CITIZENSHIP

CITIZENSHIP

STATUS OF REFUGEES IN INDIA

According to United Nations High Commissioner for Refugees (UNHCR), a refugee is someone who has been forced to flee his or her country because of persecution, war or violence. Most likely they cannot return home or are afraid to do so.

Examples of Refugees in India

1. International Examples
   • Tibet Asylum: In 1959 Dalai Lama and his followers fled to India and were given political asylum. Dharamsala in Himachal Pradesh is the seat of Tibetan government in exile.
   • Chakmas and Hajongs: Migrated from Bangladesh around the 1960s. Also, during the liberation war of Bangladesh, 6 million refugees entered India.
   • Rohingyas: There are also an estimated 40,000 Rohingyas refugees in India, migrated from Myanmar.
   • Recent Case: Recently, there has been an influx of illegal migrants into India after the military coup and subsequent crackdown in Myanmar.
     • New Delhi’s concern is that if it takes a decision that irks the Generals in Myanmar, Beijing would get closer to the junta and use the opportunity to hurt India’s interests in Myanmar.
   • Sri Lankan Tamil refugees: Between 1983 to 1986 Sri Lankan Tamil refugees entered India. They reside in Tamil Nadu.
   • Afghan Refugee Crisis: Due to the Taliban’s recapturing of power.
2. Internal
   • Kashmiri Pandits: Estimates suggest up to 3 lakh Kashmiri pandits were displaced from Kashmir valley and today reside in Jammu and Delhi.
   • Bru refugees: Bru tribal people fled Mizoram after ethnic clashes and today almost 30,000 live in refugee camps in Tripura.
   • West Pakistan refugees: West Pakistan refugees comprise members of Hindu and Sikh communities who had migrated from erstwhile West Pakistan after partition in 1947 and settled in J & K. After the removal of article 370 and article 35A, they can now be given citizenship.

Causes of Refugee Crisis: Refugee crises may be caused by any number of reasons, but the most common are war (Bangladesh), domestic conflicts (Tibet, Sri Lanka), natural disasters (famine), environmental displacement, human trafficking, and—this one will turn up at all our doorsteps soon—climate change.

What is the status of refugees in India?

1. Constitutional Safeguards: There are some fundamental rights which are extended to all people in India, including refugees, such as equal protection to law under article 14, right to life under article 21, religious freedom under article 25, etc.
2. International Conventions
   • Refugee Convention, 1951: India is NOT a party to the 1951 refugee convention or its 1967 protocol.
   • Principle of Non-refoulment: In general, India respects the principle of non-refoulement of the refugee convention. (Non-refoulement is the practice of not forcing refugees to return to a country in which they are liable to be subjected to persecution.)
   • New York Declaration, 2016: India is a signatory of New York Declaration for Refugees and Migrants for a comprehensive approach to human mobility.
   • Global Compact for Safe, Orderly and Regular Migration, 2018: India has signed this non-binding, world’s first, intergovernmental negotiated agreement covering all dimensions of international migration in a holistic and comprehensive manner.
3. Domestic Laws
   • Specific Law or Policy: India does NOT have a national refugee protection framework or a specific law for refugees.
   • Foreigners Act, 1946: All refugees are considered illegal migrants under the Foreigners Act, 1946. It offers a simple definition of a foreigner i.e. “foreigner” means “a person who is not a citizen of India”. Under this act, the central government has unfettered discretion to expel foreigners from India.
   • The Passport (Entry into India) Act, 1920: The act empowered the government to make rules requiring persons entering India to be in possession of passports.
   • Citizenship Amendment Act, 2019: Under this, non-Muslim minorities from Pakistan, Afghanistan, and Bangladesh living in India will not be treated as illegal migrants (if they fulfill certain criteria) and hence are eligible for citizenship.
   • National Register of Citizens (NRC): Implemented in Assam, to keep a check on illegal migrants from Bangladesh.
4. Judicial Pronouncements
   • Hans Muller Case: In this, the Supreme Court upheld the powers of the central government under the Foreigners Act.
   • Louis De Raedt Case: Supreme Court also held that foreigners have a right to be heard.
   • Malavika Karlekar vs. UOI Case: Supreme Court upheld the principle of non-refoulment.
   • NHRC versus Arunachal Pradesh case, 1996: Judiciary extended article 14 and 20 to refugees.

What’s the difference between refugees and asylum seekers?

• Refugee: A refugee is someone who has been recognized as such by the host country and has been allowed to stay.
• Asylum seeker: A person who has claimed to be a refugee but his or her situation is yet to be evaluated by the authorities from the host country.

Issues/Challenges for India to deal with Refugee Crisis

1. Policy-related Challenges
   • Lack of differentiation b/w Refugees & Illegal Immigrants: As per Indian law, both categories of people are viewed as the same. Due to this, government policies and remedies to deal with these issues suffer from a lack of clarity as well as policy utility.

• Lack of Proper Legal Framework: India is legally ill-equipped to deal with refugees and illegal immigrants separately due to a lack of legal provisions. Also, India is not a party to the 1951 Refugee Convention and its 1967 Protocol.
• Ad-hocism: In dealing with refugees, this leads to policy ambiguity.
• Domestic Politicization: Refugee protection is influenced by political or geopolitical reasons, where the government in office chooses “what kind” of refugees it wants to admit and what kind it wants to avoid sheltering.
• Complicates Geopolitical Faultlines: Absence of a legal framework and politicization of refugee problems open the door for geopolitical considerations with criticism and interference in internal matters of India.
• Increasing Flow: Recent times have seen an increase in refugees, demanding a clear-cut policy directive.
• Credibility of India: As a responsible power, India’s credibility is questioned in the absence of a dedicated policy.
• Debates around CAA: The Government of India has passed the Citizenship Amendment Act (CAA), which envisages providing citizenship to people who are religious minorities in India’s neighborhood and persecuted by the state.

1. Refugee-Related Challenges
   • Political Problems:
     • Refugees do not enjoy certain fundamental rights, such as those under Article 19.
     • They also do not have a right to vote.
   • Economic Problems: Refugees find it very difficult to participate in formal jobs due to a lack of documents.
   • Social Problems:
     • Refugees are vulnerable to persecution and even vilification. For example, Rohingya refugees in India have been threatened with deportation.
     • They cannot access basic human rights such as schools, healthcare, and police protection.
   • Legal:
     • Refugees exist in a legally grey area and do not get basic legal documents like Aadhaar or PAN.
     • Sometimes UNHCR-issued refugee cards are not recognized by authorities.
     • They may not even get judicial protection. For example, the Supreme Court has allowed the deportation of Rohingyas.

Should India have a refugee policy?

1. Arguments in Favour
   • Basic Human Rights: Refugees will gain access to basic human rights, such as health, shelter, and education.
   • Consistency in Policy: Currently, the policy of giving asylum is largely ad hoc and influenced by politics.
   • Differentiated Approach: India should make a distinction between temporary migrant workers, illegal immigrants, and refugees, and address each group differently through proper legal and institutional mechanisms.
   • Better Monitoring of Refugees: A national policy and a law would facilitate better monitoring of refugees. India’s traditional approach, often ambiguous and politically expedient, has been counterproductive.
   • Reduced Illegal Migration: A formal refugee policy could help reduce illegal migration, as people will formally apply for asylum.
   • Inadequacy of Present Laws: The existing laws, such as the Foreigners Act of 1946, are inadequate to address the complex problems of refugees and asylum seekers.
   • Democratic Values: Major democracies around the world have a refugee policy.
2. Arguments Against
   • Flexibility: India needs the flexibility to decide on refugees based on their country of origin and relations with India.
   • Neighbourhood ‘Burden’: None of the neighboring countries have a refugee policy, and the burden of refugees often falls on India.
   • Strategic Ambiguity: India’s asylum policy of strategic ambiguity allows the government more leeway in making decisions related to asylum.

Why India has not signed the Refugee Convention (Arguments Against)

1. India-Related Reasons
   • Uphold Sovereignty: Signing the refugee convention could attract unnecessary interference from international bodies like the UN.
   • Porous Borders in South Asia: South Asia’s borders are porous, and any conflict could lead to mass migration, straining resources in India.
   • Stress on Limited Resources: As a developing nation, India might face an undue burden of resources.
   • Increased Responsibilities: Ratifying the convention imposes more obligations on a developing nation like India.
   • India’s Track Record: India already has one of the biggest refugee populations in South Asia.
   • Reduced Flexibility: Signing the convention could limit India’s flexibility in deciding on specific refugees.
   • Social Challenges: The refugee issue can impose economic burdens, trigger demographic changes, and pose security risks.
2. Convention-Related Reasons
   • Lop-Sided Definition of Refugee: The convention favors the West by focusing only on civil and political rights, not economic rights.
   • UNHCR Role: India is skeptical of UNHCR’s role.
   • Developed Countries’ Role: Developed countries often violate the convention in both letter and spirit.

Should India accede to the refugee convention?

• Inculcate Expertise: The convention is crafted by experts and could help India deal with new refugee challenges.
• Financial Assistance: International organizations could strengthen India’s efforts to improve refugee conditions.
• Ambiguity in the Problem: Given India’s geopolitical and social context, refugee flows are unlikely to end soon.

India should balance the situation by developing a domestic law that can accommodate the central government’s discretion in refugee matters on a case-by-case basis.

CITIZENSHIP AMENDMENT ACT, 2019

The Constitution of India deals with Citizenship from Article 5 to 11 under Part II. It empowers the Parliament to enact a law to provide for Citizenship, and accordingly, the Parliament has enacted the Citizenship Act, 1955. Recently, this Act was amended to add the following provisions.

Provisions of the Citizenship Amendment Act, 2019

• Protection to Selected Minorities: The Citizenship Amendment Act, 2003 amended the Citizenship Act, 1955, making illegal migrants ineligible for Indian Citizenship. However, the recent amendment grants citizenship to persecuted Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians from Afghanistan, Bangladesh, or Pakistan who entered India on or before 31 December 2014. These individuals will not be treated as illegal migrants, making them eligible for citizenship.
• Reduced Time Period: It relaxes the residency requirement for naturalization from 11 years to 5 years for eligible migrants.
• Exclusions: The amendment does not apply to Sixth Schedule Areas (tribal areas of Assam, Meghalaya, Mizoram, and Tripura) and Inner Line Permit areas (Arunachal Pradesh, Mizoram, and Nagaland).
• Added Ground for Cancellation of OCI Registration: The Act includes a provision for canceling OCI registration if the OCI violates the Act’s provisions or any other law as notified by the central government.

Concerns against the Amendment Act

1. Political Concerns
   • Centre-State Issues:
     • Dissent: States like Telangana, Bengal, Kerala, Punjab, and Rajasthan have passed resolutions opposing the Act.
     • Litigations: States such as Rajasthan and Kerala moved the Supreme Court against the Act under Article 131 of the Constitution.
   • Assam Accord: The Act is perceived to go against the spirit of the Assam Accord, potentially leading to the settlement of outsiders in Assam.
   • Joint Parliamentary Committee: The JPC recommended including “religious persecution” in the Act, but this phrase was omitted in the final version.
   • Misrepresentation of Data: For example, the share of non-Muslims in Pakistan has hovered around 3.5% from the first census onwards.
2. Arbitrariness in Policy
   • Procedural Delay: The Citizenship (Amendment) Act Rules have not been framed, causing delays. The Ministry of Home Affairs missed the deadline to notify rules for the third time since the Act’s passage.
   • Example: The Benami Transactions Act of 1988 serves as an example of a complete law that remains unimplemented due to a lack of regulations.
3. Choice of Countries: The Act includes only Bangladesh, Afghanistan, and Pakistan, while minorities in Sri Lanka and Myanmar also face persecution.
4. Unclear Definitions: The Act allows the cancellation of OCI registration for violating any law, a broad ground that could cover minor offenses.
5. Cut-off Date: No rationale is provided for choosing 31 December 2014 as the cut-off date.
6. Choice of Minorities: Some persecuted minorities, like the Ahmadiyas and Rohingyas (recognized as the most persecuted minority by the UN), are excluded.
7. Constitutional Obligations
   • Article 14: The Act makes certain migrants eligible for citizenship based on religion, which could violate Article 14, which guarantees equality.
   • Secularism: As a fundamental feature of the Constitution, secularism means that the Act’s religious criteria may face challenges for discrimination.
8. Judicial Scrutiny: The Act’s constitutionality is contested, with critics arguing that it violates the fundamental right to equality and basic structure. The Ali Sarkar Habib case in 1952 required intelligibility in differentiation and reasonableness in classification, which may not be satisfied here.
9. Economic Concerns
   • Competition for Resources: Granting citizenship could strain resources and reduce economic opportunities for Indian citizens, particularly in regions like the Northeast.
   • Government Expenditure: Increased expenditure may be required to provide services to migrants, while India’s spending on social sectors for its citizens is already below average.
10. Social Concerns
    • Social Capital: Protests against the Citizenship Amendment Act led to violence, destruction of public property, and economic disruption, especially in cities like Lucknow and Delhi.
    • New Fault Lines: The Act may create new divisions, particularly in the Northeast, where the Brahmaputra Valley supports the bill while the Barak Valley opposes it.
    • Demographic Change: The Act may alter local demographics, especially in the Northeast.
11. International Concerns
    • Afghanistan: Afghan citizens view India as a second home and have expressed concern over implications that minorities face persecution in Afghanistan.
    • Europe: The European Parliament considered voting on the Act, raising concerns during India-EU trade talks.
    • USA: The U.S. Commission on International Religious Freedom criticized the Act.
    • United Nations: The UN’s Office of the High Commissioner for Refugees (OHCHR) described the Act as “fundamentally discriminatory” and considered moving the Supreme Court against it.
    • Bangladesh: Bangladesh criticized the Act, straining diplomatic relations.
    • Nepal: Inspired by India’s Act, Nepal amended its citizenship law, requiring foreign women marrying Nepalese citizens to live in Nepal for seven years before gaining citizenship. This affects India-Nepal relations, especially the “Roti-Beti Rishta” (bread and daughters relationship).

Rationale/Need/Support/Validity of the Amendment Act

1. Human Rights
   • Support to Minorities: India has a moral obligation to protect religious minorities in neighboring countries who face persecution.

1. Demographic Change: The decreasing population of minorities in neighboring countries raises concerns about their persecution. For instance, the percentage of non-Muslims in Pakistan dropped from 23% at Independence to 3.7% in 2011.
2. Basic Rights for Minorities: Persecuted minorities residing in India will gain basic rights, such as self-employment, property ownership, and access to banking.
3. Uphold Constitutional Values
   • Article 14: Provides reasonable classification since these minorities face religious persecution in specific countries. This classification is viewed as reasonable.
   • Secularism: The Act does not exclude Muslim minorities from citizenship; rather, it eases the process for those facing severe persecution, aligning with secular values. Over 4,000 Muslims have received citizenship under this framework in recent years.
   • Reasonable Classification: The test of reasonable classification requires distinctions based on intelligible criteria, relevant in cases of religious persecution.
4. Internal Policy
   • Not Arbitrary: The selection of specific persecuted minorities from certain nations is a policy decision and not arbitrary. India has previously granted refugee status selectively, such as to Tibetans.
   • Policy Wisdom: Judicial review does not question the wisdom of policy decisions as long as they adhere to constitutional principles.
5. Other Reasons
   • Cultural Connect: Persecuted minorities from these nations share cultural ties with India.
   • Historical Context: The failure of the Nehru-Liaqat pact in 1950 to protect the rights of minorities in Pakistan and Bangladesh is one reason behind this legislation.
   • North East Concerns: The Act considers regional concerns, excluding Sixth Schedule and ILP areas in the Northeast.

Way Forward

• Religious Persecution: Amendments could make the Act non-discriminatory by offering citizenship to any person able to prove persecution based on religion, irrespective of their faith.
• National Refugee Policy and Refugee Law: Implementing a National Refugee Policy and Law would end arbitrariness in granting citizenship and improve clarity.
• Collaborative Approach: The government should foster a collaborative approach with all states, including the Northeast and neighboring countries, focusing on rational and humane solutions.
• Uphold Civilization Customs: As the birthplace of multiple religions, India has historically protected persecuted groups. It should continue to uphold this legacy by maintaining a non-discriminative approach.