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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2679

Hosting the Refugees: Need for a National Law

By Saumitra Mohan

India has been a major Third World country of concern in the context of refugee movements. Almost all the refugee generating factors have been active here and have impinged on the refugee situation in the country.

But the Indian State has shown remarkable capacity and resilience in absorbing and dealing with these refugees and this is perhaps one reason that the refugee situation here does not seem to be alarming. But it remains a fact that over two lakhs of refugees including Tibetans, Sri Lankans, Tamils, Chakmas, Afghans and other categories assisted by United Nations High Commissioner for Refugees (UNHCR), who are still in country, do strain an already overburdened economy, sometime even inviting hostility from the local population. Apart from straining our economy, it also has implications for the security of the country. The pressure of hundreds of thousands of refugees has often created conditions for destabilization and disruption of political, economic and social systems in the country.

The extent and intensity of this threat naturally depends upon the number of refugees and their demands and expectations. We also notice that despite being non-signatory to the international refugee regime, India has hosted some of the largest refugee movements of modern times. However, the Government of India has consistently preferred to deal with the refugee issue on a bilateral basis and without international involvement.

In spite of the fact that India has faced on many occasions in the last fifty five years or so, and is still facing, acute refugee problem, leaving aside the minor influxes, it is neither a party to the 1951 Refugee Convention, and/or neither 1967 Protocol nor it has a specific legislation on Refugee Law. The government generally meets its humanitarian obligations towards refugees and asylum seekers, but prefers to do so as a matter of administrative policy rather than as a legal requirement. It has, however, handled this issue at the political and administrative levels well. A virtual consequence is that refugees have to be treated under the law applicable to aliens in India, unless it makes a specific provision as it did in the case of Ugandan refugees of Indian origin when it passed the Foreigners from Uganda Order 1973.

The concept of `Refugee Law' in the Indian judicial system has evolved over a period of time. Due to lack of a refugee specific statute, the judicial system is constrained to enforce upon refugees, laws which are applicable to foreigners in general, thereby `consciously or subconsciously ignoring the unique predicament peculiar to refugees'. Continued developments through the courts, government and international fora will all contribute to the process of making additional space for the humanitarian and legal concerns of forced population movements which result in refugee flows.

The general principles of international law relating to refugees must be taken as incorporated directly into the Indian Constitutional Law via Article 21 particularly in view of the fact that India has acceded to the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, the 1989 Convention on the Rights of the Child, and the 1979 Convention of the Elimination of All Forms of Discrimination Against Women. No provision either in the Foreigners' Act 1946, nor the Registration of Foreigners' Act 1939, nor the Passport (Entry into India) Act 1920, nor the Passport Act 1967 deals in any manner with refugee law. But there is also "no domestic law in conflict with international conventions, treaties and resolutions related to refugees".

Also, the domestic Constitution and practices of the Republic of India are clearly embedded in human rights principles. The respected judicial system of this country has also been the high moral legal authority on human rights. The establishment, by an Act of Parliament in 1993, of the National Human Rights Commission has further demonstrated India's commitment to uphold the international human rights regime. The Constitution, the Judicial system, the Commissions, the dedicated organizations and individuals in the field of human rights have all contributed in the promotion and strengthening of the human rights regime in India.

In recent years, there has been a rise in regional processes of consultation, many of which have been initiated by UNHCR in partnership with NGOs and eminent personalities. Such initiatives have included annual sessions of the Asian - African Legal Consultative Committee, the Informal Consultation on Refugee and Migratory Movements in South Asia (also known as the Eminent Persons' Group) and the Meeting of the Asia - Pacific consultations. In addition, local NGOs have begun to take the initiative to convene discussion on refugee issues in South Asia lately. Such consultations, organized by the regionally-based human rights NGOs, are important steps on the path towards evolving a regional consensus on standards of refugee protection. Such meetings are a valuable part of the ongoing efforts, both formal as well as informal, to promote attention to refugee issues in South Asia.

It is hoped that with the changed global political scenario today as well as the emergent dynamics of the 21st century, India would make an earnest attempt to look into its decision and revise the same positively and become a party to the Refugee Convention and the Protocol.

Saumitra Mohan is an IAS officer presently working as an Additional District Magistrate, Hooghly in West Bengal. The views expressed here are author’s personal views and does not reflect those of the Government.

- Asian Tribune -

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