offer protection and to ensure that the person is not sent back unwillingly to a co untry in which they risk being prosecuted. 6 Refugees and asylum seekers are externally displaced people and bungholenot return Refugees and asylum seekers share their well-founded fear of persecution with internally displaced people (IDPs) who, although they have not crossed an international border, overly cannot return to their homes. WHERE DO REFUGEES COME FROM? more or less of the worlds recent refugees come from sheepskin coatistan, Iraq and Colombia. Afghanistan move to be the pass a keen-sighteding country of stock certificate for refugees. As of the end of 2007, there were close to 3. million Afghan refugees, or 27 per cent of the global refugee population. make up though Afghan refugees were to be found in 72 asylum countries worldwide, 96 per cent of them were regain in Pakistan and the Islamic Republic of Iran alone. Iraqis were the second largest group, with 2. 3 million having sought-after(a) refuge mainly in neighboring countries. Afghan and Iraqi refugees ci rcular for almost half of all refugees nether UNHCRs state worldwide, followed by Colombians (552,000). 7 Top countries form where the Refugees originates Afghanistan 31,100,000 Iraq 23,00,000 Colombia 552,000 Sudan 523,000 Somalia 457,000 Burundi 376,000 DR congou 370,000 Following countries takes Refugees Pakistan 2,033,000 Syria 1,503,800 Iran 963,500 Jordan 578,900 Germany 500,300 Tanzania 435,600 china 301,100 UK 299,700 Chad 294,000 us 281,200 INDIAN stage setting Indias diversity, stability and relatively well constituted rule of law have made it a natural destination for people fleeing persecution and instability in their own countries. Within the siemens Asian region, India stands out as an exception of tolerant, democratic and secular government in a neighborhood of unstable and volatile states.India has historically faced many influxes over many millennia and the ability of these peoples to integrate into a multi-ethnic society and contribute peac efully to local cultures and economies has reinforced the perception of India being a country traditionally hospitable to refugees. India shares seven land borders and one sea border with countries in varied states of strife and war and, over the years, has hosted large refugee populations from neighboring countries. Indias status as a preferred refugee harbor is confirmed by the steady flow of refugees from many of its sub Continental neighbors as also from elsewhere. India continues to receive them despite its own over-a-billion population with at least six cardinal million living in poverty with limited access to fundamental amenities.However, the Indian legal textile has no uniform law to deal with its Brobdingnagian refugee population, and has not made any progress towards evolving one every until then, it chooses to treat incoming refugees based on their national origin and political considerations, questioning the symmetry of rights and privileges granted to refugee comm unities Indeed, the National Human remediates Commission (NHRC) has submitted numerous reports. The current number of refugees and asylum seekers in India stands at more or less 435,900 according to the World Refugee Survey 2007 conducted by the United demesnes deputation for Refugees and Im migratorys (USCRI), and supported by the a la mode(p) figures from the United Nations High Commissioner of Refugees (UNHCR). 8 India mostly plays host to refugees from its neighboring countries who are either forced to leave their countries of origin due to internal or external conflict, political persecution or human rights infringements.India has offered refugee status to asylum seekers from countries akin china, Nepal, Sri Lanka, Myanmar, Bangladesh, Afghanistan and Bhutan. 9 The circumstance in which the refugees exodus from their country may vary from political persecution However, it is clear that all these refugee populations deserve their basic human rights and the assistance that c an be afforded by the Government of India. To define the articulate refugee in Indian legal terms is theoretically not possible since neither the Foreigners Act (1946) nor its amendments or additions, contains or defines the term. However, this study shall consider the definition propounded by a commission chaired by Justice P N Bhagwati in 1997,10 whose working associate 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 constabulary as either. There are no coercive statistics on the number of people who have fled persecution or violence in their countries of origin to seek precaution in India. However, because of Indias poriferous borders and accommodative policies, it was estimated that India hosted approximately 3, 30,000 such people in 2004. 11 It is estimated that over 20 lakh Nepalis fleeing from civil conflict have entered India unobserved over the open border. Ther e are also an unknown but large number of people displaced from Bhutan because of their ethnic-Nepali origins. 12LEGAL SETUP FOR REFUGEES shelter after the Second World War, the Refugee Convention was adopted with cut back geographical and temporal conditions to lend oneself to post-War Europe In 1967, in an effort to give the Convention universal joint application, a Protocol Relating to the Status of Refugees that removed the leapions of the Convention was added. Together, these two key legal documents provide the basic framework for refugee protection across the world. As of February 2006, 146 countries were States Parties to either the Convention or its Protocol or both. However, India has repeatedly declined to join either the Refugee Convention or its 1967 Protocol.In addition, India has resisted demands for a national legislation to govern the protection of refugees The relative success that India has had with this approach, which is guided by political instinct free from legal obligation, has led to an institutional complacency towards legal rights-enabling obligations to refugees. There has also been a hardening of attitudes about outsiders in recent years in light of heightened security concerns. This has resulted in veridical refugees paying an unfortunate price in a country that otherwise has an impressive history of protecting refugees. FOREIGNERS ACT, 1964 India relies on the Foreigners Act, 1946 to govern the admittance, puzzle and exit of foreigners in India. However, the Foreigners Act is a gross legislation that was enacted as a reaction to the train of Second World War in the colonial period.The continuity to deal with this legislation in self- take awayed India even after the independence only deliver the governments desire to retain dogmatic power to deal with foreigner13 and thus covering all refugees within its ambit as well. CONSTITUIONAL PROVISION Also some provision of the Indian shaping14 reflect that the rules of nat ural jurist in common law systems are equally applicable in India, even to refugees. The established principle of rule of law in India is that no person, whether a citizen or an alien shall be deprive of his life, liberty or property without the authority of law. The Constitution of India expressly incorporates the common law precept and the Courts have gone further to raise it to the status of one of the basic features ofthe Constitutionwhich cannot be amended.Courts may establish international law only when there is no conflict between international law and home(prenominal) law, and also if the provisions of international law sought to be applied are not in contravention of the spirit ofthe Constitutionand national legislation, thereby enabling a harmonious construction of laws. It has also been firmly laid that if there is any such conflict, then domestic law shall prevail. 15 RESTRICTED aliment OF THE CONSTITUITION There are a few Articles of the Indian Constitution which ar e equally applicable to refugees on the Indian soil in the same guidance as they are applicable to the Indian Citizens The compulsive Court of India has consistently held that the Fundamental Right enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the feature whether they are citizens of India or aliens. 16 The various High Courts in India have liberally adopted the rules of natural justice to refugee issues, along with recognition of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role in the protection of refugees. The Honble High Court of Guwahati has in various judgments, know the refugee issue and permitted refugees to approach the UNHCR for determination of their refugee status, while staying the expatriation orders issued by the district court or the administration. In the case of National Human Rights Commission v. State of Arunachal Pradesh 17the Honble Supreme Court held that refugees are a class apart from foreigners deserving of the protection of Article 21 of the Constitution. INDIANS CONCERN TOWARDS REFUGEES PROTECTIONThere have been a number of spare legislative measures to deal with refugee influxes inspite of any law which makes refugees as a special class distinct from foreigner Special laws to deal with refugees have been used primarily by the various State Governments18 There are three main way in which the Indian government deal with refugees are refugees in lot influx situations are received in camps and accorded brief protection by the Indian Government including, sometimes, A. A certain measure of socio-economic protection B. Asylum seekers from due south Asian countries, or any other country with which the government has a sensitive relationship, apply to the government for political asylum which is usually granted without an panoptic refugee status determination subject, of course, to political exigencies C. Citizens of other countries apply to the Office of the United Nations High Commissioner for Refugees (UNHCR) for individual refugee status determination in accordance with the terms of the UNHCR rule and the Refugee ConventionThe first foreign influx of refugees occurred in 1959 from Tibet when the government, politically uncomfortable with China, set up get across camps, provided food and medical supplies, issued identity documents and even transferred land for exclusive Tibetan enclaves across the country for subtlety and occupation along with government provided housing, healthcare and educational facilities. The Sri Lankan Tamil refugees, having arrived in India in three waves outset in 1983, have also been relatively well received in the geographically and ethnically nigh State of Tamil Nadu where a large stage of local integration has occurred. In comparison, the Chakma influxes of 1964 and 1968 saw a subdued and reluctant government response. 19 The largest mass influx in post-Partition history occurred in 1971 when approximately 16 million refugees from erstwhile East Pakistan sought caoutchouc in India.Although most of the refugees returned within a year, the experience left the Indian government both tart at the non responsiveness of international organizations and complacent in the confidence of being able to deal with hereafter mass influxes. Refugees who are not extended direct assistance by the Indian Government are free to apply to the UNHCR for recognition of their asylum claims and other assistance. The ambivalence of Indias refugee policy is sharply brought out in relation to its Treatment of the UNHCR. While no formal arrangement exists between the Indian government and the UNHCR, India continues to sit on the UNHCRs Executive mission in Geneva. India has not even signed refugees blueprint. It is ill-considered but true that India allows UNHCR to operate it on its dirt despite of being entered into any legal treaty. REFUGEES ho nest UNDER LAW IN INDIAMany experts in the area of refugee law believe that the more concrete alternative to proposing an entirely new law is to foment for changes in Indias current policy regarding refugees. As stated above, no current Indian law refers directly to refugees. Refugees thus fall under the scene of the legislative framework that addresses all foreigners in India in the same way, under the Foreigners Act 1946. The Act contains broad powers of cargo hold subject to the discretion of the decision maker, and makes illegal entry into the country a crime punishable by up to 5 years with no exception for refugees and asylum seekers. Also pertinent to determining the rights of refugees in Indian law are two pre-independence enactments that modify the government to impose stringent conditions of entry and stay in India.This body of legislation indisputably gives the Indian executive excessive powers over foreigners in India, includingthe power to restrict movement inside India, to mandate medical examinations, and to limit employment opportunities. This framework is problematic for refugees because the governments unrestrained power of expulsion could possibly lead torefoulementand deny refugees their basis human rights while in India in contravention of international obligations. The Extradition Act 1962 provides some protection to refugees facing extradition by restricting the governments freedom to remove from its territory a particular category of foreigners. 20This restriction, however, is so narrowly relevant that it does not provide any real safeguards for the volume of refugees in India whose removal from the territory is most believably to fall under the category ofexpulsion instead thanextradition. INDIAS INTERNATIONAL EFFORT IN THE PROTECTION OF REFUGEES Although India is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, it is party to a number of international human rights instruments that create protection obligati ons toward refugees. Indian and other commentators from ontogeny countries also call attention to the current state of flux in international refugee law.In a statement to the Executive military commission of the UNHCR in October 2003, the Indian Permanent Re attestative pointed out that the situation of refugee and migratory movements in the world today are immensely different from what they were when the UNHCR was created and this had to be reflected in practice to advance the UNHCRs ability to play a important role. 21 THE 1951 REFUGEE CONVENTION The 1951 refugees principle is considered as an internationally agreed instrument and a mile rock-and-roll in refugees protection, since as mentioned earlier in the definition22. A person becomes refugee as soon as he or she is in the situation, and not after a state has formally know him to be so.He automatically becomes entitled to the protection under this definition. The well found fear is to be judged to the advantage of the c laimant which should take into account the situation prevailing in his origin and his individual circumstances. Persecution is not defined in the convention but has been interpreted to mean a violation of someones basic human right of sufficient gravity that the protection of another state is needed. 23 INTERNATIONAL COVENANT ON urbane AND POLITICAL RIGHTS (ICCPR) It recognizes the inherent dignity and of the equal and unalienable right of all member of the human family. It takes into account the Universal Declaration of Human Rights and character of the United Nation.It binds that state to conform to the spirit of the covenant each party to the covenant to respect and ensure to all individual within its territory the rights herein recognized without distinction of any kind via race, color, sex, language, political or other opinion national or social origin property birth or other status. 24 CONCLUSION AND SUGGESTION Although Indias past efforts in dealing with mass influxes has b een commendable, its geopolitical position in the subcontinent makes it a preferred destination for asylum seekers and migrant workers. It can be easily seen from the foregoing paragraphs that India stock-still its own security concerns, particularly in the drop dead couple of tenners, and pressure of population and the attendant economic factors, continues to take a humanitarian examine of the problem of refugees.Even though the country has not enacted a special law to govern refugees, it has not prove to be a serious handicap in coping satisfactorily with the enormous refugee problems besetting the country. The spirit and table of contents of the UN and International Conventions on the subject have been, by and large, honoured through executive as well as judicial intervention. By this means, the country has evolved a virtual(a) balance between human and humanitarian obligations on the one hand and security and national saki on the other. The need for a refugee law is immed iate. The uniform treatment of refugees is a must as long as India continues to accept asylum seekers across its porous borders.The restrictions and unequal treatment imposed on the refugee population by the Indian government is discriminatory and tarnishes its human rights record, which is not outstanding in any case. India can require foreigners to reside in mandated areas, thereby veto their right of movement across the country, and providing India the ability to suppress foreigners to refugee camps and conduct periodic camp inspections. One of the concerns that the host states have is the environmental degradation, which results from the activities of the refugees. The concern is real and of necessity to be addressed. In this regard the national law can place certain duties on the local administration, aid agencies, and on the refugee community. Often simple measures can avoid causing harm to the environment.For example in Bangladesh the UNHCR has distributed compressed rice h usks as cooking can to all families in the refugee camps in order to defame the collection of firewood and mitigate against deforestation around the camps. Since 1996, kerosene used for the ignition of the compressed rice husks is also being distributed to refugee families, to ensure that they do not need to collect firewood for this purpose. From the perspective of closures, an important question which need to be addressed concerns the problem of stateless persons in the region. For, among other things the problem of disputed nationality is the major impediment in the process of repatriation. For example there are four large groups of stateless persons in the randomness Asian region.Despite the widespread consensus that detention should be viewed as an exceptional measure, a problem which confronts the refugees is detention without justification. The provision of the International Human Rights Law, which offers protection against imperative arrest and detention should be pr operly implemented. A key problem in India relates to the frequent defense of access to camps to NGOs and the UNHCR. While India may have coherent concerns that motivate NGOs and states may indulge in disinformation to halt it before the international Community, the problem can be handled through establishing more effective communicative bring and diplomacy. The increasing emphasis of UNHCR in the last decade on voluntary repatriation as a solution meant that refugees are often returned against their will.Where return has been voluntary there needs to be thought given to formulate effective mechanisms to ensure that the state of origin lives up to the promises which it had made in order to persuade refugee to return. so the chakma refugees who returned from India to the Chittagong Hill Tracts In Bangladesh found that the Government did olive-sized to give them back their lands, or to provide them with becoming resources to guarantee a minimum standard of life. 25 Without any law or protocol, the Indian government has full autonomy to decide which rights and freedoms should be conferred upon which groups. Even kick upstairs communities like the Tibetan refugees have suffered due to lack of a firm policy. There is also a need for a change in the law.The mystify law has not been sufficiently considered by the nitty-gritty 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 argumentation 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 worlds most persecuted to be perceive so as to mould future policy.If India is w aiting for a cue from its neighbour, China has joined the convention and enacted refugee protection legislation. African countries have got together to set up both national and regional solutions. India needs to critique 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 regions needs and the capacity to start refugees under conditions of global equity. 1Ms. Kate Jastram and Ms.Marilyn Achiron, Refugee Protection A sharpen to International Refugee Law, http//www. ipu. org/PDF/publications/refugee_en. pdf, (29 April 2010) 2 Article 1 of 1951 Refugee convention 1951 3 Rajeev Dhavan, Refugee Law and Policy in India (New Delhi PILSARC, 2004), p. 156. 4 Basic Facts, http//unhcr. org. ua/main. php? article_id=5&view=full ( 29 April 2010) 5 Article 1A(2) of the Refugee Convention, 1951 6Background information of refugees and asylum seeker http//www. refugeecouncil. org. au/docs/news&events/RW_Background_Information. pdf (visited on twenty-sixth march 2010) 7World Refugee Survey 2007, United States Committee for Refugees and Immigrants, http//www. refugees. org/WRS_Archives/2007/48- 69. 27 march, 2010) 8 Rajeev Dhavan, On the Model Law for Refugees A response to the National Human Rights Commission (NHRC), NHRC Annual Reports 1997- 1998, 1999-2000 (New Delhi PILSARC, 2003). 9 Drafted under the auspices of the Regional Consultations on Refugees and Migratory Movements in South Asia initiative in 1995, with Justice P N Bhagwati as the Chairperson of the Drafting Committee of the India-specific version of the national law on refugee protection. 10 Florina Benoit, India A National Refugee Law Would Equalise Protection, Refugees International, 2004. 11 Asian instruction Bank, Nepal Country Strategy and Programme 2005-2009. 12 Section 2(a) of the foreigners act, 1964 defines foreigner as a person who is not a citizen of India. 13 Article 22(1), 22(2) and 25(1) of the Indian organisation 14 T.Ananthachari, Refugees In India Legal Framework, Law Enforcement And Security http//www. worldlii. org/int/journals/ISILYBIHRL/2001/7. html, (1 April 2010) 15 Articles,14,20 and 21 of the Indian Constitution 16 AIR 1966 SCC 742 17 UNHCR Statistical annual India, 2003, UNHCR Geneva. 18 National Human Rights Commission (1996) 1 SCC 742 at pr. 15 19 V. K. Dewan, The Extradition Act 1962in Law of Citizenship Foreigners and Passports, second ed, Allahabad Orient Law House, 1987,p. 515. 20 James Hathaway, The Emerging politics of Non-Entree, Refugees, Migration Review Vol. 91, December, pp. 40-41. 21 Article 1A(2) of the Refugee Convention,