Introduction

After a haitus of several months, Refugee Watch Online is back with contributions from three (of the four) best papers presented before a conference organized by the Hidayatullah National Law University, Raipur titled “Round Table Conference on India and the Refugee Convention”. Organized over two days in October 2012, the Conferece brought together students from several law colleges in India, officials from UNHCR, academics, lawyers and NGOs working on forced migration and some officials from the Government of India. Three themes formed the subject of discussion, the International legal framework, its strenghts and what it lacks, the ground situation and the last one, on India's reservations to the 1951 Refugee Convention. The three papers represent each theme.

The conference was a good attempt in addressing some important concerns that continue to remain relevant. However, the conference ought to have done a bit more reserarch to enquire into the more recent developments and comprehensively thought out what specific concerns to highlight within the three themes to make the best of the opportunity. To their credit, we have not seen a refugee rights conference in law colleges in some time.

Having said this, the discussions were thought provoking, raising some pertinent and as some would argue, very radical questions on the concept of refugeehood, why refugees living in India should not be given citizenship and at the same time, if India is not already burdened by its own problems (“poverty”) to take on additional responsibility to care for refugees. An official from the Ministry of External Affairs participated on the second day of the conference and argued that India has done what it can, to care for refugees.

The student presentation selected here include the ones that got the first three best papers award. Prakhar Pandey, a 3rd year student of Hidayatullah National Law University focuses on international law attempting to “throw light on the loopholes that were left unplugged by framers of the 1951 Convention on the Status of Refugees (1951 Convention) and which are now being exploited by member states”. He concludes by pointing out that allowing refugees to live a life of dignity is hugely determined by politics and funding.

Akansha Seth, a II year student of law from National Law University, Delhi plays the devil's advocate when she asks whether there are good reasons to defend India's stand on the Refugee Convention. In summarizing India's position and the arguments made in its defence as a non-signatory to the Convention, Akansha ably brings out India “concerns”. Perhaps however, we need to remind ourselves that India's role on Ex-Com equally contradicts this position. Be that as it may, understanding India's unstated policy, made possible by just these defences that Akansha is able to articulate so well, remains a fascinating task.

The final contribution is from a I year law student from the National Law University of India, Bangalore. Vishwajeet Singh Bhati's paper considers the legal and political situation of the Pakistani Hindu refugees in Gujarat and Rajasthan. Focused maily in Rajasthan where Bhati also travels and meets with several actors, the paper brings out the daily experiences of refugees as well as it put it in a historical and politcial context. Bhati also interviews Hindu Singh Sodha and others who have recently arrived in India. While the former has been included in this edition verbatim, interviews with refugees has not been included since it forms part of his paper.

In all, the highlight of the conference were the students, for the debates that ensued and the papers they presented.

In Defence of the Indian Reservations to the Refugee Convention: Playing the Devil’s Advocate?

Akansha Seth

Introduction

Indian borders have been growing increasingly porous with some of the largest inflows in history ever since independence 1 increasing its refugee population by the day. 2 It is looked upon as a safety haven due to the operation of a variety of factors - geographical, cultural, strategic, political and social. It is the democratic and peaceful resident of a relatively volatile neighbourhood. As the fault lines diminish and the borders between the countries blur owing to the growing cosmopolitan culture, India’s reservations to the Refugee Convention are viewed critically by the international community as well as by domestic agencies 3. India can be viewed as parochial; as intensely communitarian; or alternatively, as an economically developing welfare state unable to fulfil every requirement of the Convention 4 and therefore choosing to not promise what it cannot deliver. An attempt at counter-criticism, this paper seeks to construct a case in favour of the Indian reservations to the 1951 Convention before letting the strong international and domestic civil society critique overpower the merits of the Indian case. How valid are the Indian reservations? To what extent are they relevant in advocating against the creation of a national legislation relating to refugees? 5

Reviewing the Status Quo: Shirking or Shouldering Responsibility?

Cross-border population movements in South Asia are an important factor affecting internal security, political stability and international relations and not simply the structure and the composition of the labour market or the provision of services to new-comers. 6 In 1997, numerous reports of Human Rights Watch indicated that the protection for refugees and asylum seekers around the world have deteriorated in the past couple of decades. However, in the past decade, awareness has increased as various United Nations agencies and NGOs started taking note of the same. SAARC countries also share concerns of the Indian government and have thus refrained from signing the convention.7

The Concept of Burden Sharing

As citizens of the world, humanitarian concerns and those of sharing rights as well as duties have prompted the concept of burden sharing among states which appears in the preamble to the 1951 convention.8 The concept of burden sharing is also contained in various regional agreements including Organization of Africa Unity, 1969 9; Bangkok Principles Concerning the Treatment of Refugees, 1966 10 and various European Union Instruments 11. Is India, a non-signatory to the 1951 Convention, shirking its burden?

India continues to receive refugees despite its own over-a-billion population with at least six hundred million living in poverty and limited access to basic amenities. 12 The continuously growing refugee influx 13 creates drains on the already weak infrastructure, strained resources and the developing economy of the nation.

Asylum seekers in India arrive from various countries of origin, primarily- Nepal, China, Iran, Iraq, Sri Lanka, Burma, Bangladesh, Somalia, Sudan, Afghanistan and Bhutan. 14 India has provided them with land to establish educational institutions and other social programmes. Many NGOs are taking up their cause in India. Though India does not have uniform laws for the refugees, it has repeatedly claimed that its policies are in tandem with the international norms and values. These claims are not completely unfounded.

The Lack of a Definition

One of the greatest criticisms levelled against India is that the term ‘refugee’ is not defined in the Indian laws. The fact that refugees are dealt with under the same laws that apply to a foreigner, deprives the former of privileges available under the Geneva Convention 15. The legal vacuum means that refugees are dealt with on an ad hoc basis and live in the shadow of constant fear of changes in the foreign policy and political expediency, which primarily determines how refugees are to be treated. 16 It also violates the right to equality guaranteed under Article 14 of the Constitution to both citizens and non-citizens. 17

In Defence of India

The definition of the term ‘refugee’ under the 1951 convention is very narrow and constrained. At the fifty-fourth session of the Executive committee meeting of the UNHCR in 2003, the Indian representative voiced this concern when he stated that “... the definition fails to recognise ‘the fundamental factors that give rise to refugee movements...”.18 He further went on to elaborate that “...most refugee movements ‘are directly related to widespread abject poverty and deprivation around the globe...’ particularly in the developing world such as most of South Asia”.19

The circumstances underlying the exodus of refugees from their countries of origin vary from political persecution in the case of the Chin refugees of Myanmar to civil war between the Tamil nationalists and the Sinhalese government. 20 Thus there are many categories of displaced people which the 1951 Convention’s definition does not cover, including victims of natural and/or man-made disasters and the internally displaced persons and those displaced as a result of loss of livelihood.

India is a signatory to various other international and regional treaties and conventions such as the UN Declaration on Territorial Asylum (1967), the Universal Declaration of Human Rights, 1948 and the International Convention on Civil and Political Rights. 21

Its intention behind not signing the 1951 Convention are therefore, not founded in vested interests. The fact that India has remained a non-signatory to the convention 22 and its protocol should, in no way suggest that it is shirking its responsibility towards its refugee population or that it has tried to evade liability so far. There may be reasons, after all, which require perusal before the blame-game proceeds any further. India has had apprehensions over Article 35 of the Convention 23 which imposes the responsibility of the supervision of refugee processing by UNHCR. This, it feels, would be a threat to its sovereignty. In addition, governments of South Asia by and large have voiced that migration is a matter of bilateral and not multilateral relations and that international agreements could restrict their freedom of action. 24 India, too, prefers a bilateral approach between the state parties involved.25 It also fears uncontrolled infiltration of terrorists, criminals and unwarranted elements.

The Possibility of Local Integration

One reason for not signing the 1951 Convention is that India, with its experience of massive crises and large refugee influx gives it some locus standi to assert that it can preclude the necessity of a framework. 26 The UNHCR views India as a State in which local integration of refugees is eminently achievable. 27 This also throws light on UNHCR’s focus in India on local integration as a solution rather than repatriation or resettlement, thus, putting an unfair burden on India.28 India is known for its commendable record of assimilating and integrating the refugee population.29 The recognition of this fact by the UNHCR is evident in its acknowledgement of the same in the form of its policy of promoting local integration of the refugees in India 30, especially of those from neighbouring states due to cultural and social similarities instead of repatriation or resettlement. This increasing permanence of shelter-seekers does put a comparatively greater burden on the limited resources of the country 31 and this treatment of India as a permanent safety haven may be argued to be unfair.

Disadvantageous Laws Versus a Liberal Constitution

Many refugees in India face poverty and discrimination at the workplace. Section 10 of the Foreigners Order, 1948 enumerates sectors of employment not available to foreigners unless they obtain special government approval. 32 As the legal status of refugees is still a grey area, their wages remain low. They also face arbitrary arrests and detention. The Foreigners Act, 1948 allows the government to refuse entry to any foreigner not holding valid documents. Under Section 3 of the Foreigners Act, 1946, the Ministry of Home Affairs grants but not guarantees residency status to recognized refugees in India.33

Despite the lack of specific protective laws, the Indian Constitution is a saviour and has been interpreted in the past to extend certain protective guarantees to non-citizens. The language of Articles 14 and 21 make those rights available to foreigners as well as to citizens. 34 The Supreme Court has held in that “Every person is entitled to equality before the law and equal protection of the laws...the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise...”. 35

The Way Ahead

India has refused offers and efforts of UNHCR and other international organisations to monitor how it treats refugees. According to the U.S. Committee for Refugees Country Report on India, out of the more than 300,000 refugees in India only 18,500 have received UNHCR protection. In 1992, when the Tamil Nadu government withdrew rations and facilities from Sri Lankan Tamil refugees 36 to force them to return to Sri Lanka 37, India contravened its policy of promoting only ‘voluntary’ repatriation.

Conclusion: How Valid are India's Concerns?

Signing the 1951 Refugee Convention would not only bind India its obligations, but it would also provide for substantial international assistance from other U.N. member states.38 There is little substance to this criticism as the 1951 Convention does not require a higher standard of treatment for recognised refugees than that is applied in protecting the rights of its own citizens. Another unique feature of the Indian refugee problem is politicization and the use of these ethnic and social minorities as vote banks.39 However, stepping beyond these factors, the proposed refugee law states that “the decision to grant asylum is a humanitarian act that should be made without political considerations”.40

India has done without a refugee law so far but with increasing mass influx and violations becoming rampant, such a law has indeed become a dire necessity. As the only stable democracy in the region 41, it has a greater responsibility to ensure fair and equal treatment and increased accountability even towards non-citizens which ad hoc policies can never guarantee. Increased discretion and the lack of a framework also places India in a disadvantaged position owing to its ethnic plurality and ambivalent relationships with its neighbours.

Notes

1. 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.
2. 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.
3. The National Human Rights Commission has submitted various reports urging the promulgation of a national law- Rajeev Dhavan, On the Model Law for Refugees: A Response to the National Human Rights Commission (NHRC), NHRC Annual Reports 1997-1998, 1999-2000 (New Delhi: PILSARC, 2003).
4. T. Ananthachari, Refugees in India: Legal Framework, Law Enforcement and Security, at http://www.worldii.org/int/journals/ISILYBIHRL/2001/17.html. ; Cited in South Asia Human Rights Documentation Centre, Human Rights and Humanitarian Law- Developments in India and International Law (1st ed. 2008) p. 193.
5. South Asia Human Rights Documentation Centre, Human Rights and Humanitarian Law- Developments in India and International Law (1st ed. 2008) p. 193.
6. Myron Weiner, Rejected Peoples and Unwanted Migrants in South Asia, Economic and Political Weekly, Vol. 28 (1993), pp. 1737-1746 at p. 1739.
7. Supra note 6 p. 192.
8. Paragraph 4 of the Preamble, 1951 Convention reads, “The grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United nations has recognized the international scope and nature cannot therefore be achieved without international cooperation.
9. Article II (4) Organization of Africa Unity, 1969.
10. In the 1987 addendum to the Bangkok Principles Concerning the Treatment of Refugees, 1966.
11. Dublin Convention, 1997; the Hague Programme adopted by the European Heads of State or Government in November 2004 established the Common European Asylum system; among others.
12. Arjun Nair, National Refugee Law for India: Benefits and Roadblocks, Institute of Peace and Conflict Studies, New Delhi, IPCS Research Papers, 2007.
13. United States Committee for Refugees and Immigrants, http://www.refugees.org/WRS_Archives/2007/48-69., and supported by the latest figures from the United Nations High Commissioner of Refugees (UNHCR).
14. US Committee for Refugees and Immigrants, Country Report for India 2006, at http://www.refugees.org/countryreports.aspx/id=1558.
15. The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, The 1951 Geneva Convention,UNHCR-Public Relations Section, http://www.unhcr.org/home/PUBL/3b5e90ea0.pdf.
16. Supra note 6. See also, Rajiv Dhavan, Refugee Law and Policy in India (1st ed. 2004) pp. 136-137.
17. Article 14, The Constitution of India.
18. Indian Representative to the Executive Committee of the UNHCR, Fifty-fourth Session of the Executive Committee meeting of the UNHCR (2003) cited in supra note 13; originally in supra note 17 p. 29.
19. Ibid.
20. Supra note 14.
21. T Ananthachari, Towards a National Refugee Law for India, in P R Chari, Mallika Joseph, and Suba Chandran (eds.), Missing Boundaries: Refugees, Migrants, Stateless and Internally Displaced Persons in South Asia (2003), pp. 99-107.
22. The United Nations Convention related to the status of the Refugees, 1951.
23. Article 35, The United Nations Convention related to the status of the Refugees, 1951.
24. Supra note 9.
25. T. Ananthachari, Refugees in India: Legal Framework, Law Enforcement and Security, ISIL Yearbook of International Humanitarian and Refugee Law, Vol. 17 (2001) at- http://www.worldii.org/int/journals/ISILYBIHRL/2001/17.html.
26. Similar thoughts also reflected in: B.S. Chimni, Status of Refugees in India: Strategic Ambiguity, in Ranabir Samaddar (ed.) Refugees and the State: Practices of Asylum and Care in India, 1947-2000, (2003) p.445.
27. Supra note 17, p. 113.
28. SAHRDC, Abandoned and Betrayed: Afghan Refugees under UNHCR Protection in New Delhi, New Delhi: SAHRDC (1999).
29. Supra note 6, pp. 193-194.
30. Rajiv Dhavan, Refugee Law and Policy in India (1st ed. 2004) p. 113.
31. Supra note 6.
32. Article 10, the Foreigners Order, 1948.
33. Section 3, The Foreigners Act, 1946.
34. Louis De Raedt v. Union of India (1991) 3 SCC 554.
35. National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742 at paragraph 20
36. Half Repatriation of the Sri Lankan Tamils, Asia Watch, 5 (11), (August 1993), pp. 4-5.
37. Hiram A. Ruiz, ‘People want Peace’: Repatriation and Reintegration in War-Torn Sri Lanka, (1994), pp. 25-26.
38. Supra note 22.
39. Sumbul Rizvi, Managing Refugees: Role of the UNHCR in South Asia, in Chari et al, pp. 195-196.
40. The Refugees and Asylum Seekers (Protection) Bill, 2006, Public Interest Legal Support and Research Centre at www.pilsarc.org.
41. Supra note 14.

‘Derelict’: Pakistani Hindu Refugees in Rajasthan and Gujarat

Vishwajeet Singh Bhati

Introduction


In providing a short albeit historical account of Pakistani Hindu refugees, the article, it is hoped, gives a clear picture of the issue and on this basis, expose the reader to the present status of these refugees. As a result of government dereliction, Pakistani Hindu refugees do not have access to basic facilities and face restricted freedoms, which in turn highlights the prevalent administrative ineffectiveness and ignorance. It reiterates that in the absence of a uniform refugee policy, India is impaired in handling refugee populations. The ad-hoc refugee policy is inefficient as is evident from the conditions of refugee groups in India, the Pakistani Hindus being a part of them. This paper serves to give a voice to the plight of the Pakistani Hindu refugees and in the backdrop of it suggest some points for their betterment. In the process, the article seeks to answer the following questions. What has compelled Hindus in Pakistan to flee to India, what number of refugees are found in Rajasthan and Gujarat, two states known to house the largest numbers? Has the rehabilitation package for refugees who came in 1971 made a difference in the lives of the refugees? What is their present status and what efforts on part of the government and activists have been made to redress their plight?

Identifying the Pakistani Hindus

As per the United Nations High Commission for Refugees (hereafter UNHCR), India hosts a total of 1,85,118 refugees and 3518 asylum seekers as of January 2012.1 Pakistani Hindus account for nearly 1,10,000. A majority are known to live in parts of Rajasthan and Gujarat and while some have been given citizenship, many others are forced to perpetually renew their visas. The degree of neglect is such that they are often confused with the Pakistani Sindhis who flew in from Pakistan 2 in the post partition scenario. The ones arriving in the more recent past are Hindus belonging to various castes like the Meghwals, Bhils, Sansis, Jogis, Odhs, Rajputs, Brahmins, Malis, Rabaris, Sonars, Jats, Nais, Darzis among others.3 A major chunk of them resided in Thar Parkar 4 district of Sindh; others are from the districts of Umarkot, Mirpur Khas, Hyderabad in Sindh and Rahimyar Khan and Bahawalpur in Punjab. Some of these refugees have a distinct cultural identity - their own language Dhatki 5 but at the same time share a lot in common with the people living across the border in Rajasthan and Gujarat. Some others comprise the more common Marwari and Gujarati speaking people. They were actually of Rajasthani and, to a lesser extent, Gujarati origin and traditionally engaged in seasonal migration to work in the fertile fields of Sindh. This seasonal migration continued till the mid-1960s after which the Indo-Pak border was fenced and many of them could not return to their homes.6 As The Nowhere People, an unpublished report by Seemant Lok Sanghathan notes, most of them were landless Dalits and Tribals, in addition to which they were mostly illiterate and poor.

Places in Rajasthan Where the Migrants are Currently Residing (Both Rehabilitated and Non-Rehabilitated People (Taken from The Nowhere People)

A Timeline of Events: The 1965 and 1971 Waves of Influx

According to Seemant Lok Sanghatan, Pakistani Hindus took to flight in two major waves- in 1965 and 1971. Considerable migration took place during the Indo-Pak war of 1965 when some 10,000 people crossed over to India. The second and the most colossal transfer took place when India occupied a large part of Thar Parkar in the 1971 Indo-Pak war. It was due to this occupation that almost 90,000 people got temporarily shifted into Indian Territory and decided not to return. These patterns of migration need to be seen in the light of the Shimla Agreement of 1972 where India decided to return the annexed territory back to Pakistan and Pakistan also accepted to take back its citizens. However, as it turned out most Hindus did not want to return to Pakistan. Hindu Singh Sodha of the Seemanth Lok Sanghatan spearheading the movement for rights of Pak Hindus, argues that Pakistan also did not show any interest in accepting these people back.

Why did the Hindus migrate? Pakistan, at the time of Independence, chose to be an Islamic republic. Going by its 1998 Census, it can be clearly discerned that Hindus were a meagre 1.6%, of the total population. 7 As a minority, they had to face discrimination and religious persecution in the form of abductions, rape and forced conversions at the hands of fundamentalists. Also, the law and order situation in Pakistan was never stable. 8 As a result, there was a sense of insecurity prevailing in the minds of the Hindus. In addition, the conditions of war led to serious repercussions and most of them found Pakistan unsafe.

Accommodation in the Camps

Those who migrated in 1965 and 1971 have been officially rehabilitated but it had serious faults. The 1965 migrants were never accorded refugee status but over time most of them were granted Indian citizenship and relocated in villages and colonies in Rajasthan and Gujarat. Hindu Singh Sodha notes that this process of securing citizenship and basic amenities was not hassle-free. For the refugees of 1971, some information is available in official statements. Colonel Sona Ram Choudhary, an MP, in responding to a query in the Lok Sabha on 25 February 1977 stated that the central government established 24 refugee camps in Barmer district. The camps had limited tents and multiple families were assigned a single tent. Ration cards were issued to the heads of families. There were strict rules pertaining to the conduct and stay of the refugees, and movements restricted; refugees were forced to remain inside the camps and many were refused permission to visit their families. Hindu Singh Sodha also notes that there were daily roll calls, suggesting the strict surveillance prevelant at the time.

The Rehabilitation Package and Its Shortcomings

The Janata Party Government, after coming into power in 1978 in the Centre and in Rajasthan initiated the process of granting citizenship. As Hindu Singh Sodha explains, not only were District Magistrates authorized in Rajasthan and Gujarat to grant citizenship, a rehabilitation package was also implemented. The 1965 refugees were allocated villages inhabited by Muslims who migrated to Pakistan during the 1965 Indo-Pak war. For the 1971 refugees, the rehabilitation package included grant of land and a total of Rs. 90 million in cash from the Centre. Each family was to be allotted either 25 bighas (roughly 10 hectares) of land in the canal area or 75 bighas (roughly 30 hectares) of barren land in the desert.

Seemant Lok Sanghathan's survey in 2000 documented the implementation of the rehabilitation package. According to it, land was officially allocated to 4033 families in Barmer district, 3166 families in the command area of the Indira Gandhi Canal in Bikaner district, 507 families in Jaisalmer district and 51 families in Jalore district. Most of the land was of poor quality and uncultivable, both in the canal area and in the arid zone. Besides that, the State Government asked for Rs 30,000, to be paid over 20 years against 18% as revenue for each murabba (25 acres) of land from families, a huge sum for mostly poor families. The survey revealed that many families did not get any land at all due to administrative ignorance and corruption. A part of the land allocated for rehabilitation came under the Desert National Park, hear Jaisalmer. There were also reported instances of locals opposing the grant of land as well as illegal occupation of these lands. In one incident in Vedihar (Kutch, Gujarat), as the survey documents, 500 locals attacked refugees resulting in one death.

The Post 1992 Surge

The influx of refugees did not cease after 1971. Hindus continued to migrate on visas and stayed back. The demolition Babri Masjid further ignited tensions across the border and Hindus in Pakistan had to face the wrath of the Muslims.9 As a result, the influx suddenly flared.

Unlike the refugees coming in the mid 1960s, the ones that came later, including the post 1992 refugees were neither recognized as refugees, not given citizenship. Visa renewals became tedious and costly and many were denied renewals. People, most of whom had relatives living in the border districts, were unable to travel, given that their movement were confined to the cities for which they initially got the visas. As foreign nationals, no formal employment was open to refugees, with the result that they started working as daily wage labourers and highly exploited. They had to stay for at least a period of five years before they could apply for citizenship under the Citizenship Act of 1955, which now has been extended to 7 years.

Continuing Influx and Activist Efforts

Owing to minority discrimination and persecution and the rise of fundamentalism, it is unlikely that Pak Hindu refugees will stop fleeing to India. In this scenario, the issue of citizenship has became the primary agenda for both refugees and activists. Citizenship however has proved elusive. While the residency period under section 5 of the Citizenship Act, 1955 was initially 5 years, it has now been extended to 7 years. Also, after the signing of the Assam Accord in 1986, the Government of India withdrew the power vested in District Magistrates to grant citizenship and transferred it into the hands of the Ministry of Home Affairs in New Delhi. For the poor and illiterate migrants, applying in New Delhi is an expensive and arduous process. In addition, the citizenship application process requires that the applicant hold a valid passport, visa 10 and a Residence Permit issued by the Foreigners Registration Office, none of which Pakistani Hindus are able to possess. The application fee is prohibitively expensive. As a result, the lack of citizenship amounts to denial of basic rights, and as a result, basic services such as health care and education; this has created a vicious circle of illiteracy and poverty.

Seemant Lok Sanghathan, which has been at the forefront of securing rights of refugees has lobbied both the governments of Rajasthan and India for modification of the citizenship process. In 2001-2002, a State level Review Committee was set up as a result of its efforts. At the time, it recommended the following, among which only the first two were accepted:

•Accept applications of Pakistani nationals on receipt of a simple affidavit renouncing Pakistani citizenship.
•Setting up of cells in Jodhpur, Jaisalmer and Barmer to facilitate the processing of applications for citizenship.
•Pakistani nationals resident in India for five years be allowed to visit the border districts.

In January 2004, the Government of India decided to grant citizenship to Pakistani migrants of 1965 and 1971 living in Barmer and Jaisalmer through citizenship camps. According to Hindu Singh Sodha, this excluded those who came post 1971 and had stayed for more than five years. In February of the same year, the Government decided to grant citizenship to all eligible people delegated the power under Section 16 of the Citizenship Act, 1955 to District Magistrates in Rajasthan and Gujarat. Meanwhile the processing fee for application was hiked but subsequently rolled back as a result of protest from the Seemant Lok Sanghatan. In January and February 2005, a Government notification lead to setting up of citizenship camps in which more than 13,000 refugees became Indian citizens. The powers given to the District Magistrates were extended for another year. Even after the organisation of citizenship camps, many were reportedly left out either because of their inability to afford the application fee or because of absence of documents. The camps concluded its task in two months, which many, including Sodha argue was insufficient time.

The Bhil basti in Kali Beri: An Account of Resettlement and Its Implementation

The Bhil basti (colony, ghetto) provides an excellent example of the living conditions of the refugees. Located in Kali Beri, the colony is situated in the outskirts of Jodhpur and was established when they occupied government lands about 15 years back. About 250 Pakistani Hindu families live in the colony and include those who have been naturalized as citizens as well as those who continue to wait for citizenship. Houses are built of mud and stone with little or no access to electricity, sanitation, health care facilities or water supply. Most people living in the basti were agricultural labourers in Pakistan.

The conditions in which the migrants live are deplorable. While only half of the colony has access to water, there is no system in place to ensure that the water provided to them is clean. Sanitation is non existent, impacting women more than men. Toilets constructed for the school are in an unusable condition. No proper health care facility exists in the vicinity of the colony. The nearest Primary Health Care centre is about three kilometres away and the General Hospital is about ten kilometres from the basti. Located about 15 kms from the main city and having infrequent transport services makes it impossible for people to access services in an emergency. It is reported that doctors and hospital authorities often neglect people from this community. It is not uncommon for complications and deaths due to the absence of health care even in case of diseases that can otherwise be cured easily. 11 Most of those who have acquired citizenship have ration cards and are eligible to have BPL cards. Many however are unable to get one owing to delays and lenghty process and what some call “unnecessary” inquiries. 12 Taking into consideration their poverty, granting BPL status is a necessary step in their upliftement.

Children form a large chunk of the basti’s population (60-65 children enrolled in primary school) but have little or no access to education. The primary school in the basti which has only one teacher. Children have to travel long distances to reach the nearest high school.

Those without citizenship are barred from taking up any sort of work in India. Most migrants in the basti belong to the Bhil, a tribal community, engaged mostly in agriculture. Refugees are however reported to be working in sandstone quarries.

The Present Condition

According to a report, nearly 5000 Hindus crossed the border to take refuge in India till September, 2009 though they claimed not to stay. There is a clear increase in the trickle with 880 people crossing over in 2007, 1240 in 2008 and 1000 till August 2009. 13 According to Hindu Singh Sodha, as of September 2012, nearly 7000 refugees in Rajasthan and about 2000 in Gujarat are believed to have arrived. A batch of around 350 people, which included 150 children and 90 women, came to Jodhpur aboard the Thar Express in the same month and were lodged in a temple on the outskirts of Jodhpur. This is considered to be one of the largest influxes of Hindus from Pakistan in the recent times. 14 Mostly arriving on pilgrim visas, refugees have no intention to return. It is reported that the Pakistan government makes them sign a bond declaring that they would return, in order to project Pakistan's image as a tolerant country. 15 Factors contributing to the flight remain unchanged although the force with which these factors are operating in Pakistan is greater now. The rising influence of the Taliban is another factor. With their increasing influence over areas of Sindh and Punjab, 16 Hindus are an easy target. There have been instances of violence, rape abductions and forced conversions.17 Pakistan chose to be an Islamic country and hence there is a firm grip of fundamentalists over its society. The result is persecution of minorities. One very evident case showing the practice of abduction and forced conversion of Hindu girls is the Rinkle Kumari Case. 18 The state of Pakistan and its affairs are in shambles.19

Conclusion

The Pakistani Hindu refugees are a highly ignored lot facing a number of problems including the non-provision of citizenship and lack of access to basic facilities. Hindus continue to arrive in India making it an important issue to address. This can be done by adopting a refugee policy with clear and well defined provisions. These further need to be implemented in letter and spirit. India has always been an accommodative and tolerant country and in furtherance of its constitutional principles and its international obligations it becomes imperative for the Government to take some affirmative action to benefit the cause of these refugees.

Notes

1.For detailed data see 2012 Regional Profiles Operations, available at http://www.unhcr.org/pages/49e4876d6.html (Last visited on September 18, 2012).
2. They are ethnic Sindhis who primarily speak Sindhi. For more understanding of the issue of Pakistani Sindhi refugees and for purposes of distinguishing them from the more general Pakistani Hindu refugees refer to Victor Barnouw, The Sindhis, Mercantile Refugees in India: Problems of their Assimilation, 27(1), PHYLON, 40, 40-49 (1966).
3. Hindu Singh Sodha, THE NOWHERE PEOPLE, 5 (2010). Unpublished.
4. Thar Parkar has a mixed Hindu Muslim population. The Muslims comprise of various castes like the Rajputs, Baluchis, Syeds and Lohanas. Hindus include people belonging to various castes like the Meghwals, Bhils, Sansis, Jogis, Odhs, Rajputs, Brahmins, Malis, Rabaris, Sonars, Jats, Nais, Darzis and several others. In the absence of proper census data, the Pakistan Hindu Council estimates that there are nearly 7000000 Hindus in the country out of which 94% are in Sindh. Going by district population figures Thar Parkar is the district with the highest number of Hindus. For figures refer to Population of Hindus in Pakistan, available at http://pakistanhinducouncil.org/hindupopulation.asp (Last visited on September 18, 2012).
5. According to Ethnologue, there are nearly 132000 people in Pakistan who speak Dhatki which is similar to Marwari. For more details visit Dhatki- A language of Pakistan, available at http://www.ethnologue.com/show_language.asp?code=mki (Last visited on September 18, 2012).
6. For more information on the close ties between the regions of Rajasthan and Sindh see Bani Gill, The Border Dialogues in Sindh and Rajasthan available at http://www.safhr.org/index.php?option=com_content&view=article&id=289:the-border-dialogues-in-sindh-and-rajasthan&catid=184:indo-pak&Itemid=624 (Last visited on September 20, 2012).
7. Due to the unavailability of census data from the Censuses of 1961 and 1971, the author had to rely on the data of Census of 1998. According to it, Hindus were a meager 1.60% of the total population where Muslims accounted for a whopping 96.28%. For the data see Population by Religion, available at http://www.census.gov.pk/Religion.htm (Last visited on September 19,2012).
8. The declaration of Martial Law in 1958, which remained in force till 1962, and the status of fundamental rights are very well discussed in the book by A.B.M. Mafizul Islam Patwari. See A.B.M. Mafizul Islam Patwari, Protection of the Constitution and Fundamental Rights under the Martial Law in Pakistan, 1958-1962 (1988) and Elliot Tepper, Pakistan in Retrospect, 27(3), INTERNATIONAL JOURNAL, 357 (1972).
9. Faiza Mirza, Where God once lived, DAWN (June 25, 2012), available at http://dawn.com/2012/06/25/where-god-once-lived/ (Last visited on September 22, 2012).
10. The present procedure for grant of citizenship involves extending visas initially. Extension is first granted for 6 months which can be subsequently renewed for another 6 months the first time, a year at the time of the subsequent 2 renewals, and 2 years for renewals after that. See Shyamveer Singh, Saat Hazar Pak Visthapito Ko Nagarikta Ka Intezaar, RAJASTHAN PATRIKA (September 22, 2012), available at http://www.rajasthanpatrika.com/news/jodhpur/9222012/city-news/373406 (Last visited on September 23, 2012).
11. Ranaram, a refugee residing in Jodhpur, lost his wife to malaria in the absence of access to healthcare. See Bhavna Vij-Aurora, No country for Pakistani Hindus, INDIA TODAY (April 27, 2012), available at http://indiatoday.intoday.in/story/pakistani-hindu-refugees-suffer-in-india-no-rehabilitation/1/186372.html (Last visited on September 22, 2012).
12. Interview with Tatraram, a Pakistani migrant (Bhil Basti, Kali Beri, Jodhpur, August 4, 2012). “Unnecessary” inquiries refers to the intelligence checks that refugees are invariably made to go through, given that all Pakistani nationals are naturally suspected.
13. Vimal Bhatia, Fearing Taliban, Pak Hindus take Thar Express to India, THE TIMES OF INDIA (September 10, 2009), available at http://articles.timesofindia.indiatimes.com/2009-09-10/india/28087838_1_pak-hindus-indian-citizenship-munabao (Last visited on September 22, 2012).
14. In a television report by NDTV, it was told that this is the largest number of Pakistani Hindu refugees crossing over post the fencing of the border back in the mid-1960s. See the report NDTV, Pakistani Hindus refuse to go back, demand refugee status in India, September 11, 2012.
15. Harassed in Pakistan, homeless in India, NDTV (September 17, 2012), available at http://www.ndtv.com/article/india/harassed-in-pakistan-homeless-in-india-268291 (Last visited on September 22, 2012).
16. Richard Engel, The ‘Talibanization’ of Pakistan’s biggest city, NBC NEWS (September 30, 2008), available at http://worldblog.nbcnews.com/_news/2008/09/30/4376914-the-talibanization-of-pakistans-biggest-city (Last visited on September 22, 2012).
17. Bhatia, infra note 13.
18. Rinkle Kumari was abducted by a Pakistan People’s Party parliamentarian Mian Mithu who forced her to marry Naveed Shah, his son, and convert to Islam. She approached the Supreme Court in order to be sent back to her mother but had to pay for it. Her grandfather was killed and goons roamed around her house. As a result she had to step down and accepted before the court that she converted to Islam and wanted to remain with Shah. The Court could not do anything and she was sent back to her ‘husband’. She has reportedly attempted suicide multiple times. See Anita Joshua, A growing intolerance, THE HINDU (August 21, 2012), available at http://www.thehindu.com/opinion/lead/article3800097.ece (Last visited on September 22, 2012).
19. Failure of successive regimes in fulfilling their developmental agendas has created a crisis situation. The weakness of the judicial system and deterioration of the law and order situation blocks out any possible recourse. See Laila Bokhari, Radicalization, Political Violence, and Militancy, in THE FUTURE OF PAKISTAN, 82, 84 (2011).

Refugee Law-Consolidating the Solidarity

Prakhar Pandey

Introduction

This paper is an attempt to throw light on the loopholes that were left unplugged by framers of the 1951 Convention on the Status of Refugees (1951 Convention) and which are now being exploited by member states. Although states open their doors for victims of torture, persecution and public disorder, the 1951 Convention has failed to deliver owing to the failure of states to perform their duties. With continuing human rights abuse, political considerations dictate how states assist refugees. Further, imposition of duties on developing and poor states has resulted in asylum seekers getting inferior or illusory protection.

Article 33 of the UN Convention of Refugees: Non-Refoulement

The principle of non-refoulement forms one of the central tenets of refugee law. The import of this principle is that states are under an obligation not to expel or return a person who is likely to face persecution in his country of origin. Non-signatory states are also considered bound by this principle, as the same has become a customary norm. 1 This principle is imperative in regard to refugees and in the present state of international law it should be acknowledged and observed as a rule of jus cogens 2.

One of the most common examples of application of this principle by a non-signatory state is that of India. India had given refuge to several refugees from Sri Lanka during the LTTE occupation in North Sri Lanka and Jaffna Peninsula. It opened its doors for Afghan refugees who came through the Pakistan border. In fact, the UNHCR recognized these communities as refugees only on the consent of the Government of India.3 However, in 1992 India tried to encourage voluntary repatriation of the Jumma refugees by making living conditions in camps located in Tripura untenable. The same was done as a move to improve relations with Bangladesh 4 and was in contravention with the principle of non-refoulement.

Thus, while on one hand, the principle of non-refoulement has acquired the status of customary international law (and therefore binding on states irrespective of whether they have ratified the 1951 Convention), in countries like India, which follows the dualistic theory, such treaties or conventions would require to be incorporated by an act of parliamenting for it to be binding. Even though the rights of the refugees have been protected by the Supreme Court under provisions of the Constitution, a number of examples suggest that India has not adhered to this principle 5.

Exceptions to non-refoulement

Article 33(2) provides for an exception to principle of non-refoulement. However, it has been interpreted in an extremely wide manner by states, resulting in its indirect contravention. Even though attempts have been made to narrow down the ambit of aspects like “national security”6 , states find ways to avoid international obligations. The test to determine a “national security threat” i.e. whether the refugee in question would be a threat to the national security. As compared to the public order exception, it requires only “reasonable grounds” as opposed to a final judgment of conviction, and imposes only a one-step test but as the convention does not identify the types of acts that could trigger the national security exception states have the freedom of interpreting it in the broadest possible manner.

The Harsh Realities of a Refugee Camp


It would be wrong to base an evaluation of the framework for refugee law thoroughly on refoulement and the duty of states to provide protection to refugees. While we debate on how states abstain from performing their duties, we forget the fact that even states abiding by the principle of non-refoulement, generally abstain from providing a decent life to those who are aliens to their land.

There is little evidence to trace back the history of refugee camps. 7 Their history dates back to as early as 1865. Official records in the League of Nations began emerging as late as 1935. UNRRA was replaced by the IRO (international refugees organization) which was later replaced by the United Nations High Commissioner for refugees. With time the number of refugees has increased, and the problem that emerges is how to provide the ever increasing numbers with essential services. Even though the principle of non-refoulement has emerged, states parties to the convention of 1951 do not always consider themselves obligated to provide for the essential services required by someone taking refuge. The numbers signify the same.

The first major crisis that needs mention at this point of time is the acute displacement crisis of Iraq. Even after the US intervention in Iraq got over there still exist over 500,000 of whom live as squatters in slum areas with no assistance or legal right to the properties they occupy. Most refugees cannot work legally, making it increasingly difficult for them to pay rent and afford school fees for their children. Consequently, some are forced to return to an insecure and unstable Iraq and often find themselves displaced within the country 8. In Jordan most refugees and asylum-seekers live in urban areas in poverty, unable to gain access to livelihoods 9.

Dadaab is perhaps another glaring example of the failure to provide development funding in protracted refugee situations. Dadaab, which is the world’s largest refugee camp, houses majorly Somali refugees. The camp capacity was 90, 000 and had exceeded its limit 3 years ago as per the UN Refugee Agency. More than $12m of donor funding had been committed for the extension of the Dadaab camps, to provide space for 80,000 refugees and relieve overcrowding in the complex. At present close to 5000 refugees arrive each month in Dadaab, and with time the Dadaab refugee camp could perhaps signify the greatest Somali refugee crisis 10. The condition of refugee camps and refugees in particular in these refugee camps has no one to blame. Countries like Kenya and Jordan are under developed countries, which are trying to resolve their own internal issues. Moreover these states have been incapable to provide for a bare minimum to their own citizens, and expecting them to serve to the needs of refugees is too big a demand. The legal framework tends to lose effectiveness because of such factors.

Solving the Refugee Crisis by Integration, Repatriation & Resettlement

The conditions which a refugee faces throughout his life in camps, might just be improved by three internationally accepted methods-integration, repatriation & resettlement. The idea of integration finds its way through Article 34 of the 1951 Convention, which considers it to be the duty of the host state to allow naturalization of refugees. For integration to take place refugees are allowed to permanently settle down in the host state and find a solution to their plight. It is a socio-cultural process and allows refugees to resettle in a different society without losing their identity. The host state provides for a wide range of rights and entitlements which are also provided to its citizens. The rights provided may be in the form of the right to free movement, the right to public relief, the right to acquisition and disposition of property etc.

Integration comes up as an important solution for refugee protection, as unlike other aliens, they do not have a country to go back. As most of the refugees lack financial aids and networks to locate their families. Therefore, integration allows refugees to arrange for financial assistance so that they can reunite with their families 11. In Gambia, the refugees who live a life in the community have found community life far better as compared to camp life since it provides them with privacy and allows them to plan a future for themselves 12.The benefits arising out of integration are a lot, however states through their policies restrict refugee movement in their territory itself, thereby not allowing them to interact with the community that makes up that state. Very recently, the same was observed in Thailand where Burmese refugees were not allowed to move out of refugee camps. The Thai consider the Burmese refugees as aliens, and provide for refugee camps in isolated mountain locations, inaccessible by road. Refugees can only work legally in Thailand if they remain silent about their refugee claims and present themselves as migrant workers. They are forced to bribe police officers who threaten them of deportation to Burma 13. States also oppose refugee integration on the basis of a number of contributory factors. Refugee camps have experienced direct attacks and militarization has sometimes become acute. Petty and organized crime has indeed flourished in some refugee hosting areas. These real and perceived security threats can cause resentment and clashes between locals and refugees, diminishing chances for successful local integration 14.

Security of its own citizens and its sovereignty, often results in a hostile attitude of states towards refugees. This is considered to be the first and foremost obstruction in the path of integration. The excessive usage of natural resources and an increase in competition for land and jobs 15 has also resulted in states opposing integration. It is for this reason repatriation is preferred. Often the condition of camps also results in a failure of integration. As stated earlier, Iraqi refugee camps and the camps in Dadaab show as to development funds are not used for improving the condition of camps. Further, the voluntary repatriation of Jumma Buddhists because of the untenable living conditions of the refugee camps in Tripura (India), is another example.

United Nations General Assembly Resolution 428(V) of 14 December 1950, which created the UNHCR statute, requires states to assist in promoting voluntary repatriation. The concept of repatriation comes from the UDHR itself which provides in Article 13 (2) the right of a citizen to return his nation. States are under an obligation to encourage voluntary repatriation. The Executive Committee of UNHCR has declared since the 1980s that voluntary repatriation is the preferred durable solution, favored over resettlement and local integration 16. The High Commissioner had further declared that the 1990s would be the decade of voluntary repatriation 17.In its Handbook On Voluntary Repatriations the UNHCR has specifically laid down that the host state would have to ensure that refugees return back to their home state with dignity. It is a noticeable fact that the success of the UNHRC hinges majorly on states adherence to such guidelines. Human rights organization, Human Rights Watch comments on the push factor of voluntary repatriation by citing the example of the Tajik refugees in Afghanistan. The government of Afghanistan has cut short ‘ration’ for refugees thereby resulting in Tajik refugees returning to their home state 18. Even in repatriation the framework for refugee protection provides for excessive discretion in determining what ‘voluntary’ would mean, resulting in many situations similar to that Afghanistan.

Resettling refugees in a third State which has agreed to admit them – as refugees - with permanent residential status, has emerged as another important method of refugee protection. The status provided ensures protection against refoulement and also provides the resettled and his/her family or dependants, an access to civil, political, economic, social and cultural rights similar to those enjoyed by nationals 19. It serves three important functions. First, it is a tool to provide international protection and meet the special needs of individual refugees whose life, liberty, safety, health or other fundamental rights are at risk in the country where they have sought refuge. Second, it is a durable solution for larger numbers or groups of refugees, alongside the other durable solutions of voluntary repatriation and local integration. Third, it can be a tangible expression of international solidarity and a responsibility sharing mechanism, allowing States to help share each other’s burdens, and reduce problems impacting the country of first asylum 20.Resettlement might just have certain problems, majorly regarding application of municipal laws of the state which allows resettlement. In the United States, several resettled refugees had faced problems with the “lawful permanent residential status”(LPR). Refugees who were not able to acquire LPR status were detained after one year of arrival by the government 21 .

Conclusion

Although UNHCR has played a vital role in refugee protection, it depends largely on states to perform their duties. Its ability to critique state actions and inactions is constrained by the funds received from states. Lastly, allowing states to interpret the 1951 Convention in a manner convenient to them runs the risk of crisis far bigger than what we are suffering.

Notes

1. United Nations High Commissioner on Refugees(UNHCR), Note on the Principle of Non-Refoulement, http://www.unhcr.org/refworld/docid/438c6d972.html (Last updated- 4 October 2012).
2. Part III 5, Cartagena Declaration of Refugees, 1948.
3. T.Ananthchari, Refugees in India-Legal Framework Law Enforcement & Security, 2001 ISIL Year Book of Int’l Humanitarian & Refugee Law pg. 7.
4. SAHRDC, Refugee Protection In India
5. For example, the NHRC v. State of Andhra Pradesh (Supra) case, where the NHRC had noted the co-ordinated move taken by the Arunachal Pradesh government with the All Arunachal Pradesh Students Union, to move out the Chakma refugees.
6. See Reg. vs. Bouchereau, 2CMLR 800(European Court of Justice) & Supra note 3.
7. Our modern day understanding of a refugee camp is based on the camp model created by the United Nations Relief and Rehabilitation Administration (UNRRA) in 1943. The main purpose and function of UNRRA was to: “plan, coordinate, administer or arrange for the administration of measures for the relief of victims of war in any area under the control of any of the United Nations through the provision of food, fuel, clothing, shelter and other basic necessities, medical and other essential services . . .”
8. As per the report of ‘Refugee International’ available on:www.refugeesinternational.org/where-we-work/middle-east/iraq (Last updated on 10/04/2012).
9.UNHCR, 2012 -UNHCR Country Operations Profile – Jordan, available on: www.unhcr.org/pages/49e486566.html [Last updated on 5th October, 2012 at 4:30 PM].
10. The Guardian, Dadaab Refugee Camps: 20 Years Of Living In Crisis, http://www.guardian.co.uk/global development/2011/mar/24/dadaab-refugee-camps-living-in-crisis (last updated on 4th October, 2012)
11. UNHCR, Rights of Refugees in Context of Integration: Legal Standards & Recommendations, available on http://www.unhcr.org/refworld/docid/44bb9b684.html [accessed on: 15th January, 2013 at 4:00 PM].
12. Gail Hopkins, Casamance Refugees In The Gambia:Self-Settlement And The Challenges Of Integration http://www.unhcr.org/4e79ef7c9.html [accessed on:5th October, 2012 at 12:30 PM].
13. Human Rights Watch, Giving Refugees Hope Beyond Camps, http://www.hrw.org/news/2012/09/09/giving-refugees-hope-beyond-camps( Last updated on 5th October, 2012).
14. Alexandra Fielden , Local Integration: An Under-Reported Solution To Protracted Refugee Situations (October 3rd, 2012) http://www.unhcr.org/486cc99f2.pdf
15. Supra note 11 at pg. 3.
16. Executive Committee of UNHCR Conclusion 18 (XXXI) (1980).
17. Speech of the High Commissioner, June 26, 1992. See also UNHCR, State of the World’s Refugees: In Search of Solutions, (Geneva: 1995), p. 31.
18. Human Rights Watch,Helsinki, A Return to Tajikistan: Continued Regional and Ethnic Tensions, in A Human Rights Watch Short Report, vol. 7, no. 9, May 1995, p. 10; Human Rights Watch, Uncertain Refugees-International failures To Protect Refugees,(October 3rd, 2012) http://www.hrw.org/sites/default/files/reports/general974.pdf.
19. UNHCR, Resettlement Handbook, pg. 2 (October 3rd 2012) http://www.unhcr.org/refworld/pdfid/3ae6b35e0.pdf.
20. Strengthening and Expanding Resettlement Today: Challenges and Opportunities, Global Consultations on International Protection, EC/GC/02/7 of 25 April 2002, (4th Meeting), as quoted in UNHCR, Resettlement Handbook, pg. 1, (October 3rd, 2012) http://www.unhcr.org/refworld/pdfid/3ae6b35e0.pdf.
21. Human Rights Watch, Jailing Refugees Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status, pg. 4 http://www.hrw.org/sites/default/files/reports/refugees1209webwcover.pdf (Last update-October 4th, 2012).

An Interview with Mr. Hindu Singh Sodha1

Mr. Sodha is a social activist working with Pakistani Hindu refugees. He himself was a migrant from Pakistan. He is working in the field for the past two decades and is the Convenor of the Seemant Lok Sangathan. The whole interview is reproduced here.

VB: What is the estimated number of people of this community throughout Rajasthan and Gujarat who still have not got citizenship?
HSS: There are about 7000 people without citizenship in Rajasthan and another 2000 in Gujarat.

VB: Have these people been accorded refugee status by the Government of India or the UNHCR?
HSS: The Government of India gave refugee status to Pakistani Hindu refugees only in 1972. When it comes to the UNHCR, well, it has never given refugee status to this community. Whenever we approach them, they say that they do not have mandate over refugees from South Asia.

VB: Has there been any change in the class of people (in terms of caste, income levels, literacy levels etc) crossing over with time?
HSS: No, there has been no change in the class of people crossing over. People from all classes, be it business class, feudal lords or daily wage labourers, were and are coming into India.

VB: With little or no access to healthcare, these refugees would definitely be facing problems related to their health. They live in big groups with unhygienic conditions. What are the specific problems plaguing them on the health front, especially with regard to children and women?
HSS: Their health condition is pathetic and children and women are the worst hit in terms of their health. As majority of these people belong to the weaker sections of the society, they are unable to feed their children a proper and nutritious diet. Pregnant women are the most vulnerable.

VB: Are they subjected to health checks when they enter India?
HSS: No there are no health checks conducted by the Government.

VB: What are the measures, if any, taken by governmental authorities to redress their health problems? As far as I know, without citizenship they would not be able to access the healthcare options, particularly the government health schemes, of the government.
HSS: Yes, you are right. People without citizenship cannot access the public health schemes of the Government. Also, as far as I know, there have been no measures taken by the Government to redress their health related problems.

VB: Do they face some hassles in accessing health facilities in local hospitals? Are hospital authorities hesitant when it comes to treating migrants?
HSS: They face a lot of problems in accessing facilities in local hospitals. I know a number of cases where the doctors did not even take up cases involving refugees, serious cases like cardiac arrest and child delivery, on the grounds that they are from Pakistan. Also, doctors try to discharge them as early as possible, sometimes even before their treatment is over in order to avoid any hassles.

VB: Living under such deplorable conditions for such a long duration of time, sometimes without their families and basic facilities is bound to create certain mental ill-effects. Are there some people who suffer from psychological disorders?
HSS: There have been cases of stress related problems. It becomes more significant and problematic when the earning member of a family is involved.

VB: I had visited the Bhil Basti in Kali Beri. The state of affairs there was certainly deplorable with no water, electricity, basic healthcare, livelihood options and the abject poverty. What about the other bastis, colonies and villages where they have been residing? Are the conditions similar to that of the Bhil Basti or is the picture better in some other places?
HSS: The government did not promote settlement in any scenario except in 1971. So the condition of the living throughout Rajasthan and Gujarat is quite the same.

VB: When I was in the Bhil Basti I saw a priest at the local ‘thaan’ carrying out a peculiar ritual with a person. He was making him bang his head on the ‘thaan’ in front of the diety. Are these kinds of superstitious activities very much prevalent among them? If yes, have you taken some measures to counter this?
HSS: Personally, I discourage such tactics but it is in fact due to their illiteracy that these practices still prevail in this community.

VB: The United Nations High Commission for Refugees is playing a cooperative role with the Government of India in handling the refugee population. Has there been some help accorded by the UNHCR in respect of this issue?
HSS: As I had told before, the UNHCR doesn’t work with refugees from South Asia.

VB: With regard to the fundamental right violations or otherwise, has anyone from the Pakistani Hindu community taken recourse to legal action on his/her own or with your support?
HSS: Of course, in cases of deportation and harassment we have approached the Courts and have been successful in getting proper remedies.

VB: In respect of the families which have been residing in India for a long time now, have they made some kind of progress with respect to their initial condition in terms of education, literacy, employment among others?
HSS: It all depends on chance. Yes, if they acquire Indian citizenship they of course utilise every possible opportunity to be a part of the progress India is known for. Many of them aim to get into premier institutions. Most of the migrants are currently engaged in private employement.

VB: The policy of non refoulement is binding on the Government of India through the operation of customary International Law. What has been the position of refoulement in this case per se? Have there been instances where people from this community have been deported back to Pakistan?
HSS: Officials sometimes do try for deportation of a few but due to our organisational intervention in the form of approaching the judiciary we almost always succeed in such cases.

VB: Whenever there is a refugee problem the prime contention is always that of protection of national interest versus the protection of human rights; with respect to the issue on hand it gets more complicated as the other country involved is Pakistan. What is your take on it?
HSS: It is sad that on top most level, the policy makers don’t understand the ground realities; and often in the name of internal security human rights of the refugees are violated. When it comes to execution, it is on the lower officers and they usually forget the fact that these people have come here because of the violation of their rights in Pakistan.

VB: The biggest paradox is that despite being a country which has seen one of the world’s largest refugee movements since the time of independence, India does not have a robust refugee policy in place. What has your organisation done with respect to that recently?
HSS: Since the very beginning we have been demanding a uniform policy on the issue. The Government of India comes up with many excuses so as to escape responsibility. India neither is a signatory of UN Convention on Refugees of 1951 nor has signed the Protocol of 1967. Also, there is no domestic law to deal with refugees.

VB: How have these people been oriented with respect to their stay and further action to be taken?
HSS: When they come to us and narrate their intention to stay on due to religious persecution, we guide them in going about the processes and procedures needed to do so. During their stay they face enormous problems which we try to resolve on a daily basis, though due to lack of resources we are not able to do as much as we intend to do.

Notes
1. Supra note 38.