The plastic roof of Anwara Begum’s shanty in Kalindi Kunj is scant protection against the bitter cold of Delhi. But Begum may not be able to retain even this 8ft by 6ft hut for long. She is one of the thousands of Rohingyas who have fled the Arakan area of western Myanmar over the past two years fearing atrocities by the state and have come to India seeking refuge.
Thirty kilometres away in north Delhi’s Majnu Ka Tila, Penba Dolma, a Tibetan, lives in a two-roomed house. Her two children go to a nearby Tibetan school and her husband runs a shop.
“Even though we are hopeful that we would go back to our country one day, India has become a second home now,” says Dolma.
Both Begum and Dolma are refugees in India. But the two lead very different lives. Begum feels like an alien here while Dolma has a sense of belonging to India. This is because India doesn’t treat its refugees alike as it does not have a standardised law for them.
India is home to over 4.5 lakh refugees from various countries, including Tibet, Myanmar, Nepal, Bhutan, Sri Lanka, Pakistan, Afghanistan, Somalia, Congo, Iran, Iraq and Sudan. But refugees from different countries are treated differently here. For example, schools are set up for Tibetans and they have been offered acres of agricultural land in Himachal Pradesh’s Dharamshala. Similarly, designated camps have been set up in Tamil Nadu for the Sri Lankan refugees. Bhutanese and Nepalese live in India under friendship treaties. Some refugees even get work permits. But refugees from other countries don’t enjoy these privileges.
“The status of refugees in India is governed by political discretion rather than any codified model of conduct. A law on refugees is an urgent need to ensure that uniform treatment is given to all,” says Delhi-based lawyer Aarthi Rajan, who deals with refugee-related cases.
Not only does India not have a special refugee law, it is not even a signatory to the UN Refugee Convention, 1951, which was later amended to the 1967 Refugee Protocol. According to it, a refugee is a person who has left his or her own country because of fear of persecution for race, religion, nationality, membership of a particular social group or political opinion and is unable to or, owing to such fear, is unwilling to return to it. Under the Convention, refugees enjoy rights pertaining to their movement, jobs, housing, public education and social security in the country of their refuge.
Experts say that India’s treatment of refugees is discretionary because it is not a signatory to this Convention. But the government points out that there is little to be gained by ratifying it. “Except for Afghanistan, none of the other south Asian countries is a signatory to it, so it doesn’t make sense for India to ratify the Convention,” says a senior ministry of external affairs (MEA) official.
At present, refugees, except for those from Tibet and Sri Lanka, register themselves as asylum seekers with the UN refugee agency, United Nations High Commissioner for Refugees (UNHCR).
“The terms ‘asylum seeker’ and ‘refugee’ are often confused. An asylum seeker is one who claims to be a refugee, but whose claim has not yet been definitively evaluated. But we conduct their interviews and grant them refugee status over a period of nine months,” says Nayana Bose, associate external relations officer, UNHCR.
But interestingly, India does not recognise the UNHCR’s grant of refugee status. This often leads to confusion among refugees.
An attempt was once made to frame a holistic law related to refugees. Former Chief Justice of India, P.N. Bhagwati, had drafted a model refugee law, based on which the Refugees and Asylum Seekers Protection Bill was framed in 2006. But the bill was never tabled in Parliament. According to security forces it gave too broad a definition of the term “refugee”.
The bill stated that the determination of an application for asylum should not be limited to fear of persecution by the government alone. The asylum seekers may also be victims of a non-government group that makes it untenable for them to live in their native country.
Security forces argued that this would pose a danger to national security as India shares porous borders with neighbouring countries. “This provision would have allowed illegal migrants to come to India under the garb of a refugee,” says a Border Security Force official.
A senior MEA official echoes a similar concern. “Since there is no clear differentiation between a refugee and an illegal migrant either in the convention or the model law, this would aggravate our problems of illegal immigration and insurgency,” says Rohita Mishra, under secretary, United Nations Economic Social Division, MEA.
Apart from the danger of illegal migrants posing as refugees, there have also been some instances of refugees being tried as illegal migrants. Recently, a Rohingya family, which was trying to make its way to the UNHCR office in Delhi, was arrested by the police. All the family members were tried and convicted under the Foreigners Act, 1946, for being illegal immigrants.
“Currently, refugees are being dealt with under the Foreigners Act, but this law does not deal with the term ‘refugee’. Here, the term ‘foreigner’ is used to cover aliens temporarily or permanently residing in the country. That’s the reason why India should formulate a law with a clear definition of a refu-gee to ensure that no refugee is apprehended as an illegal migrant,” says advocate Shubhodeep Roy, who has worked on cases related to refugees.
Rajan suggests that fugitives or persons fleeing from criminal prosecution for non-political reasons should be kept out of the ambit of the definition of refugee. The law should also have the provision for non-refoulement, “which means that a refugee cannot be sent back to the place from which he has fled so long as the compelling circumstances persist,” she adds.
Activists are also pushing for a law that will deal with harassment of refugees. “Cops often extort money from refugees. At times, even our children are subjected to abuse. We want a humane law that would safeguard our interests,” says Suraiya Ebadi, a refugee from Afghanistan.
The UNHCR too has been urging India to come up with a national law. “Building upon what is already being done for refugees in India, a national legal framework will formalise India’s tradition of hospitality and generosity towards refugees,” says Bose.
Until that happens, people like Ebadi and Begum will continue to live in fear and insecurity.
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