No real refuge

Asylum-seekers in India are a vulnerable lot in the absence of a national law to protect their rights.

LIFE has not been easy for Naveen Kumar, an ethnic Hindu Afghan. At age nine, he and his family fled from their home town near Kabul in Afghanistan. They covered the distance to New Delhi riding trucks. Naveen carried with him only the splinters that were lodged in his body when shots were fired at him. Now, almost two decades later, he is working as a shop assistant in New Delhi. His most treasured document is the refugee certificate issued by the United Nations High Commissioner for Refugees (UNHCR). To those who care to listen, he narrates his story. His family owned acres of land and big cars, all of which were left behind in Afghanistan. Now he lives in a two-room shelter in a crowded area of Delhi.

Naveen is a diligent worker. His employer knows that he takes a day off every month to queue up outside the UNHCR office in Delhi along with his family to collect their subsistence allowance. His plans for the future include at least one visit to his home town. He is waiting for the situation there to normalise. For the time being, he is concentrating on getting his two sisters married, preferably to grooms in European or North American countries.

Adnan Ibrahim Salman, an Iraqi citizen who has been living in India for more than 20 years and is married to an Indian, says that his biggest mistake was not to have applied for a refugee certificate when his visa expired. He fears that this mistake will cost him his life as he can be deported to Iraq any time.

Adnan came to India on a student visa in 1979. He did not return to his country when the Iran-Iraq war started and all overseas students were asked by the Iraqi government to return home and join the army. The penalty for his non-compliance is death upon return to Iraq. In India, Adnan has been booked by the local police under the Foreigners Act, 1946, for overstaying. He will now have to prove before a court of law why he should not be deported to Iraq. He is trying hard to get a refugee certificate from the UNHCR, which, he says, can save his life.

WHAT has complicated Adnan's case is the fact that India does not have a separate piece of legislation for refugees. If this was not the case, he need not have approached the UNHCR; instead he could have approached the state authorities for asylum. A national law would have ensured the presence of a mechanism to determine whether one was a refugee, on the basis of agreed, transparent standards. Adnan would have been recognised as a refugee if he was found eligible. Naveen would also have benefited from such a piece of national legislation; he would have had access to benefits from the state, such as education and subsidised food. He would not have had to renew his refugee certificate after specified time limits. He could have even thought about settling down in India.

India is not a signatory to the basic instrument on refugee law - the 1951 U.N. Convention relating to the Status of the Refugees and the 1967 Protocol. More than two-thirds of U.N. members are parties to the instrument. No South Asian country has acceded to these international instruments. This, combined with the fact that there is no regional instrument on refugees in South Asia, makes the picture even more dismal. In South Asia, no effort has been made for a regional consensus on this issue. Nor has any South Asian country adopted a domestic law on refugees or asylum. African states developed a regional convention on refugees in 1969, while Central American countries adopted a non-binding regional instrument called the Cartagena Declaration in 1984.

For people like Naveen and Adnan, this lapse has meant that they do not have any legal status in India and no clear protection regime to turn to for help. They fend for themselves in a country where state authorities discriminate amongst refugees on the basis of their country of origin. The pampered lot include the Tibetan refugees who have been issued not only travel permits but refugee identity documents. The Chakmas of Bangladesh and Sri Lankan Tamils are also officially recognised by the Indian government as refugees.

The determinants for these benefits include the ethnic ties of the refugees with the local people and the relative burden they impose on the Indian States concerned. This is particularly true in the case of a subject like education, which falls under the State List in the Constitution. Hence the Chakma refugees in Tripura are worse off in getting state benefits than the Sri Lankan refugees, who benefit from their ethnic ties with the Tamil population in India. Administrative discretion is also paramount in issues such as regulation of stay for those who are recognised as refugees. Afghan refugees have their residential permits periodically extended while Sudanese or Iraqi refugees are often issued "leave India" notices by the government upon the expiry of their student visas.

Who can help these people who have run away from their countries of origin in the face of death and persecution? The judiciary has been instrumental in safeguarding the interests of asylum-seekers. A handful of judgments have recognised the UNHCR's role - cases in which the courts ruled that a person claiming refugee status cannot be deported until he or she has had a chance to apply for refugee status to the UNHCR. However, there have also been instances where the courts dismissed cases on the grounds that they did not want to enter what they felt was the political domain. In other cases, court proceedings against refugees who entered the country illegally have ended in their imprisonment until their official status was decided. Owing to procedural delays, there is invariably a long gap between the time such persons enter India and the time they are declared refugees. There have also been cases where the UNHCR was asked to secure a home in a third country for the refugee concerned.

The UNHCR has its own limitations in India. It does not have an independent office; it functions as an arm of the United Nations Development Programme (UNDP). Statistically, India's refugee population rose to nearly 2,50,000 by the end of 2000. However, the Government of India has allowed the UNHCR to exercise its mandate only over approximately 12,000 Afghans and about 1,000 individuals of other nationalities. Wei Meng Lim-Kabaa, Deputy Chief of Mission, UNHCR, says: "Protection of refugees can only be offered by the government. We are only an intervening body. Lack of national legislation makes it difficult for us to function, especially when we come across cases of resettlement. There is no effective alternative to a law for the refugees."

The benefits of a piece of national legislation will be many. It would allow the government to distinguish clearly between an illegal migrant and a refugee. It would ensure a rights-based regime instead of one that deals with refugees in an ad hoc manner, and would go a long way in wiping out the existing discrimination. India is a member of the executive committee (Excom) of the UNHCR since 1995. A national law on refugees would strengthen its case for a permanent membership of the U.N. Security Council.

Efforts have been made earlier to introduce a national law on refugees. In May 1997, an Eminent Persons Group (EPG), a panel of jurists under former Chief Justice of India P.N. Bhagwati, drafted a model national law on refugees. However, the proposed bill is pending even though most State governments and political parties have shown the political will to make it a reality. The main contribution of the EPG's draft law is that it has taken the first step towards defining a refugee. It defined a refugee as (a) any person who is outside his or her country of origin, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, or (b) any person who owing to external aggression, occupation, foreign domination, serious violation of human rights or other events seriously disrupting public order in either part or whole of his or her country of origin, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin. The international principle of non-refoulement (which prohibits the forcible return of refugees to situations in which they would be subject to persecution and where their lives and freedom could be threatened) and an adequate quasi judicial mechanism for the determination of refugee status are essential components of the legislation. It has been structured keeping in mind the broader spectrum of international human ri-ghts law. The UNHCR sent the draft bill to the Union Home and Law Ministries for consideration, but has not received feedback from any of the government departments. Says Kabaa: "For the time being, we are satisfied that the issue is being looked into. This was not the case earlier."

With no indication of a refugee law in the near future, human rights activists are demanding amendments to the Foreigners Act. Under this Act refugees in India are dealt with like ordinary aliens. The amendments sought are that the government define refugees as a distinct class, prescribe the procedure to consider their claims, and elaborate their rights, including protection of non-return. This would fall short of a full-fledged piece of legislation but could be a stopgap arrangement.

The government's lethargic response to the need for a refugee law stems from the belief that refugees and immigrants should be dealt with at a bilateral, and not a multilateral, level. This argument stems from the conviction that migrants and refugees will have an adverse effect on internal security and political stability. Recognition of refugees would also mean that an already cash-strapped government will have to direct some resources to ensure their rights - such as free education, free movement and adequate healthcare facilities. Hence the ad hoc solutions. The government argues that it is observing the basic principles of refugee protection even now - it admits asylum-seekers and refugees and follows the principle of non-refoulement.

However, in reality, the status of a refugee in India is that of a foreigner whose movement can be restricted or who can even be ordered out of the country. Administrative procedures decide his or her fate. A refugee, at the end of the day, remains without any legal status and is in most cases confused with a migrant.