Abstract:
We live in a chaotic environment, and this fact does not alter when we look at it from a global perspective. Since the turn of the twentieth century, we have witnessed conflicts in ways we could never have imagined. The world has seen everything, from nuclear weapons to the Cold War, from persecution to people leaving their homes. We, as humans, have always disappointed ourselves. We created Human Rights for ourselves, and we are the only ones who violate them. We establish laws, then breach and mold them to suit our needs. The people are the ones who suffer the most during all of this crafting and breaking of laws.
Introduction:
One of the worst conceivable situations that have occurred over the ages is that people have been made homeless as a result of conflicts that have occurred both within and outside of countries. The word “refugee” has become extensively used to describe persons who have fled to other nations as a result of these wars and the fear of persecution in their native country. Although international law has a long history of growth, the identification of refugees is a relatively young field that was not even examined until World War II.
Many nations have signed various agreements relating to individuals who have fled their homes and are classified as migrants, refugees, internally displaced persons, and so on, and have offered protection and rights to those affected.
India, on the other hand, has long been regarded as one of the greatest countries in the world for its hospitality, but it has refused to sign the Convention on Refugees and does not have its national law for refugees. This article aims to understand why India has not ratified the 1951 Refugee Convention and why it needs its own Refugee Law.
The Refugees’ Problem:
A refugee is a person who has had to escape his or her home country and is unable to return because he or she is in danger of being persecuted due to underlying elements such as race, religion, nationality, membership in a certain social group, or having a different political stance. The main difference between a refugee and an ordinary citizen or even a normal migrant is that a refugee is forced to leave his home and is unable to return until and unless the situation improves and it becomes safe to return, whereas an ordinary citizen or even a migrant if they choose to leave, will be able to return once the situation improves and it becomes safe to do so.
The problem with refugees is simply that they are aliens in any country other than their own country, and they are unable to use their last resort, which is to return home as a regular alien would. He also doesn’t have the same level of security as a normal alien. His own country and government do not acknowledge him. Furthermore, such an alien is always regarded with suspicion and as a suspect by others, and because he is defenseless, he is prone to the majority of atrocities committed around the world. The refugee crisis is not new, but it continues to expand regularly. There exist organizations, international instruments, and rules, but how well the nations enforce the laws and provide for the protection of refugees is entirely up to them.
The Refugee’s International Law:
Only two instruments specifically deal with refugee protection in the international arena at the moment. The 1951 Convention and the 1967 Protocol are the two. These two instruments expressly provide that persons recognized as refugees are entitled to the same treatment as other foreigners or their nationals in the country where they have sought asylum. The 1951 Convention specifies the magnitude of the refugee problem and why international cooperation is vital in resolving the global refugee crisis.
The 1951 Refugee Convention, on the other hand, exclusively protects individuals who meet the criteria for being classified as refugees. Certain groups of people have been deemed as not deserving of refugee status, and as a result, they will be denied any protection given under the 1951 Convention. They are individuals who have committed crimes against humanity, war crimes, crimes against peace, or any serious non-political crime outside of the country in which they are seeking asylum. It also covers those who have been found guilty of conduct that violates United Nations values.
According to the 1951 Refugee Convention, people who have been granted refugee status receive a slew of rights, including:
- The right not to be expelled unless and until specified, rigorous conditions are met (Article 32);
- The right not to be punished for illegal entry into the territory of a contracting State (Articles 17 to 19);
- The right to work (Articles 17 to 19);
- The right to housing (Articles 21 and 22);
- The right to education (Articles 22 and 22);
- The right to public relief and assistance (Articles 23);
- The right to freedom of religion (Articles 4 and 4);
- The right to access the courts (Articles 16 and 16);
- The right to free movement within the territory (Article 26); and
- The right to obtain identification and travel documents (Articles 27 and 28).
The 1951 Convention also outlines a few responsibilities that such refugees have toward the governments that grant them refugee status. The 1967 Protocol, on the other hand, expands the scope of the 1951 Convention’s application. It eliminates the geographical and time constraints that were a major feature of the 1951 Convention.
These two tools, however, are not the only ones that protect refugees. There are other regional tools in place, such as in Africa, Europe, and the Americas. In addition, there is a well-defined body of international human rights law that complements refugee rights. States, on the other hand, are committed to safeguarding the human rights and other fundamental rights of people classified as refugees.
The Refugees in India:
India is unquestionably one of the countries where visitors are regarded as Gods, as it has often demonstrated. However, circumstances have changed, and India has come under fire for saying that Rohingyas (refugees fleeing persecution from Burma) will be deported and will not be permitted to stay in the country. Furthermore, in December 2019, the Indian government, led by Narendra Modi, passed a Citizenship Amendment Bill, under which persecuted minorities from a few neighbouring countries will be allowed to become citizens of India under certain conditions and subject to eligibility criteria, but Muslims will be excluded. The administration has had to face severe protests across the country since the bill was enacted into law, and the law has also been heavily criticized. It was the first time that persecuted people were classified according to their religious beliefs. It has been suggested that such legislation is incompatible with the Indian constitution, which considers secularism as a cornerstone of the country and a fundamental characteristic of the Indian Constitution.
According to UNHCR figures, India is one of the world’s largest refugee centers, with over 200,000 refugees. India lacks a national refugee policy and has not ratified the Refugee Convention. It states unequivocally that India does not officially recognize refugees. It makes no distinction between refugees and other foreign nationals arriving in India. Because India does not have its refugee law and has not signed any international instruments relating to refugees, the treatment of all refugees is at the discretion and will of the political parties in power or the government in place at the time. Because there is no precise legal structure, the Parliament gains the right to rule over these people at any time, according to the government’s views, rendering them even more vulnerable. Thousands of Tibetan and Sri Lankan refugees have arrived in India, where they have been provided with adequate shelter and government assistance. People/refugees fleeing Muslim-majority countries such as Iraq, Iran, Afghanistan, Myanmar, Sudan, and others, on the other hand, have received no protection and, instead, have been presented with Identity Proofs, through which India has granted them just Temporary Residence Permits. As a result of India’s refusal to give UNHCR entry to the Seven North Eastern States, refugee communities such as the Christian Chin are left without identification or protection from either India or UNHCR.
The Refugee Convention and India:
The CAA is possibly the first “refugee legislation” in the contemporary world to be overwhelmed by hate and bigotry. A refugee, according to the UNHCR Convention of 1951 and the 1967 Protocol, is someone who has “a well-founded fear of persecution on account of race, religion, nationality, or political opinion” and is unable to return to his country or has become “stateless.”
India never joined the 1951 Convention because it was considered Euro-centric and intended against communist regimes, as R.K. Nehru, the foreign secretary at the time, described it in 1953. India, like Pakistan, is a member of the UNHCR committee but not a signatory to the Convention. This does not imply it is free to pursue any policy it wants, as it is still obligated by the human rights accords to which it has agreed.
In 1999-2000, an eminent person group (EPG) comprising South Asians (excluding Pakistanis) chaired by Justice Bhagwati drafted a Model Refugee Law (which I later re-wrote) that the Indian government rejected. A non-discriminatory law is required today to ensure that India’s policies are not dictated by whims and fancies.
The necessity of Refugee Law:
Although India has never officially stated why it did not sign the instruments relating to refugees, it is clear from the practices and opinions of various scholars that India does not accept the definition of refugees as outlined in the 1951 Refugee Convention because they believe it is too narrow. Another reason is that India views Section 35 of the 1951 Convention as a danger to national sovereignty because it gives the UNHCR supervisory powers. Things begin to seem different, however, when we consider how different types of persons experiencing persecution from other nations are treated in India, as previously noted. India, a country founded on the values of peace, harmony, and fraternity, must always be a haven for refugees. It should be one of the government’s primary responsibilities to maintain the doors open for refugees from other countries, and there must be no discrimination based on religion, caste, creed, sex, or ethnicity. In India, the refugee problem is comparable to that which exists in other countries. We are merely making the already vulnerable refugees more vulnerable to human rights breaches by not having a suitable law. Without a doubt, there are very few laws in India that protect refugees.
Conclusion:
As a result, I believe that India, where so many laws are enacted daily on both a national and international level, should begin to draft a clear, comprehensive, and robust mechanism to protect refugee rights and make well-defined regulations on refugee rights such as entry into the country, accommodation, rights, and responsibilities. It is necessary to create agencies that will solely deal with the refugee problem and will be responsible and accountable to an independent authority.
During the Partition, India’s creation as a nation was followed by a large-scale and violent mass movement of people to and from Pakistan. The hesitation of New Delhi, like that of some other developing countries, to ratify the 1951 Convention stems from a fear of the economic and political burden that the rehabilitation and relocation of refugees, as well as the obligations under the global refugee regime, would impose. As a result, the treatment of migrants is subject to the whims of whoever is in power in New Delhi.
India requires domestic refugee legislation to protect those who have been persecuted, but it does not need to be discriminatory.
