India’s Refugee Policy

By - Pooja, Faculty of Law, DU

India’s Refugee Policy

India’s Refugee Policy

The objective of immigration is gaining citizenship or nationality in a different country. In India, the provisions of the Constitution mainly govern the law relating to citizenship or nationality. The Constitution of India provides for single citizenship for the entire country. The provisions relating to citizenship are contained in Articles 5 to 11 in Part-II of the Constitution of Indian. Article 5 states that at the commencement of this Constitution, every person belonging to the following categories, who has his domicile in the territory of India, shall be a citizen of India:

  1. Who was born in the territory of India; or
  2. Either of whose parents was born in the territory of India; or
  3. Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.

There are numerous aspects pertaining to refugees, which are of major importance both to India, as a country and to the refugees, particularly in the context of law enforcement. Given the security scenario prevailing in the country, particularly arising out of the role of some of the neighbor’s in this regard, an utterly humanitarian matter like the ‘refugees’ has come to be influenced by considerations of national security.

While law and order is a State subject under the Indian Constitution, international relations and international borders are under the exclusive purview of the Union government. This has resulted in a variety of agencies, both of the Central as well as the State governments, having to deal with refugee matters connected with law enforcement. Also, all policies governing refugees are laid down by the Union government though the impact of the refugee problem as such has to be borne by the State administration to a greater degree if not wholly.

They have to make sure that the laws of the land are enforced in regard to refugees without in any way ignoring or neutralizing security considerations. But, at the same time, it is also their responsibility that the humanitarian overtones so characteristically and inseparably associated with refugees in general, are not lost sight of. It should be appreciated that a person becomes a refugee because of circumstances, which are beyond that person’s control, often poignant. She/he is left with no other option but to flee from human rights violations, socio-economic and political insecurity, generalized violence, civil war or ethnic strife all these leading to fear of persecution.

Article 1 Para. 2 of the 1951 United Nations Convention defines ‘refugee’ as “A person who owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

There are four well-defined groups of foreigners who are different from ‘refugees’. These categories are:

Temporary Residents, Tourists and Travellers

Persons under this category come to India for a specific purpose and duration with the prior permission of the Government of India. However, in certain circumstances any one in this category could become eligible for being a refugee, if, during their sojourn in India, the situation in their country of origin becomes such as to endanger their lives and liberty if they were to return to their country.

Illegal Economic Migrants

Any foreigner who might have left his or her country of origin without due authorization from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee. After all, there is no element of persecution or coercion compelling the individual to leave the country of origin.

Criminals, Spies, Infiltrators, Militants etc

None of these can ever become eligible to be refugees. They have to be dealt with under the provisions of the Indian criminal laws as well as any other special laws in force even though some of them may be in possession of valid travel documents.

Internally Displaced Persons (IDP)

Those persons, who are fleeing persecution and human rights violations from one region of the country and have sought refuge in another region of the same country, fall under this category. Such persons cannot be categorized as ‘refugees’ as they have not crossed any international border. Moreover, they have the protection of their national government. These persons are categorized as ‘internally displaced persons’ (IDP)

Even though India has been the home for a large number and variety of refugees throughout the past, it has dealt with the issues on a bilateral basis. It 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 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. That agency also plays an important role in the resettlement of refugees etc.

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 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. Similarly, the claimant must be able to establish all his statements to interviewing authorities in a consistent manner, without discrepancies. If there are obvious contradictions between the statements made by the claimant himself at different times to different persons, his claim to refugee status may be rejected. The statements made by the claimant must also not be contradictory to the general information available on the country of origin. Corroboration and confirmation of facts pertaining to persecution is an essential factor in determining refugee status.

In the case of INS vs. Cardoza Fouseca interpretation of the “well founded fear” standard would indicate “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, the case of ex parte Sivakumaran. The judgment suggested that the ‘test’ should consider whether there is an evidence of a “real & substantial danger of persecution”

India does not have on its statute book a specific and separate law to govern refugees. In the absence of such a specific law, all existing Indian laws like The Criminal Procedure Code, The Indian Penal Code, The Evidence Act etc. apply to the refugees as well.

In the case of India, the decision as whether to treat a person or a group of persons as refugees or not is taken on the merits and circumstances of the cases coming before it.

In 1989, when the Myanmar authorities started suppressing the pro-democracy movement in that country and about 3,000 nationals of that country sought refuge in India, the GOI declared that in accordance with well-accepted international norms defining refugee status, no genuine refugee from Myanmar would be turned back and in fact; they were accepted as refugees by the GOI. Similar is the case of Sri Lankan Tamil refugees crossing the sea to enter the southern Indian State of Tamil Nadu. The Government of India followed a specific refugee policy regarding Sri Lankan refugees and permitted them entry despite the fact that the refugees did not have travel documents.

Even though India is not a signatory to the 1951 Convention on refugees and also the 1967 Protocol, it is a signatory to a number of United Nations and World Conventions on Human Rights, refugee issues and related matters. Hence its obligations in regard to refugees arise out of the latter. India has also voted affirmatively to adopt the Universal Declaration of Human Rights, which affirms rights for all persons, citizens and non- citizens a like.