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Absence of the term “Refugee” in Indian Law

Mohammad Qasim
Monday 9 October 2017

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India is home to one of the largest refugee papulation in the world, according to the UNHCR India, there are close to 2 lakh refugees and asylum seekers residing in India of whom 31,000 of them are registered with UNHCR. People fleeing war and conflict in Afghanistan, Burma, Sri Lanka, Somalia, Palestine, Tibet, Syria and other neighboring and non-neighboring countries made their ways to India in order to survive and protect their lives and dignity. Steady flows of involuntary migrants and forced displaced people to India demonstrate its status as a preferred refugee haven. Despite hosting this large number of refugees and asylum seekers, however, India does not have a single domestic law governing refugee issues. Moreover Indian government neither singed the UN 1951 Convention related to refugee status nor its 1967 protocol. The convention is the cornerstone international instrument offering rights and protection to refugees and defines a refugee as a person who “owing a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of his/her country of nationality and is unable or unwilling to avail him/herself of the protection of that country. With this in mind, a refugee in India runs a risk of denying protection and assistance by the government, lack of legislation dealing with refugees and asylum seekers easily put them on illegal migrant category and increase their vulnerability, Indian law does not offer any special language and provision for refugees, despite large number of them seeking India’s protection. Under Indian law the term “foreigner” is the only reference to aliens of any kind, this places refugees, migrants and tourist in the same category.

When a United Nation member state signs and ratifies the Refugee convention or its 1967 protocol relating to refugee status, it undertakes to apply rights and freedoms granted to refugees in the refugee convention, those standards are property rights, right to welfare, education, employment, housing, access to court, freedom of movement, identity papers and travel documents, non-refoulement and naturalization of refugees. India has not yet agreed to sign the Convention probably because of legal responsibility for the vast number of people seeking shelter. Although Indian government claims that its policies conform to international standards, no Indian law directly refers to refugees. The Registration of foreigner Act of 1939, the Foreigner Act of 1946 and the Foreigner Order of 1948 are primary legal documents that control the treatment of all foreigners including refugees in India. Both the Act and the Order affirmatively give the Indian government the power to restrict movement inside India, to limit employment opportunities as well as to deport refugees. The refugee convention bars all these actions.

Afghans constitute one of the largest part of refugee community in India mostly reside in the capital, Delhi. According to UNHCR December 2014 report, there were 10,395 Afghan refugees and 1305 asylum seekers registered with UNHCR, the number is raised to 14,000 by August 2016. Afghanistan continued producing refugees in large scale, thirty years of war and conflict forcibly displaced millions of people inside and outside the country. The aftermath of 1979, USSR invasion of Afghanistan followed by fight and conflict between them and Mujahedeen took hundreds of thousands of civilians lives and compelled millions of Afghans to flee the war and atrocities most of them escaped to neighboring countries like Pakistan, Iran and India. Moreover, the fall of communism regime in 1992 followed by civil war resulted to another phase of forced displacement. In addition, the Taliban era 1994-2001 was another dark period in the history of Afghanistan, adding more push factors contributing forced migration. Post 2001 with the formation of new government led by Hamid Karzai and supported by international community brought hopes to the people who have waited too far long for peace, however, unlike what the people hoped, the peace never embraced the country. Afghanistan is still a country in conflict and war, terrorists and insurgents carry out regular attacks not only outside the capital even in Kabul. Only in the first half of 2017 1,662 civilians lost their lives and 3,581 others injured as the results of armed conflict and insurgency. Between January 2009 and Jun 2017, armed conflict caused 26,512 death and 48,931 injury, all of them civilians. As the armed conflict persist, people are compelled and forced to escape to another country where they can survive.
The world today is witnessing unprecedented migration crisis than ever before, the number of people being forcibly displaced as result of war, insurgency, ethnic and religious conflict, environmental catastrophe and statelessness in Global-South are largely raising, they found no choice but to begin an uncertain journey leaving everything behind just to be alive and breath alike their other fellow human being who have been lucky by being born in Global-North. Twenty people are forcibly displaced every minute of the day, however, the number is still expected to increase. Moreover, in the past two decades the global papulation of forcibly displace has grown from 39.9 million in 1997 to 65.6 million in 2016. At least 2,510 refugees have died while making their journey to Europe in 2016. Despite current unprecedented humanitarian crisis world faces, however, most global leaders in developed countries are tightening their borders and denying protection and assistance to the people forcibly uprooted.

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