The present Hindutva government in New Delhi is trying to put back the clock on Indian civilization’s tradition of being welcoming of refugees and those seeking sanctuary. Presently, the bigoted BJP government of Uttar Pradesh is seeking to deny permission to the hapless Rohingya refugees to rebuild their homes after a recent fire burnt their flimsy huts on the Delhi-UP border. In fact, the land belongs to the Zakat Foundation of India, a Muslim charity. The UP Government is laying claim to a portion of this land.
More worryingly, the proposed amendments to the Citizenship Act will confer citizenship only to those migrants and refugees of Hindu and Buddhist religious persuasion. This violates Article 14 of the Constitution which guarantees the right to equality.
India is not a signatory to the UN Refugee Convention and does not have national legislation regarding refugees. The UN High Commissioner for Refugees (UNHCR) is present in India, but the government permits it access only to r efugees living in urban centres . India extends a refugee-like status to some refugee groups but regards others as economic migrants.
UNHCR’s protection activities in the face of governmental hostility are timid at best. The work of many of its Indian NGO legal partners leaves much to be desired.
To address some issues related to protection of refugees, a writ petition under Article 32 of the Constitution of India has been filed before the Supreme Court to secure and protect the rights against deportation of Rohingya refugees in India. The petition relies on Articles 14 and 21 read with Article 51(c) of the Constitution which protects refugees against arbitrary deportation by the State.
A few in the Rohingya community, one of the most persecuted and vulnerable refugee populations in the world, sought asylum in India due to systemic discrimination, violence and bloodshed carried out by the military in Myanmar. Unfortunately, the Union Minister of State for Home Affairs, Mr Kiren Rijiju, publicly stated and directed State authorities to identify and deport Rohingya refugees who are living in India. Following this, on 8 August 2017, the Ministry of Home Affairs (MHA) issued an advisory titled “ Identification of Illegal Migrants and Monitoring Thereof” which stated that illegal immigrants, particularly those from the Rakhine State, infringe on the rights of Indian citizens and also pose grave security challenges as they are more vulnerable to getting recruited by terrorist organizations. The Advisory refers to provisions under the Passports (Entry into India) Act, 1920 and the Foreigners Act, 1946, and directs the state governments to detect and deport illegal immigrants from Rakhine State.
India is at the heart of refugee movements in the South Asian region, and hosts one of the largest urban refugee populations in the world. Despite this, India is not a signatory to the Convention Relating to the Status of Refugees, 1951 (Refugee Convention), or the Protocol Relating to the Status of Refugees 1967, nor does it have a domestic asylum framework. India’s current asylum framework is characterized by its lack of formal structure and is largely driven by political considerations and geo-strategic interests in the region. The refugee protection framework has traditionally been based on a combination of ad hoc executive policies, complementary legislation and judicial pronouncements.
Since India does not have a specialized law for refugees, refugees automatically fall within the ambit of the Foreigners Act, 1946 (Foreigners Act) and Registration of Foreigners Act, 1939 (Registration Act) that govern the entry, stay and exit of all foreigners, defined as anyone who is not a citizen of India. Thus, it does not recognize the special humanitarian treatment accorded in practice to refugees as distinguished from other classes of foreigners such as illegal immigrants. These Acts have been criticized on two fronts: (a) that they give wide discretionary powers to the State to detain and deport foreigners without adhering to any due process; (b) that these are antiquated legislations entrenched in a colonial mindset. Thus, the Acts fail both in reflecting India’s long-standing humanitarian practice of hosting refugees and in addressing its growing needs as a regional power at the heart of migration movements.
Mercifully, in the absence of a legislative framework, the Indian judiciary has delivered judgments that have proven to be crucial to the protection offered to them in India. The Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh & Anr. (1996) 1 SCC 742) has held that Article 14 and Article 21 of the Constitution would extend to all foreigners, including refugees. Further, with regard to the issue of deportation of refugees, in Dr. Malavika Karlekar v. Union of India (WP (Crl) No. 583/1992), the court recognized the right of asylum-seekers from Myanmar to approach the UNHCR office to determine their status as refugees and ordered a stay on their deportation pending the completion of this process. Further, in Khy Htoon and Ors. v State of Manipur (High Court of Guwahati Civil Rule No. 515 of 1990), the court ordered the release of asylum-seekers from Myanmar, who had been detained due to lack of documentation, and permitted them to apply to UNHCR for asylum. Further, Indian courts in Ktaer Abbas Habib Al Qutaifi v Union of India (1999 CriLJ 919) and Dongh Lian Kham v Union of India(226 (2016) DLT 208) have also upheld the principle of non-refoulement, the customary international law principle that creates an obligation on a country to not deport a person to a place where s/he may face persecution, and have encompassed this principle within Article 21 of the Indian Constitution.
The Indian government has, through practice, recognized refugees as a separate class and has from time to time issued orders that grant them special status and regulate their stay. Most recently, in 2014, the MHA started issuing Long Term Visas (LTVs) to those who had been recognized as “refugees” by the government or the UNHCR. These included Rohingya refugees. When extending the right to apply for LTVs for refugees, Mr. Rijiju stated that were it was established that a foreigner could not return to his/her country owing to a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, such person can be recommended by the State Government/Union Territory Administration to the MHA for grant of a LTV after due security verification
MHA’s visa policy, dated 16 September 2014, recognizes refugees as a separate category and allows them to register and apply for the long term visa using the ID card issued by UNHCR Thus, Mr. Rijuju’s statement on September 5, 2017, reported in The Indian Express, terming all Rohingya refugees to be “illegal immigrants” even if they were registered with UNHCR, contradicts the government’s stand in this regard.
D espite not having signed the Refugee Convention, India is a member of the UNHCR Executive Committee and the current government has consistently expressed its commitment to refugees in the international fora. In fact, it has demonstrated and reiterated its commitment to refugee protection and the principle of non-refoulement.
On 10 July 2017, the government, at the 1st Thematic Discussion towards a Global Compact on Refugees [Geneva, 10 July 2017] stated: " We support the concept of Burden Sharing, including relocation of refugees on case to case basis, that too with the consent of the refugees. While doing so, we need to be cautious not to open the path for re-defining the Refugee Convention and its protocol, and in no case diluting the principle of ‘non-refoulment’.”
Since late August 2017, Myanmar security forces supported by Buddhist militia launched a “clearance operation” that has killed at least 1000 people and forced more than 300,000 to discrimination, facilitated by their effective denial of citizenship under domestic law. The Rohingya have faced longstanding rights abuses, including restrictions on movement, limitations on access to health care, livelihood, shelter, and education; as well as arbitrary arrests and detention, and forced labour.
Clearly, there is an urgent need to do more. The Jesuit Refugee Service (JRS) and the Don Bosco have been working with refugees for many years and providing much needed help in India. Other religious congregations must also consider getting involved with others in the laity also helping. Globally, refugees are getting short shrift. It is only the Catholic Church and the Pope who have taken a moral position on their plight. As Pope Francis put it in his New Year message, “Please do not extinguish the hope in their hearts.”
(The writer is with the South Asia Human Rights Documentation Centre and can be contacted on firstname.lastname@example.org )(Published on 18th June 2018, Volume XXX, Issue 25)