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.

Introduction : First Edition of Refugee Watch Online, 2013

Ishita Dey

In this edition of Refugee Watch online, we want to move beyond the understanding of Partitioning of the Indian Sub of partitioning of the sub-continent of 1947 as a cartographic exercise. What is interesting is how “contested spaces” were recreated and reproduced in post-colonial South Asia as a result of the massive forced migration across 370,000 square miles of territory leading to the formation of two nation-states of India and Pakistan. Much of the contested spaces have to do with how people negotiated with the “borders” that forced them to migrate, as well as become subjects and agents of post-colonial statecraft.

Decades later, populations across various territorial entities continue to suffer the impacts of this cartographic exercise which was responsible for inter community clashes and riots. Most of the people who were forced to migrate thought it was a temporary move. They would be able to return. Anisuzzaman, Eminent Scholar and Professor Emeritus, Department of Bangla, Dhaka University in his account echoed a similar feeling. He said his father chose to migrate to Khulna from Kolkata because it was near to Kolkata. In this interesting panel “Partition Experiences in South Asia: Memory, Literature, Media” in the recently concluded 14th IASFM Conference hosted by CRG on “Contested spaces and cartographic challenges” the presenters shared the varied experiences of partition across India, Bangladesh and Pakistan. In Anisuzzaman’s account, one could also realise the complex picture produced by the Language Movement and the Liberation War. Similarly the feminist reading of partition historiography critically looked at nation-hood and the ways in which nationalist histories were written. Even in literature, both vernacular and in English, partition continues to be be introspected from various lenses- narratives of “home”, gendered experience of partition and struggles on arrival or departure. In other words, partition was as much a historical event that led to redrawing of “borders” at various time scapes but it also produced newer complexities with regard to citizenship rights, claim making and contestations.

In another panel “ Other Histories of Partition- Lives in transit”, there was an attempt to look into how social structures were reproduced and contested spaces were created by the population movements in the “Eastern” side of the border the refugees struggled and continue to do so to find a place in post-colonial statecraft. In this context it is important to understand that the post-colonial statecraft’s narrative of ‘care and protection’ towards “refugees” was embedded and continues to be influenced by the existing social structures of religion, caste and gender. These “lives in transit” is representative of the “other’ histories of partition of how partition produced the “other” and created contested spaces of the ways in which the “other” could be co-opted as the three studies in this panel will reveal.

In other words, the politics of post-partition are located in the policies and experiences of exclusion/inclusion of the people who were forced to cross borders and who continue to live in the liminal zones. Hence, the partition of the Indian –subcontinent in 1947 continues to produce lives in transit as evident in the contributions in this edition of Refugee Watch Online.

Anwesha Sengupta in her piece “Being Minority, Being Migrant: A Note on the Muslims of West Bengal, 1947-1950” discusses the forced migration of Muslims from West Bengal to East Pakistan. Atig Ghosh, in his article on “The Inhabitants of Bangladeshi Chhitmahals in India” takes a critical look at “the question whether there are tangible conditions which actually mark out life in an enclave or is it merely a stereotypical reification, imbibed over time and regurgitated conveniently.”

In the section on Reviews, Tista Das in her re-reading of a short story “ Jaiba” by Narendranath Mitra takes a critical look at the ways in which gendered narratives makes its space in literature on partition. Tista is interested in the gendered violence that Sudatta faces during partition, post partition and within the familial structures. Through Sudatta’s journey into motherhood, Tista reads this fascinating story against the context of how “honour” is constructed around “women” and how it continues to produce multiple layers of violence.

Sohini Majumdar in her review of Neeti Nair’s work Changing Homeland: Hindu Politics and the Partition of India, Harvard University Press 2011; presents to us come of the complexities what shaped partitioning of the sub continent. According to Sohini, “She argues that the historiography of partition have tended to view partition as a logical culmination of a process of communalism where the monolithic Hindu and Muslim community was posited against each other. Interrogating this widely accepted view, she focuses on the ‘reality’ of the conflicting and intersecting identities that came to dominate the various decisions the people of Punjab took at various historical conjunctures”.

We look forward to your comments and feedback.

Supreme Court Promises to Look into Citizenship Rights or Refugee Status to Thousands of Displaced in Assam

In an article in Outlook India, Supreme Court reportedly “agreed to examine the plea for grant of citizenship or refugee status to thousands of displaced persons, mostly in Assam, of minority communities like Hindus, Buddhists, Sikhs and Christians due to their alleged religious persecution in Bangladesh”. What is critical to note is that the petition raises certain serious concerns over the citizenship act, amendment and the victimisation of minorities in Assam. What is interesting is the way the petition urges the court to look into the plights of the displaced within the international protection mechanisms for “refugees”.

Excerpts from the Report

“Citing the cut-off date of 25.3.1971 fixed by the Centre for granting citizenship to the migrants in the wake of the Assam Accord, the petition said victimisation of minorities continues even after the cut-off date and hence their case should also be considered sympathetically.

"In the facts of the present case, the ‘displaced persons’ also deserve protection in our country and the status of ‘refugees’ under the International Conventions, namely the Refugee Convention, 1951, and 1967 Protocol Relating to Status of Refugees; Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, New York, 1984 and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006," it said.”

Even in the case of “Bru” displaced media reports called them as “refugees”. While contestation over citizenship right is the central argument of this petition, it is interesting to see the ways in which citizenship rights is posited vis a vis refugee status/ rights.

For details see : “SC to examine B’desh Migrants’ Plea for Citizenship”, Outlook India,27 July 2012
http://news.outlookindia.com/items.aspx?artid=770192; Accessed on 10 September 2012

Right to Return for Bru Displacees

In the first edition of Refugee Watch Online we had published an interview with representatives from Mizoram Bru Displaced People’s Forum who had pointed out that they wanted to go back to Mizoram1. In May 2012, not a single Bru displaced people wanted to return back because they are scared of the socio-economic consequences they have to face when they return.

According to a report published in Economic Times not a single Bru displacee returned to Mizoram on the last day of the “repatriation” process that the Government of Mizoram had arranged with their counterparts in Tripura at Mamit ( a place bordering Tripura and Mizoram). The representatives of the Mizoam Bru Displaced People’s Forum expressed their anxiety indicating that around 85 % of the displaced people staying in the camps of Tripura would be treated as second class citizens as their names would not feature in the voter’s list prepared in 1995. According to the representative of Mizoram Bru Displaced People’s Forum, “Mizoram Government had agreed to take back only those refugees whose names figured in the final voters list published in 1995.”2 Apart from that they also expressed concerns that they will not be able to participate in the jhum cultivation and will lose out on a year’s harvest. They reportedly submitted their demands to the Union Home Ministry and the Mizoram Government.

For details see :

1.http://refugeewatchonline.blogspot.in/2012/03/we-want-to-go-back-to-mizoram.html.
2. ‘Fourth phase of repratriation of Bru Refugees from Tripura fail’ http://articles.economictimes.indiatimes.com/2012-05-16/news/31726960_1_repatriation-of-bru-refugees-mamit-mizoram-government; Accessed on 22 May 2012

Stateless People

Despite the September 2011 agreement on protocol of exchange concerning 51000 people in 162 enclaves between India and Bangladesh, there has been little headway at the ground level. A recently published report in Indian Express (see link below) reported that a German woman of Polish origin have declared to extend financial support towards a child’s education. She has already contacted ontacted Diptiman Sengupta, secretary of the India-Bangladesh Enclave Exchange Coordination Committee (BBEECC). In fact BBEECC has nominated two girls one from Indian side and one from Bangladesh side.

For details see:-
Madhuparna Das, “Offer from German Resident gives hope to stateless in India” 23 July 2012. http://www.indianexpress.com/news/offer-from-german-resident-gives-hope-to-stateless-in-india-bangladesh/978044/1; Accessed on 6 August 2012.

Being Minority, Being Migrant: A Note on the Muslims of West Bengal, 1947-1950

Anwesha Sengupta

On August 15, 1947 Calcutta and West Bengal was in a festive mood. Slogans like Bande Mataram, Jai Hind, Hindu-Musalman ek Ho, Allah ho Akbar, were raised in the streets of the city and its suburbs. People of different faiths embraced each other, distributed sweets and thus celebrated the much awaited independence.1 It seemed for a moment that the cloud of communalism had finally passed. It was a momentary relief though. Soon, the Muslims would realize that their lives were no longer safe in this city and in West Bengal. Within a year of independence, the communal situation started deteriorating. On the day of Muharram, 1948 the procession was obstructed near Maniktalla (Calcutta), brickbats and acid bulbs were thrown and on the following day there were chilling reports of Muslims being stabbed in some of the streets of Calcutta. It was also reported that the refugees from East Pakistan played a leading role in this.2

The scene outside Calcutta was no better. Nadia, a border district, for instance, was one of the majorly disturbed areas. Particularly notorious were the villages within the Shantipur Police Station of this district. The Muslims, mostly poor agriculturalists, were often harassed by the local Hindus. Their properties were looted, crops produced in their fields were forcefully taken away, and houses were occupied.3 As early as in July 1948, a riotous situation developed in Shantipur. It started when some Muslims allegedly attempted to molest some Hindu school girls. Whether this was a rumour or not4 is difficult to ascertain. But this (alleged) incident became the excuse for damaging the mosques, attacking the local Muslims and even killing them. Of course, incidents like this forced many Muslims to migrate. The following extract from the secret report on the situation of East Bengal for the first half of July 1948 will give an idea of the situation in Shantipur and the plight of the Muslims:

a serious outbreak of communal fury against Muslims occurred in the Shantipur thana of Nadia district on 19-20 July. Information in the possession of government shows that Hindu mobs with the connivance and sometimes active assistance of the police, attacked mosques and houses. At least 10 Muslims were killed, and scores injured. It is also reported that medical aid was denied to the injured by the Hindu doctors of the area. As a result of these disturbances many Muslims have migrated from Shantipur to Rajshahi, Jessore, Kushtia and Pabna districts of this province and their accounts of oppression endured by the Nadia Muslims has had an exciting effect on the minds of their hearers.5

Nadia, being a border district, received massive refugee influx from East Pakistan. By a warped logic of retribution, the refugees often took leading roles in torturing the Muslims. If they could not stay in Pakistan, they would not let the Muslims stay in India, perhaps, was their idea. The police and the local administration too often were a party to these assaults, either directly or by being mute spectators. The violence of Calcutta, Noakhali and Bihar riots, the reports and rumours about Hindu oppression in East Bengal and the general understanding of partition, made the majority of the people respond to the politics of the time in religious terms. So, in January 10, 1949 when a group of 30 refugees from East Bengal led by Debendra Nath Mandal, assaulted the Muslims of Haldipara village (Hanskhali police station, Nadia), the police did not take action. The same group, encouraged by the indifference of the police, again created trouble on 14 and 15th of the same month and even tried to kidnap a Muslim woman. Even then, the police allegedly refused to register any complaint lodged by the Muslims.6

The refugees needed lands to cultivate and homes to stay. They often forcibly occupied the houses of the Muslims, as well as their mosques and desecrated their graveyards.7 Often the Government of West Bengal had a more direct role in displacing the Muslims. For instance, on December 1, 1948, the West Bengal Government issued a notification to acquire land in twenty two villages of 24 Parganas district for rehabilitating the Hindu refugees. These villages, situated very near Indo-East Pakistan border, were populated primarily by the Muslims. Such a measure made them anxious and was seen as a deliberate attempt to “clean” the border areas off the Muslims.8

Being a refugee was also an equally difficult experience for the poor Muslim migrants. First and foremost, being uprooted from one’s home had deep psychological impact. Settling down in a new place required necessary capital, which the refugees often lacked. So they expected some help from the Government. Muhinuddin Ahmed from a village under Shantipur Police Station wrote the following letter to the District Magistrate of Jessore:

…Lands for construction of thatched roofing houses and lands for cultivation and weaving machines are urgently required for the refugees of Santipore. The refugees of Santipore who came here they left all things in Santipore. We do not want to be a burden on our Government and as such if facilities are offered to equip ourselves with necessary implements for cultivation and weaving, immediately people can start on work and earning. … at present arrangement for the 500 evacuees may kindly be made. For our help your honour kindly arrange for two tube wells in Jadavpore at a very early date and will kindly arrange for C.I. sheets of 10’-0 at controlled rate at a date when available. [sic.]9

There is an absolute lack of any research on the politics and process of relief and rehabilitation of the refugees in East Bengal. The refugee pressure increased in 1950 when there was an outbreak of communal riots in both East and West Bengal. Many, who initially thought of staying put in India, were forced to leave. This article does not have the scope to discuss the anatomy of this violence in great detail. But a quotation from the diary of Tajuddin Ahmed, who later became the first Prime Minister of independent Bangladesh, would give an idea of the flow of the Muslims from India to East Pakistan. He wrote on February 28, 1950:

After two and a half years of Pakistan’s independence, Dhaka is witnessing communal riot. The riot has affected the suburbs and interior villages as well. Dhaka is also witnessing a massive influx of Muslim refugees from West Bengal [because the communal riots have affected that province as well]. Dhaka for the first time is facing acute pressure of the refugees. A large section of the Hindus are also leaving East Bengal.10

Being a Muslim in West Bengal was a difficult experience during the ‘partitioned times’. This paper tried to shed some light on the woes of being a minority and a migrant, by focusing on the Muslims of West Bengal. Through the study of the condition of the Muslims in West Bengal after partition, it revealed the limitations of the “secular” Nehruvian India in safeguarding the interests of its religious minority.

Notes and References

1 Sekhar Bandyopadhyay, Decolonization in South Asia: Meanings of freedom in post-independence West Bengal, 1947-52, Routledge, London and New York, 2009, p-10.
2 Letter to the Editor from Abdul Majid, Azad, 14.11.1948.
3 F.No K.W. 19-199/48, Pol (C.R.);Bundle No 1, ‘B’ Proceedings, List 119, Archives and National Library (ANL), Dhaka.
4 Letter dated 27.9.1948 from the Deputy Secretary, Government of East Bengal to the Secreatry, Government of Pakistan, Ministry of Foreign Affairs and Commonwealth Relations, F.no- C.R.19-199/48, Bundle No 1, ‘B’ Proceedings, List 119, Bangladesh National Library and Archives, Dhaka.
5 F.No- C.R.19-199/48, Bundle No 1, Pol (C.R.); ‘B’ Proceedings, List 119, Archives and National Library (ANL), Dhaka.
6 From the Secretary to the Deputy High Commissioner for Pakistan in India to the Chief Secretary to the Govt. of East Bengal, Date 29.3.1949, F.No – 3C1-6/49, Bundle No 2, ‘B’ Proceedings, List 119, ANL.
7 Ibid. Also see, Joya Chatterji, ‘Of Graveyards and Ghettoes: Muslims in Partitioned West Bengal 1947-67,’ in M .Hasan and Asim Roy(eds), Living Together Separately: Cultural India in History and Politics, O.U.P., New Delhi, 2005.
8 F.No CR 5M-1/50 Pol (C.R.); Bundle No 2, ‘B’ Proceedings, List 119, ANL.
9 Letter to D.M, Jessore dated 22/8/1948 from Muhinuddin Ahmed ‘on behalf of refugees’, F.no- C.R.19-199/48, Bundle -1, List-119, ‘B’ Proceedings, ANL.
10 Tajuddin Ahmed, Tajuddin Ahmeder Diary, vol 2, Pratibhas, Dhaka, 2007 (second edition), p-87

The Inhabitants of Bangladeshi Chhitmahals in India

Atig Ghosh

Approximately 200 Indo-Bangladesh enclaves, which are sprinkled along the international border of Rajshahi state, Bangladesh, and Cooch Behar district, West Bengal, are collectively known as chhitmahal or chhit mohol in Bengali and constitute a bizarre political geography. A simple rendition of the chhit mohol as enclaves obfuscates the myriad spatial configurations and strategies that have emerged in the area over 60-odd years since partition. There are, for starters, counter-enclaves; that is, enclaves completely enclosed by another enclave. Shalbari, the second largest Indian enclave, for instance, encloses four Bangladeshi exclaves. There is also a globally-unique counter-counter enclave; the largest Indian exclave, Balapara Khagrabari, embodies one Bangladeshi exclave, Upanchowki Bhajni, which itself embodies an Indian exclave called Dahala Khagrabari, thus making the last one a counter-counter enclave. Then, there existed until very recently arguably the world’s only part-time enclave, Dahagram-Angarpota, which was connected to Bangladesh by the one-acre or tin-bigha corridor. The corridor used to remain open every alternate hour during day and completely closed during night. The Singh-Haseena agreement of September, 2011, however, has opened the corridor permanently, thus conferring the dubious character of a pene-enclave on Dahagram-Angarpota. Pene-enclaves are, however, not unknown to the residents of the area, though they have curiously escaped academic as well as journalistic scrutiny. Kalsi para or simply Kalsi, the Muslim-majority Indian proruption into Bangladesh, for instance, is a pene-enclave of sorts located in Kuchlibari. Though all our respondents pointed out that it is not a chhit or enclave technically, they unanimously concurred that the life conditions there best represented what is normally considered to be life conditions in an enclave. The observation, of course, begs the question whether there are tangible conditions which actually mark out life in an enclave or is it merely a stereotypical reification, imbibed over time and regurgitated conveniently. This study pays special attention to this critical concern.

During colonial times, the people of the enclaves did not face any difficulty graver than those experienced by their mainland counterparts. Sovereignty was not expressed in terms of territorial contiguity as in terms of jurisdiction and tax flows. Even after partition, for some years the old arrangement limped along, though gradual tightening of national territoriality was becoming evident. The apical moment of this territorial closure came in 1952, when the two governments of India and Pakistan agreed to introduce the passport regime. The agreement made no mention of the inhabitants of the enclaves and, as such, they were pushed into a curious situation of government-enforced statelessness. That is, if a person of, say, an Indian enclave in Bangladesh wanted to obtain passport and visa for free movement, she had to illegally trespass into Bangladeshi territory; if the person managed to reach a border outpost undetected, she had to be admitted illegally into Indian territory, for she carried no identification proof, and then travel hundreds of kilometres to the nearest consulate. If all this resulted in the issuance of a passport and a visa, then the person could return to the enclave only till the visa expired. Then she had to repeat the illegal procedure all over again.

The Indian and the Pakistan (later Bangladesh) governments came to a series of understandings to effect the exchange of enclaves. But none ever got beyond paperwork and diplomatic pleasantries. In the meanwhile, the people in the enclaves were confronted with a slew of identity-related options; none of them felicific, but such were the choices. William Van Schendel has identified at least three such self-reckoning strategies of the stateless people of the enclaves. Two of them, he argues, are transterritorial: the enclave-dweller could think of herself as a citizen of the patron state. Conversely, a Bangladeshi Hindu could identify with India and an Indian Muslim could identify with Bangladesh. This he calls ‘proxy citizenship’ which was often induced by the ideological goading of the mainland nation-states. This latter claim however does not fit neatly with evidence collected over time. In fact, Van Schendel himself finds a Muslim interviewee residing in an Indian enclave, Md. Bokhtaruddin, who describes how Pakistan had disowned him and his community after 1947. Suspended in this stateless void, the third available identity-related option was, of course, one of belonging to the enclaves. This is not trans-territorial but locally rooted. However, identity as a claim-making device can only be effective when it has numerical, economic and political teeth. The residents of the enclaves, separated by swathes of foreign, often hostile, territory, with no health, education, civic and administrative guarantees, could hardly make such identity claims effectively.

Add to this the atmosphere of coiled tension that often erupts into violent engagements. It is inarguable that the quantum of violence has dwindled since Bangladesh came into being. However, it has hardly disappeared. For example, in May 2000, a Hindu girl from India eloped with a Muslim youth from South Moshaldanga, a Bangladeshi enclave in India. On May 11, a crowd of Indians entered the enclave and looted five houses. A week later, the enclave was once more invaded by hundreds of Indians who set fire to fifty-five houses, wounded ten people and abducted four, and looted cattle and valuables. The 65-year-old Jitendra Nath Roy of Balapara Khagrabari, the largest Indian enclave in Bangladesh, on the other hand reports, “Bangladeshis used to loot our grain silos and rob our cattle by day. When night fell, we would all go and hide in the forests. When they came to rob us during night, they beat up the men and tortured the women.”

From all accounts, it seems that the quotient of violence perpetrated against the residents of the enclaves was evenly matched in both countries. However, some fieldworkers have told that the Bangladeshis are harsher in their treatment of the stateless population than their Indian counterparts. Now, this is a very dangerous argument to make. But one sees why otherwise perceptive researchers would draw such conclusions. When our researcher reached Kuchlibari in Mekhliganj block, Cooch Behar, prima facie what struck him was the ease and comfort the people of the enclaves radiated. They were very happy in India, they said unanimously. Shambhunath Chowdhury, a resident of the Dhabalsuti Chhit Mirgipur of Bangladesh, declared that if the exchange of enclaves took place following the Singh-Haseena agreement, he will not leave for Bangladesh. He is a shop-owner. Our researcher insisted that they could not be that happy after all, what with statelessness and disenfranchisement. But he would not be budged. “All of us have Indian voter identification cards and ration cards. We are happy here,” he argued. Muhammad Belal Hussain, who has all his land in a Bangladeshi enclave, too echoed Mr Chowdhury. He would not leave.

The examples of xenophobic violence detailed above militate against such jolly instances of belonging. Accepted prima facie and outside their historical context, they may be misguiding. In the case of Dhabalsuti Chhit Mirgipur, for instance, a violent history of forcible expulsion in 1955, one could suggest, may have left only those who wanted to remain, to belong unconditionally. A horde of mainland Hindus had, in 1955, demanded “the blood of Muslims” and driven almost all dissenters into Bangladesh.

The respondents, nevertheless, fear that “those in the Indian enclaves in Bangladesh would come if the exchange happens. The government has promised to settle them. Where will the government settle them? There is no land but that of ours.” The tenuous belonging and wilful oblivion was slipping in face of the proximate possibility of dislocation when suddenly the group as if collectively snapped back into confidence. “But these governments will never reach an agreement; they never have,” they chuckled in self-assurance. Indeed, perhaps their confidence is not irrational. For India, the historical jingoism of the right-wing apart, recently another factor has cropped up to collude against an amicable exchange: the growth of tea gardens in the area. The enclaves, and their attendant instability in national space, have meant that land has been sold dirt cheap here, sometimes at as little as 8000 rupees per acre. Major players like Roshanlal Aggarwal, the Goels and NutriTea have bought land and started plantations. An eco-tourism resort of the GBC Enterprises Limited has come up a stone’s throw away from the Tin-Bigha Corridor which offers leisure walks through tea gardens, a modern saloon and massage parlour! If one provisionally accepts Giorgio Agamben’s (The Coming Community and Means without End: Notes on Politics) contention that attributes a determined character to the state and a determining power to the economic forces of capitalism that conditions particular forms of the state, then the Indian state is unlikely to rip through the tightening tangles of big investment. But, we offer this only as a possible outcome. Who knows, the nation-state may still surprise us.

Questions of statist ambition and quotidian statelessness, global processes and local exigencies, identity and the anamorphic ‘other’, get crosshatched in the fastnesses of the North-Bengal frontier; considerations of borders-in-the-mud get transformed into concern for the boundaries-in-the-mind. The story of statelessness in South Asia ultimately becomes a saga of survival techniques, self-making and, sometimes, strategies of status-quoist solidarity.

Partitioned Lives: Reading Narendranath Mitra’s Jaiba

by Tista Das

There is a problem that is associated with the word ‘violence’. One can never be quite sure as to what constitutes violence. While fear assumes new meanings in the context of homelessness, in popular parlance “honour” creates a separate space for women, considering the honour of a community rests upon women.

I shall read Narendranath Mitra’s short story Jaiba (of life) in this context. It was first published in Chaturanga in the winter of 1948 and republished in a collection- Galpamala (Mitra, Narendranath, Galpamala,1989, Ananda Publishers Limited, Kolkata). But, to begin with, one must come to terms with the thread of victimhood and violence in Bengal. Unlike Punjab, in Bengal, there were moments of violence (specifically related to the event of the Partition) scattered through many years, more than two decades. Such an image of waves might be one of the reasons why the story of violence in Bengal is not well marked. Moreover, the Bengali intelligentsia was somehow not comfortable with its narration. Violence remained out there as an ever present threat, but not something that affected one directly. It became the motif upon which the story is woven. It became something that happened to other people and threatened everyone in general and therefore changed the way of life. What complicated the scenario further was that such a narration of the Partition also had to accommodate the story of the women. The subjectivity of women was as much to their men as to the Nation. Such dual subjectivity made them more prone to violence. Their men were also their protectors and the class identity of the Hindus and Muslims of East Pakistan placed the women on a platform similar to but not quite the same as their men. One needs to ask, whether, once bereft of a home, the woman becomes more homeless than her men. Whether their rehabilitation is even more complex since it is figured not only vis a vis the State, but also vis a vis (other) patriarchal modes.

The kind of violence that the years around the Partition experienced was not what the modern mind would like to associate with the birth of a modern nation. Then, it must be said that the birth of the modern Indian Nation does not coincide with the end of colonialism in 1947. Such a nation remained ‘in making’. One can realize the weakness of this argument since such a modern nation can never be made. However, the point to be noted is that violence became the difficult terrain through which one had to pass through to become a part of the Nation; a necessary evil. That was the only explanation possible. It amounts to seeing violence as the blood bath, the test that a nation needs to pass through to achieve statehood. It is the sacrificial altar that purifies the moment of birth.

However, any explanation is a matter of hindsight. The bewilderment of the men on the spot must be taken into account.

Narendranath Mitra’s story revolves round a young middle class couple, Mriganka and Sudatta. The structure of the household is very modern, meaning nuclear, clearly marked by the absence of parents and relatives. Mriganka is a Professor of Chemistry, whose wife had been abducted in Lahore and recovered later. In her days of abduction, she had become pregnant. She cannot live with this reality and wishes desperately to destroy the unborn child, her link with the past. However, the doctors are not confident to abort the child since the mother is well into her pregnancy. Mriganka loves his wife and tries to talk her out of any scheme of abortion at such an advanced stage. He has accepted her back into the folds of their life. The reader does not come across any character who messes with this order. Sudatta gives birth to the child and arrangements are made to put the child in an orphanage. However, there is one impulsive moment (a moment of betrayal?) when she looks at her child’s face and at that moment it is her motherhood that dominates her being. She looks at her child with love. This does not go unnoticed and Mriganka decides to take the child home. He, however, develops an obsessive interest in biology, heredity and the effect of genes. Sudatta faces the greatest crisis when she finds her husband looking at the child and making notes in his diary and she becomes desperate to abort the second child she now conceives with her husband since she is afraid that this would only make him interested in a comparative study.

It is difficult to put a finger on the moment of violence in this story. Should one consider the moment when the woman was raped (which of course is before the narration begins), as the moment of violence? Or is it when she decides to abort the child conceived through the act of rape? Is such a destruction of order the moment of violence? How, then, does one read the moment when the husband looks at the child and makes notes? It is his response to his own fate rather than his wife’s. He comes to terms with the horrid past. It does not break the order of his modern middle class life as long as his wife is not able to accept the consequences of the past misfortune. However, when he finds that his wife has fallen in love with the child of those times of violence, this order breaks.

This problem of locating the moment of violence is perhaps the most baffling in any study of the Partition. The thread of violence makes the Partition belong to the modern State. No matter how clinically one tries to deal with the greatest event in the life of the independent State, no matter how one tries to explain, to categorise facts with the purpose of building a narrative of nationalism (the success and the failure of it, the latter helping to foster separatism) and separatism leading to the climactic point; and no matter how one tries to see violence as the entry point to a modern state, the Partition refuses to be relegated to the Nation’s past; it refuses to be contained. This is especially true of Bengal where the waves of migration spilled the Partition into the life of the independent State so that lives in general, remained partitioned.

Nair, Neeti. Changing Homeland: Hindu Politics and the Partition of India, Harvard University Press 2011, pp 1- 343

by Sohini Majumdar

In this book, Neeti Nair questions the teleological assumptions about the inevitability of partition that mark a dominant mode of historical thinking, focuses on the diverse choices that the people of Punjab made at different political conjunctions. She argues that partition was not the only option that the people of Punjab opted for. Rejecting the binary of communalism and anti- colonial nationalism in historicizing the colonial encounter and partition Nair questioned the monochromatic and rigid ideological categorization. She argues that the historiography of partition have tended to view partition as a logical culmination of a process of communalism where the monolithic Hindu and Muslim community was posited against each other. Interrogating this widely accepted view, she focuses on the ‘reality’ of the conflicting and intersecting identities that came to dominate the various decisions the people of Punjab took at various historical conjunctures (p 29). Thus her focus is on the complexity and contradictions that mark the various interplay of multiple loyalties, identities, imaginings of the nation and community as well as the various sites of conflicts and negotiations at shared political spaces marking the shifts in the political conundrum which defies any linear movement from an anti colonial nationalism to that of communalism in the body politic and body civic. Referential here is Joya Chatterji’s Bengal divided : Hindu Communalism and Partition 1932- 1947, Cambridge University press, 1995, which contrary to Nair de recognition of linear progression, focuses on the parochial interest of the Bengali Bhadralok classes whose inward looking politics to dominate the Bengal politics turned them from nationalists to communalists, their politics eventually leading to the partition.

Nair opines that the option of negotiation was always sought at when Punjab navigated among various options and opinion. But, it was these missed out chances for political accommodation which caused the partition. She focuses on the political rhetoric of the Hindus being a minority in Punjab while being a majority in India. She argues that it was the colonial context that created the categories of ‘minority’ and ‘majority’ which gained consequences when applied in the administrative structure (p31). Hence, it was colonial logic that lent credence to communal identity whence the British out of the multiple political identities emphasized the identity of belonging to a religious community (p31). Thus, it was the Punjab politicians who in view of safeguarding their minority interests played out in the political platform, exhibiting a diverse range of responses and choices from loyalty to anti colonial nationalism. In the process, they sometimes aligned with their co religionist in the wider nation while at other instances they sought negotiations with the other religious communities at the provincial level. And it in these diverse and twisted responses that Nair offers fresh interpretations of Punjab’s relationship with the national movement.

Nair states that the political history is complex enough to fit into clean categorizations and she questions the taxonomies of loyalist, communalist, or secularist. By focusing on the communitarian relations in Punjab, she focuses how the meaning of communalism changed according to the context. She argues this by citing the various choices the Punjabi Hindus exhibited, that deluded these clean categorizations. From a revisionist perspective, she reviews the position of Swami Shraddhanand a proclaimed Hindu communalist and a propagator of Arya Samaj who provided leadership to the anti-Rowlatt Act movement while preaching Hindu-Muslim-Sikh unity even as he became involved in shuddhi and sangathan in post Rowlatt days. Similarly, she focuses on the shifting politics of Lala Lajpat Rai who faced dilemma of imaging India that equated it with Hindus and a notion that prided the national over the communal. Another fresh interpretation she offers is the reading of the non violent politics of Bhagat Singh over the issue of treating the ‘political prisoner’ which offered a scope of uniting the divided elements of Punjab politics but failed to win over Gandhi who is fairly criticized for his failure to acknowledge Singh’s ideological affinity to himself while continuing to refer to Singh’s violent past. But though Nair is successful in portraying the attitude of Punjabi Hindu elites, her book precludes any analysis of the ‘subalterns’ domain of politics.

Nair questions the monolithic frame that denigrates all kind of violence as ‘genocide’. She states that there were particular context, temporal or spatial, for every instance of violence that defies the generalizing framework. Her effort is to understand the nuances to focus on the contextual and situational aspect of violence rather than clean categorizations. The partition violence that engulfed Punjab was accompanied with a sense of disbelief. There was battle for space, with neighbours turning against neighbours with the breakdown of social equations. But this was no undifferentiated picture of communal violence. People of one religious community continued to help those of others while continuing to live their closed knit community. Such instances, Nair claimed, upset the ‘master narratives of “communal violence” (p197). There was no distinction between the perpetrators and the victims. But it was this ‘unplanned’ violence that represented the crumbling of an old order with the abdication of responsibility of minorities at both side of the border (p218). And it was this which turned the minorities into the new categories of ‘refugees’ in the context.

Conducting oral interviews of Delhi based migrants she focuses on their memories which was marked with a sense of confusion as they changed homelands. There was absence of any anticipation of uprooting among them. She portrays the various strands of understanding and attitudes towards the Muslims that marked the migrants’ sentiment which remained ambivalent there while it was clearly represented in the secular traumas. The experiences of partition are explained in the migrants’ terms and language. She argues that their experience of partition was less accompanied by sense of trauma and loss, stereotype in partition literature, since they fared well as they shifted to Delhi. Their questioning of these myths bring fresh insight to secular notions which are relevant for understanding religious differences which engulf modern South Asia.

Introduction for the III Edition, 2012

Anuradha Gunarathne

With the theme of 2012 “Refugees have no choice. You do” the World Refugee Day was celebrated in June by the UNHCR and most of the countries in the world honours the courage, strength and determination of women, men and children who are forced to flee their homeland under threat of persecution, conflict and violence. According to the estimate of the UNHCR more than 43 million people have been forcibly displaced worldwide.

In the official statement on the refugee day by UN Secretary - General Ban Ki-moon expressed that "We must work together to mobilize the political will and leadership to prevent and end the conflicts that trigger refugee flows. [...] Despite budget constraints everywhere, we must not turn away from those in need. Refugees leave because they have no choice. We must choose to help."

The third edition of RWO draws attention on refugee issues marking the refugee day 2012 and the task remains on UN refugee day. In the section of Perspective Arani Sanyal and Anwesha Sengupta write about famous Arul Varma’s judgment on Rights of Refugees; Emdadul Haque on Opinion of South Asian frame work of refugee protection and Srabani Mia on Bangladesh’s obligation for the protection of refugees.

The book ‘The Plight of the Stateless Rohingyas: Responses of the State: Society & the International Community’ published by University Press Limited, Dhaka, Bangladesh has been edited by Imtiaz Ahmed (co-written by Delwar Hossain, Shahab Enam Khan and Md. Faridul Alam) is reviewed by Priyanca Mathur Velath in the section of review.

In the news section, reports the Bangladesh rejection of international appeals of Rohingya Refugees and President Barack Obama’s administration announcement of policy directive to halt deportation of young immigrants. Finally the upcoming event section covers the information of 4th Asia Pacific Consultation on Refugee Rights to be held on 22-24 August, Seoul South Korea.

We welcome your comments and feedbacks.

Protection of Rohingya Refugees: Bangladesh Rejects International Appeals

Bangladesh continued to “push back” the Rohingyas feeling sectarian violence in the Northern Rakhine State of Myanmar ruling out appeals from international communities and human rights organizations.

The Government of the United States, United Nations High Commissioner for Refugees (UNHCR) and Human Rights Watch (HRW) among others urged Bangladesh Government to open its border and allow the Rohingyas fleeing violence to get temporary refuge. The violence reportedly costs 80 lives.

At home the main opposition party, Bangladesh Nationalist Party (BNP) has also heavily criticized the government for not considering “humanitarian aspects of the Rohingyas.” Mainstream national human rights activists and civil society groups also urged the government to respect international humanitarian norms and allow the Rohingyas to take “temporary refuge.”

Human Rights Watch (HRW), the New York-based human rights watchdog had appealed to the Government of Bangladesh on 20 June 2012 for providing the “Rohingyas humanitarian assistance and grant them temporary refuge until it is safe for them to return home.”

“By closing its border when violence in Arakan State is out of control, Bangladesh is putting lives at grave risk,” Bill Frelick, Director of Refugee Programme at HRW, said in a press statement. (http://www.hrw.org/news/2012/06/19/bangladesh-stop-boat-push-backs-burma).

However, Bangladesh government rejected all appeals concerning requests to open its border referring to “security concerns.” The Minister for Foreign Affairs, Dr. Dipu Moni, at the National Parliament and public events said that Bangladesh has no obligation to provide refuge to the Rohingyas since it was not a party to the UN Refugee Convention of 1951 and it’s Protocol of 1968.

However, experts from the HRW and independent legal academics have different views; according to them, as a norm of customary international law, the Rohingyas deserve international protection while they are fleeing threats to their lives, and Bangladesh is expected to respect those international norms.

According to BBC reports, Bangladesh, until 6 July, has “pushed back” reportedly 900 Rohingyas.

Bangladesh has provided refuge to the Rohingyas in 1978 and during 1991-92. Still now, there are about 28,000 Rohingyas who are the residual of the latest influx. They are living in two official refugee camps in the southern district of Cox’s Bazaar. Apart from that there are reportedly 200,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any legal status.


ERT’s Situation Report on Rohingya Crisis in Myanmar and Bangladesh

The Equal Rights Trust (ERT), a London-based advocacy group has heavily criticized the governments in Myanmar and Bangladesh for their failure to protect the Rohingyas, an ethnic Muslim minority group of Northern Rakhine State in Myanmar (Burma).

The ERT has launched a report, Burning Homes, Sinking Lives: A Situation Report on Violence against Sstateless Rohingya in Myanmar and their Refoulement from Bangladesh. The report presents the findings and observations of ERT researchers who were on the fields. (http://www.equalrightstrust.org/newsstory%20020712/index.htm)

The report, which includes testimony collected from over 50 interviews with Rohingya in the period between 13 and 29 June 2012, paints an extremely bleak picture, which demands urgent action to prevent further human rights violations including loss of life, suffering, forced displacement and damage to property.
The report also reviews the legal obligations of the parties to this crisis and makes recommendations to the governments of Myanmar and Bangladesh, the UNHCR and the international community.

The ERT recommendations to the Government of Myanmar for urgently taking all necessary steps to end the violence and protect all individuals in Myanmar; fully cooperates with UN agencies to enable independent monitoring of the situation and the provision of humanitarian assistance and support to affected communities; brings martial law in the region to an end as soon as possible; conducts an impartial and transparent enquiry into the causes of the violence; and reduces statelessness in Myanmar by establishing clear paths towards the acquisition of citizenship and effective nationality for all stateless persons including the Rohingya.

The report recommends to the Government of Bangladesh to open its borders to Rohingya refugees fleeing violence and persecution in Myanmar and refrains from refoulement or forcible return of all refugees, asylum seekers and persons of concern; fully cooperates with UN agencies and international NGOs to enable the provision of humanitarian assistance and support to all refugees; and fully cooperates with the international community in providing humanitarian support and protection in a fair and non-discriminatory manner to all long-term Rohingya refugees and persons of concern within Bangladesh.

Obama Holts Deportation of Young “Illegal Immigrants”

President Barack Obama’s administration has announced a policy directive on 15 June 2012 which is to halt deportation of young immigrants, who were brought to the US illegally as children.

The Administration also has announced that these young people may apply for authorization to work in the U.S. legally for the first time.

For this directive, an estimated 800,000 young people will be benefitted, as The Christian Science Monitor (CSM) has reported on 15 June (http://www.csmonitor.com/USA/Politics/2012/0615/DREAM-Act-stalled-Obama-halts-deportations-for-young-illegal-immigrants-video).

“The administration has been under considerable pressure to take action on the behalf of young immigrants, as Congress has been sharply divided about the DREAM Act, proposed legislation that grants conditional residency to select young people brought to the US illegally,” the CSM reported.

The policy has been viewed as a “relief for thousands of young people who are caught in a difficult situation where they consider the United States home but don’t have legal residency.”

It is also considered as a political step-forward for President Obama with Latino voters, who have criticized the administration’s deportation policies.
The U.S. Committee for Refugees and Immigrants (USCRI) has immediately praised President Obama’s announcement and hoped that the federal government immediately will halt the deportation of undocumented immigrant children and young adults who meet certain criteria.

USCRI operates a national program serving the legal and social needs of immigrant children, and fights for policies that respect their rights.

“We are very pleased with the bold and historic announcement by the White House today,” said Lavinia Limon, President and CEO of USCRI. “This policy decision for undocumented immigrant children and young adults is humanitarian, compassionate and practical, all at the same time. This is an important expansion of President Obama’s earlier order that prosecutorial discretion be exercised by government lawyers in non-priority deportation cases. It should allow hundreds of thousands of young people to come out of the shadows and become full participants in our society. I also hope the President’s action today will inspire Congress to find needed, permanent solutions for the other hardworking undocumented migrants who live among us.”

June 15, 2012, (http://www.refugees.org/about-us/in-the-news/press-releases/president-obama-announcement.html)

Rights of a Refugee. The Court as Refuge

Arani Sanyal and Anwesha Sengupta

Say this city has a million souls,
Some live in mansions, some live in holes:
Yet there is no place for us,
My dear, there is no place for us,
Once we had a country and we thought it fair,
Look in the atlas and you will find it there:
We cannot go there now,
My dear, we cannot go there now.

W.H. Auden, ‘Refugee Blues’

Being a Tamil in Sri Lanka had been increasingly difficult since 1980s when the country witnessed intense civil war between the government and LTTE, the most important Tamil militant organisation. The war had killed thousands, forced millions of Tamils to migrate to India and caused massive hardship for the people, economy and the environment of the country. Tamil refugees from Sri Lanka arrived in India in four waves. Among them, one was Chandra Kumar who fled to India in 1990 as the second Elam War began. After spending around two decades in India, he decided to go to Italy in search of a better life. However, he was arrested by the immigration officers as he did not have valid travel documents. He was charged for committing the offences of cheating, impersonation and forgery r/w/s 14 of the Foreigners Act, 1946. He spent six months in judicial custody before he was brought to the court. There, Chandra Kumar admitted his crime, but claimed that he committed them unknowingly, being duped by a travel agent. If he was an Indian citizen, in all probability he would have set free, after spending 6 months in judicial custody. But his status was complicated because of his refugee identity. The government wanted this man to be deported to Sri Lanka for his offence. This position was based on the Government Order F.No. 25019/3/97 – F.III dated 2.7.1998 of the Foreign Division, Ministry of Home Affairs, which stated that a foreigner is to be deported from India in case s/he commits any offence.

For Chandra Kumar, deportation would mean going back to Sri Lanka. Of course, Kumar was unwilling to make this return trek to his homeland, as he feared persecution. The counsel of the convict tried to revoke the verdict. He pointed out that according to the principle of non-refoulement of Customary International Law; Indian government had no right to deport him to Sri Lanka as his life was not safe there.1 And, the Article 51(c) of the Constitution of India states that ‘the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.’ According to the Indian Constitution too, the government is bound to protect the life and liberty of all citizens and non-citizens alike (article 21). The counsel also referred to numerous other judgments delivered by various High Courts of India, where the High Courts have stopped the deportation proceedings on humanitarian grounds. Since, Kumar, had done nothing that might have threatened the security of the country, he ought not to be deported, argued the Counsel. He requested the court to allow his client consult UNHCR, Delhi to avert deportation.

After listening to both the sides, Arul Varma, a metropolitan magistrate of New Delhi (Special Court No 2, Dwarka Courts), gave his verdict in favour of Chandra Kumar. Recognising the plight of the Tamils in Sri Lanka, he accepted that Chandra Kumar indeed had a ‘well founded fear of persecution’ (wherein he stated that such possibility must appear to be reasonable and the refugee need not show that persecution will result on deportation) in case he was sent back to Sri Lanka. Therefore, deportation would mean a violation of the principle of non-refoulement, which was ‘a cornerstone of basic human rights’. Though India is not a party to the 1954 Convention or its optional protocol relating to status of refugees (1967), the principle of non-refoulment is implicit in the Article 21 of Indian Constitution, opined Arul Varma. He cited a particular verdict (Louis De Raedt Vs. Union of India, AIR 1991 SC 1887) of the Supreme Court which stated that this Article, which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, was valid for citizens and non-citizens alike. Similarly, citing another case, the judge argued that every person, irrespective of his/her nationality, should be considered as equal before the law and the state should protect his/her life and liberty. Since persecution denies the right to live with dignity, deportation of Chandra Kumar to Sri Lanka would mean denial of Article 21. To quote Arul Varma: ‘By handling over a person to a nation where he fears persecution, would make us nothing short of abettors in that persecution’. Also, Varma questioned the definition of ‘foreigner’ in the 1946 Foreigners Act, where a foreigner was defined as a non-citizen of India, and therefore included refugees within its ambit. He stressed on the need of treating the refugees in a humane way and to consider them as a separate category different from tourists or illegal migrants as otherwise, refugees would be deprived of privileges available under numerous international instruments. The Court opined that treating refugees, and illegal migrants on the same footing as the Foreigners Act does, would be violative of Article 14 of the Constitution which mandates equality before the law. (A logical extension of this is that unequals are to be treated unequally by applying the principle of ‘intelligible differentia’) Also, a ‘well founded fear of persecution’ includes, within its scope, a fear of being subject to torture and since India is a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, should ideally be bound by its international commitment to follow the principle of non-refoulement.

The judge applied a liberal interpretation of Constitutional tenets to accommodate refugees’ rights under Article 21 and went as far as to say that a law (The Foreigners Act, 1946) which treats persons unequally circumstanced at par, is on the face of it unconstitutional. He also laid emphasis on the non-derogability of the principle of non-refoulement and more importantly, by citing Vishakha vs. State of Rajasthan, 1997 (6) SCC 241, he noted that in case of a void in domestic law, it was the Court’s prerogative to fill such void by taking recourse to international law. (Something which the Court actually did in this case)

Notes

1. Non-refoulement is a principle of the international law, i.e. of customary and trucial Law of Nations which forbids the rendering a true victim of persecution to their persecutor; persecutor generally referring to a state-actor (country/government). See en.wikipedia.org/wiki/Non-refoulement

Bangladesh’s Obligation for the Protection of Refugees

Srabani Mia

[Is an LL.M. Student at Stamford University Bangladesh and an Intern at the South Asian Institute of Advanced Legal and Human Rights Studies in Dhaka]

A person becomes a refugee because of circumstances that are beyond her/his control. Refugees are human beings.

Bangladesh is the host country of asylum seekers and refugees, mainly from Myanmar (Burma). It has been hosting the Rohingya, an ethnic Muslim minority from Myanmar for decades.

As per records of the United Nations High Commissioner for Refugees (UNHCR) and Government of the People’s Republic of Bangladesh, there are around 28,000 Rohingyas who are “officially recognized refugees” now living in two camps in the southern district of Cox’s Bazaar. They are the residual of recorded 258,800 Rohingyas who fled Myanmar during 1991-92 and took refuge in Bangladesh. Apart from that there are reportedly 300,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any status.

Though, Bangladesh does not have a national legislation to deal with asylum seekers and refugees, however, the State has registered and granted “refugee status” once to those 258,800 Rohingyas through an “executive order” 1991. By the time, UNHCR was invited and it signed a Memorandum of Understanding (MoU) with the Government and mandated to look after the protection issues.

Bangladesh is also not a party to the 1951 UN Convention Relating to the Status of Refugees (Refugee Convention) or its 1967 Protocol. Despite of that the state has been providing refuge to the Rohingyas along with tolerating their “illegal presence.”

However, recent denial by the Bangladesh Government of extending any refuge to the Rohingyas fleeing communal violence in the Northern Rakhine State, and apparent “push back” have created concerns among the human rights organizations and international communities.

Obligation of Bangladesh Under International Law

The 1951 Refugee Convention and its 1967 Protocol are basic legal instruments with regard to protection of refugees.

The 1951 Convention provides criteria to be recognized as a refugee, their rights and obligations, and visa vie obligations of State parties.

Under 1951 Convention, a person can claim refugee status with three conditions: (i) being out of the country, (ii) well-founded fear of persecution for specific grounds, and (iii) unable or unwilling avail protection from the government of the country of origin. And, the specified grounds are of persecution are based on one’s race, religion, nationality, membership of special group, and political opinion.

The Convention (Article 33) also provides the principle of non-refoulement- meaning no person shall be return to a territory where he/she may be exposing to persecution. This principle is now considered as part of international customary law and is widely practiced (including Bangladesh in previous years, even for the Rohingyas).

The Principle has indeed expanded State's protection obligations beyond the 1951 Refugee Convention framework; therefore, one cannot be returned to his or her country of origin; hence, contributing to deprivation of life, and putting forward to torture, or cruel, inhuman or degrading treatment or punishment.

Generally, those countries which are parties to the Refugees Convention are legally bound to follow all the provisions thereof.

Bangladesh, despite of not being a party to the Refugee Convention is expected to respect the principle of non-refoulement as part of customary international law, as argued by Mostafa Mahmud Naser, an Assistant Professor of Law at the University of Chittagong in his article published in The Daily Star on 23 June 2012 (link: http://www.thedailystar.net/law/2012/06/04/index.htm). According to this academic, who is now pursuing his doctoral research at Australia’s Macquarie University, Bangladesh has obligation to asylum seekers and refugees despite of not ratifying the 1951 Convention or 1967 Protocol as because it is a member to the United Nations and is thus obliged to protect and promote human rights. Apart from that Bangladesh is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) among other human rights isnstruments.

Article 14 of the Universal Declaration of Human Rights 1948 (UDHR), guarantees for “…right to seek and to enjoy in other countries asylum from persecution.” The UDHR is consider as jus cogens, thus those rights are universally accepted and enforced by all parties despite of whether they are party to the 1951 Convention or 1967 Protocol.

Bangladesh has also obligation under Article 3 of CAT (non-return of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture).”

In case of the Rohingays, it is very likely that they would be targeted for torture, inhuman and degrading treatment upon pushed back to Myanmar which is tantamount to persecution.

Also, persecution by “non-state actors” (in presence of apparent reluctance or inability by State actors to prevent or/and prosecute such persecution) does qualify one for a refugee status under refugee law.

Obligation Under National Laws

Though Bangladesh does not have any national law as such to deal with asylum seekers and refugees; however, some Constitutional provisions are instrumental in protecting and promoting their rights.

Article 25 of the Constitution states that “…State shall base its international relations on the principles of respect for .... international law and the principles enunciated in the United Nations Charter”.

Article 31 of the Constitution provides for equal protection of law for “each citizen” and “every other persons staying in the country for time being.” Thus, the Article extends protection the asylum seekers and refugees (non-citizen) who for the time being are staying in the country.

The Constitution also guarantees for right to life and personal liberty for all (Article 32).

The Supreme Court of India has also upheld “right to life and personal liberty” for refugees in India despite of the State not being a party to the 1951 Convention [National Human Rights Commission v.The State of Arunachal Pradesh (1996 (SC) AIR 1234)].

The Foreign Minister of Bangladesh, Dipu Moni has reportedly said in the National Parliament that: “ it is not in the country's best interest to allow more Rohingyas into the country while Bangladesh is already burdened with Rohingya refugees, and many of them are involved in subversive and militant activities.”

This generalized branding of Rohingya population in Bangladesh does not relieve the State from its international obligations.

Opinion: South Asian Framework for Refugee Protection

Emdadul Haque

[Is a Faculty Member at the Department of Law and Justice, Southeast University, Dhaka, Bangladesh]

Amid scores of shortcomings the South Asian region has been generous to host a large number of refugees for decades and accommodating them despite the absence of a related legal framework.

The region is rapidly growing as a “refugee melting pot” with insufficient international attention. All the original member States of the South Asian Association for Regional Cooperation (SAARC) (except the newly joined Afghanistan) did not ratify the UN Convention Relation to the Status of Refugees, 1951 (Refugee Convention) and it’s Protocol of 1967.

The problems of refugees in Europe, America, Australia and Asia particularly in South Asia are not alike. The lack of national laws and regional instruments on refugees and Internally Displaced Persons (IDP) has grossly accentuated this crisis which not only harms the rights of refugees and asylum seekers, but also affects the social and political stability of host countries by undermining the rule of law, human rights, and democracy.

These countries are being assisted by the United Nations High Commissioner for Refugees (UNHCR) which includes ensure protection of asylum seekers and refugees and promotion of international refugee law standards vise vie promotional activities for adoption of national legal framework in line with international standards. However, the reluctance of respective governments in ratifying the Refugee Convention or adopting national legal framework and complexities of refugee issues with regional dimensions, there is a need to look into the prospect of a regional approach to address forced migration and refugee protection issues in South Asia region.

There are almost 43 million refuges all over the world and out of which 80 percent is based in developing countries. Although South Asia contains around 23 percent of the world's population, it currently hosts nearly 10 percent of the world's refugee population.

The Refugee Convention is the commanding instrument to govern international protection of refugees worldwide. This Euro-centric document promulgated soon after the World War II to cope with the influx of refugees in Europe have many limitations in the present context, though the Protocol of 1967 had been adopted to overcome such inadequacy.

However, experts in the region find four major dilemmas in the Refugee Convention with regard to definition of a refugee, material assistance, shared-responsibilities, and unraveling consensus in observing standards of international law.

The Refugee Convention has been the point of fierce contention for the developed and developing nations. The developed countries are tendering for a rights-based approach while developing countries on the other hand have been voicing their equitable approach. That’s why some prominent scholars feel that before acceding to the Refugee Convention or the Protocol of 1967, South Asian States should go ahead for adoption of a rights-based national legal framework to deal with asylum and refugee issues. At the same time, some scholars recommend that the states of the region should ratify the Refugee Convention and its Protocol without further delay.

However, as compared to many developed countries of the world who have adopted very strict entry procedures, States under SAARC have adopted rather soft policies on entry and stay of asylum seekers and refugees, e.g., Bangladesh, India, Nepal and Pakistan. The States have also given shelter and other humanitarian relief to different groups fleeing persecution- who are victims of forced migration, including victims of natural disaster or people fleeing generalized violence, abuse of human rights by State and non-State actors, communal and ethnic strife and the victims of man-made ecological disasters. However, in some cases, there are reported incidences of refoulement- pushing back to the territory where lives of individual were at risks.

Since States in the regions, are apparently look upon cross-border migrations (including forced migration) as bilateral issues within the framework of national security, thus, time and again, the significance of international protection of a refugee is ignored. There is nothing in this regard within the framework of the SAARC Charter.

In the absence of laws concerning general treatment and protection of asylum seekers and refugees, the response to refugee influxes remains provisional or on ad hoc basis. The refugees here have no legal protection against summary expulsions as they are treated as illegal immigrants and not as refugees fleeing persecution. As a result, UNHCR has also not been able to ensure effective and meaningful protection to most refugees in the region. Even international humanitarian agencies are often not allowed to assist refugees in real crisis in most of these countries. This was evident once again in the treatment of “Rohingya boat people” in Bangladesh this time (June 2012). In case of India, it does not allow UNHCR staff to enter and work in the North East territory.

Many of these problems can be avoided both through the enactment of legal norms on entry procedure status and on the creation of rights for asylum seekers and refugees. There is an absence of an inter-governmental mechanism at the regional level for protecting the returnees in their home countries.

Thus absence of a legal framework results in arbitrary, provisional and discretionary decision making which undermines fair refugee protection as per international norms. The asylum seekers and refugees can end up being treated like any other foreigner.

Therefore, a legal structure is necessary to effectively deal with a complicated refugee problem. In the absence of a legal framework, respective activities of the governments vary from case to case and are determined by political considerations and bilateral negotiations. These do not provide predictable and durable solutions.
However, given the reluctances of Sates in adopting national laws to deal with asylum seekers and refugees, a regional framework needs to be considered.

Like African and American States, SAARC countries should initiate a regional framework for refugee protection paving the way for appropriate platform on the issue of refugee crisis demonstrating their commitment for a new comprehensive plan of action to this end as every nation in the South Asia has produced as well as received refugees.

This will contribute to establish transparency, fairness and a humane treatment of refugees, as a matter of fact, through these laws the states of South Asia will give a formal expression to existing practices and responses to the refugees.

Hopefully, that will inspire to adopt national legal framework in the same line. Having a national law would not only ensure the protection of refugees and uphold obligations enjoined by the constitutions of most of the countries it will also enable the States to discharge their international treaty obligations. Ultimately both the States and the asylum seekers will derive benefits from such laws. Adoption of a harmonized national law on refugees by all the countries of the region would be a first step towards seeking a regional solution to this problem.

It will also facilitate to establish human rights communities and other institutions of civil society- a basis to campaign against any violations of refugee rights.