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.