soniasarkar26

Posts Tagged ‘Refugees in India

– 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.

The plastic roof of Anwara Begum’s shanty in Kalindi Kunj is scant protection against the bitter cold of Delhi. But Begum may not be able to retain even this 8ft by 6ft hut for long. She is one of the thousands of Rohingyas who have fled the Arakan area of western Myanmar over the past two years fearing atrocities by the state and have come to India seeking refuge.

“First, the police shooed us away from a Vasant Kunj mosque and then from Okhla. We may be asked to leave this place too anytime,” says Begum, who lives with her husband and five children in this hut.

Thirty kilometres away in north Delhi’s Majnu Ka Tila, Penba Dolma, a Tibetan, lives in a two-roomed house. Her two children go to a nearby Tibetan school and her husband runs a shop.

“Even though we are hopeful that we would go back to our country one day, India has become a second home now,” says Dolma.

Both Begum and Dolma are refugees in India. But the two lead very different lives. Begum feels like an alien here while Dolma has a sense of belonging to India. This is because India doesn’t treat its refugees alike as it does not have a standardised law for them.

India is home to over 4.5 lakh refugees from various countries, including Tibet, Myanmar, Nepal, Bhutan, Sri Lanka, Pakistan, Afghanistan, Somalia, Congo, Iran, Iraq and Sudan. But refugees from different countries are treated differently here. For example, schools are set up for Tibetans and they have been offered acres of agricultural land in Himachal Pradesh’s Dharamshala. Similarly, designated camps have been set up in Tamil Nadu for the Sri Lankan refugees. Bhutanese and Nepalese live in India under friendship treaties. Some refugees even get work permits. But refugees from other countries don’t enjoy these privileges.

“The status of refugees in India is governed by political discretion rather than any codified model of conduct. A law on refugees is an urgent need to ensure that uniform treatment is given to all,” says Delhi-based lawyer Aarthi Rajan, who deals with refugee-related cases.

Not only does India not have a special refugee law, it is not even a signatory to the UN Refugee Convention, 1951, which was later amended to the 1967 Refugee Protocol. According to it, a refugee is a person who has left his or her own country because of fear of persecution for race, religion, nationality, membership of a particular social group or political opinion and is unable to or, owing to such fear, is unwilling to return to it. Under the Convention, refugees enjoy rights pertaining to their movement, jobs, housing, public education and social security in the country of their refuge.

Experts say that India’s treatment of refugees is discretionary because it is not a signatory to this Convention. But the government points out that there is little to be gained by ratifying it. “Except for Afghanistan, none of the other south Asian countries is a signatory to it, so it doesn’t make sense for India to ratify the Convention,” says a senior ministry of external affairs (MEA) official.

At present, refugees, except for those from Tibet and Sri Lanka, register themselves as asylum seekers with the UN refugee agency, United Nations High Commissioner for Refugees (UNHCR).

“The terms ‘asylum seeker’ and ‘refugee’ are often confused. An asylum seeker is one who claims to be a refugee, but whose claim has not yet been definitively evaluated. But we conduct their interviews and grant them refugee status over a period of nine months,” says Nayana Bose, associate external relations officer, UNHCR.

But interestingly, India does not recognise the UNHCR’s grant of refugee status. This often leads to confusion among refugees.

An attempt was once made to frame a holistic law related to refugees. Former Chief Justice of India, P.N. Bhagwati, had drafted a model refugee law, based on which the Refugees and Asylum Seekers Protection Bill was framed in 2006. But the bill was never tabled in Parliament. According to security forces it gave too broad a definition of the term “refugee”.

The bill stated that the determination of an application for asylum should not be limited to fear of persecution by the government alone. The asylum seekers may also be victims of a non-government group that makes it untenable for them to live in their native country.

Security forces argued that this would pose a danger to national security as India shares porous borders with neighbouring countries. “This provision would have allowed illegal migrants to come to India under the garb of a refugee,” says a Border Security Force official.

A senior MEA official echoes a similar concern. “Since there is no clear differentiation between a refugee and an illegal migrant either in the convention or the model law, this would aggravate our problems of illegal immigration and insurgency,” says Rohita Mishra, under secretary, United Nations Economic Social Division, MEA.

Apart from the danger of illegal migrants posing as refugees, there have also been some instances of refugees being tried as illegal migrants. Recently, a Rohingya family, which was trying to make its way to the UNHCR office in Delhi, was arrested by the police. All the family members were tried and convicted under the Foreigners Act, 1946, for being illegal immigrants.

“Currently, refugees are being dealt with under the Foreigners Act, but this law does not deal with the term ‘refugee’. Here, the term ‘foreigner’ is used to cover aliens temporarily or permanently residing in the country. That’s the reason why India should formulate a law with a clear definition of a refu-gee to ensure that no refugee is apprehended as an illegal migrant,” says advocate Shubhodeep Roy, who has worked on cases related to refugees.

Rajan suggests that fugitives or persons fleeing from criminal prosecution for non-political reasons should be kept out of the ambit of the definition of refugee. The law should also have the provision for non-refoulement, “which means that a refugee cannot be sent back to the place from which he has fled so long as the compelling circumstances persist,” she adds.

Activists are also pushing for a law that will deal with harassment of refugees. “Cops often extort money from refugees. At times, even our children are subjected to abuse. We want a humane law that would safeguard our interests,” says Suraiya Ebadi, a refugee from Afghanistan.

The UNHCR too has been urging India to come up with a national law. “Building upon what is already being done for refugees in India, a national legal framework will formalise India’s tradition of hospitality and generosity towards refugees,” says Bose.

 Until that happens, people like Ebadi and Begum will continue to live in fear and insecurity.

(The Telegraph, December 26, 2012)Image.



  • mamun ibne hussain: dont take it negatively but we are indian and our daughters should not follow the filthiest dirtiest horrible european and american womens the w
  • Susmita Saha: Memories truly have a special place in the treasure trove called life. And your memories shine like jewels in this piece.
  • saimi: That is a lovely one Sonia.. and I can relate to so many things that you mention ...