India’s dilemma - India needs to design and implement a national refugee law to ensure comprehensive national security

Kathmandupost, Aug 10, 2016: (MAHENDRA P LAMA)- India has not signed the international refugee instruments—the 1951 UN Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees—and has not enacted a national refugee law. Still, it has some interesting success stories in refugee management.

Refugees belonging to different races, professing various religions and hailing from several countries have been hosted in India. 

Many of them have mingled and merged under the overarching syndrome of generosity and common humanity. They have acquired citizenship rights like the Chakmas in Arunachal Pradesh. Some of them are actively mobilising political forces for acquiring other rights. In many instances though, the influx has been sudden and massive, and local support and responses have largely been spontaneous and hospitable. According to the latest report of the United National High Commissioner for Refugees “Global Trends: Forced Displacement in 2015” there are more than two lakh refugees in India. One can cite the example of over 100,000 Tibetan refugees in India who have been quietly and tightly integrated into Indian societies. Special and exclusive central schools were set up for educating Tibetan refugees; huge settlement colonies were built across Darjeeling, Dehradun, Sikkim, Karnataka and Madhya Pradesh. Even the Tibetan government-in-exile was allowed to be set up in Himachal Pradesh.

The management of East Pakistanis (Bangladeshis) in India is still afresh—over 10 million refugees came to Eastern and Northeastern India on the eve of the Bangladeshi liberation war in the early 1970s.

Undercurrents of conflicts

Not having a national refugee law or not signing the refugee convention is mainly attributed to national security. India believes that its national security is compromised when one or more of the three dimensions of the sate—the strategic, regime and structural—is threatened or eroded. The strategic security of any country is threatened when refugees are armed and the government loses control over them, the structural dimension is threatened by the increasing demands for or conflict over scarce resources in the host country and security of the regime is threatened when refugees enter the domestic political process and create pressures on the government. India has witnessed all these situations in some of its states in the past. At the same time, even ‘illegal immigrants’ like that from Bangladesh have generated these undercurrents of conflicts and instability in Assam in early 1980s.

At the same time, there are “dramatic examples”, not of the familiar story of wars producing refugees, but rather refugees producing wars. For instance, Indian participation in the war of liberation of Bangladesh against Pakistan was primarily based on the exodus of a large number of East Pakistanis into the Indian states of Assam and West Bengal. Earlier, the exodus in 1947 on both sides of the border in India and Pakistan had led to a near-war situation. The asylum given to the Tibetan refugees by India in 1959 after India recognised Tibet as an autonomous region of China under the 1954 agreement did contribute to the Sino-India war in 1962. In 1979, the Afghan refugees’ exodus to Pakistan was used as a major front in building the forces like the Mujahideens to wage a war against the Soviet occupied Afghanistan.

To ensure national security in a comprehensive sense, India needs to design and implement a national refugee law so that the state is clear in its actions on the refugees. India, at times, has been arbitrary and, to a large extent, myopic. The larger question is why this hesitation exists on the part of India.

Biased strategy

In India, the refugees are treated like any other aliens under the Foreigners Act, 1946 and the Passport Act, and are subject to domestic laws governing the entry and stay of foreigners. The absence of a legal refugee regime and immigration law has played havoc in the very use of the term “refugee” in India. In fact, while the administrative directives call these persons who have crossed the border to India such as Chakmas, Tibetans and Sri Lankan Tamils by the term “refugees”, this never figures in any legal document. In most of the cases, the refugee problems are handled on the basis of administrative policies. This act provides wide powers to the executive. There are both instances and chances of misuse of these powers by the administrative authorities.

In the last 40 years, four different situations have been broadly witnessed wherein India has (i) encouraged some refugees; (ii) favoured other refugees; (iii) discriminated against many of the refugees; and (iv) blatantly resisted some of the refugees. All these situations are primarily triggered by the absence of a national legislation and proper institutional backup to deal with these refugees. The question becomes much more complicated because there are 29 states, sometimes with diametrically opposite viewpoints on the acceptance and management of refugees. At times, one finds growing contradictions and clashes in the respective states’ perspectives and that of the Union government.

For instance, the Sri Lankan Tamil refugees were taken as refugees depending upon which party was in power in Tamil Nadu. For many years, the Sri Lankan Tamil refugees were in fact “encouraged” to come to India. However, Rajiv Gandhi’s assassination in 1991 swung the pendulum to the other extreme. They suddenly became unwanted. The state government of Tamil Nadu literally closed the gate for Tamil refugees. The Sri Lankan Navy, the Indian Navy and the Coast Guard stepped up vigil in the Palk Straits and impounded quite a few boats used by Sri Lankan and local fishermen for transporting the refugees.

Bhutanese refugees

Bhutan and Nepal do not share a common border. So the first country of asylum for the fleeing Bhutanese Lhotsampas was only India and the refugees came and tried to settle in the bordering Indian districts of Jalpaiguri and Darjeeling in 1989. They were physically removed by the security forces of West Bengal because the Bengal government thought it would add fuel to the Gorkhaland movement in Darjeeling and Dooars which had just ended in 1988. The people of this region have been fighting for statehood within India’s constitutional framework.

There are quite a number of unanswered questions in these incidents that show both violations of international norms, particularly the non-refoulement principle, which forbids the rendering of a true victim of persecution to his or her persecutor, and parochialism of the ruling elites in West Bengal. By not accepting the Bhutanese refugees as the first country of asylum, West Bengal and India violated a major international norm of refugee protection. It would not have been so had India ratified the international protection regimes and had a clear national law. Here the refugees were purely a local issue. The unwillingness to accept these refugees by the local-state political dispensations coincided with the Union Government’s long-term engagement of Bhutan on issues of geo-politics and strategic considerations. So it was a question of mutual accommodation.

There are situations where the centre and the related state have taken a different stand on the management of the refugees. This has led to tensions between the centre and the state. India must, therefore, have a national law for the management of refugees. This will be the first step towards an international humanitarian law regime. In fact, this could prompt all its South Asian neighbours to have such national regimes, eventually leading to a Saarc regional legal framework on refugee movements as no South Asian country has signed any of the 1951 Convention and the 1967 Protocol.

Lama, former member of National Security Advisory Board, Government of India, is a professor of South Asian Economies at Jawaharlal Nehru University, New Delhi and a member of the Eminent Persons Group (EPG) from India. He can be contacted at mahendralama1961@gmail.com