Seeking Refuge

Posted on: October 2, 2015

– The refugee influx into Europe has once again turned the spotlight on India. Sonia Sarkar wonders if it’s time for New Delhi to sign an international convention on refugees

Three-year-old Aylan Kurdi is a symbol of the horrors of displacement. The Syrian boy’s death – his small body was found on a Turkish beach earlier this month – underlined the plight of hundreds of thousands of people fleeing war in Asia to enter Europe.

The displaced people have often been referred to as migrants. But the United Nations High Commissioner for Refugees (UNHCR) states that those who are compelled to flee their countries because of well-founded fears of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion are refugees. Migrants, by contrast, are people who seek better economic opportunities in other countries.

“Syrians who are looking for shelter in other countries such as Greece, France, Ireland and UK are refugees,” says Shuchita Mehta, UNHCR’s spokesperson in Delhi. “They have no choice but to run for their lives and still cannot return home.”

Why then are they often referred to as migrants? “The use of the term ‘migrant’ is often a means of seeking to avoid duties towards refugees,” says James C. Hathaway, director, programme in refugee and asylum law in the University of Michigan.

The tragedy in Europe has once again reopened a debate on refugees and migrants in India. India is home to 4.5 lakh refugees from countries such as Tibet, Myanmar, Nepal, Bhutan, Sri Lanka, Pakistan, Afghanistan, Somalia, Congo, Iran, Iraq and Sudan. But it doesn’t have a legal framework to deal with refugees.

Yet India is not new to refugee influx. In 1959, the Dalai Lama and some 80,000 Tibetans fleeing Chinese oppression were given refuge in India. Over time, they were given basic facilities such as education and healthcare. Refugees also came to India following the Partition of India and later the liberation of Bangladesh.

Over the years, people from countries such as Myanmar, Sri Lanka and Afghanistan have also taken refuge in India because of oppression or insurgency in their own countries.

With India’s porous borders, hundreds of thousands of people have also come to India in search of jobs. The government holds that many of the foreign nationals living in India are not refugees but “economic migrants”. But the line between migrants and refugees is a thin one.

One reason there is little clarity on this issue is that India is not a signatory to the UN Refugee Convention, 1951, which was later amended to the 1967 Refugee Protocol. Human rights experts have for long been urging India to become a signatory.

India has taken recourse to its own laws – the registration of Foreigners Act of 1939, the Foreigners Act of 1946, and the Foreigners Order of 1948.

But the acts and the order, under which foreign nationals can be denied entry into India, have not been successful. Another law, the Immigrants (Expulsion from Assam) Act, 1950, was implemented to check illegal immigration into Assam, but there was a problem there too. The act allowed minority communities of Bangladesh to migrate to Assam on account of “civil disturbances”. But the state did not have an effective mechanism to ascertain who could be exempted.

Human rights experts rue that refugees are not treated equally in India. The UNHCR issues refugee identity cards to people coming in from non-neighbouring countries and also Myanmar. After receiving these cards, they can apply for stay and long-term visas. But people from neighbouring countries are handled directly by the ministry of external affairs.

“Buddhists from Myanmar, who came in large numbers 20 years ago, did not face the problems that Rohingya Muslims from the same country are facing now. The refugee identity cards of the latter have not been accepted by many government authorities. Plus, only a few have got long-term visas so far,” a UNHCR official says.

Tamils from Sri Lanka feel discriminated against too. “Many Sri Lankan refugees languish in prison-like conditions in camps,” states Priyanca Mathur Velath, a professor of political science in Bangalore who has been working on refugee issues.

“While India has accepted several refugees from countries in the region, there are concerns about the access that some refugees have to government services such as education and healthcare,” says Himanshi Matta, media officer, Amnesty International.

The government’s approach to refugees is also political, some activists point out. Recently, for instance, India said it would allow minority refugees from Bangladesh and Pakistan who entered India on or before December 31, 2014, to stay back. Muslims from Bangladesh, however, are referred to as illegal immigrants. “These are all political decisions,” a Supreme Court lawyer stresses.

A 1999 paper titled India’s Failure to Adequately Protect Refugees by H. Knox Thames at the American University Washington College of Law and the School of International Service states that the provisions in the Foreigners Order are ruthless. “Article 11 of the order allows India to control an individual’s place of residence, movement, ‘association with any persons or classes of persons’, and possession of any specified articles.”

The signatories of the UN Convention are barred from expelling refugees under Article 33, but India has also on many occasions expelled refugees, forcing the Supreme Court of India to intervene.

In 1992, the court stopped the deportation of 21 Burmese from the Andaman and Nicobar Islands. In 1996, on the intervention of the National Human Rights Commission, the apex court prevented the repatriation of Bangladesh Chakma tribals because they had lived in India for three decades and “to uproot them… would be both impractical and inhuman”.

Refugees in India cannot be refouled – or repatriated – because India is signatory to other international human rights treaties such as International Conventions on Civil and Political Rights, 1966, (especially Article 13), the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights.

“The principle of non-refoulement is part of customary international law, which means it is an obligation on all countries, even those that have not signed the convention,” explains refugee expert Jane McAdam, director of the Andrew & Renata Kaldor Centre for International Refugee Law, University of New South Wales, Australia.

New Delhi, however, doesn’t believe that it needs to fall in step with international law. “We are doing more than enough for refugees without having signed a convention. What else can we do,” an external affairs ministry official says.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s


  • ranginee09: It is clear, justice eludes many but to imprison a man for his humanitarian deeds in a civilised society leaves an permanent blotch in our criminal ju
  • ranginee09: The article points-out a very pertinent social ill. Social ostracisation in childhood may have unwanted results later in life. A child victim is not a
  • Seeker and her search: Thanks for reading, Anne. Yes, I know what you are saying.
%d bloggers like this: