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Refugee Policy for India - Complex Interplay Between International Law and Security

Refugee law is closely linked to human rights, humanitarian law, and other fields of international law. It is crucial to structure norms, recommendations, and guidelines for individuals who have lost or are in danger of losing their country of origin while not compromising traditional asylum rules for those fleeing from persecution or the specific city of the refugee condition.

An Illustration on Refugee Policy for India by The Geostrata

Illustration by The Geostrata


Refugees are defined as individuals who are outside their nationality due to fear of persecution, human rights violations, socio-economic and political insecurity, generalized violence, civil war, or ethnic strife. Rest are the distinct groups of foreigners: Temporary Residents, Tourists, Travelers, Illegal Economic Migrants, Criminals, Spies, Infiltrators, Militants, and Internally Displaced Persons (IDP).


International refugee law rarely determines the way governments respond to involuntary migration, and states often devote considerable resources to keeping refugees away from their borders.

In countries like India, which has not passed domestic legislation on dealing specifically with refugees, the fate of refugees is determined by the laws applicable to foreigners in general, unless a specific provision is made. This raises questions about whether refugees possess rights over and above those granted to refugees in general and the extent to which the existence of refugees imposes legal obligations on the Indian government.


Refugee women are particularly vulnerable to violations of protected rights, and greater responsiveness to their special needs can help reduce protection risks in refugee camps and settlements.

REFUGEE LAW IN INDIA


Immigration in India aims to gain citizenship or nationality in a different country. The Constitution of India provides single citizenship for the entire country, with provisions governing citizenship in Articles 5 to 11 in Part II. Refugees are a significant concern for India and its citizens, particularly in the context of law enforcement. The Union government, both Central and State governments, has the exclusive purview of international relations and borders, resulting in various agencies dealing with refugee matters.


Temporary Residents, Tourists, and Travelers come to India for specific purposes and duration with the government's permission. Illegal Economic Migrants leave their country without authorization, while Criminals, Spies, Infiltrators, and Militants are not eligible for refugee status.


Internally Displaced Persons (IDP) are those who have sought refuge in another region of the same country and have the protection of their national government.

India, a Union of States, is considered a State in international law. The Parliament alone has the right to deal with citizenship, naturalization, and refugees. However, India has not passed refugee-specific legislation, treating refugees under the law applicable to refugees in India, unless a special provision is made. India takes care of its refugee population without any assistance from the international community. The need to sign an international convention does not weave protection for refugees due to its Human Rights obligations.


The Constitution of India is very liberal, granting rights to equality (Article 14) and life and liberty (Article 21) to non-citizens.

However, administrative discrimination depending on public policy can be arbitrary and sometimes influenced by foreign policy objectives. In A.S.Iyerv. Baiaasubramanium, refugees are considered as 'aliens'. Enactments governing refugees in India include the Foreigners Act, of 1946, Registration Act, 1939, Passport Act, 1920, and Passport Act, 1967.


The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation to regulate and justify the stay of refugees in India. In various cases, it was held that refugees should not be subjected to detention or deportation and that they are entitled to approach the U.N High Commissioner for a grant of refugee status.


The Supreme Court has erred in concluding in Louis de Raedt v Union of India that there is no provision in the Constitution fettering the absolute and unlimited power of the government to expel foreigners under the Foreigners Act of 1946.

The question arises whether India can refer to the 1951 Convention in interpreting domestic legislation and whether it is necessary to ratify these conventions. merely ratifying the Convention does not ensure that asylum seekers will not be kept out, and Article 42 of the same Convention permits reservations concerning the rights of refugees, which defeats the purpose of ratifying the Convention.


In recent cases, the Supreme Court of India has directed that there must not be any discrimination between people based on status. The constitutional rights protect the human rights of the refugee to live with dignity.


REFUGEE TO INDIA


India, a country without a national refugee protection framework, continues to grant asylum to many refugees from neighboring states and respects UNHCR's mandate for other nationals, mainly from Afghanistan and Myanmar. However, India's concerns about security have led to a more restrictive impact on asylum space in the country.


UNHCR conducts refugee status determination (RSD) for asylum-seekers from non-neighboring countries and Myanmar and has a presence in Chennai, and Tamil Nadu, to support the voluntary repatriation of Sri Lankan refugees.

The Government of India's approach to refugee issues results in different standards of protection and assistance among refugee groups. Tibetans and Sri Lankan refugees are protected and assisted by the Government, while UNHCR is directly involved with groups arriving from Afghanistan and Myanmar. The rise in the number of refugees and asylum-seekers has not been accompanied by a commensurate increase in resources, compelling UNHCR to find innovative ways to meet both existing and emerging protection needs.


Refugees and asylum-seekers often live in poverty, dispersed in urban areas, where they can face violence and exploitation. They do not have the legal right to work but can find low-paid employment in the informal job market.


UNHCR will aim to protect and assist all refugees and asylum-seekers in India, preserve protection space, and develop partnerships with the government at the national and global levels.

NEED OF POLICY


India is experiencing a significant increase in refugees, with nearly one million residing alone each year. This population poses challenges to the states regarding issues such as the protection of women and children, health services, resistance, education, employment, crime rates, and asylum granted. The need for policies for refugees and asylum seekers is urgent, as India has yet to implement a proper legal spectrum to recognize and adjudicate the concerns of refugees.


The lack of a formal refugee policy in India has resulted in a discretionary system where the Ministry of Home Affairs has the ultimate authority to determine whether a person may be granted status as a refugee in India. Refugees have to rely on the state's mercy rather than a rights system to rebuild their lives in dignity.

India has rules and enactments that give the Indian government the edge in dealing with foreigners, but it fails to treat refugees from a geostrategic standpoint. There are several merits to having laws and policies for refugees and asylum seekers, including inaccessible human rights, consistent exploitations, and a balanced and sustainable refugee law.


However, there are cons to having laws and policies for refugees and asylum seekers. Security issues arise due to the influx of refugees, which can lead to terrorist attacks and hamper the national economy and resources available to native people.


Economic burdens on the host country include competition for scarce resources, and increased demands for education, health services, infrastructure, and natural resources.

Lastly, the social impact of refugees on the host country is significant, as an unrestrictive, integrative policy approach provides them with increased rights of mobility, access to social services, and opportunities for economic interactions.


 

BY NANDINI GOYAL

TEAM GEOSTRATA

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