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Need for National Legislation on Refugee Law

By Saumya Kumar July 27, 2016


By Saumya Kumar, Advocate, Lucknow

India has been a shelter for fleeing refugees right from the time of infiltration of the Zoroastrian community into the sub-continent. India has invariably been a safe haven for refugees and in the process, has enlarged its multi-cultural and multi-ethnic fabric. It is relevant to point out that since its Independence India has received expatriates not only from its neighboring countries but also from distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.

India having one of the most stable political structures, and a long and porous boundary has often attracted aliens (foreign nationals) seeking refuge. Even with the massive inflow of refugees in India there is no legislation to regulate their movement. The movement of refugees has been controlled mostly by Executive orders. Although a majority of the European countries have utilized the 1951 Convention on Refugees, most of the South Asian countries including India have neither ratified the Convention nor have they incorporated it in their domestic legal framework. The debate for a national legislation for refugees has been raised by many and requires a proper assessment of the practice undertaken by the Indian Government in this area with the practical feasibility of such legislation. India has dealt with the issues of ‘refugees’ on a bilateral basis[i] with no formal policy on which the practice could be contoured.[ii] Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that refugees are legally identified as foreigners.[iii] This is because there is no separate law to deal with ‘refugees’ and for this reason the refugee ‘status’ in India is determined on a case-to-case basis. Therefore to ascertain the need for the legislation for refugees the actual methodology of the Indian Executive must be examined.

The influx of people from East Pakistan during partition was not considered as a refugee movement as the people were displaced from one socio-political environment to another.[iv] During the struggle over Bangladesh in 1961 a sea of people migrated to India which resulted in India issuing identity cards for the East Pakistanis and welcoming them with open arms. This was eventually discarded in March 1958, since by then there were already around 8 lakh refugees in some 150 camps across West Bengal. It was only after the number of refugees increased exponentially and posed a threat to the strained resources of the country that some focus was shifted in this direction which eventually materialized re-habilitation programs for the migrants already living in the camps in West Bengal.[v] From 1958, the scattered scheme of the Government was consolidated to arrive at a comprehensive regional development program. The Government focused on transferring the migrants to other states as a part of the rural assistance program which led to the Dandazkaranya Project. Over a period of time it has been accepted that the position of these individuals has ceased to be that of a refugee in the legal sense and in the material sense as well.[vi]

With regard to the Chakma Refugees, the Government of Assam provided shelter to them and then shifted them to Arunachal Pradesh where the Government eventually initiated the Chakma Resettlement Scheme. The presence of the Chakmas and their settlement schemes threatened the residents of Arunachal Pradesh supported by the State Assembly which passed a resolution demanding that the Chakmas must be removed from their territory which was not in consonance with the Central Government objectives.[vii]Consequentially, the Chakmas were not sent back and have been living in parts of Assam and Arunachal Pradesh ever since. In the meantime the Chakma refugees living and flourishing in Arunachal Pradesh have even tried to acquire Indian citizenship which was disallowed by the Indian Supreme Court but the Central Government refused to provide any guidelines about the status of these people.

For the Tibetan Refugee, the Indian Government much like the East Pakistani migrants, established a massive centre with adequate facilities. Something which was considered as a temporary affair at that time lasted for a very long duration which made the return of the Tibetan refugees to their homeland in the immediate future seem impossible.[viii] Where on one side the migrants of East Pakistan were ready if not eager to settle and blend into the Indian society, the Tibetan refugees insisted under the leadership of Dalai Lama that their cultural identity must be duly maintained.[ix] Since the Tibetan community has mostly refused to acquire Indian citizenship, the Indian Government has tried to assist them by providing them certificates of identity so that they can apply for jobs in the country.[x]

In Tamil Nadu, the Government has shown a more supportive role to the Tamilian refugees from Sri Lanka. It has been identified that Sri Lankan refugees have been given complete freedom with regard to movement in the country more like the mandate ascribed in the Convention.[xi] The Government has issued certificates to these refugees to facilitate admission process in colleges and universities and some places even provide special quotas for these refugees. Subsequently, with the assistance of the UNHCR, massive repatriation program under the Indo-Sri Lanka Peace Accord was initiated which succeeded for some time but a new burst of ethnic clashes led to another round of migration and many safe havens were created for them.[xii]

It can be observed that the Indian Government has been very focused on the rehabilitation process of individuals moving across the borders even if the refugee status of the person is not determined. It is further observed that this helping hand is available only when there has been a substantial change in circumstance in the home country. The Executive does not limit its task to the establishment and rehabilitation of the refugees but focuses on the repatriation program as well. In this regard it is to be noted that the repatriation program has been initiated and pursued only where the support of the home country is available as extended by Sri Lanka and Bangladesh and nothing much could be done for the Tibetans as there was no consensus with the Chinese Government in this regard.

[i] Sarbani Sen, ‘Paradoxes of the international regime of care: the role of the UNHCR in India’, in Ranabir Samaddar (ed.) Refugees and the State: Practices and Asylum and Care in India, 1947-2000 (2003) p. 398

[ii] Ibid

[iii] Myron Weiner, Rejected Peoples and Unwanted Migrants in South Asia, Economic and Political Weekly, Vol. 28 (1993), pp. 1737-1746 at p. 1739.

[iv] US Committee for Refugees and Immigrants, Country Report for India 2006, at http://www.refugees.org/countryreports.aspx/id=1558

[v] Ibid

[vi] Jacques Vernant, The Refugee in the Post-war World, (yale university Press, 1953) pp. 740

[vii] Supra note i

[viii] Ibid

[ix] Lousie W Holborn, Refugees: A Problem of Our Time (The Sacarecrow Press Inc.) Metuchen, New Jersey, 1975) p. 718

[x] Dawa Norbu, ‘Motivational Crisis in Tibetan Education System : Some Personal Reflections’, Tibetan Review (May 1994) pp.13-14

[xi]UNHCR, ‘Burden-Sharing- Discussion paper submitted by UNHCR Fifth Annual Plenary Meeting of the APC’, ISIL Yearbook of International Humanitarian and Refugee Law, Vol. 17 (2001), at http://www.worldii.org/int/journals/ISILYBIHRL/2001/7.html

[xii] Cornellis D.Jong de, “The Legal Framework: The Convention Relating to the Status of Refugees and the Development of Law Half a Century Later” International Journal of Refugee Law, vol.10(1998),pp.688-99

Tags: National Legislation on Refugee Law , Refugee Law , refugees , 1951 Convention on Refugees , refugees are legally identified as foreigners , Bangladesh , Chakma Resettlement Scheme , Tibetan Refugee , Dalai Lama , Tamilian , Sri Lanka


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