Refugee Law and Policy

Food, shelter and clothing are the most basic needs for a human being. We live in well-structured and built homes, where there is shelter, there is food and there is clothing, also in addition to these, we all are geared with most importantly, our rights. But some people don’t find themselves as privileged as we are. They don’t have proper shelter, they don’t have the availability of proper food, clothes and most importantly their rights. Now you may ask who are these vulnerable people, some says asylum seekers, some says refugee etc.

Now to understand the refugee law and policy, we need to understand the meaning of the word “Refugee”. A refugee is someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reason of race, religion, nationality, political opinion or membership in a particular social group.[1]  Defining refugee in words is easy but giving a person a refugee status is part of the tough process. The person who claims for refugee status and whose claim of refugee status hasn’t been evaluated then the person claiming the refugee status is known as asylum seekers. The method of determination of Refugee is governed by UNHCR but different states have different regulations.

Refugees in India

India, the land of different cultures and diversity makes it a better place for a refugee to reside. Our history is evidence of mass population exchange and mass exodus. The political instability of most of the South Asian countries and diversified religions and their clashes lead to a violent dispute between communities which results in persecution upon a group of people and the people been forced to flee their country and to reside in neighbouring countries like India. But the fate of refugee in South Asia is always been dark and uncertain as most of the South Asian countries including India do not have a policy for the protection of refugee.

India’s refugee saga began when the country witnessed the partition in 1947 which was the most painful population exchanges in the world. The UNHCR convention of 1951 on refugee does not include the millions of people who fled Pakistan and lived in refugee camps in India. The mass population exchange between both the country was not acting of state-supported persecution but it was social persecution. The UNHCR convention at that time does not give refugee status to people who had fled due to Social persecution. The UNHCR convention was solely made for the refugees of World War II. Though India had not acceded to the 1951 UN convention on the refugee.  In the year 1971, about 10 million people came to India to seek refugee status.

This huge exodus had raised the concern of the government of that time, the resources were draining, refugees were getting infected from various diseases and it made India seek International aid for a refugee who was living in Meghalaya, Assam and Tripura. India hosted many refugees from different parts of the world, Tibet since 1959; refugees from Bangladesh since 1971; Chakmas, a Buddhist ethnic minority from former East Pakistan, since 1963; and refugees from Sri Lanka since 1983, 1989 and 1995 due to the civil war. Conflict in Afghanistan since the 1980s and Myanmar’s instability of the 1990s prompted further waves of migration.[2]

Legal Status of Refugees

Refugees are in some-way foreigners who flee their country to protect themselves from persecution, war and violence. They flee from their own country and reside in some other country. Living in other countries illegally make it very difficult for a refugee to survive, so in order to seek shelter in other countries, legal status is very important for them. Legal status provides them privileges, obligations and secured life. In India, there are some groups which are generally accepted as a legal refugee. The Tibetans who fled Tibet after 1959 Tibetan uprising along with their leader 14th Dalai Lama has granted legal status in India, the Srilankan Tamils, 1972 expulsion of Ugandans of Indic origin and generally Indian origin religious minorities, these all are granted legal status in India.[3]

Foreigners who enter or stay in India without a valid visa are officially designated as illegal migrants they can be arrested and deported since they pose a risk to the country.[4] Providing legal status to a refugee is nothing but providing them with Indian citizenship, Article 5 to 11 of the constitution of India deals with citizenship. The current Indian nationality law largely follows the jus sanguinis (citizenship by descent) as opposed to the jus soli (citizenship by right of birth within the territory). The constitution of India has some article which applies to both citizens as well as non-citizens, one such article is Article 21 which guarantee Right to life and personal liberty to the individual. Article 21 of the Indian constitution guarantee the refugee, right to life and personal liberty.

The majority of High Courts and the Supreme Court of India stayed the deportation of refugees on grounds of natural justice. In case of Gurunathan and others vs. Union of India[5] , and in a matter of A.C. Mohd.Siddique vs. Government of India and others[6] , the High Court of Madras showed reluctance in forcing the Sri Lankans refugee to return to Sri Lanka against their will. India does not have specific legislation to govern the refugee in India. The need for specific legislation is clear and certain. In absence of such specific law, all the existing Indian laws apply to refugee such as Indian Penal Code, The Criminal Procedure Code, The Indian Evidence Act etc.

Even though India had not acceded to UNHCR 1951 Convention on Refugees, it has been part of other United Nations humanitarian convention which in some-way put an obligation on India to protect and to provide assistance to refugees who are being forced to flee their country. The constitutional framework of the country plays the main role in protection and assistance to a refugee. Besides Article 21, Article 14 – which provide right to equality, Article 22 – the right to protection under arbitrary arrest, Article 20 – the right to protect in respect of conviction of offences, Article 25 – freedom of religion and Article 32 – approach to the supreme court in violation of fundamental rights are all applicable to non-citizen including refugee. The constitutional framework enables the refugee to live a life with dignity and freedom.

The Citizenship Amendment bill 2019 is seen as a new ray of hope in refugee’s dark world in India’s refugee saga. After the bill gets passed,  migrants that came as refugees from persecuted minority communities like Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from neighbouring Afghanistan, Bangladesh, and Pakistan before 31/12/2014 would be eligible for Indian citizenship, except Muslims, who make up the majority of the three countries.[7] There was sudden outrage observed in India’s capital due to the exclusion of Muslims from the bill. We can’t talk about the effectiveness of the bill for these refugees but still, there is a need for proper specific legislation for refugee in India.

Acute and Temporary Protection to Refugee

The first thing a person is provided after an injury is the  First-Aid. The same goes with a refugee when a refugee flees from his /her country due to persecution, war and violence and get entry into another country than the country’s government provides refugee with acute and temporary protection.  Following acute and temporary protection is being provided to a refugee :

  • Refugee Camp: Refugee camps are built by governments and NGO as the first basic needs of the displaced person is shelter. The camps were built in order to provide accommodation and services to a refugee. A refugee may stay in these camps for years and can get basic facilities like medical, education, food etc. 
  • Durable Solution: The refugees living in camps often find themselves at the risk of diseases, physical & sexual violence, terrorist recruitments etc. Their future and life became uncertain and dark. Providing them with basic human rights and facilities UNHCR ultimate goal is to find three durable solutions for refugee; integration, repatriation, resettlement.[8]
  • Integration: The process of integration provides refugee with a permanent right to stay in the country of asylum. It is giving a refugee a legal status to reside followed by granting of refugee status. Before giving the person a refugee status, the person remains asylum seeker.
  • Voluntary Return: If a refugee wants to return to their country of origin then, there should be a voluntary return of a refugee to their own country from where they got displaced. Also, the return of refugee should be purely on their will and informed decision with full of safety and dignity.

Conclusion

Nobody is born as a refugee, it’s one’s circumstances which propels them towards such decisions. The years of persecution, war, violence and well-founded fear these all make a refugee leave their beloved motherland. The person getting migrated expects a dignified and secured life from the country in which he/she going to seek asylum. The basic human values preach us to spread love and care among our fellow human beings. Everyone deserves his/her rights and so the refugee. Ground realities of refugee living in camps are different from the published facts and figure. They are leaving in a miserable condition with very fewer facilities. Their fate cannot depend upon the goodwill of politicians. Proper specific legislation for refugees is need of the hour which can govern them properly and provide them with a dignified life.


[1] USA for UNHCR, the UN Refugee Agency, at Unrefugees.org

[2] The Status of refugee in India – by Nafees Ahmad, https://www.fairobserver.com/region/central_south_asia/refugees-rights-india-south-asian-world-news-headlines-97021/

[3] Wikipedia – Refugee in India –https://en.wikipedia.org/wiki/Refugees_in_India#:~:text=Currently%2C%20there%20are%20around%208%2C000,operate%20a%20programme%20for%20them.&text=Most%20were%20from%20Afghanistan%2C%20and%20some%20were%20from%20Pakistan.

[4] The Foreigners Act,1946, Indian Kanoon

[5] WP No.S 6708 and 7916 of 1992

[6] 1998(47)DRJ(DB)p.74.

[7] THE CITIZENSHIP(AMENDMENT) BILL 2019

[8] Refugee solution – UNHCR

Aaditya Saraf from Symbiosis Law School, Noida

“I am a person who believes in spreading positivity and happiness all around”

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