Blog post by Vishal Sharma, who recently completed his LL.M. in Legal & Political Aspects of International Affairs from the School of Law and Politics, Cardiff University. Currently, he works as a Visiting Researcher at the Centre for Trust, Peace and Social Relations, Coventry University.
Introduction
Durable solutions are sought to ensure a safe and adequate livelihood for refugees, so that they can re-establish a connection to a state. This connection enables them to rebuild their lives in an ideal environment. Three important, macro-level durable solutions have been categorised by the United Nations High Commission for Refugees (UNHCR) to encourage this connection namely: voluntary repatriation, resettlement, and local integration which all help refugees in some way or form. These solutions are used by countries with or without partial or full assistance from the UNHCR. Those countries which benefit from full assistance are mostly signatories to the 1951 Refugee Convention and its 1967 Protocol which have greater access to the UNHCR machinery concerning refugees. On the other hand, countries not signatories benefit from partial or no assistance at all when dealing with their refugee population. One such country is India which will be the focal point of this blog concerning how ethnicity and religion form the basis of the use of local integration as a solution in the country. The issues discussed are related to the recent passage of the Indian Citizenship (Amendment) Act, 2019 as well as issues concerning the local integration of Tibetan, Tamil and Chakma-Hinjola refugees.
Local integration in India
The concept of refugee protection carries with it numerous expectations, ranging from saving refugees from persecution, through adherence to the principle of non-refoulement, to the provision of basic human rights for refugees in a receiving country. But leaving that aside a state should be able and willing to protect them in every way possible through solutions that are accessible and effective. Additionally, the durability of the solutions in that concern shall be of a permanent nature, Concerning India the state machinery plays a vital role when it comes to dealing with refugees here. Although it is not a party to the 1951 Refugee Convention and its 1967 Protocol relating to the status of refugees, it has played its part in assisting global refugee crises over the years from offering de jure local integration of West Pakistani refugees during the late 1940’s and early 1950’s, to offering mostly de facto integration of refugees from all over the world in the decades thereafter.
Change in India’s Refugee Policy through the Citizenship (Amendment) Act, 2019
India has been many a times praised for its response to refugees. Indeed, in 2013, India’s refugee policy, which is based on a case-by-case approach, was praised by Antonio Guterres, the Secretary-General of the United Nations, stating that the world needs to learn from India in terms of how to help refugees integrate. However the recent passage of the Citizenship (Amendment) Act, 2019 in India is arguably a step in the wrong direction, as it is based on providing de jure local integration on communal lines and furthers the notion of islamophobia in giving citizenship only to non-Muslims persecuted groups from Afghanistan, Bangladesh and Pakistan who came to India before 2014. This has led to UNHCR challenging the CAA in the Supreme Court of India to get it to review the lawfulness of the act (which is still ongoing?). Thus, religion comes in as an important factor in the evaluation of local integration. Especially in a country like India this is of utmost importance as religion based de jure refugee integration can be very tricky as such a legal rights-based citizenship model goes against the basic structure of the country which adheres to a secular constitution. However, such an integration was in a way successful in providing safety and livelihood to mostly Hindu and Sikh refugees settling in India from Pakistan post the partition of British India, due to Pakistan adopting a religion centric welfare state model rather than a secular model like India, the two minority communities in that nation saw India as a safe option to migrate due to its multicultural set-up.
But the same logic of religion based de jure integration which was justified in a way then has become the reason for the current turmoil in the country due to the passage of laws like the Citizenship (Amendment) Act, 2019. The act’s nature is very controversial and has led to a situation where a lot of policy considerations are at risk, largely because of its irrational clarification on naturalization and including only religious persecution as a reason and leaving aside persecutions based on other aspects like language, political beliefs etc.
At the same time, the Citizenship (Amendment) Act of 2019 which amended the Citizenship Act, 1955, violates International Refugee Law on many counts especially based on providing citizenship to the select refugees. Article 3 of the 1951 Convention on refugees and its 1967 Protocol states that the contracting state shall not discriminate on the basis of religion and nation. The main provision in contention is the amendment to Section 2(1) of the Citizenship Act, 1955 that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 shall not be treated as illegal migrant for the purposes of this Act. But what is wrong with this amendment is that it excludes persecuted Muslims which goes against the above-mentioned International Law but many believe that India not being a party to the Convention cannot be held liable for not including persecuted Muslims from three neighbouring states in its act.
But all this would be a violation of Article 33(1) of the Refugee Convention relating to the principle of non-refoulment, which prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion etc. Deviation from this principle is allowed only in two situations: firstly, where a refugee constitutes a threat to the national security of the host country; and secondly, where the refugee’s proven criminal nature and record constitute a danger to the community. Further, the principle of non-refoulement is also part of the United Nations Convention Against Torture, which India has signed, but not ratified. According UNHCR, the principle of non-refoulement has attained the status of customary international law (CIL) which is binding on all countries unless a country has persistently objected to the customary norm. Consequently, the non-refoulement principle is binding on all countries, including India, regardless of whether they have acceded to the 1951 Convention or the 1967 Protocol.
However, it remains unclear whether a country like India currently under the rule of a far- right regime would respect the provisions. Consequently, numerous United Nations conventions were also violated by the passage of the act through division of citizenship status for refugees on religious lines, including the Article 2(1) of the International Covenant on Civil and Political Rights as well as the International Covenant on Economic Social and Cultural Rights. Moreover, the International Covenant on the Elimination of Racial Discrimination has been violated by this directive. However, unlike Muslims, the non-Muslim refugees who came from Afghanistan, Pakistan and Bangladesh are protected by the act and gain access to citizenship by naturalization which is in consonance to Article 34 of the Refugee Convention. This of course is something which is encouraged and would help them in starting a new life with dignity as they would have formal access to voter cards, ration cards, passports as well as property ownership rights.
Finally, the act can also be challenged under Article 14 of the Indian Constitution in India which clearly states that no one can be discriminated based on religion and nationality, and this remedy of sorts was used by UNHCR’s chief as the basis of her petition which she filed in the Supreme Court of India. But the court’s decision may take a long time and there is a looming fear that till the court comes to a clear conclusion large scale deportations and detentions may take place after a nationwide National Population Register process is initiated which many believe will take place soon. After that process around 600,000 people are estimated to be deported who do not fall under the category, and religion would thus be the factor in this.
Equally, apart from religion, ethnic and cultural identity has also come up as an important factor when dealing with refugee integration in a country like India. Two prominent examples showing positive and negative experiences may be seen in the case of Sri Lankan Tamils and Tibetan refugees, in one category, and Bangladeshi Chakma-Hinjola refugees in the other.
Local Integration of Tamil and Tibetan Refugees in India: The positive experience
The de facto local integration of Tibetan and Sri Lankan Tamil refugees was largely positive, due to a large chunk of the Tibetan refugees being placed in areas of Himachal Pradesh which includes areas in the Trans-Himalayan zone and Sri Lankan Tamil refugees in Tamil Nadu province. Both areas were ethnically and culturally as well as environmentally similar for the refugees and the ‘Trans-Himalayan’ and ‘Tamil’ identity played a vital role in that atmosphere being created. The sets of refugees were also not rejected by the host economies of the two provinces. Not only that the Tibetan refugee settlements in Himachal Pradesh were designed in such a way that they resembled the Tibetan way of living helping them integrate better, the same can be said for Tamil refugees, where most Tamils have been very supportive towards Sri Lankan Tamils ever since they crossed the shore. Even when the rest of India was hostile to the two refugee communities, after Liberation Tigers of Tamil Eelam (LTTE) a Sri Lankan Tamil Militant Organization’s member killed India’s Ex-Prime Minister Rajiv Gandhi and the Tibetan community got blamed for the Indo-Sino War of 1962, they were safe in their places of refuge and did not face hate speech or attacks from the population.
Despite this, on numerous counts these refugee populations have encountered problems with the Indian state, however in these instances the Indian courts have stepped up and provided them help. Like the case of Tibetan refugees declining de jure local integration and naturalization granted to them in the concern that it may be of harm to the Free Tibet movement. Due to this unclear stance members of the refugee community have had communication issues with the Indian government. This is evident in the case of Tibetans not knowing that they were eligible for Indian Citizenship according to the Citizenship (Amendment) Act 1986, and that any person born in India on or after 26 January, 1950, but prior to the commencement of the 1986 Act on July 1, 1987 is an Indian citizen. This only came into public notice after a Delhi High Court ruling came in 2010 in the case of Namgyal Dolkar Lhagyari vs Government of India, where the petitioner was born before 1 July, 1987 and when she applied for an Indian passport her application got rejected on the ground that her parents were Tibetans. But the court decided in her favour upon the interpretation of the Section 3 (1) (a) of the 1955 Act and stated that she was entitled to Indian citizenship and that she be given the passport.
Indeed, in retaliation the Ministry of Home Affairs passed an immediate notice in response to this interpretation of Section 3(1) (a) in a letter issued by the Ministry of Home affairs to the Election Commission of India, which stated that children born to Tibetan Refugees in India will not be treated as Indian citizens automatically based on their birth in India before 1 July 1987 under Section 3(1)(a) of the Citizenship Act 1955. Plus, it mentioned that all such persons would have to apply individually under Section 9(2) of the act to Ministry of Home Affairs and thereafter the nationality status of all such children born to Tibetan refugees in India, will be determined by the Home Ministry as per the procedure available under the Citizenship Rules, 2009. This notification was itself challenged in Phuntsok Wangyal, Lobsang Wangyal & Tenzin Dhonden Vs Union of India and the court held that the order was contrary to the Citizenship Act provisions and quashed it. The writ petitions further stated that all the petitioners were Indian citizens and entitled to all the related benefits and privileges, as are available to other Indian citizens. Additionally, it was stated that the respondents cannot require the petitioners to make any application under section 9(2) of the Act and that the petitioners cannot be denied an Indian passport by the respondents on that ground.
On the other hand, for the Sri Lankan Tamils the opposite has happened, as ever since the civil war finished many have gone back to Sri Lanka and many more are now willing to go back especially after their citizenship rights were excluded in the recent Citizenship (Amendment) Act. Here also courts have tried their best to ensure safety and livelihood for refugees, but the central government has not been that receptive. A prominent illustration in this concern can that of P. Ulaganathan vs The Government of India where the case dealt with 65 Tamil refugees who fled Sri Lanka during the 1983 riots in fear of persecution and were involved in a decades old legal citizenship battle concerning issues related to they being declared illegal immigrants and being told be deported. In this relation the Madras High Court passed an order in favour of them requesting the Indian government to relax citizenship norms for them and treating them with a “humanitarian approach” and categorically specifying in the judgement that “A person who is running for his life cannot obviously be expected to wait for a visa”. Article 21 of the Indian constitution was cited as the legal reasoning behind the decision.
Local Integration of Chittagong Hill Tract Refugees in India: The negative experience
In contrast, in the case of the Chittagong Hill Tract refugees the story is a bit different, the community had fled erstwhile East Pakistan in 1964-65, after they lost their land to the development of a Dam on the Karnaphuli River. They are named Chakmas and Hinjolas, While the Chakmas are predominantly Buddhists, the Hinjolas are Hindus, but the people of Arunachal Pradesh did not accept their integration. The main reason being that they were not culturally and ethnically similar to them , the fact that unlike most Tamil and Tibetan refugees they did not come through a proper channel was also a concern for many. Thus, many saw them as “evacuees” and not “refugees”. They sought asylum in India and the government set up relief camps in Arunachal Pradesh. But after they settled in India, they faced opposition through political movements on identity and regionalism which made things worse, and due to this reason, a lot of political violence erupted in that region. Host/refugee interactions were a major concern for these refugees who were mostly not welcomed by the locals. In many instances they were told to go back to Bangladesh where also they were not welcome, but the Indian courts provided them remedy on numerous counts like in the matter of NHRC vs State of Arunachal Pradesh, where the National Human Rights Commission filed a writ petition in the Supreme Court of India seeking to enforce the rights of about 65,000 Chakma-Hinjola refugees. The Supreme Court in furtherance of an individual’s right to life and liberty under Article 21 of the Indian constitution recognized the refugee’s right to non-refoulment and thus they passed an order for them to stay in consonance to numerous international law provisions.
On the flip side, the confusion of a concrete policy over the years had also caused trouble for the refugee population as well as the local population in the entire North-East of India which includes states like Arunachal Pradesh and the courts have also played a major role in it like the judgement in the case of Sarbananda Sonowal Vs Union of India, where the Supreme Court of India invoked Article 355 of the Indian Constitution to declare the Illegal Migrants Determination by Tribunals (IMDT) Act, 1983 as unconstitutional. The act dealt with immigration of Bangladeshi refugees in Assam and protected minority immigrants against undue harassment after the agitations in Assam against immigration which was viewed by the people and the provincial machinery as illegal. The court thus established a constitutional requirement that the burden would always lie on the individual to rebut the allegation that he/she was a foreigner. The basis for doing so was that it would be difficult for the state to give an exact date of entry of a foreign national who had crossed the Indian border. Further the act stated that Article 355 of the Indian Constitution puts the responsibility on the Indian government to protect every province against external aggression and internal disturbance and thus the court held in the case that the IMDT Act did not properly study the infiltration. But the decision of the court in this case is something which can be seen as contrary to International Refugee Law as rather than acting as a neutral body and working within the principles of international law it in a way acted in a political manner siding with the bureaucratic order. The present position after this judgement leaves no further legal remedy for those who may be deported in especially provinces of the North-East of India and the Supreme Court’s role is thus crucial as it has led to refugees being put in detention centres in that region of India.
Conclusion
Adequate security and rebuilding the lives of refugees is the primary aim of refugee protection and no matter which durable solution is provided, what matters the most is safety and security of refugees. Sadly, India’s whole refugee policy is full of confusion and chaos. Though India’s case by case approach may have worked well at times, a more comprehensive approach is required to provide long term stability for its refugee population. Also, the current policy makers of India have failed to provide a concrete plan of action to protect its refugee population which has been highlighted through the segregation of refugees on the basis of religion in the recent CAA its parliament passed. The CAA lacks effectiveness and accessibility concerning how India should deal with the issues concerning incoming refugees, and the examples relating to the treatment of various refugee communities as outlined in this blog post, is proof of that.
Thus, a new policy approach needs to be framed in which local integration strategies are used considering what can be the best for the given situation and circumstance. This should encompass humanitarian services, education, primary health care, relief and social services, infrastructure and camp improvement, microfinance, and emergency response for refugees. Furthermore, in order to have a clear-cut long-term policy it is also suggested that India should ratify the 1951 Refugee Convention and its 1967 Protocol, to deal with the larger legal and political issues concerning refugees its refugee population.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.