INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 1

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1 INTRODUCTION ENCOUNTERING REFUGEE PROBLEMS IN INDIA ** Mehul Rathee 1 & Himangshu Rathee 2 India is a country having a long historical tradition of welcoming refugees from all over the world. Throughout our five thousand old known history we have always welcomed refugees with open arms and given them a place of honour and dignity in our society. For example many of them are Americans, Persians, Syrians, Palestinians, Ethiopians, Afghans and Christians 3. Indian Government has not signed United Nations Refuges Convention of 1951 and the 1967 protocol due to financial constraints. Refugee problem is increasing day by day due to genocidal activities and inhuman activities. Refugee problem does appear to have any end in the near future. However there is no uniform legal framework to protect refugees. India still is a host to diverse groups of refugees, the country has no specific laws or cohesive policy for refugees. So refugees problem was acknowledged to have international dimensions and requires a global cooperation. Since India is a poor country with limited resources it is hoped that the world community will understand India s difficulties in this connection. Indian Judiciary does recognize the refugees and the refugee law to certain extent and it is independent and not subordinate to Government and in many occasions it has censured the Government and played an activist and creative role in recent years and has introduced refugee law into our legal framework through backdoor s but the front doors has been shut by the executive. The main populations of concern to UNHCR in the sub region include more than 200,000 refugees and asylum-seekers of various origins living in India (of whom some 30,000 are registered with UNHCR) 4. There is no law in India which contains specific provision obliging the state to enforce or implement the international treaties and conventions including implementation of humanitarian law that directly deals with principles of International Humanitarian Law. The UNCHR must invent or discover permanent solutions or relief to refugees and must see that they should not be transferred to a country where they apprehend that they may be tortured, and an International declaration for welfare and protection of refugees has 1 4 th year of 5 year of BBALLB (Honours) Course School of Law, The Northcap University, Gurgaon, Haryana 2 3 rd year of 5 year of BBALLB (Honours) Course School of Law, The Northcap University, Gurgaon, Haryana 3 Refugees and the Republic, The Telegraph, Ramachandra Guha available at UNHCR subregional operations profile - South Asia, UNHCR, The UN Refugee Agency, available at 92

2 to be complied by states to see that standards of minimum behavior of states with refugees is not condemned and their protection, relief and welfare is restored on humanitarian grounds. There is need for protection of rights of refugees and improve their situation in India with mission to assist asylum seekers in realizing basic human rights and accessing the justice system. India continues to grant asylum and provide direct assistance to some 2,00,000 refugees of neighboring states. Yet another recent instance of India being generous to refugees is the Modi government s policy towards Pakistani s and Bangladeshi s. the Press Information Bureau issued a release to tell the world that the Narendra Modi government had decided, on humanitarian considerations, to exempt Bangladeshi and Pakistani nationals belonging to minority communities who have entered into India on or before 31st December, 2014 from the relevant provisions of rules and order made under the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946, in respect of their entry and stay in India without such documents or after the expiry of those documents, as the case may be 5. The refugee crisis arising from the Syrian conflict is only the latest reminder of the fact that India remains one of the few liberal democracies not to have signed, supported or ratified the international convention that governs how nations should treat distressed people, but yet Refugees in India face a number of problems. PROBLEM OF REFUGEE STATUS Even though India has been the home for a large number and variety of refugees throughout the past, India has dealt with the issues of refugees on a bilateral basis. India, has been observing a refugee regime which generally conforms to the international instruments on the subject without, however, giving a formal shape to the practices adopted by it in the form of a separate statute. Refugees are no doubt foreigners. Even though there may be a case to distinguish them from the rest of the foreigners, the current position in India is that they are dealt with under the existing Indian laws, both general and special, which are otherwise applicable to all foreigners. This is because there is no separate law to deal with refugees. For the same reason, cases for refugee status are considered on a case-by-case basis. UNHCR often plays a complementary 5 Modi s Refugee Policy is a Case of Bigotry Grafted on to Expediency, Wire, available at 93

3 role to the efforts of the Government, particularly in regard to verification about the individual s background and the general circumstances prevailing in the country of origin 6. One of the principal elements to satisfy a claim to refugee status is that the claimant must be genuinely at risk. Various legal tests have developed which concern the standard of proof that is required to satisfy what constitutes being genuinely at risk or having a genuine well founded fear of persecution. Some of these tests have been articulated by courts in a number of countries 7. In the case of INS v. Cardoza Fouseca 8 interpretation of the well founded fear standard would indicate that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is not enough that persecution is a reasonable possibility... The above standard was considered in R vs Secretary for the Home Department 9, the case of ex parte Sivakumaran 10. The judgement suggested that the test should consider whether there is an evidence of a real & substantial danger of persecution. The Canadian Federal Court of Appeal considered the above and disapproved the House of Lords formulation in Joseph Ayei v. Ministry of Employment & Immigration 11. They considered the reasonable chance standard. Therefore, in sum, in considering the above tests what can be gleened is a rather liberal standard which requires that if,...there is an objective evidence to show that there is a reasonable possibility or chance of relevant prosecution in the claimant s state of origin, the claim should be adjudged well founded. In order for a claimant refugee to put forward a genuine claim for determination of refugee status, it is crucial to accumulate all the documents that the claimant can muster in support of the grounds of persecution or fear thereof resulting in flight from country of origin. The documentation may be in the form of an identity card of employment with some governmental agency in the country of origin, or an identity card indicating membership of a particular group. Production of the same would be evidence of a claim of involvement with particular groups and would also serve to prove the claimant s identity. Any other information that the claimant may 6 T. Ananthachari, Refugees In India: Legal Framework, Law Enforcement And Security, ISIL Year Book of International Humanitarian and Refugee Law, available at 7 Mary Crock, Apart from US or to Part of US? Immigrant s Rights, Public Opinion and the Rule of Law, International Journal of Refugee Law, vol.10 (1998), pp US Supreme Court Case, 407 (1987) 9 (1988), 1 All ER 193 (H.L) 10 Sivakumaran, House of Lords Decision (1988) 1 ALL ER Joseph Ayei, Canadian Federal Court of Appeal (1989), Imm. L.R. (2d)

4 be able to gather to prove specific persecution or fear thereof, such as names of persecutors, leaders of groups involved in committing persecution, details of areas where persecution is committed will help strengthen the case of the claimant. Thus, circumstantial evidence that persons similarly situated to the claimant are at risk in the country of origin, is essential. To establish a fear of persecution, the term fear is not to be judged on the basis of the emotional reaction of the claimant. Instead, fear must be employed to mandate a forward looking assessment of risk. Therefore, persons who had already suffered persecution in their country of origin, as well as those who may be judged to face prospective risk of persecution in event of return to their country of origin, would be able to claim refugee status. The instances of taking advantage of liberal refugee policy, that is, to obtain refugee status and avail the perks thereof have been plenty. A man was caught in Delhi who made fake passports on the basis of which, a number of Afghanis obtained Refugee status and charged approximate 5,00,000 rupees per passport, thereby turning a global social issue into a money minting business 12. Such an instance calls for a more stringent enquiry to grant refugee status but the major challenge is the arrangement of documents of refugees who come to India, by saving their lives from persecution and getting documents along would have been a life staking job. A possible measure can be that the grant of refugee policy should be after an in-depth inquiry and sending the passports for analysis in the scientific laboratories which can easily distinguish the fake ones from the genuine ones, nearly spotlessly establishing the refugee identity. RESETTLEMENT OF REFUGEES: A PLAYING FIELD Resettlement is a very wide term inclusive of basic amenities of life namely, food, shelter and clothing, apart from these basic amenities of life a lot of other factors are included in the term resettlement like education to children, employment etc. To put simply resettlement means all amenities required to lead a normal life. There are a number of refugees who though somehow manage to get in the refugee generous country, that is, India; but are not able to resettle themselves in a way as they were in their home country. Although India has not signed the 1951 UN Refugee Convention and does not have a national refugee law, the human rights of refugees and asylum-seekers are protected by the constitution. They have access to health care and their children can go to school. However, they say that they yr-old held for making fake passports, The Times of India, available at (7 January ) 95

5 face challenges as refugees on a day-to-day basis, such as discrimination, finding accommodation and employment. Women, especially in New Delhi, don t feel safe, even in their homes. Wilo, a single mother with eight children, claimed that Somali women face discrimination all the time. There are about 22,000 refugees and asylum-seekers under UNHCR s mandate in India, and many more Sri Lankans and Tibetans directly assisted by the government of India. Refugees along with their children have to live on railway-stations with risk of contagious diseases 13. The refugees are typically placed in a separate colony by UNHCR in India due to which despite of having a shelter they face pangs of being derogatory person whereby the are ill-treated, for say, a person in the colony which was transparently known by everyone for being a refugee colony, was attacked by blade, but the police refused to register an FIR on being of the victim identified as a refugee. Again the problem even becomes worse when the government is unable to provide shelter to the person but grants the refugee status, where as a necessary social consequence the face discrimination in the local community in which they live concealing their identities 14. Therefore India needs to have a fresh look to the sphere by not segregating them in separate colonies and helping them to conceal their identities as refugees and only making communication personally. A long term plan is required for their long to resolve this chronic problem of resettlement. IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN TREATIES There are no specific laws in India on the subject matter of the refugee or to enforce implementation of international humanitarian treaties in India dealing with international humanitarian laws. UNCHR should make a law or provide for reliefs to refugee and see that are not subjected to torture along with their welfare. They should involve or prescribe some minimum standard so that the refugees are not condemned and receive basic rights. India continues to grant asylum and provide direct assistance to some 2,00,000 refugees of 13 Nayana Bose, Refugees in India share daily struggles with UNHCR chief, UNHCR, The Un Refugee Agency, available at (21 December 2012) 14 Poulomi Banerjee, Falling short: How India treats those seeking refuge, available at Y96NXag08KXxzaNjkOND5M.html (14 September 2015) 96

6 neighbouring states. A positive development was seen in 2012 when government agreed to issue long term visa to refugee and asylum seekers. 15 India is not a party to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol, nor does it have a legal framework and national refugee status determination system. As a result, UNHCR processes claims for refugee status in India.The UNHCR carries out a Refugee Status Determination (RSD) procedure, which starts with registration as asylum seekers. Following the registration, UNHCR will then conduct interviews with each individual asylum seeker accompanied by a qualified interpreter. This process provides a reasoned decision on whether refugee status is granted or not, and gives the individual an opportunity to appeal a decision if the claim is rejected. At the end of December 2014, there are 5,074 asylum seekers and 25,865 refugees cumulatively registered with UNHCR India 16. ESTABLISHMENT OF REFUGEE CLAIMS If a refugee wants to establish claim then he is to show the all required documents of the country of origin as well as the cause of his flight.the documents can include some type of identity card, any record in governmental agency. The claimant must be able to establish all his claims without any contradictions to the authority interviewing himself there are obvious contradictions between the statements made by the claimant himself at different times to different persons or the country of origin, his claim to refugee status may be rejected. Efforts are made by authorities to gather background human rights data from a broad cross section of official and non-governmental sources in order to supplement whatever evidence may be adduced by the claimant himself. Thus, circumstantial evidence that persons similarly situated to the claimant are at risk in the country of origin is essential 17. It is ideally required that all claimants for refugee status receive an opportunity to be heard by the authority responsible for the adjudication of their case. All the materials thus collected and collated are then tallied with independent, internationally acknowledged information available on 15 Deepak Shahi,Protection of Refugees in India, (April 27, ; 6 : 23 pm)available at (April 27, ; 7:01 pm) available at 17 Prafulla Kumar Nayak Sr. Lecturer (Research Scholar), G. M. Law College, Puri, Odisha. PROTECTION OF REFUGEES : A HUMANITARIAN CRISIS IN INDIA, Voice of Research Vol. 2, Issue 3 December 2013,ISSN No (27 April ; 8:04)Available at file:///c:/users/malu/downloads/protection-of-refugess-ahumanitarian-crisis-in-india.pdf 97

7 the region from which the claimant has arrived. In possible circumstances and cases, the information thus obtained is also reconfirmed from the UNHCR office in the country of origin. Along with making claims for refugee status, refugees may also seek redressal of immediate basic problems facing them, such as food, shelter, legal aid etc. In regard to such matters the UNHCR plays a major role by providing in suitable and deserving cases, a Subsistence Allowance to destitute refugees and their dependents. The UNHCR also helps in enabling the refugee to find his own accommodation or to share a tenanted accommodation with another similarly placed refugee. When a refugee seeks legal aid for himself or for his dependent, the UNHCR may provide the assistance or recommend an Advocate who is familiar with handling refugee matters, to help sort out the problem faced by the refugee. In cases where the refugee is to be deported back to his country of origin, the UNHCR officials may request the Central Government to stall deportation proceedings, pending UNHCR attempts at resettlement of the refugee in a safe country. In order to make such resettlement possible, the UNHCR takes up such cases with the Embassies of other countries for grant of travel to and stay facilities in their countries 18. ROLE OF JUDICIARY Since there are hardly laws related to refugees in India. The Judiciary gives precedents which gives them ground of relief and rights like in the recent case related to Chakma refugees from Bangladesh in the case of NHRC v state of Arunachal Pradesh 19 the supreme court said that State of Arunachal Pradesh was under Constitutional obligation to protect and safeguard the life, health and well being of Chakmas.Also the court directed the state to Take measure for ensuring Life and personal liberties the aforementioned refugees.. The Supreme Court held that Chakma refugees who had come from Bangladesh due to persecution (when Bangladesh was under Pakistani rule) cannot be sent back to Bangladesh as they may be killed there and thus be deprived of right to life under Article-21. As a result the state was directed to protect and repel any act done that could deprive them or derive them out of the state. In Smt. Shishuwala Pal v UOI 20 the petitioners who admitted that they were refugees who entered during 1971 war were claiming to be Indian citizens on the basis of long duration stay in India as they were relatives of some Indian citizens. The petitioners had not shown what steps 18 Supra at note AIR AIR 1989 MP

8 they had taken for acquisition of Indian citizenship. It was held that mere long stay which was unauthorized did not confer citizenship rights. The petitioners were permitted to enter into India as refugees. In the case of Rev Mons Sebastiao Francisco Xavier dos Remedios Monterio V State of Goa 21 the apex court examined the scope of Geneva Convention Act 1960 and observed the efficiency of the Act and thus the act by itself does not give special remedy it does give indirect protection. The Indian government offered Rev father Monterio Indian Nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese nationality he could only stay in India on taking out a permit. He was therefore rightly prosecuted under the law applicable to him since no complaint was made about the trials as such the appeal was dismissed. In Arunachal Pradesh V Khudiram Chakma 22 It was stated that Chakmas are foreigners in accordance with Citizenship Act 1955 and therefore they are not entitled to all fundamental rights enshrined in Part III of the Constitution. The right to enjoy asylum has to interpret in the light of instrument as a whole. It implies that although an asylum seeker has no right to be granted admission to a foreign state equally a state which granted him asylum must not later return him to country. However the Supreme Court in Louis De Raedt V Union of India 23 held that Article 21 of Constitution protects life and personal liberty of all persons. So aliens of Indian Territory shall not be deprived of those rights except according to procedure established by law AIR AIR AIR

9 CONCLUSION To conclude refugee problem in India today is a global issue. A successful stream of humanitarian crisis has highlighted the plight of victims as well as the threat of forceful repatriation to starvation and found them in a hopeless situation and on the edge of clawing for mere survival. A myriad of specialized and regional human rights instruments have sprung from the foundation of International bill of human rights. So UNHCR should work with host Government, U.N country teams, civil society to find out comprehensive solutions for refugees in years to come. It is being seen that India is notwithstanding any security concerns when it comes the refugees, particularly in the last couple of decades, and pressure of population and the attendant economic factors, continues to take a humanitarian view of the problem of refugees. Even though the country has not enacted a special law to govern refugees, it has not proved to be a serious handicap in coping satisfactorily with the enormous refugee problems besetting the country. The judiciary has helped in evolving the balance between human and humanitarian options at one place and matter of national security at the other. If and when a separate Refugee Law for the country is enacted, it is important that this aspect is given due consideration. It is important that security and enforcement officials do not overlook both the legal as well as the underlying human angles inherent in the refugee situation, especially the latter. 100