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India’s Refugee Problem

India’s Refugee Problem

Why in news?

  • Myanmarese citizens, including little children fleeing from a Myanmar’s military, being turned away at the Indian border in the Northeast has once again revived the domestic debate about refugee protection in India.

India’s History With Refugees

  • Partition of India and Pakistan in 1947 – The scale of the problem was unprecedented to the newly formed Government of India. The city of Faridabad had to be rebuilt to rehabilitate the refugees. Social reformers like Kamaldevi Chattopadhyay and many others played an important role in the rehabilitation of refugees.
  • Tibetan Refugees in 1959 – Dalai Lama and his 1 lakh followers were granted asylum in India when they were persecuted by Chinese authorities.
  • Sri Lankan Civil War – It resulted in the migration of huge numbers of refugees from Sri Lanka who settled in Tamil Nadu.
  • Bangladesh War – This crisis happened in 1971 when million migrated to India to flee the conflict in Bangladesh
  • Rohingya Refugees – The recent conflict in Myanmar resulted in a huge influx of Rohingya refugees in India.
  • Afghan Refugees – As per UNHCR report more than 2,00,000 Afghan refugees are living in India.

Issues/Challenges

  • Ad-hocism in dealing with refugees: The absence of such a legal framework also leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism which, of course, often has its own ‘political utility’.
  • Lack of Proper Legal Framework: India is legally ill-equipped to deal with refugees and illegal immigrants separately due to a lack of legal provisions. India is not a party to the 1951 Refugee Convention and its 1967 Protocol the key legal documents pertaining to refugee protection.
  • Domestic politicisation of refugee protection Absence of a legal framework and Ad hoc measures enable the government in office to pick and choose ‘what kind’ of refugees it wants to admit for whatever political or geopolitical reasons, and what kind of refugees it wants to avoid giving shelter, for similar reasons.
  • Lacks differentiation b/w Refugees & illegal Immigrants: Illegal Immigration and Refugees are two different things. However, as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946. Due to this, government’s policies and remedies to deal with these issues suffer from a lack of clarity as well as policy utility.
  • Credibility of India as responsible power questioned: India, for the most part, has had a stellar record on the issue of refugee protection, a moral tradition that has come under great stress of late. New Delhi has been one of the largest recipients of refugees in the world in spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol.                                                India’s Refugee Problem
  • Complicates geopolitical faultlines: Absence of legal framework & politicization of refugee problem opens the door for geopolitical considerations while deciding to admit refugees or not.

Legislation in india

  • India is not a signatory to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol
  • Further it does not have a legal framework and national refugee status determination system.
  • No clear definition of refugees
  • Foreigner’s Act, 1946
    • Asylum seekers and refugees are covered under the Foreigner’s Act of 1946
    • The Foreigner Act makes the undocumented physical presence of a foreigner in India a crime.
    • It also empowers the government to detain a foreigner illegally living in the country till that person is deported.
  • Asylum Bill, 2015
    • In 2015, Congress MP Shashi Tharoor introduced the Asylum Bill, 2015 (Private Member’s Bill)
    • Objectives:
      • To formally define-
      • A refugee,
      • Eligibility for asylum,
      • Rights of refugees, asylum seekers
      • Entitlements and obligations
      • Set a time-bound legal framework for naturalization
    • Proposes the establishment of an autonomous National Commission, which will assess and determine claims for asylum in India.                      India’s Refugee Problem

Constitutional Safeguards

  • Article 14: Requires India to “not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
  • Article 21: prevents the state from allowing any person to be “deprived of his life or personal liberty except according to procedure established by law.”
  • Article 51(c): State is to foster respect for International laws and treaties.

India’s Argument for Not Signing the 1951 Refugee Convention

  • The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals.                                India’s Refugee Problem
  • For instance, a person, under the definition of the convention, could be considered if he/she is deprived of political rights, but not if he/she is deprived of economic rights.
  • If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
  • On the other hand, this argument, if used in the South Asian context, could be a problematic proposition for India too.

Who is a refugee?

  • A refugee is a person who fled his country due to the risk of serious human rights violations and persecution there.                    India’s Refugee Problem
  • These refugees have a right to international protection under the UN Refugee Convention and its protocol.

Who is an asylum-seeker?

  • An asylum seeker is someone who claims to be a refugee but whose claim hasn’t been evaluated. An asylum seeker will turn into a refugee if the claim is evaluated and justified.
  • Refugee Status Determination (RSD) is a legal process used by governments or UNHCR(UN High Commission for Refugees) to determine the refugee status of an asylum seeker under international, national or regional law.

Who is a migrant?

  • Migrants are persons moving to another country not due to direct threat or persecution but due to improving their lives.
  • Migrants can return home if they wish(But refugees and asylum seekers cannot).

Conclusion

  • A domestic refugee law should allow for temporary shelter and work permit for refugees.
  • This is crucial because in the absence of proper legal measures, refugee documentation, and work permit, refugees may end up becoming illegal immigrants using illicit means.
  • Make a distinction between temporary migrant workers, illegal immigrants and refugees and deal with each of them differently through proper legal and institutional mechanisms.                    India’s Refugee Problem

 

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