|Refugees In India: Legal Framework, Law Enforcement And Security
There are numerous aspects pertaining to refugees which are of major importance both to India, as a country and to the refugees, particularly in the context of law enforcement1 . Given the security scenario prevailing in the country, particularly arising out of the role of some of the neighbours in this regard, an utterly humanitarian matter like the ‘refugees’ has come to be influenced by considerations of national security. It is a reality that we can ill-afford to overlook this aspect of the matter in any dispassionate deliberation of the subject under review in this article. While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement. Also, all policies governing refugees are laid down by the Union government though the impact of the refugee problem as such has to be borne by the State administration to a greater degree if not wholly.
Security personnel at the international borders, immigration personnel at the land check posts, international airports and seaports, besides a host of state police personnel, are all intimately connected with law enforcement affecting refugees one way or another. As the very term ‘security’ denotes, all the above categories of personnel are entrusted with the onerous responsibility of ensuring national as well as internal security of the country as their first and foremost charge. They have to make sure that the laws of the land are enforced in regard to refugees without in any way ignoring or neutralising security considerations. But, at the same time, it is also their responsibility that the humanitarian overtones so characteristically and inseparably associated with refugees in general, are not lost sight of. It is also well known that every single situation pertaining to ‘refugees’ is replete with human rights aspects as well. It is obvious that these have also necessarily to be taken due care of by law enforcement personnel.
A proper understanding of the circumstances pertaining to specific refugee situations by the concerned law enforcement agency or even by an individual official, would pave the way for taking care of both the security as well as the humane aspects- from both the humanitarian as well as the human rights angle. At the same time, knowledge on the part of all those who handle refugees- whether they are part of the government machinery or outside it (including international agencies, NGOs etc) of the laws of the land and also how the security and enforcement personnel function, would considerably facilitate looking after the refugees.
II. REFUGEE- A CREATURE OF CIRCUMSTANCES
It should be appreciated that a person becomes a refugee because of circumstances which are beyond that person’s control, often poignant. He/She is left with no other option but to flee from human rights violations, socio-economic and political insecurity, generalised violence, civil war or ethnic strife all these leading to fear of persecution. The import of this observation would be evident when one looks at the definition of a ‘refugee’. The term ‘Refugee’ has a particular meaning in international law and its legal definition is laid down in the United Nations 1951 Convention relating to the Status of Refugees2 (to be referred to as “1951Convention”) and its 1967 Protocol3 . Article 1 para. 2 of the 1951 Convention defines the ‘refugee’ as “A person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.”. Therefore, the need to give due importance to humanitarian and human rights aspects in dealing with refugees cannot be over-stressed.
Thus, it may be noted that there are well-defined and specific grounds, which have to be satisfied before a person can qualify to be a ‘ refugee’. These grounds are well- founded on fear of persecution and considerations of a number of factors which may operate individually or collectively.
III. DISTINCTION BETWEEN REFUGEES
AND OTHER FOREIGNERS
While all persons who are not Indian citizens are ‘Foreigners’ including refugees, it is necessary to clearly distinguish the latter from other categories of ‘foreigners’. There are considerable misgivings in the minds of many in India because of the failure to clearly understand the difference between ‘refugees’ and various ‘other categories of foreigners’. The consequence of this misunderstanding, particularly because of the large number of ‘illegal immigrants’ from Bangladesh who have spread into different parts of India, has tended to adversely influence the thinking of many in the country about the basic issues involved in the problem of ‘refugees’. Unless the distinction between the ‘refugees’ on the one hand and all other categories of ‘foreigners’ on the other, is clearly brought home, our attempts to sensitise people in the various strata of our society will remain inadequate.
There are at least three well-defined groups of foreigners who are different from ‘refugees’. It is important that the distinction among them is clearly understood and none of them is confused with or mistaken for a ‘refugee’. These categories are:
A. Temporary Residents, Tourists and Travellers
Persons under this category come to India for a specific purpose and duration with the prior permission of the Government of India. However, in certain circumstances any one in this category could become eligible for being a refugee, if, during their sojourn in India, the situation in their country of origin becomes such as to endanger their lives and liberty if they were to return to their country. Many Iranians who had come to India for studies during the regime of the Shah of Iran, have stayed back in India as refugees after the fall of Shah of Iran and a revolutionary government took his place in 1978. It should be mentioned that no one can automatically claim the right for ‘refugee status’4 under this category. It is the prerogative of the Indian government to satisfy themselves and decide each case according to merits and circumstances.
B. Illegal Economic Migrants
Any foreigner who might have left his or her country of origin without due authorisation from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee. After all, there is no element of persecution or coercion compelling the individual to leave the country of origin. Illegal migrants from Bangladesh are examples of this category. Such persons have to be treated as illegal and unauthorised entrants into the country and dealt with under the appropriate laws applicable to foreigners like Foreigners Act, Indian Passport Act etc. besides the IPC, Cr.PC etc.
C. Criminals, Spies, Infiltrators, Militants etc
None of these can ever become eligible to be refugees. They have to be dealt with under the provisions of the Indian criminal laws as well as any other special laws in force even though some of them may be in possession of valid travel documents.
D. Internally Displaced Persons (IDP)
Those persons who are fleeing persecution and human rights violations from one region of the country and have sought refuge in another region of the same country, fall under this category. Such persons cannot be categorised as ‘refugees’ as they have not crossed any international border. Moreover, they have the protection of their national government. These persons are categorised as ‘internally displaced persons’ (IDP)5 . Kashmiris who have been forced to flee from Jammu and Kashmir and who have settled in other parts of India fall under this category. Incidentally, in many African countries, the IDPs are also treated as ‘refugees’ within the ambit of the 1951 Convention.
IV. THE REFUGEE SCENE IN INDIA
A brief look at the refugee scenario in India will help appreciate in the proper perspective, the complexities of law enforcement in a variety of situations impinging upon the refugees. India has been home to refugees for centuries. From the time when almost the entire Zorastrian community took refuge in India fleeing from the persecution they were then subjected to on religious grounds in Iran, India has, from time to time continued to receive a large number of refugees from different countries, not necessarily from the neighbouring countries alone. The most significant thing which deserves to be taken note of is that, there has not been a single occasion of any refugee originating from the Indian soil except the transboundary movement of the people during the partition of the country in 1947. On the other hand, it has invariably been a receiving country and in the process, enlarging its multi-cultural and multi-ethnic fabric. In keeping with its secular policies, India has been the home to refugees belonging to all religions and sects. It is relevant to point out that since its independence India has received refugees not only from some of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.
The South Asian sub-continent has often witnessed situations where refugees from one or the other neighbouring countries have crossed over to India. Considering the sensitivities of national and regional politics in the sub-continent, the problem of refugees crossing over to India cannot be totally disassociated from the overall security issues relevant locally. At the end of 1999, India had well over 2,51,400 refugees, who do not include those from countries like Afghanistan, Iran, Iraq, Somalia, Sudan and Uganda.
V. ACCORDING ‘REFUGEE STATUS’
Even though India has been the home for a large number and variety of refugees throughout the past, India has dealt with the issues of ‘refugees’ on a bilateral basis. India, as explained in the earlier pages, has been observing a ‘refugee regime’ which generally conforms to the international instruments on the subject without, however, giving a formal shape to the practices adopted by it in the form of a separate statute. Refugees are no doubt ‘foreigners’. Even though there may be a case to distinguish them from the rest of the ‘foreigners’, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate law to deal with ‘refugees’. For the same reason, cases for refugee ‘status’ are considered on a case-by-case basis. UNHCR often plays a complementary role to the efforts of the Government, particularly in regard to verification about the individual’s background and the general circumstances prevailing in the country of origin. That agency also plays an important role in the resettlement of refugees etc.
It may be restated for purposes of clarity and understanding that a refugee6 is defined as one who is outside the country of nationality (or even country of habitual residence) due to one of the five grounds, namely, a well-founded fear of persecution on the basis of religion, race, nationality or membership of a political or social group. In some countries, a person who flees his home country because of armed conflicts or wars or other generalised violation of human rights and who may not be targeted on account of any of the five grounds specified above, is excluded from the purview of the above definition of ‘refugee’. In many countries a difference is sought to be made between persecution effected by State agents and the one effected by non-state agents as may be the case in places where ‘rebel’ ‘terrorist’ and such other groups are active. Under such circumstances it is only those who are affected by the action of the State agents who are held to fulfill the definition of ‘refugee’ and not the latter.
One of the principal elements to satisfy a claim to refugee status is that the claimant must be ‘genuinely at risk’. Various legal “tests” have developed which concern the standard of proof that is required to satisfy what constitutes being genuinely at risk or having a genuine well founded fear of persecution. Some of these tests have been articulated by courts in a number of countries7 . In the case of INS vs Cardoza Fouseca 8 interpretation of the “well founded fear” standard would indicate that “so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is not enough that persecution is a reasonable possibility…” The above standard was considered in R vs Secretary for the Home Department9 , the case of ex parte Sivakumaran10 . The judgement suggested that the ‘test’ should consider whether there is an evidence of a “real & substantial danger of persecution”. The Canadian Federal Court of Appeal considered the above and disapproved the House of Lords formulation in Joseph Ayei vs Ministry of Employment & Immigration11 . They considered the “reasonable chance” standard. Therefore, in sum, in considering the above ‘tests’ what can be gleened is a rather liberal standard which requires that if, “….there is an objective evidence to show that there is a reasonable possibility or chance of relevant prosecution in the claimant’s state of origin”, the claim should be adjudged well founded.
In the case of India, the decision as whether to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it. The Government of India (GOI) may be often seen as following a policy of bilateralism in dealing with persons seeking to be refugees. For example, Afghan refugees of Indian origin and others, who entered India through Pakistan without any travel documents, were allowed entry through the Indo-Pakistan border till 1993. Most of the refugees had entered India through the Attari border near Amritsar in Punjab. Subsequent to 1993, the Government altered its policy of permitting Afghan refugees freely into India.
In the case of a large number of them (many of them were Afghan Sikhs and Afghan Hindus) who had to flee from Afghanistan under circumstances which fulfilled one or more of the grounds specified earlier for being treated as a ‘refugee’, the GOI did not officially treat them as refugees. However, the UNHCR with the consent of the GOI, recognised them as refugees under its mandate and is rendering assistance to them. In such cases, even though the local Government is kept in the picture, the UNHCR becomes responsible to look after them as well as ‘administer’ them and also to ensure that such refugees do not in any way violate the code of conduct governing them.
In contrast, in 1989, when the Myanmar authorities started suppressing the pro-democracy movement in that country and about 3,000 nationals of that country sought refuge in India, the GOI declared that in accordance with well accepted international norms defining refugee status, no genuine refugee from Myanmar would be turned back and in fact, they were accepted as refugees by the GOI. Similar is the case of Sri Lankan Tamil refugees crossing the sea to enter the southern Indian State of Tamil Nadu. The Government of India followed a specific refugee policy regarding Sri Lankan refugees and permitted them entry despite the fact that the refugees did not have travel documents.
In cases where the Government of India recognises the claim of refugee status of a particular group of refugees, there is minimal interference if any, caused to the refugees. This is the case even though there may be no official declaration of any policy of grant of refugee status to that group. However, there are instances where refugees recognised by the Government of India and issued with valid refugee identity documents by the government, are later prosecuted for illegal entry/over stay. The National Human Rights Commission had taken up successfully the cause of a number of Sri Lankan Tamil refugees who had been likewise prosecuted.
VI. EVIDENCE REQUIRED TO ESTABLISH
A REFUGEE CLAIM
In order for a claimant refugee to put forward a genuine claim for determination of refugee status, it is crucial to accumulate all the documents that the claimant can muster in support of the grounds of persecution or fear thereof resulting in flight from country of origin. The documentation may be in the form of an identity card of employment with some governmental agency in the country of origin, or an identity card indicating membership of a particular group. Production of the same would be evidence of a claim of involvement with particular groups and would also serve to prove the claimant’s identity. Any other information that the claimant may be able to gather to prove specific persecution or fear thereof, such as names of persecutors, leaders of groups involved in committing persecution, details of areas where persecution is committed will help strengthen the case of the claimant. Similarly, the claimant must be able to establish all his statements to interviewing authorities in a consistent manner, without discrepancies. If there are obvious contradictions between the statements made by the claimant himself at different times to different persons, his claim to refugee status may be rejected. The statements made by the claimant must also not be contradictory to the general information available on the country of origin. Corroboration and confirmation of facts pertaining to persecution is an essential factor in determining refugee status. Efforts are made by authorities to gather background human rights data from a broad cross section of official and non-governmental sources in order to supplement whatever evidence may be adduced by the claimant himself. Thus, circumstantial evidence that persons similarly situated to the claimant are at risk in the country of origin, is essential.
To establish a fear of persecution, the term “fear” is not to be judged on the basis of the emotional reaction of the claimant. Instead, “fear” must be employed to mandate a forward looking assessment of risk. Therefore, persons who had already suffered persecution in their country of origin, as well as those who may be judged to face prospective risk of persecution in event of return to their country of origin, would be able to claim refugee status.
The heart of the refugee determination process is the careful consideration of the claimant’s own evidence, whether provided orally or in documentary form. It is ideally required that all claimants for refugee status receive an opportunity to be heard by the authority responsible for the adjudication of their case. All the materials thus collected and collated are then tallied with independent, internationally acknowledged information available on the region from which the claimant has arrived. In possible circumstances and cases, the information thus obtained is also reconfirmed from the UNHCR office in the country of origin.
Along with making claims for refugee status, refugees may also seek redressal of immediate basic problems facing them, such as food, shelter, legal aid etc. In regard to such matters the UNHCR plays a major role by providing in suitable and deserving cases, a “Subsistence Allowance” to destitute refugees and their dependents. The UNHCR also helps in enabling the refugee to find his own accommodation or to share a tenanted accommodation with another similarly placed refugee. When a refugee seeks legal aid for himself or for his dependent, the UNHCR may provide the assistance or recommend an Advocate who is familiar with handling refugee matters, to help sort out the problem faced by the refugee. In cases where the refugee is to be deported back to his country of origin, the UNHCR officials may request the Central Government to stall deportation proceedings, pending UNHCR attempts at resettlement of the refugee in a safe country. In order to make such resettlement possible, the UNHCR takes up such cases with the Embassies of other countries for grant of travel to and stay facilities in their countries.
VII. INDIA’S INTERNATIONAL COMMITTMENTS
India does not have on its statute book a specific and separate law to govern refugees. In the absence of such a specific law, all existing Indian laws like The Criminal Procedure Code, The Indian Penal Code, The Evidence Act etc. apply to the refugees as well. Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, India is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. India’s obligations in regard to refugees arise out of the latter. India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves and supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates particular interest and greater commitment to refugee matters. India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all persons, citizens and non- citizens alike. India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967. India ratified the International Covenant on Civil and Political Rights (ICCPR)12 as well as the International Convention on Economic, Social and Cultural Rights (ICESCR)13 in 1976. India ratified the UN Convention on the Rights of the Child in 198914 . India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)15 in 1974 under which Article 1 imposes legally binding obligation. India accepted the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.
In order to get a clear understanding of the rights which devolve on the refugees on account of India’s international commitments mentioned above and their relevance to law enforcement, it is pertinent to enumerate some of the more important rights accruing to refugees under the above mentioned Conventions. Article 13 of the Universal Declaration of Human Rights guarantees ‘Right to Freedom of Movement’, Article 14 ‘Right to Seek and Enjoy Asylum’ and Article 15 the ‘Right to Nationality.’ Article 12 of the ICCPR deals with ‘Freedom to leave any country including the person’s own’ and Article 13 ‘Prohibition of expulsion of aliens except by due process of law’. Under Article 2 A of the UN Convention on the Rights of the Child, the State must ensure the rights of “each child within its jurisdiction without discrimination of any kind”; Article 3 lays down that “In all actions concerning children the best interest of the child shall be a primary consideration”; Article 24 relates to ‘Right to Health’; Article 28 to ‘Right to Education’ and Article 37 to ‘Juvenile Justice’.
VIII. REFUGEES AND THE INDIAN LEGAL FRAMEWORK
Refugees encounter the Indian legal system on two counts. There are laws which regulate their entry into and stay in India along with a host of related issues. Once they are within the Indian territory, they are then liable to be subjected to the provisions of the Indian penal laws for various commissions and omissions under a variety of circumstances, whether it be as a complainant or as an accused. These are various constitutional and legal provisions with which refugees may be concerned under varying circumstances16 .