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Should India become a signatory to the UN Refugee Convention,1951

Does India needs a refugee law to protect its borders and also should it become a signatory to the 1951 UN Refugee Convention?

The basic principal of International Law with respect to treaties, states that it would be binding in nature and the parties must act in accordance with good faith. A treaty can also be named as an International agreement, protocol, covenant, convention, pact and other terms connected with.

India is a party to various conventions including the Convention on the reduction of Statelessness, Territorial Asylum 1967, Universal Declaration of Human Rights (Article.14), International Convention on Civil and Political Rights (ICCPR), Convention on the Elimination of Discrimination against Women (CEDAW), International Convention on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child etc.

These treaties impose certain positive duties on India to rather protect the refugees. Parliament has the exclusive power to make certain rule of conduct to govern the laws relating to treaties and other agreements with foreign countries under Article 246 read with the entries 14, 15, 16 of the Union List of Indian Constitution. India is not a signatory of any written agreement or a codified provision related to UN Refugee Convention, 1951 and the protocol of 1967 but it is considered to be the shelter-home of countless migrants and refugees. The objective of immigration is to gain citizenship or nationality, eventually increase the population rate.

Being a South Asian Country, it does not have legal framework or any national, regional or international policies to protect the refugees too. This peculiar South Asian behaviour has been inferred with varied reasons which are not officially disclosed till date. India indirectly shows no enthusiasm to frame a refugee law by amending the Citizenship Act, 1955. The petitioners who filed numerous petitions against the Act said that the bill is against the Muslim minorities and thus violates the vary preamble of the Constitution of India which states that there should not be any kind of discrimination in the basis of religion, race, caste, sex etc. but the proposed bill seems to be discriminatory in nature.

What is UN Refugee Convention, 1951 all about?

UNHCR (United Nations High Commissioner for Refugees) also known as Refugee Agency acts as the �guardian� of UN Convention, 1951 and the protocol of 1967. The convention to the status of refugees also termed as Geneva Convention of 28 July, 1951 which came into force on April 22, 1954, is a multilateral treaty which outlines the rights of refugees deposed, the rights and duties granted to nation towards them. It is based on Article 14 of UDHR (Universal Declaration of Human Rights), 1948.

It was initially formed to protect certain European Refugees after the World War-II. The protocol of 1967 was adopted with the changing circumstances and emergence of new refugee situation which in turn omits the time limit (before 1 January, 1951) being applied on refugees without any geographic limitation and Article 1 was amended as the �Supreme Law of Land.� The official data till January 20, 2020 reported that a total of 146 countries across the world are parties to the convention and 147 countries to the protocol. The parties are obliged to follow the core principle of �non-refoulement� which describes that a refugee should not be returned to a country where they tend to face serious threats to their life.

This principle is now considered as a rule of customary International Law. The legislation provides that the state should cooperate with UNHCR in order to respect and protect the rights of Refugees. The convention also specifies that the complaints should be referred to the International Court of Justice. In case, any of the contracting parties violates the terms and conditions of the convention, the only real consequences till date could be public shaming in the media; verbal condemnation by UN and other authoritative nations.

Who is a Refugee?

Article 1(A)(2) of the UN Convention, 1951 states that, �a refugee is a person being displaced or persecuted from a country due to the refugee crisis before 1 January, 1951. The refugee crisis refers to the reasons of race, religion, nationality, membership of a particular social group or political opinion.

Suggestions And Recommendations:
I believe every situation has three perspectives. One is right, the other is wrong and the third which is the actual truth. If both the UN Refugee Convention and the domestic law (Municipal Law) come into existence, there is no scope for deviation left. It would be the most efficient manner with lesser arbitrariness. The result would be a definite refugee mechanism.

Should India become a signatory to the 1951 UN Refugee Convention?
No, India doesn�t need a Refugee Law to protect its borders rather it needs a domestic law to protect the refugees.

It is needless to mention that India faces a lot of criticism and pressure in order to ratify the Refugee Convention of 1951 and its protocol of 1967. The Partition of India in 1947 remarked as the most painful population displacement in the history where millions of people from Pakistan settled in Delhi, Punjab and Bengal.

It hosts over 2,00,000 refugees, victims of civil strife, war in Tibet, Bangladesh, Sri Lanka, Pakistan, Afghanistan and Myanmar, about 1,00,000 people made a way from Nepal with no legal status, no citizenship posing a threat to the national security. Pt. Jawaharlal Nehru (THE PRIME MINISTER OF INDIA) chose not to sign the UN Convention of 1951 at that time due to the unnecessary interference in internal matters of the country and the porous nature of borders in South Asia. India doesn�t have on its statute book a specific and separate law to govern refugees but it has certain policies and privileges given to them.

Constitutional Protection:

On humanitarian grounds, India has signed a couple of treaties for the protection of refugees and asylum-seekers. Article 14, 21, 22, 25-28, 32 and 226 of the Constitution guarantees protection to citizens and non-citizens though some of the rights cannot be made into reality such as the right to self-employment and access to work if permissible. Such real practices are arbitrary in nature in all the matters concerning refugees.

Case Laws:
Refugees have been accorded constitutional protection by the Judiciary in �Louis De Raedt vs. Union of India� as non-citizens have the fundamental and the right of life is also followed by the right against arrest and detention. The Supreme Court of India also held that Article 14 and Article 21 must get extended to refugees as well. Thus, a mere piece of paper to become a signatory to the Refugee Convention of 1951 doesn�t invalidate the working policies for refugees.

There are certain drawbacks if India would become a signatory to the Convention:

  • The Convention is legally binding on the contracting parties. If India would be a party to the Convention, it will be an obligation to accept the refugees and must adhere to the principle of non-refoulement. Two Rohingya Refugees filed a case against a proposal which deports 40,000 people, out of which 14,000 refugees had certified by UNHCR. It was submitted that the codified provision of non-refoulment is binding only on the contracting parties. The scope of ICCPR doesn�t extend to the core principle of Non-refoulement.
It imposes a threat on national security because not every persecuted person is refugee. Some are illegal migrants, war criminals, spies etc. they can only be recognized after their entry (Fear of the unknown). Thus, in absence of the convention India could easily reject the migrants if necessary.

In INS vs. Cardoza Fouseca the term well-founded fear in Article 1 of the convention indicates so long as the situation is established by the evidence, it is not enough that the displacement of persons is a reasonable possibility.

The judgment in R vs. Secretary of State for the Home Department also suggests that there must be a reasonable test to identify the real and substantial danger of persecution
  • India being a developing nation is unable to provide the basic amenities to its own population and on the top of it there is added burden to provide the resources to refugees (Drain of Resources by Refugees). It will create extraordinary problems for India to deal with the massive refugee influx. For instance, in May 1971 the Hindustan Standard reported that over nine lakhs of refugee at the time of Indira Gandhi government were suffering from Cholera due to the drain of resources by refugees.
  • The all-time war situations between India and Pakistan may lead the dispersion of terrorist activities to another next level. Because it is assumed that the root cause of terrorism is Pakistan. The Agreement would double the rate of terror attacks now after the revocation of Article 370 of Indian Constitution.
  • Refugees may tend to seek the informal job opportunities which can result into the high rate of unemployment and poverty rate in the country.
  • The ratification of the convention imposes more obligation and responsibilities on the poor yet developing nation like India.

Domestic law will provide the basic protection to the refugees because the rights provided are not real. They are merely the privileges. It also provides a transparent and fair status to the refugees (Easy identification). Provisions related to the protection of women and children, abolition of discrimination and other provisions of housing, employment etc. could be a major part of the law. Definition of Refugees in Domestic Law must include the internally displaced people due to the reasons of natural calamities and terror attacks.

Yes, India should become a signatory to the 1951 UN Refugee Convention
India has the tendency to dominate over other sovereign States. It should become a signatory of the South Asian Refugee Convention. Reason being, the scope and definition of refugee will get wider and as the convention is being drafted by the experts at UN conference of 146 countries, it will stand out as numerous advantages to deal with the changing situations of new refugees (Background, knowledge and skills). It also enhances the foreign relations of India with other sovereign States.

In Malvika Karlekar vs. Union of India , the Supreme Court upheld an interpretation of Article 21 of COI to include the principle of non-refoulment. In this case, a stay order was passed not to deport two Iraqi nationals to their country.

India is a home to diverse groups of refugees, ranging from Buddhist Chakmas from the Chittagong Hill Tracts of Bangladesh, to Bhutanese from Nepal, Muslim Rohingyas from Myanmar and small populations from Somalia, Sudan and other sub Saharan African countries. Like India, Pakistan, Malaysia and Indonesia are also non-signatories of the Convention because they do not agree to attract refugees from neighbouring countries. Also, people from other countries fleeing in much larger numbers without the legal documents in order to, fuelled the protests or any other reasons.

The convention has been gone through endless debates, discussions, criticism over which is the best way out for India to deal with the refugees in an effective and efficient manner. I think they both should peacefully co-exist after considerable amount of security and protection to the stateless or homeless refugees. If India being a place of millions of refugees and capable enough to support the concept of burden sharing then it can also dilute the principle and accept the terms/conditions to become a contracting party to the convention.

Points to mention:
  • Citizenship Act was amended on 11 December, 2019 under which the migrants who had entered India by 31 December, 2014 and had suffered �religious persecution or fear� in their country of origin were made eligible for citizenship.
  • Article 2 states that the refugees shall abide by the national laws of the Contracting States. Article 3-Article 26.
  • Article 14 recognizes the right of persons to seek asylum from persecution in other countries.
  • Article 33(1) states that no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
  • Article 38 of the Convention relating to the status of Refugees.

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