Refugees or Foreigners

June 20 is marked as the World Refugee Day. Though being a welcoming nation for refugees, India more often lacks clear policy prescription while addressing the national security issues on secular humanitarian concerns.

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Photo credit: UNHCR India

Today is World Refugee Day. According to UNHCR Report the number of people fleeing war, persecution and conflict exceeded 70 million in 2018.India has been invariably a home to a huge number of refugees ranging from those belonging to countries like Sri Lanka, Nepal and Bangladesh, andtoo far off lands like Iran, Afghanistan, Uganda, Somalia and others. India lacks in a specific domestic law applicable to refugees and asylum seekers and is not a signatory to the 1951 Convention or to the 1967 Protocol relating to the status of refugees.

However, fundamental rights (covering Articles 14, 20, 21, 22, 25-28, 32, 51(c) and226) are equally enjoyed by the refugees too, which also pays respect to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.In addition, the legislature of India never made any distinction between Refugee and Foreigner either in the Passport Act, 1920 or Passport Act, 1967 which is said to be license to migrate from one geographical location to another or to an identity of a person. The lacuna of ‘Refugee’ and ‘Foreigner’ is a risk factor of arrests or detentions by the immigration authorities in the absence of a valid passport. With this even the Registration of Foreigners Act, 1939 or Registration of Foreigners Act, 1946 remain silent when it comes on definition of refugee. Indeed, refugee is undefined and travelled a long aloofness, the Government of India using a discretionary power on such immigrants, as embedded in Section 3(2) of the Act, 1946.

For instance, when Rohingya Refugees fled to India, left genocidal violence and Facebook vitriol behind Myanmar, in 2013 they couldn’t feel safer in India and faced political challenges just because of being Muslim community. It is difficult to argue on either side because Rohingyas remain on dispute whether they are Refugees or Foreigners. Similarly, in the chaotic aftermath of Brexit, the refugee crisis seems like a distant memory, yet not even a year has passed since the body of a young Syrian boy washed up on a Turkish beach, shocking the world. The European Union has been into much pressure after the continuous surge of migrants that arrive in thousands at the coasts of Greece and Italy, in order to continue their journey to Central and Northern Europe. This is because of the conflicts going on in Syria and Afghanistan which compelled people to migrate, Europe being their final destination.

Also Read : No goodbyes: An account of Afghani refugee settlement in India

For the first time, the Apex Court in the case of Hans Muller of Nuremburg v. Presidency Jail, AIR 1955 SC 367, has held that the Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.

The Judicial system of India has also played a pivotal role in providing the refugees with their due rights.

In the case of Louis De Raedt v. Union of India (1991) 3 SCC 554, the Apex Court extended the protection of aliens irrespective of their geographical location who took shelter for protection under Article 21 of the Indian Constitution which reflected in the case of National Human Rights Commission v. State of Arunachal Pradesh (1996) 1 SCC 742. Here, the Court directed the State to protect lives and ensure welfare of the Chakmas who had come from Bangladesh as a result of persecution in the Country with assurance that Chakmas cannot be sent back to their native country. And finally, the Apex Court observed that absence of a uniform law leaves the onus on the judiciary to decide the case varying upon fact to fact and also to ensure a harmonious construction of international laws and domestic laws when those are found in consistent with fundamental rights as held in the Vishakha v. State of Rajasthan.

Refugees may result into an obstruction to State sovereignty and security, as per the aforesaid Convention’s stance of interpreting the municipal law. Although the principle of complementary protection aims to extend the fundamental refugee law principle of not forcing refugees to return to a country where they are likely to face persecution, the principle of complementarity should also not be avoided. Indeed, each and every factor must be considered by the entity before resolving the disputes between ‘Refugees’ and ‘Foreigners’. Considering the such pathetic situation, the European crisis is always landmark pathway to recover from the uncertain controversy whereby the European Commission has agreed to create the concept of controlled centres in the EU and “regional disembarkation platforms” outside the EU so as to manage the processing of differentiation between refugees who are in dire need of asylum and economic migrants.

Also Read : UNHCR to continue international protection for Chin Refugees in India

In addition, the EU also successfully convinced with their political mess by concentrating such centres on the periphery of the bloc. Tunisia and Albania could become the likely targets. But it is too early to write any conclusions. Indeed, the concept of “regional disembarkation platforms” has proven to an extent which is also reflected in the 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.