[This note has been authored by Soumyajit Joardar].
Introduction: The Refugee Convention of 1951
The term ‘refugee’ refers to people who are forced to flee their country due to the threat of persecution. The first refugees were white protestants who had to flee France due to religious persecution in 17th century Europe. However, the concept garnered further interest only in the aftermath of World War II. Subsequently, in 1950, the United Nations High Commissioner for Refugees was instituted to safeguard the interests of the Europeans displaced during the conflict period.
The Refugee Convention 1951 defines ‘refugee’ as a person who is unable or unwilling to avail the protection of their country of nationality and is residing outside their country due to the fear of prosecution based on factors such as race and religion or membership of any other social group. Article 33 of the Convention, through the principle of non-refoulement, has forbidden nations from returning refugees to the country where they would face the threat of persecution. Article 31 prevents States from penalising refugees for illegal entry until they present themselves to the authorities and show cause. Article 32 of the Convention protects expulsion of refugees except on grounds of national security or public order in accordance with due process.
In 1967, an additional Protocol was enacted to further safeguard the interests of the refugees. It removed the temporal and geographic limitations of the 1951 Convention. While India is not a signatory to the Refugee Convention, it is bound by certain principles of the Convention, such as non-refoulment, as they have become customary international law.
India’s International and Constitutional Law Obligations Towards Refugees
India is also a party to the International Covenant on Civil and Political Rights (ICCPR), 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), 1963. Hence, India is obligated to protect and preserve the rights of the refugees by virtue of principles such as non-refoulement and in light of its other civil rights related obligations under the ICCPR, ICESCR and the CERD.
India’s Treatment of Refugees: An Overview
India’s experience with Refugees began in the aftermath of the partition, when it dealt with mass inflow from Pakistan (and vice-versa) due to religious persecution. Nonetheless, in the years since then, India has not adopted a uniform policy on the issue. Instead, the treatment refugees receive depends on their country of origin.
The government has taken active steps to cater to the refugees from Tibet and Tamils from Sri Lanka. The Ministry of Home Affairs has categorically stated that India refers to only Sri Lankan Tamils and Tibetans as refugees and has specifically aided the Tibetans in multi-dimensional ways. The Tibetans have been provided land for settlement in Karnataka, Himachal Pradesh and Uttarakhand in addition to access to education, health care and welfare of their community interests. The Sri Lankan refugees, however, have not received the attention of the government. They find themselves languishing in camps in Tamil Nadu. These camps lack basic facilities such as sanitation and security. However, groups like the Chakmas or the Rohingyas are not treated like the Tibetans or Sri Lankan Tamils. Instead, India has been lackadaisical in providing basic facilities to the Chakma and Hajong refugees.
Refugees from Myanmar have been treated differently and have been referred to UNHCR by the government. The role of the UNHCR is to preserve the interest of refugees and asylum seekers not protected by the Government of India. The UNHCR currently hosts 40,859 refugees and asylum seekers. Once determined by UNHCR as refugees, the individuals receive refugee cards which allow them access to education in government schools and free medical treatment in government hospitals. It also acts as a guarantee against forced deportation.
Having been surrounded by countries such as Bangladesh and Myanmar, India is in a unique position to take into account cultural interests of its neighbours alongside demographical considerations. However, the usual responses from India are limited to resources and infrastructure as a hindrance to accept refugees. There has been a resounding political consensus on this issue.
The Ministry of Home Affairs has taken a consistent position regarding the refusal of rights to the refugees to settle in the country. There has been a persistent understanding that the refugees are a burden on the taxpayers of the country. However, the fact that the refugees contribute significantly to the country’s economy is overlooked. Unfortunately, public discourse around India’s failure to fulfil its international law obligations towards Refugees is minimal. The status quo of non-uniformity reigns the landscape.
- P Oberoi. (2001) “South Asia and the Creation of the International Refugee Regime” Refuge, available at https://refuge.journals.yorku.ca/index.php/refuge/article/view/21228/19899.
- BS Chimni (2000) ‘Legal Conditions of Refugees in India’ in International Refugee Law: A Reader.
- Refugees Defined and Described in The Refugee in International Law (3rd Edition) Guy S. Goodwin-Gill, Jane McAdam, OUP.
- CITIZEN REFUGEE: FORGING THE INDIAN NATION AFTER PARTITION by Uditi Sen.
- Responding to protracted refugee situations: Lessons from a decade of discussion (FORCED MIGRATION POLICY BRIEFING 6) by Dr James Milner and Professor Gil Loescher.
- The long partition and the making of modern South Asia (2010), New York: Columbia University Press.
- Government of India, Ministry of Home Affairs, Annual Report 2018-19. https://www.mha.gov.in/sites/default/files/AnnualReport_English_01102019.pdf.
- UNHCR Fact Sheet on India 2020. https://reporting.unhcr.org/sites/default/files/UNHCR%20India%20fact%20sheet%2031%20December%202020.pdf.