ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Seeking Refuge in India

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The Citizenship (Amendment) Act (CAA), 2019 is inviting nationwide protests and participation of diverse people, including intellectuals. These protests have raised multiple questions on the policy of the government, which, according to the protestors, is against the will of the people as well as the core constitutional values of the democratic and secular aspirations of the Constitution.

According to the United Nations (UN) Refugee Agency, the United Nations High Commissioner for Refugees (UNHCR) India has been a regular host of refugees since its inception. People from different parts of the world have come to India, from Afghanistan, Bangladesh and Myanmar to Eritrea, Iran and Iraq. Since 1959, India has hosted refugees from Tibet; since 1971, refugees from Bangladesh; since 1986, Chakmas, a Buddhist ethnic minority from the former East Pakistan; and since 1983, 1989 and 1995 refugees from Sri Lanka due to the civil war. Since 1980, conflict in Afghanistan and instability of the 1990s in Myanmar prompted further continuing waves of migration to India. The refugees in India have been alarmingly rising since 2005 and can increase due to the ongoing instability in the Asian subcontinent. Despite this, India has hosted refugees since 1971 without any specific law in place. The successive governments have failed to address the issues of the refugees and have utilised the same for their political vendetta.

The Indian government has developed various strategies to suppress these new surges of refugees. One of them is to amend the existing Citizenship Act, 1955 to the CAA, 2019. The act aims to extend Indian citizenship by fast-tracking the naturalisation process to individuals belonging to Buddhism, Christianity, Hinduism, Jainism, Zoroastrianism and Sikhism, which are considered minority religions in their countries of origins such as Afghanistan, Bangladesh and Pakistan. It has ignored the Muslim populations intentionally who are seeking asylum in India.

The CAA deliberately uses the term “migrant” to deprive some refugees of international refugee law, which is mentioned in the 1951 UN Refugee Convention with its Additional Protocol of 1967. The CAA also infringes upon the right to equality under Article 14, which prohibits discrimination on the grounds of race, religion, caste, creed, sex or place of birth, and other fundamental freedoms with reasonable restrictions that are equally available to refugees. On the other hand, the intelligence agency Research and Analysis Wing had stated that it could be used by agents of the foreign intelligence agencies to infiltrate legally into India. The former Solicitor General of India, Harish Salve, said that the CAA does not violate Articles 14, 25 and 21 of the Constitution, and he pointed out that Articles 15 and 21 apply only to the entities who reside in India, not to those who want to enter India, and it does not violate secularism and describes it as a “narrowly-tailored” provision that is designed to address a specific issue.

India has still not signed the international refugee law based on the UN Refugee Convention with its 1967 Additional Protocol. While India respects the various human rights UN treaties, it deals with the refugee status without any uniformity of law and policy. For example, India grants full protection and assistance to asylum seekers and refugees (non-Muslims) from Sri Lanka and Tibet, helping them get documents with a range of legal benefits. On the other hand, refugees from Myanmar, Palestine and Somalia get very little aid and assistance from the UNHCR.

The Government of India does not officially recognise these refugees, but it allows the UNHCR to extend de facto protection to those who do not receive recognition under the CAA, including Muslim refugees.

India could redefine a global model for refugees if it chooses a different path. The South Asian Association for Regional Cooperation of 2004, the South Asian Declaration on Refugees and the Eminent Persons Group’s proposed National Model Law, which formulated an ideal law on refugees with global human rights standards. This model law is based on international conventions and Cartagena Declaration on Refugees, 1984. The key features are the expanded definition of a refugee, the refugee determination test, the inclusion of ethnicity and sex criterion, and dual citizenship. Moreover, India could evolve a regional approach to enunciate the rules and regulations for protecting the refugees in the Asian subcontinent.

The UN Refugee Convention could be considered as the basis of domestic refugee law, but India may have its own modifications and changes in tune with its national statutory requirements with the principles of constitutionality. India has to go for a refugee law for maintaining territorial integrity; for securing the tenuous borders; for ensuring homeland security; and for establishing its high benchmarks of respecting international human rights.

K Sivananda Kumar

Bengaluru

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