Definition of Refugee
Andrew E. Shacknove in his article ‘Who Is a Refugee’ identifies a person as a refugee, if he or she crosses an international frontier due to a well-founded fear of persecution (1). According to Convention of 1951 relating to “status of refugee”, a person owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out- side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, shall come under the definition of refugee(2).
The foundation of the convention was Article 14 of the Universal Declaration of human rights 1948, which recognises the right of persons to seek asylum from persecution in other countries. To put it simply, a citizen of a country who crosses an international border because he was denied his basic rights and was subjected to discrimination and military actions,comes under the definition of refugee. Hence an individual who moves to another country solely for economical or educational reasons does not qualify to be called as a refugee.
Indian Laws Relating To Refugees
Though India is not a signatory to the UN Refugee Convention of 1951 or the 1967 Protocol, India has been following a very liberal refugee policy and have hosted numerous refugees from the neighbouring countries of Tibet, SriLanka, Bangladesh, Myanmar and Afghanistan. In India, refugees are given the status of an alien(as held under, Section 3(2)(b) of the Indian Citizenship Act, 1955) and are granted certain Fundamental Rights, available to citizens and non citizens, such as right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), etc.
Several acts have been enacted,which govern the rights and status of these refugees in India such as Foreigners Act 1946, Registration Act 1939 and Passport Act 1920.While Foreigners Act 1946 defines a ‘foreigners’ as ‘a person who is not a citizen of India’ and empowers Central Government to regulate the entry and the departure of the aliens in India, the Registration Act 1939 deals with the registration of foreigners entering and departure. The Passport Act of 1920 and 1967 vest powers in the government to impose conditions of passport for entry into India and to issue passport and travel documents to regulate departure from India of citizens of India.(3) However since the mentioned acts fails to define any distinction between the categories of aliens, refugees are often subjected to the risk of arrest by the immigration authorities and of their prosecution,if they enter India without a valid passport/travel documents.
Indian Citizenship Act 1955
The Constitution of India under Part II i.e. Article 5-11 deals with the provision of citizenship(4). By the virtue of article 11, Indian Citizenship Act 1955(5) was enacted by the government for the purpose of acquisition and termination of citizenship in India. As per the provision of the said act, the mode of acquiring citizenship, as held from section 3-7, are-by birth, descent, registration, naturalisation and incorporation of territory.
However the Centre is trying to amend the Citizenship Act, 1955, to provide citizenship to illegal migrants from Afghanistan, Bangladesh and Pakistan residing in India for six years instead of twelve years even if they do not posses any document required. Speaking on the bill, Defence Minister Rajnath Singh held that the proposed bill will pave way for the religious minorities -the Hindus, Jains, Christians, Sikhs, Buddhists and Parsis, from these states to get Indian citizenship.(6) The proposed law does not recognise persecuted sects within Islam as religious minorities and has been highly criticised by the opposition since it violates the basic tenets of the constitution.
The Rohingya refugee crisis is a rapidly increasing humanitarian disaster against the stateless ethnic minority(mostly Muslim) from Rakhine province of Buddhist-majority Myanmar(7). The group is considered to have migrated to Myanmar during the Colonial rule and hence are denied the status of a citizen of the country under the Burmese citizenship law 1982 irrespective of the fact that some of their ancestors have resided in Myanmar for centuries. Subjected to communal violence and repeated military operations,millions of Rohingya’s are forced to leave their country and are one of the most vulnerable refugees groups in the world, taking shelter in Bangladesh,India,Thailand and several other neighbouring countries by illegally crossing the international border.
India’s Stand on Rohingya Crisis
The Rohingya crisis has raised several questions about India’s approach towards refugees, in general, and the Rohingyas, in particular. Author K. Yhone in his paper ‘Examining India’s Stance on the Rohingya Crisis'(8) have identified three phases as to India’s response to the crisis.In the first phase that began with the eruption of violent conflicts in Rakhine state between Buddhists and Rohingya Muslims in 2012,Delhi considered it an ‘internal affair’ but was sympathetic to Myanmar. Wittingly or not, India also allowed Rohingya refugees to enter the country and did not make it an issue in its domestic politics or in its bilateral relations with Myanmar.
The second phase of India’s Rohingya approach began sometime in mid-2017 with the announcement of the government’s plans to deport the Rohingyas who have settled in different parts of India as “illegal immigrant”. One of the reason behind this decision was the increasing number of people of Rohingya in India. However on the plead for help from Bangladesh India launched “Operation Insaniyat”(9) to provide relief assistance for the refugee camps in Bangladesh in 2017.India’s approach in the third phase was probably driven by the need to find a role for itself in finding a resolution to the crisis by strengthening its quiet diplomacy.
The phase began soon after China stepped in with its “three-step solution”to the Rohingya crisis and the subsequent signing of the repatriation agreement between Bangladesh and Myanmar in 2017. So far, the Indian approach towards the Rohingya crisis has been viewed as contradicting its traditional position on refugees. As the Rohingya crisis unfolds, there is still a lot that India can do to facilitate the finding of long-term solutions. These actions will be key in determining India’s regional and global standing.
In the case of Mohammad Salimullah v. Union of India,2017(10), the bench comprising the Chief Justice Dipak Misra,Justice A.M. Khawilkar and Justice D.Y.Chandrachud began hearing the Writ Petition against the proposed deportation of Rohingya refugees. As a response to the writ petition, the Centre filed an affidavit supporting the deportation of Rohingya Muslims. The thrust of Centre’s affidavit is that deportation of illegal immigrants is a policy decision and the Court should not intervene in such matters.
The Centre further claimed in its affidavit that constitutional protection of Right to Movement and Residence under Article 19(1)(d) and Article 19(1)(e) respectively does not apply to Rohingya as they are non- citizens. On the applicability of international law obligations, the Centre took the position that since India is not a signatory to either Conventions Relating to Status of the Refugees 1951 or 1967, it is not bound by its provisions.(11) On behalf of the petitioners, Mr Prashant Bhushan noted that Mr Fali Nariman would also be assisting the court in this matter. The petitioners also pleaded to issue a notice to the National Human Rights Commission (NHRC) but the Chief Justice refused the prayer stating “It will be too early to issue a notice to NHRC.The next hearing is to be held in August 2019.
1.Andrew E. Shacknove, “Who Is a Refugee?,” Ethics 95, no. 2 (Jan., 1985): 274-284.
2. Convention and Protocol Relating to the Status of Regugee, available at: https://www.unhcr.org/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html
3.Refugee Law:The Indian Perspective,available at: https://www.lawteacher.net/free-law-essays/international-law/refugee-law-the-indian-perspective-law-essay.php#ftn4(Last updated Feb 02 2018)
4.Dr.Durga Das Basu,Introduction to the Constitution of India,p.75-79(21st Edition,Lexis Nexis, 2008)
5.The Citizenship Act,1955(Act No.57 of 1955)
6.Lok Sabha passes Citizenship(Amendment)Bill,available at: https://economictimes.indiatimes.com/news/politics-and-nation/lok-sabha-passes-citizenship-amendment-bill/articleshow/67438267.cms?from=mdr(Last updated Jan 08 2019)
7.For Rohingya,there is no place called home,available at: https://www.thehindu.com/news/international/for-rohingyas-there-is-no-place-called-home/article19620567.ece((Last updated Sep 05 2017)
8.Examining India’s Stance on the Rohingya Crisis by K.Yhome ,Issue No. 247,ISBN 978-81-938214-5-9
9.Government launches Operation Insaniyat to help Rohingya refugees in Bangladesh, available at: https://currentaffairs.gktoday.in/government-launches-operation-insaniyat-rohingya-refugees-bangladesh-09201748077.html(Last visited Sep 14 2017)
10.Mohammad Salimullah v. Union of India(2017) SCC 1807
11.Rohingya Deportation,available at: https://www.scobserver.in/court-case/rohingya-deportation-case/day-1-of-arguments-c3ec595b-7149-4e06-b4ac-4a929ca6aac4
Author: Shambhavi Verma (Amity Law School, Noida)