INTRODUCTION:
Refugee rights is considered to be one of the most sensitive aspects in the Human Rights arena. There have been many instances every now and then where a number of people have left their nation and migrated to other nations for various reasons primarily being political opinions or persecution in name of religion or sometime even economic factors. Rights of refugees is a matter of concern because the country to which such people migrate may not treated them well and they may be declined basic human rights required for a decent survival. This article briefs about Refugee laws and conventions related to it, its implication in India, and the validity of CAA in regards to International Refugee Law.
MAJOR CONVENTIONS AND ACTS PERTAINING TO REFUGEES IN INTERNATIONAL AND LOCAL LAW:
The formal instruments on refugees which has the most amount of signatories and is considered to be laws for refugee are the one mentioned below:
(i) The Statute of the Office of the United Nations High Commissioner for Refugees, adopted by the United Nations General Assembly in 1950
(ii) The Convention relating to the Status of Refugees, 1951 and
(iii) Protocol relating to the Status of Refugees, 1967
India does not have a custom refugee determination criteria or procedure. The Union Cabinet is the one which has the authority to determine the kind of protection to be provided to the migrants. Unless any formal recognition is granted to them by the Union Cabinet, they shall be treated as ‘alien refugees’ under Entry 17, List I, Schedule.7, of the Indian Constitution.So, the natural consequence is that refugees have to be treated under the law applicable to aliens in India. However, there are few acts which state about the rights and duties of foreigners and the refugees. The Rehabilitation Finance Administration Act was passed in the year 1948 to cope with the massive migration of people from Pakistan. The Constitution of India, The Foreigners Act of 1946, The Registration of Foreigners Act of 1939, The Extradition Act of 1962 and a few decisions of the Indian Courtsare also relevant in this regard.
DEFINITIONS:
Article 1 of the Convention, after being amended by the 1967 Protocol,defines a refugee as:
“A person who owing to a 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, 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.”
Article 1 of the Convention defines a refugee as:[10][11]
“As a result of events occurring before 1 January 1951 and 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, 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.”
The important aspects which ought to be understood in these conventions are
(i)Policy of non-refoulement,
(ii)Principle of Human Rights and Asylums and
(iii)The enforcement of these conventions in the respective nations.
POLICY OF NON-REFOULEMENT
The policy of Non-refoulement, in its broader sense, means that a country which is hosting the immigrants cannot forcibly return or “refoul” refugees to the country they have fled from as enumerated in Article 33 of the convention relating to the status of refugees . Every state, irrespective of the fact whether it is a signatory or not to the Refugee Convention, should abide by the policy of non-refoulement.
PRINCIPLE OF HUMAN RIGHTS AND ASYLUMS:
The concept of asylum is an ancient one. Even during the middle ages and the formative stages of international law up to the end of the nineteenth century, asylum was frequently granted by one State to the enemies of another usually because the granting State disapproved of the political or religious intolerance of the State fled to. The United Nations Charter stresses its faith in fundamental human rights and promoting and encouraging respect for human rights and fundamental freedoms. The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, stated in Article 14(1) that – “Everyone has the right to seek and enjoy in other countries asylum from persecution”.
ENFORCING THE CONVENTIONS:
Although the Convention is legally binding on every signatory, it is worthwhile to note that there is no body that monitors its compliance. The United Nations High Commissioner for Refugees (UNHCR) has been imposed with supervisory responsibilities, but cannot enforce the Convention in any court, and there is no formal mechanism for individuals to file complaints if any provision of this conventionis violated. A private individual can approach International Court of Justice if the provisions are violated but there has been no suit filed till date by any individual.
Other relief being filing a complaint with the UN Human Rights Committee, nations may levy international sanctions against violators, but these two have also not been enforced ever in the history. So practically, the only real consequences of violation are:
1) Public shaming in the press, and
2) Verbal denunciation of the violator by the UN and other nations.
HISTORY OF REFUGEES IN INDIA:
The fleeing of 10 million people from the erstwhile East Pakistan (now Bangladesh)to India in 1971 is another instance where India faced a massive refugee influx. In compliance of its humanitarian obligations, the Indian Government gave shelter to them on the condition that these people would have to return to their own country when the conditions improve there. However, after a gap of one decade, the influx of thousands of refugees from Sri Lanka and Bangladesh since 1983 and 1986 respectively, followed. As per the record of the World Refugee Report prepared by the Bureau for Refugee Programs, Department of States (July 1993): at the end of 1992 India hosted approximately 400,000 refugees along with at least 2,000,000 migrants and some 237,000 internally displaced persons. Erstwhile in view of the above statistics, the status of asylum given to the refugees from east Bengal must be deemed to be provisional or temporary asylum. In all other subsequent cases viz.; the case of Tamil refugees from Sri Lanka and Oklahoma refugees from Bangladesh – India followed the same practice of ‘temporary asylum.’
The enactment of Citizenship Amendment Act (hereinafter referred as ‘CAA’) is a milestone step taken by the Central Government to tackle the issue of unaccounted immigrants and refugees in India. But at the same time, it is important to note that such an act does not violate any of the norms of international customary law.
CAA IN CONFORMITY WITH THE PRINCIPLES OF INTERNATIONAL LAW:
• It is most important to note that India is not a party to the 1951 UN Convention on Refugees or its 1967 Protocol, nor are there any Indian law establishing asylums or refugee status. The Government of India has a history ofhandling refugee matters administratively, according to internal domestic policies and bilateral political and humanitarian considerations. Even UNHCR has no formal status in India and it is usually permitted to deal only with nationals from countries not bordering India since the relations with neighbouring countries are not in good terms for most part of it and any unthoughtful decision might be against the national interest. The Indian authorities generally grant renewable temporary residence permits to UNHCR recognized refugees and there is no obligation whatsoever on India to offer these immigrants on permanent residence.
• Thus, the protection and mode of enforcement enshrined in the provisions of international Refugee Conventions may only be enjoyed by the refugees through provisions in the municipal laws enacted by the host or receiving State and only the laws prevailing in India shall be applicable to them. The International Law shall act merely as a directive. The chief legislation in India that speaks for the regulation of foreigners is the Foreigners Act-1946, which deals with the matters of entry of foreigners in India, their presence therein and their departure therefrom.
Para 3(1) of the Foreigners Order, 1948 lays down the power to grant or refuse permission to a foreigner to enter India. It also provides that no foreigner should enter India without the authorization of the authority having jurisdiction over such entry points.
Further, sub-Para 2 of the Para-3 of the Order authorizes the civil authority to refuse entry to India if the emigrants do not fulfill the obligations of entry. Unless exempted, every foreigner should possess a valid passport or visa to enter India. If refugees contravene any of these provisions, they are liable to prosecution and thereby subjected to the deportation proceedings.
• As a general fact, a legislation cannot prevail in case of conflict with provisions of self-executing – international instruments. However, as regards those provisions which are not self-executing, such as those calling for expenditure of public funds, then the necessary national legislation must be duly enacted. This common law practice has been followed by the Indian Executive, the Legislature and the Judiciary even after independence. Article 253 of the Constitution lays down that –
“Parliament has power to make any law • for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association”.
In thecase Grarrophone Company of India Ltd. v. Birendra Bahadur Pandey a, Justice Chinnappa Reddy observed that –
“The doctrine of incorporation recognizes the position that rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. National courts cannot say ‘yes’ if Parliament has said ‘no’ to a principle of international law”.
• Article III of the Bangkok Principles of 1966 provides the provision on this temporary or provisory asylum. It lays down that a State has the sovereign right to grant or refuse asylum in its territory to a refugee and the exercise of the right to grant such asylum to a refugee shall be respected by all the other States and shall not be regarded as an unfriendly act and no one seeking asylum in accordance with these principles should, except by being overriden by national security obligations or safeguarding the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or stay if there is a well-founded fear of persecution endangering his life. If a state decides to apply any of the above-mentioned measures, it should grant provisional asylum under such conditions as it may deem appropriate to enable the person thus endangered to seek asylum in another country. India in the past has granted temporary asylum to the refugees as per the present international norms and India is under no obligation to provide permanent residence to the refugees entering India.
CAA AGAINST THE INTEREST OF HUMANITARIAN POLICIES:
Though it is very much clear that India is not a signatory to the Convention and 1967 Protocol, by enactment of CAA, the Union has breached some of the obligations based on a few Conventions signed and on humanitarian grounds which are enumerated below:
• The right to religion is a non-derogatory human right as codified in Article 4.2 of ICCPR; this implies that this right cannot be fetched from a human being at any cost . The Government needs to revisit the CAA as it derogates the right to seek asylum/residence primarily based on religious grounds.
• Violation ofjus cogens as the principle of non-refoulement and the grant of Asylum has been a customary international law principle and the fact that India is not a signatory to the convention does not itself liberate India from its obligation not to refoul or deny the asylums to the refugees. Moreover, the principle of non-refoulement is precluded from reservations as reflected in Article 42 of the Refugee Convention which is testimony to the fact that non-refoulement is a sacrosanct obligation under international Refugee Law.
• The Government’s policy of classifying refugees based on the grounds of religion is a blatant breach of Article 3 of the Refugee Convention, i.e. the principle of non-discrimination. The privilege conferred to specific sections based on their religion and the same not conferred on the other groups inspite of the possibility of undergoing the same situation violates Article 3 of the Refugee Convention.
• In regard to India not binding by these convention irrespective of customary international law principles, it is important to note that India is in fact a signatory to the 1984 UN Convention against Torture which contains the principle of non-refoulement as an integral provision.
Thus despite the evident lacunae in the Indian implementation by not treating all the refugees in the same manner and also brings into light that over inclusive interpretation of situation that all the refugees of a particular religion were persecuted ignoring all other probable reasons of migrating. Thus the flaw of generalizing a community of refugee solely on the basis of religion is violative of human rights to freedom of religion as also enshrined in Article 25 of the Constitution of India.
PERSONAL OPINION:
Prof. L.C. Green who rightly observes-
“Unfortunately, one is bound to recognise that whatever be the international law on this aspect of the refugee problem, states will in fact condition their policies by their ideology. They may even acknowledge the existence of the international legal rule just mentioned, while at the same time finding excuses, such as the need to support freedom or combat communism or fight colonialism in the name of self-determination, to justify contrary behavior”.
Many right wing populist countries like Germany, Sweden, Australia, and the United Kingdom in the pasthave created an environment of anti-immigration which is gaining widespread support from the supporters. India being in a developing phase, cannot cater the needs of all the immigrants when many of its own citizens are not able to avail many basic human rights.With a risk of internal security posed by our hostile neighbours, the act may look harsh at the outset but fighting with the problem of illegal immigration will prove to be in nation’s best interest; both security wise and economy wise. Hence,the CAA does not hamper any international obligation of India except on the humanitarian grounds and it could be viewed as an anti-immigrationstep whichrenders a particular sector of people liberty due to the history of rigorous religious persecution faced by them back in their countries. The aspect of Iocal laws of India being violated is matter of debate and such cases are sub judice in the court of law. Hence it can be safely concluded that the bold step taken by the Indian Government to enact the CAA does not violate any International law nor will attract any sanction in this regard.
By-
V. Pulkit Rathi
( Symbiosis Law School, Pune)
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