Laws needed to regulate asylum practices in India



As salaam u alai kum,” the children spoke in chorus, excited at seeing a stranger walking towards their homes. They didn’t stop greeting aloud unless each one of them got an individual reply. “Walekum As salaam”. The children, all of them between two and four years of age, had big smiles on their muddy faces as they played barefoot with stones and pieces of wood. They were soon joined by a few older children who had returned from classes at a nearby madrassa. Their parents couldn’t afford to get them enrolled in elementary schools.

“None of these kids can speak Hindi. Only Arabic is taught at the madrassa. We don’t really care much about their education. It’s their stomachs that we have to fill first,” said Ali, holding his infant son suffering from a fever.

Set up five years ago in Madanpur Khadar area on the banks of the Yamuna in New Delhi, the refugee camp is home to around 50 families of Rohingyas, natives of neighbouring Myanmar who were forced to flee in the face of ethnic persecution. The camp is a slum of mostly double-story shanties put together with planks of wood, cardboard and tarpaulin.

At a tea stall run by Mohammad Haroon, a middle aged man who has been living in India for the past 12 years, a group of Rohingya men narrated their ordeals. Some of them recalled how they had to walk continuously for days on a hilly terrain to escape the tyranny of their own countrymen. “We barely managed to save our lives and flee with our only belongings being the clothes that we were wearing. Some of us had to steal a boat and go to Bangladesh via the four-km-long stretch of sea between Burma and Bangladesh.

After spending a few months there, I had to bribe middlemen on both sides of the border to cross over to India,” said Haroon.

The Rohingya Muslims hailing from Rakhine state (earlier Arakan) in Myanmar areoften referred to as the most persecuted people on Earth. According to historians, it’s likely that their forefathers lived in Myanmar since as early as the eighth century. However, the Myanmar government has been denying the minority community citizenship and any rights whatsoever. They have also been subjected by the military and majority Buddhists to various human rights violations of the most brutal form. There are restrictions on their freedom of movement, access to education, right to marry and have families.“They rape our mothers and sisters in front of our eyes. They take our men and boys as young as twelve years away and they never return. We never get to know what happens to them,” said Abdullah, who has been living at the camp for the past four years. “We have nowhere to go. We are a people without a country,” he said.

In the cabin-like hut below the tea stall lives Haroon’s sister with her family comprising a mother-in-law, sister-in-law, husband and three children. The inhabitants at the camp complain that it gets too claustrophobic to live in bunker-like homes. “This tiny space is where so many of us live cramped together. This is where we have to cook too. It’s manageable in winter but we are dreading as summer is approaching. It will get unbearable then,” said a burqa-clad woman who didn’t wish to reveal her name. There is no provision for sanitation and all the inhabitants — around 220 in number — have to defecate in the open. “Last year two children died because of snake bites. Children also keep falling sick because the water that we draw from a hand pump is contaminated,” said Hajima, a mother of four.

Even though they are unhappy about their living conditions and the meagre employment opportunities — most of them work as unskilled labourers, most of the people in the camp are happy to be in India. “We are hopeful of our life improving here.

Even though Bangladesh and Pakistan are Muslim countries, we don’t want to go there as they are bad countries. Look at all the bad things that Pakistan is doing to India. We want to live in India and are hopeful that the government will give us better facilities and rights like it has given to so many refugees from other places,” Haroon said while showing his refugee identity card issued by the United Nations Humanitarian Commission for Refugees (UNHCR).

Rohingya refugees live in camps in different parts of India — New Delhi, Jammu, Mewat in Haryana, Jaipur, Chennai and Hyderabad. Unfortunately, the Rohingyas are not the only community undergoing distress migration and living in refugee camps in different countries. Across the world, the situation is grim for an increasing number of people being displaced everyday due to conflict and civil war.

As more and more nations are closing their hearts and borders for asylum seekers, the government in India is facing growing pressure from civil society and activists to introduce a legal framework for the benefit of such displaced people. In India, there is no domestic law or policy framework to deal with the subject of refugees and asylum seekers. India is also not signatory to the 1951 Refugee Convention or the 1967 Protocol of the United Nations relating to the status of refugees. These legal documents — ratified by 145 out of the 195 countries in the world — define the term ‘refugee’ and outline the rights of the displaced as well as the legal obligations of the States to protect them.

However, India hosts one of the largest urban refugee populations in the world, especially in South Asia, despite the fact that the Indian government is not bound by any international or regional treaty or domestic legislation. All asylum seekers and refugees are dealt with under the Foreigners Act, 1946 and Registration of Foreigners Act, 1939.

As per a Supreme Court verdict, the Fundamental Right to Equality under Article 14 and the Right to Life and Personal Liberty under Article 21 of the Constitution extend to all foreigners, including refugees.

According to the Ministry of Home Affairs (MHA), standard operating procedures are issued by it to deal with foreign nationals in the country who claim to be refugees. Refugees are registered here under the mandate of the UNHCR following which they can apply for long-term visas that permit them to avail facilities at par with other foreigners such as employment in the private sector, access to education and health care. The MHA states that as in May 2015, there were 1,10,095 Tibetans, 1,01,896 Sri Lankans, 10,340 Afghans and 4,621 Myanmarese refugees in India.

As per the UNHCR, there are approximately 34,000 refugees and asylum-seekers registered with the organisation in India, of whom approximately 19,000 are from Myanmar and 12,000 from Afghanistan and in smaller numbers from countries in Africa such as Somalia and Congo and the Middle East such as Yemen. Tibetan and Sri Lankan asylum seekers have traditionally been recognised as refugees by the Indian government so they are not under the purview of the UNHCR.

The UNHCR stresses that despite not being bound by any local, regional or international legal framework, India presents a hospitable environment for refugees even as there is an overall depreciation in the global context of access to rights and services by refugees. “Although there is no national refugee framework in India and India hasn’t even signed the Convention, we do see that there is a traditional overall acceptance of refugees, especially in comparison to other countries in the region and beyond where despite having signed the Convention or having domestic frameworks in place refugees still don’t have access to any basic rights and services,” said Ipshita Sengupta, a policy associate at UNHCR, New Delhi. “A very important factor is that refugees can access territory in India which makes asylum accessible to them, unlike many other countries. This is very positive considering the global scenario where such access is shrinking,” she said.

However, legal experts and activists say that absence of a national asylum legislation does not reflect India’s long-standing humanitarian commitment to hosting refugees, and hampers its ability to address its growing needs as a regional power at the heart of migration movements. “A formal law would allow for the harmonisation of asylum practices, would legitimise refugees’ stay and prevent them from going underground, provide a firm structure and authority for the management of refugees and put forth a more effective mechanism for the regulation over entry, exit and stay of foreigners in a mixed migration context. Needless to say, it would also enable the State to frame a law contextual to India’s history, capacity and concerns and thereby avoid potential political friction between India and the countries of origin of refugees,” said Hamsa Vijayaraghavan of the Ara Trust, a New Delhi-based centre for refugee and migration policy and studies that also provides legal representation to asylum-seekers in the asylum process.

In December 2015, Congress Member of Parliament Shashi Tharoor introduced the Asylum Bill, 2015, as a Private Members’ Bill for enactment of a law to provide clarity and uniformity on the recognition of asylum seekers as refugees and their rights in the country. The Bill also seeks to end a system of ambiguity and arbitrariness which, too often, results in injustice to a highly vulnerable populace. The Bill is, however, yet to be taken up for consideration. India had in 1997 drafted a model law on refugees framed by Justice P.N. Bhagwati, a former Chief Justice of India, but it was not enacted. There was also the Refugees and Asylum Seekers (Protection) Bill, 2006, that was also stalled.

Even as the government’s ad-hoc decisions on granting asylum are widely criticised, there is a lack of political will towards legislation on this subject. Since asylum seekers do not constitute a vote bank, Parliamentarians would rather clear the other bills that are pending. Moreover, like everywhere else in the world, India too is wary of mass migrations as a large refugee influx could put pressure on the country’s limited resources and infrastructure considering its own enormous population.

Another reason for India’s reluctance towards a domestic law on refugees is that many countries in physical proximity to India have substantial populations of followers of Islam. An influx of too many Muslims into the country as a consequence of legal binding could disturb the demographic balance here. This is a highly sensitive issue politically. A law enabling more Muslims into the country could make the party-in-power unpopular with the Hindu majority. While India has a culturally diverse population, Hindu-Muslim friction flared up during the country’s partition in 1947 and conflicts between the two communities have been occurring time and again since then. The situation has become worse as a result of a spurt in Jihad-related terror activities and Islamophobia. With a staunchly fundamentalist right-wing party coming to power at the Centre in the 2014 General elections, there has been increasing polarisation in the country on religious lines. It is unlikely that a refugee law will be enacted by the ruling-BJP, known for its intolerance towards Muslims, that has a majority in the Lok Sabha.

There has been criticism from various quarters of the Citizenship Amendment Bill, 2006 that amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the Muslim-majority neighbouring countries of Afghanistan, Bangladesh and Pakistan, eligible for citizenship. The exclusion of asylum seekers belonging to the Muslim community from this list has been criticised as a violation of Article 14 (Right to Equality) of the Constitution.

According to MHA, over 12,800 applications for long-term visas and more than 1200 applications for grant of citizenship to people from minority communities from Pakistan had been received across the country as on February 8. A MHA spokesperson said that the ministry has sensitised all states to expedite the processing of long-term visa applications from minorities from Pakistan. As regards grant of Indian citizenship to Pakistani minority migrants, the MHA has delegated the power to grant Indian Citizenship to District Magistrates of 16 districts of seven states. Activists have criticised the Bill as an attempt to make discrimination against Muslims a key ingredient of India’s refugee and immigration policy.

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Wearing skinny jeans and a loose top, 21-year-old Farzana was talking about her approaching class 12 board exams. “I have about two months to study hard for the exams. I have already missed a few years of my education and want to finish school soon so that I can study commerce in college,” she said. Enrolled with the National School of Open Learning (NIOS), she said she was awaiting her long term visa from the Indian Government that would make her eligible to pursue higher education in the country. While her friend Sonia, 18, who came to India a year ago and is also enrolled in class 12 at NIOS wants to study law here, Burhan, 24, wants to complete his bachelors’ degree that was interrupted because he had to leave his home country.

The youngsters from Afghanistan said they were happy to be in India. “We like to live in India, specially in Delhi. We can feel at home here since it’s a versatile city. No one has a problem with us here. Everyone minds their own business,” said Burhan. They are being assisted by the Don Bosco Centre in New Delhi that is a Refugee Assistance Programme partner of the UNHCR. “All of us came here because of security reasons. We couldn’t live in our country because it wasn’t safe at all; we could die any moment. Back home there were too many restrictions, especially on the girls. But here we feel free. We are not afraid for our lives here,” he said.